AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 29, 2007 by and among TRUNKLINE LNG HOLDINGS LLC as the Borrower PANHANDLE EASTERN PIPE LINE COMPANY, LP as a Guarantor CROSSCOUNTRY CITRUS, LLC as a Guarantor and THE FINANCIAL INSTITUTIONS NAMED...
AMENDED
AND RESTATED CREDIT AGREEMENT
dated
as of June 29, 2007
by
and among
TRUNKLINE
LNG HOLDINGS LLC
as
the Borrower
PANHANDLE
EASTERN PIPE LINE COMPANY, LP
as
a Guarantor
CROSSCOUNTRY
CITRUS, LLC
as
a Guarantor
and
THE
FINANCIAL INSTITUTIONS NAMED HEREIN
as
the Banks
and
BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH
as
the Administrative Agent
BANK
OF AMERICA, N.A.
as
the Syndication Agent
JPMORGAN
CHASE BANK, N.A., BAYERSICHE LANDESBANK, NEW YORK BRANCH and MIZUHO
CORPORATE BANK LTD.
as
the Co-Documentation Agents
and
UNICREDIT
MARKETS & INVESTMENT BANKING acting through BAYERISCHE HYPO- UND VEREINSBANK
AG and BANC OF AMERICA SECURITIES LLC
as
the Joint Lead Arrangers and Joint Book Managers
NEWY1\8114089.7
TABLE
OF
CONTENTS
Page
|
CERTAIN
DEFINITIONS
|
1
|
|
|
1.1
|
Defined
Terms
|
1
|
|
|
1.2
|
Computation
of Time Periods; Other Definitional
Provisions
|
15
|
|
|
1.3
|
Accounting
Terms
|
16
|
|
2.
|
AMOUNTS
AND TERMS OF THE LOANS
|
16
|
|
|
2.1
|
The
Loan
|
16
|
|
|
2.2
|
Making
of the Loans
|
16
|
|
|
2.3
|
Repayment
of the Loan
|
17
|
|
|
2.4
|
Termination
of the Commitments
|
17
|
|
|
2.5
|
Prepayments
|
17
|
|
|
2.6
|
Interest
|
18
|
|
|
2.7
|
Fees
|
19
|
|
|
2.8
|
Conversion
of Loans
|
19
|
|
|
2.9
|
Increased
Costs, Etc
|
20
|
|
|
2.10
|
Payments
and Computations
|
21
|
|
|
2.11
|
Taxes
|
23
|
|
|
2.12
|
Sharing
of Payments, Etc
|
26
|
|
|
2.13
|
Use
of Proceeds
|
26
|
|
|
2.14
|
Evidence
of Debt
|
27
|
|
|
2.15
|
Replacement
of Banks
|
27
|
|
3.
|
REPRESENTATIONS
AND WARRANTIES OF THE LOAN PARTIES
|
28
|
|
|
3.1
|
Organization
and Qualification
|
28
|
|
|
3.2
|
Authorization,
Validity, Etc
|
28
|
|
|
3.3
|
Conflicting
or Adverse Agreements or Restrictions
|
29
|
|
|
3.4
|
No
Consents Required
|
29
|
|
|
3.5
|
Financial
Statements
|
29
|
|
|
3.6
|
Litigation
|
30
|
|
|
3.7
|
Default
|
30
|
|
|
3.8
|
Compliance
|
30
|
|
|
3.9
|
Title
to Assets
|
30
|
|
|
3.10
|
Payment
of Taxes
|
31
|
|
|
3.11
|
Investment
Company Act Not Applicable
|
31
|
|
|
3.12
|
Regulations
G, T, U and X
|
31
|
|
|
3.13
|
ERISA
|
31
|
|
|
3.14
|
No
Financing of Certain Security Acquisitions
|
31
|
|
|
3.15
|
Franchises,
Co-Licenses, Etc
|
31
|
|
|
3.16
|
Environmental
Matters
|
32
|
|
|
3.17
|
Existing
Liens
|
32
|
|
|
3.18
|
Disclosure
|
32
|
|
-i-
|
NEWY1\8114089.7 |
TABLE
OF
CONTENTS
(continued)
Page
|
|
3.19
|
Insurance
|
33
|
|
|
3.20
|
Subsidiaries
|
33
|
|
4.
|
CONDITIONS
TO THE CLOSING DATE
|
33
|
|
|
4.1
|
Representations
True and No Defaults
|
33
|
|
|
4.2
|
Intentionally
Omitted
|
33
|
|
|
4.3
|
Compliance
With Law
|
33
|
|
|
4.4
|
Notice
of Borrowing and Other Documents
|
34
|
|
|
4.5
|
Payment
of Fees and Expenses
|
34
|
|
|
4.6
|
Repayment
of Debt
|
34
|
|
|
4.7
|
Loan
Documents Satisfactory
|
34
|
|
|
4.8
|
Inter-Company
Note Satisfactory
|
34
|
|
|
4.9
|
Loan
Documents, Opinions and Other Instruments
|
34
|
|
|
4.10
|
PATRIOT
Act
|
35
|
|
5.
|
AFFIRMATIVE
COVENANTS OF THE LOAN
PARTIES35
|
|
|
5.1
|
Financial
Statements and Information
|
35
|
|
|
5.2
|
Books
and Records
|
36
|
|
|
5.3
|
Insurance
|
36
|
|
|
5.4
|
Maintenance
of Property
|
36
|
|
|
5.5
|
Inspection
of Property and Records
|
36
|
|
|
5.6
|
Existence,
Laws, Obligations, Taxes
|
36
|
|
|
5.7
|
Notice
of Certain Matters
|
37
|
|
|
5.8
|
ERISA
|
37
|
|
|
5.9
|
Compliance
with Environmental Laws
|
38
|
|
6.
|
NEGATIVE
COVENANTS OF PANHANDLE
EASTERN39
|
|
|
6.1
|
Financial
Covenant
|
39
|
|
|
6.2
|
Liens,
Etc
|
39
|
|
|
6.3
|
Debt
|
39
|
|
|
6.4
|
Change
in Nature of Business
|
40
|
|
|
6.5
|
Mergers,
Consolidation
|
40
|
|
|
6.6
|
Sale
of Assets
|
40
|
|
|
6.7
|
Restricted
Payments
|
40
|
|
|
6.8
|
Sales
and Leasebacks
|
41
|
|
|
6.9
|
Transactions
with Related Parties
|
41
|
|
|
6.10
|
Hazardous
Materials
|
41
|
|
7.
|
NEGATIVE
COVENANTS OF THE BORROWER
|
41
|
|
|
7.1
|
Liens,
Etc
|
41
|
|
|
7.2
|
Debt
|
42
|
|
-ii-
|
NEWY1\8114089.7 |
TABLE
OF
CONTENTS
(continued)
Page
|
|
7.3
|
Merger,
Consolidation
|
42
|
|
|
7.4
|
Sale
of Assets
|
43
|
|
|
7.5
|
Restricted
Payment
|
44
|
|
|
7.6
|
Securities
Credit Regulations
|
44
|
|
|
7.7
|
Nature
of Business
|
44
|
|
|
7.8
|
Transactions
with Related Parties
|
44
|
|
|
7.9
|
Hazardous
Materials
|
44
|
|
|
7.10
|
Use
of Proceeds
|
44
|
|
|
7.11
|
Changes
to Inter-Company Note or Other Debt
Documents
|
44
|
|
8.
|
NEGATIVE
COVENANTS OF CCC
|
45
|
|
|
8.1
|
Liens,
Etc
|
45
|
|
|
8.2
|
Debt
|
45
|
|
|
8.3
|
Merger,
Consolidation
|
46
|
|
|
8.4
|
Sale
of Assets
|
46
|
|
|
8.5
|
Restricted
Payment|
|
47
|
|
|
8.6
|
Securities
Credit Regulations
|
47
|
|
|
8.7
|
Nature
of Business
|
47
|
|
|
8.8
|
Transactions
with Related Parties
|
47
|
|
|
8.9
|
Hazardous
Materials
|
47
|
|
|
8.10
|
Use
of Proceeds
|
48
|
|
|
8.11
|
Other
Documents
|
48
|
|
9.
|
EVENTS
OF DEFAULT; REMEDIES
|
48
|
|
|
9.1
|
Failure
to Pay Obligations When Due
|
48
|
|
|
9.2
|
Intentionally
Omitted
|
48
|
|
|
9.3
|
Failure
to Pay Other Debt
|
48
|
|
|
9.4
|
Misrepresentation
or Breach of Warranty
|
49
|
|
|
9.5
|
Violation
of Certain Covenants
|
49
|
|
|
9.6
|
Violation
of Other Covenants, Etc
|
49
|
|
|
9.7
|
Bankruptcy
and Other Matters
|
49
|
|
|
9.8
|
Dissolution
|
49
|
|
|
9.9
|
Undischarged
Judgment
|
50
|
|
|
9.10
|
Loan
Documents
|
50
|
|
|
9.11
|
Change
of Control
|
50
|
|
|
9.12
|
Other
Remedies
|
50
|
|
|
9.13
|
Remedies
Cumulative
|
50
|
|
10.
|
THE
ADMINISTRATIVE AGENT
|
51
|
|
|
10.1
|
Authorization
and Action
|
51
|
|
|
10.2
|
Administrative
Agent’s Reliance, Etc
|
51
|
|
|
10.3
|
Defaults
|
52
|
|
-iii-
|
NEWY1\8114089.7 |
TABLE
OF
CONTENTS
(continued)
Page
|
|
10.4
|
HVB
and Affiliates
|
52
|
|
|
10.5
|
Non-Reliance
on Administrative Agent and Other Banks
|
52
|
|
|
10.6
|
Indemnification
|
52
|
|
|
10.7
|
Successor
Administrative Agent
|
53
|
|
|
10.8
|
Administrative
Agent’s Reliance
|
53
|
|
11.
|
GUARANTY
|
54
|
|
|
11.1
|
Guaranty
|
54
|
|
|
11.2
|
Guaranty
Absolute
|
54
|
|
|
11.3
|
Waivers
and Acknowledgments
|
55
|
|
|
11.4
|
Subrogation|
|
56
|
|
|
11.5
|
Subordination
|
56
|
|
|
11.6
|
Continuing
Guaranty
|
57
|
|
12.
|
MISCELLANEOUS
|
57
|
|
|
12.1
|
Amendments,
Waivers, Etc
|
57
|
|
|
12.2
|
Reimbursement
of Expenses
|
59
|
|
|
12.3
|
Notices
|
59
|
|
|
12.4
|
Governing
Law
|
62
|
|
|
12.5
|
Waiver
of Jury Trial|
|
62
|
|
|
12.6
|
Consent
to Jurisdiction
|
62
|
|
|
12.7
|
Survival
of Representations, Warranties and
Covenants
|
63
|
|
|
12.8
|
Counterparts
|
63
|
|
|
12.9
|
Severability
|
63
|
|
|
12.10
Descriptive
Headings 63
|
|
|
12.11
Accounting Terms
64
|
|
|
12.12
Limitation of
Liability
64
|
|
|
12.13
Set-Off
64
|
|
|
12.14
Sale or
Assignment
64
|
|
|
12.15
Interest
68
|
|
|
12.16
Indemnification
69
|
|
|
12.17
Payments Set
Aside
70
|
|
|
12.18
Loan Agreement
Controls
70
|
|
|
12.19
Obligations
Several
70
|
|
|
12.20
Final
Agreement
70
|
|
-iv-
|
NEWY1\8114089.7 |
Annex
1 Commitments
Exhibit
A Note
Exhibit
B Assignment
and Acceptance
Schedule
3.1 Subsidiaries
Schedule
3.10 Tax
Matters
Schedule
3.14 ERISA
Matters
Schedule
3.17 Environmental
Matters
8059018-6
NEWY1\8114089.7
AMENDED
AND RESTATED CREDIT AGREEMENT dated as of June 29, 2007 among TRUNKLINE LNG
HOLDINGS LLC a limited liability company organized under the laws of Delaware
(the “Borrower”), PANHANDLE EASTERN PIPE LINE COMPANY, LP, a
limited partnership organized under the laws of Delaware (“Panhandle
Eastern”), CROSSCOUNTRY CITRUS, LLC, a limited liability company
organized under the laws of Delaware (“CCC”), the financial
institutions listed on the signature pages hereof and any other Person that
shall have become a party hereto pursuant to an Assignment and Acceptance,
other
than any such Person that ceases to be a party hereto pursuant to an Assignment
and Acceptance (collectively, the “Banks” and,
individually, a “Bank”); BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH (“HVB”), in its capacity as administrative
agent (together with its successors and assigns in such capacity, the
“AdministrativeAgent”) for the Banks
hereunder, Bank of America, N.A. as the Syndication Agent (the
“Syndication Agent”), JPMorgan Chase Bank, N.A., Bayerische
Landesbank, New York Branch and Mizuho Corporate Bank Ltd., as the
Co-Documentation Agents (the “Co-Documentation Agents”), and
Unicredit Markets & Investment Banking acting through HVB and Banc of
America Securities LLC (“BAS”) as the joint lead arrangers and
joint book managers (collectively, the “Joint Lead Arrangers”
and “Joint Book Managers”):
PRELIMINARY
STATEMENTS:
1. Pursuant
to the Original Credit Agreement (as defined below), the Borrower obtained
a
senior unsecured term loan in an aggregate principal amount of $465,000,000,
which amount was subsequently reduced to $442,848,206.99. The
Borrower desires to amend the Original Credit Agreement to extend the maturity,
change the pricing, and change certain other terms and conditions of the
senior
unsecured term loan financing provided thereunder (as so amended, the
“Financing”).
2. The
Banks have indicated their willingness to provide the Financing, but only
on and
subject to the terms and conditions of this Agreement, including the guaranty
set forth herein.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, the parties hereto hereby agree as
follows:
1. CERTAIN
DEFINITIONS.
1.1 Defined
Terms. As used in this Agreement, the following terms shall
have the following meanings:
“Administrative
Agent” shall have the meaning set forth in the preamble
hereto.
“Affiliate”
shall mean any Person controlling, controlled by or under common control
with
any other Person. For purposes of this definition, “control”
(including “controlled by” and “under common control with”) shall mean the
possession, directly or indirectly, of the power to
direct
or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or otherwise. If any
Person shall own, directly or indirectly, beneficially or of record, twenty
percent (20%) or more of the voting equity (whether outstanding capital stock,
partnership interests or otherwise) of another Person, such Person shall
be
deemed to be an Affiliate.
“Agreement”shall
mean this Amended and Restated Credit Agreement, as the same may be amended,
modified, supplemented or restated from time to time.
“Alternate
Base Rate” shall mean, for any day, a rate per annum equal to the
greater of: (a) the Prime Rate in effect on such day and (b) 0.50% per annum
above the Federal Funds Rate in effect on such day. The Alternate
Base Rate is an index rate and is not necessarily intended to be the lowest
or
best rate of interest charged to other customers in connection with extensions
of credit or to other banks. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Rate shall be effective
from and including the effective date of such change in the Prime Rate or
the
Federal Funds Rate, respectively.
“Alternate
Base Rate Loan” shall mean any Loan which bears interest as described
in Section 2.6(a)(i) (Interest).
“Applicable
Lending Office” shall mean, with respect to each Bank, such Bank’s (a)
Domestic Lending Office in the case of an Alternate Base Rate Loan; and (b)
Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
“Applicable
Margin” shall mean with respect to (a) Alternate Base Rate Loans, a
percentage per annum set forth below under the caption “Alternate Base Rate
Loan” and (b) Eurodollar Rate Loans, subject to the provisos set forth
below, a percentage per annum set forth below under the caption “Eurodollar Rate
Loan,” in each case determined by reference to the rating of Panhandle Eastern’s
unsecured, non-credit enhanced Senior Funded Debt (effective from and after
the
date the applicable change of such a debt rating is first announced by the
applicable rating agency):
|
Category
|
Rating
of Panhandle Eastern’s unsecured, non-credit enhanced Senior Funded
Debt
|
Eurodollar
Rate Loan
|
Alternate
Base Rate Loan
|
|
A
|
Equal
to or higher than Baa1 by ▇▇▇▇▇’▇ Investor Service, Inc. / BBB+ by
Standard and Poor’s Ratings Group
|
0.350%
|
0%
|
|
B
|
Baa2
by ▇▇▇▇▇’▇ Investor Service, Inc. /
BBB
by Standard and Poor’s Ratings Group
|
0.450%
|
0%
|
|
C
|
Baa3
by ▇▇▇▇▇’▇ Investor Service, Inc. /
BBB-
by Standard and Poor’s Ratings Group
|
0.550%
|
0%
|
|
D
|
Ba1
by ▇▇▇▇▇’▇ Investor Service, Inc. /
BB+
by Standard and Poor’s Ratings Group
|
0.875%
|
0%
|
|
E
|
Below
Ba1 by ▇▇▇▇▇’▇ Investor Service, Inc. /
BB+
by Standard and Poor’s Ratings Group
|
1.125%
|
0.125%
|
NEWY1\8114089.7
2
provided
that, upon the occurrence of an SUG Change of Control, the Applicable Margin
for
Eurodollar Rate Loans and for Base Rate Loans shall be increased by (i) when
the
applicable rating category is A, B, D or E, 1.000% above the Applicable Margin
otherwise in effect at such time with respect to all interest periods or
portions of interest periods ending on or before April 4, 2008 and 1.500%
above
the Applicable Margin otherwise in effect at such time with respect to all
interest periods or portions of interest periods ending after April 4, 2008
or
(ii) when the applicable rating category is C, 1.075% above the Applicable
Margin otherwise in effect at such time with respect to all interest periods
or
portions of interest periods ending on or before April 4, 2008 and 1.575%
above
the Applicable Margin otherwise in effect at such time with respect to all
interest periods or portions of interest periods ending after April 4, 2008,
in
each case commencing 10 Business Days after the occurrence of the SUG Change
of
Control, unless such increase in Applicable Margin shall have been waived
in
writing by the Required Banks.
Notwithstanding
the foregoing provisions, in the event that ratings of Panhandle Eastern’s
unsecured, non-credit enhanced Senior Funded Debt under Standard & Poor’s
Ratings Group and under ▇▇▇▇▇’▇ Investor Service, Inc. fall within different
rating categories which are not functional equivalents, the Applicable Margin
shall be based on the higher of such ratings if there is only one category
differential between the functional equivalents of such ratings, and if there
is
a two category differential between the functional equivalents of such ratings,
the component of pricing from the grid set forth above shall be based on
the
rating category which is then in the middle of or between the two category
ratings which are then in effect, and if there is greater than a two category
differential between the functional equivalents of such ratings, the component
of pricing from the grid set forth above shall be based on the rating category
which is then one rating category below the highest of the two category ratings
which are then in effect. Additionally, in the event that Panhandle Eastern
withdraws from having its unsecured, non-credit enhanced Senior Funded Debt
being rated by ▇▇▇▇▇’▇ Investor Service, Inc. or Standard and Poor’s Ratings
Group, so that one or both of such ratings services fails to rate Panhandle
Eastern’s unsecured, non-credit enhanced Senior Funded Debt, (a) the Applicable
Margin for all Eurodollar Rate Loans for all Interest Periods commencing
thereafter shall be 1.125% and (b) the Applicable Margin for all Alternate
Base
Rate Loans shall be 0.125% effective immediately, in each case continuing
until
such time as Panhandle Eastern subsequently causes its unsecured, non-credit
enhanced Senior Funded Debt to be rated by both of said ratings
services.
“Approved
Fund” shall mean any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Bank, (b) an Affiliate of a Bank or (c)
an
entity or an Affiliate of an entity that administers or manages a
Bank.
“Assignment
and Acceptance” shall mean and Assignment and Acceptance substantially
in the form of Exhibit B hereto.
“Attributable
Indebtedness” shall mean, with respect to any Sale-Leaseback
Transaction, the present value (discounted at the rate set forth or implicit
in
the terms of the lease included in such Sale-Leaseback Transaction) of the
total
obligations of the lessee for rental payments (other than amounts required
to be
paid on account of taxes, maintenance, repairs,
NEWY1\8114089.7
3
insurance,
assessments, utilities, operating and labor costs and other items that do
not
constitute payments for property rights) during the remaining term of the
lease
included in such Sale-Leaseback Transaction (including any period for which
such
lease has been extended). In the case of any lease that is terminable
by the lessee upon payment of a penalty, the Attributable Indebtedness shall
be
the lesser of the (a) Attributable Indebtedness determined assuming termination
on the first date such lease may be terminated (in which case the Attributable
Indebtedness shall also include the amount of the penalty, but no rent shall
be
considered as required to be paid under such lease subsequent to the first
date
on which it may be so terminated) and (b) the Attributable Indebtedness
determined assuming no such termination.
“Bank”
shall have the meaning set forth in the preamble hereto and shall include
the
Administrative Agent, in its individual capacity and each Continuing
Bank.
“BAS”
shall have the meaning given in the preamble hereof.
“Borrower”
shall have the meaning set forth in the preamble hereto.
“Business
Day” shall mean a day when the Administrative Agent is open for
business, provided that, if the applicable Business Day relates to any
Eurodollar Rate Loan, it shall mean a day when the Administrative Agent is
open
for business and banks are open for business in the London interbank market
and
in New York City.
“Capital
Lease” shall mean any lease of any Property (whether real, personal, or
mixed) which, in conformity with GAAP, is accounted for as a capital lease
on
the balance sheet of the lessee.
“Capitalized
Lease Obligations” shall mean, for any Person, any of their obligations
that should, in accordance with GAAP, be recorded as Capital
Leases.
“CCC”
shall have the meaning set forth in the preamble hereto.
“Change
in Law” shall mean (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after such date or (c) compliance by any Bank with any request, guideline
or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after such date.
“CERCLA”
shall mean the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (as amended by the Superfund Amendments and Reauthorization Act
of
1986, 42 U.S.C.A. § 9601 et seq.), as further amended from time to
time, and any and all rules and regulations issued or promulgated
thereunder.
“Citrus
Corp.” shall mean Citrus Corp., a Delaware corporation.
“Closing
Date” shall mean the date on which each of the conditions precedent set
forth in Section 4 (Conditions to Funding) shall have been satisfied or waived
by the Banks.
NEWY1\8114089.7
4
“Code”
shall mean the Internal Revenue Code of 1986, as amended, as now or hereafter
in
effect, together with all regulations, rulings and interpretations thereof
or
thereunder issued by the Internal Revenue Service.
“Commitment”
shall mean, with respect to any Bank, the commitment of such Bank to make
a Loan
on the Closing Date, in the amount set forth opposite such Bank’s name on
Annex I hereto, and the aggregate amount of all the Commitments is
$442,848,206.99.
“Consolidated”
shall refer to the consolidation of accounts in accordance with
GAAP.
“Consolidated
Net Income” of any Person shall mean, for any period, the aggregate net
income (or loss) from continuing operations of such Person and its Subsidiaries
on a Consolidated basis.
“Consolidated
Net Tangible Assets” shall mean, at any date of determination, the
total amount of assets of Panhandle Eastern and its Subsidiaries after deducting
therefrom:
(a) all
current liabilities (excluding (i) any current liabilities that by their
terms
are extendable or renewable at the option of the obligor thereon to a time
more
than 12 months after the time as of which the amount thereof is being computed,
and (ii) current maturities of Long-Term Debt); and
(b) the
value (net of any applicable reserves) of all goodwill, trade names, trademarks,
patents and other like intangible assets,
all
as
set forth on the Consolidated balance sheet of Panhandle Eastern and its
Subsidiaries for Panhandle Eastern’s most recently completed fiscal quarter,
prepared in accordance with GAAP.
“Consolidated
Total Capitalization” shall mean, at any time, an amount equal to the
sum of (a) Consolidated Debt for Borrowed Money of Panhandle Eastern and
its
Subsidiaries at such time plus (b) an amount equal to the sum of all
amounts which, in accordance with GAAP, would be included under owner’s equity
on a Consolidated balance sheet of Panhandle Eastern and its Subsidiaries;
provided, that consistent with past practice, any loans made to
Southern Union by Panhandle Eastern up to but not exceeding $50,000,000 in
the
aggregate at any time outstanding shall not be deemed to reduce owner’s equity
for purposes of this definition.
“Continuing
Bank” means each Existing Bank which provides written notice to the
Administrative Agent, in form satisfactory to the Administrative Agent, of
its
intention to continue as a Bank hereunder and which notice shall specify
the
amount of its proposed Commitment and Loans hereunder.
“Conversion”,
“Convert” and “Converted” each shall refer to
a conversion of Loans of one Type into Loans of the other Type pursuant to
Section 2.8 (Conversion of Loans).
“Debt”
shall mean (without duplication), for any Person, indebtedness for money
borrowed determined in accordance with GAAP but in any event including (a)
indebtedness of such Person for borrowed money or arising out of any extension
of credit to or for the account of such Person (including, without limitation,
extensions of credit in the form of reimbursement orpayment obligations of
such
Person relating to letters of credit issued for the account of such Person)
or
for the deferred purchase price of property or services, except indebtedness
which is owing to trade creditors in the ordinary course of business; (b)
indebtedness of the kind described in clause (a) of this definition which
is
secured by (or for which the holder of such Debt has any existing right,
contingent or otherwise, to be secured by) any Lien upon or in Property
(including, without limitation, accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such indebtedness or obligations; (c) Capitalized Lease Obligations of
such
Person; and (d) obligations under direct or indirect
Guaranties. Whenever the definition of Debt is being used herein in
order to compute a financial ratio or covenant applicable to the consolidated
business of Panhandle Eastern and its Subsidiaries, Debt which is already
included in such computation by virtue of the fact that it is owed by a
Subsidiary of Panhandle Eastern will not also be added by virtue of the fact
that Panhandle Eastern has executed a guaranty with respect to such Debt
that
would otherwise require such guaranteed indebtedness to be considered Debt
hereunder. Nothing contained in the foregoing sentence is intended to
limit the other provisions of this Agreement which contain limitations on
the
amount and types of Debt which may be incurred by any Loan Party.
5
“Debt
for Borrowed Money” of any Person shall mean, at any date of
determination, the sum without duplication of (i) all items that, in accordance
with GAAP, would be classified as indebtedness on a Consolidated balance
sheet
of such Person, (ii) all Guarantees by such Person of Debt of another Person
and
(iii) all letter of credit reimbursement obligations of such
Person.
“Debt/Capitalization
Ratio” shall mean, as of any date of determination, the ratio of (a)
the aggregate amount of outstanding Consolidated Debt for Borrowed Money
of
Panhandle Eastern and its Subsidiaries as of such date to (b) Consolidated
Total
Capitalization of Panhandle Eastern and its Subsidiaries as of such
date.
“Debtor
Laws” shall mean all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization,
or similar laws, or general equitable principles from time to time in effect
affecting the rights of creditors generally.
“Default”
shall mean any of the events specified in Section 9 (Events of Default;
Remedies), whether or not there has been satisfied any requirement in connection
with such event for the giving of notice, or the lapse of time, or the happening
of any further condition, event or act.
“Dollars”
and “$” shall mean lawful currency of the United States of
America.
“Domestic
Lending Office” shall mean, with respect to each Bank, the office of
such Bank located at its “Address for Notices” set forth below the name of such
Bank on Annex 1 hereto or such other office of such Bank as such Bank may
from time to time specify to the Borrower and the Administrative
Agent.
“Eligible
Assignee” shall mean: (i) any Bank, or any Affiliate of any Bank, any
Approved Fund, or any institution 100% of the voting stock of which is directly,
or indirectly owned by such Bank or by the immediate or remote parent of
such
Bank; or (ii) a commercialbank, a foreign branch of a United States commercial
bank, a domestic branch of a foreign commercial bank or other financial
institution having in each case assets in excess of $1,000,000,000.
6
“Environmental
Law” shall mean (a) CERCLA, (b) the Resource Conservation and Recovery
Act (as amended by the Hazardous and Solid Waste Amendment of 1984, 42
U.S.C.A. § 6901 et seq) as amended from time to time and any
and all rules and regulations promulgated thereunder (“RCRA”); (c) the Clean Air
Act, 42 U.S.C.A. § 7401 et seq., as amended from time to time, and any
and all rules and regulations promulgated thereunder; (d) the Clean Water
Act of
1977, 33 ▇.▇.▇▇ § 1251 et seq., as amended from time to time, and any
and all rules and regulations promulgated thereunder; (e) the Toxic Substances
Control Act, 15 U.S.C.A. § 2601 et seq., as amended from time to time,
and any and all rules and regulations promulgated thereunder; or (f) any
other
federal or state law, statute, rule, or emulation enacted in connection with
or
relating to the protection or regulation of the environment (including, without
limitation, those laws, statutes, rules, and regulations regulating the
disposal, removal, production, storing, refining, handling, transferring,
processing, or transporting of Hazardous Materials) and any rules and
regulations issued or promulgated in connection with any of the foregoing
by any
governmental authority, and “Environmental Laws” shall mean
each of the foregoing.
“EPA”
shall mean the Environmental Protection Agency, or any successor
organization.
“Equity
Interests” shall mean, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in)
such
Person, securities convertible into or exchangeable for shares of capital
stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such
shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or non-voting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended
from
time to time, and all rules, regulations, rulings and interpretations thereof
issued by the Internal Revenue Service or the Department of Labor
thereunder.
“Eurocurrency
Liabilities” shall have the meaning assigned to that term in Regulation
D of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
“Eurodollar
Lending Office” shall mean, with respect to each Bank, the office of
such Bank located at its “Address for Notices” set forth below the name of such
Bank on Annex 1 hereto, or such other office of such Bank as such Bank
may from time to time specify to the Borrower and the Administrative
Agent.
“Eurodollar
Rate” shall mean, for any Interest Period in effect for each Eurodollar
Rate Loan comprising part of the same Borrowing, an interest rate per annum
equal to the rate determined by the Administrative Agent to be the offered
rate
which appears on the displaydesignated as page “BBAM1” on the Bloomberg service
(or on any successor or substitute page of such display, or any successor
to or
substitute for such display, providing rate quotations comparable to those
currently provided on such page of such screen, as determined by the
Administrative Agent from time to time for purposes of providing quotations
of
interest rates applicable to dollar deposits in the London interbank market)
at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with
a
maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the “Eurodollar Rate”
with respect to such Eurodollar Rate Loans for such Interest Period shall
be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable
to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior
to the
commencement of such Interest Period.
7
“Eurodollar
Rate Loan” shall mean a Loan that bears interest as provided in Section
2.6(a)(ii) (Interest).
“Event
of Default” shall mean any of the events specified in Section 9 (Events
of Default; Remedies), provided that there has been satisfied any
requirement in connection with such event for the giving of notice, or the
lapse
of time, or the happening of any further condition, event or act.
“Existing
Banks” shall mean the banks as defined under the Original
Credit Agreement.
“Federal
Funds Rate” shall mean, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding 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 (rounded upwards, if necessary,
to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
“Fee
Letter” shall mean that certain fee letter dated as of the date hereof
among the Borrower, the Guarantors, HVB and BAS.
“Funded
Debt” shall mean all Debt of a Person which matures more than one year
from the date of creation or matures within one year from such date but is
renewable or extendible, at the option of such Person, by its terms or by
the
terms of any instrument or agreement relating thereto, to a date more than
one
year from such date or arises under a revolving credit or similar agreement
which obligates Banks to extend credit during a period of more than one year
from such date, including, without limitation, all amounts of any Funded
Debt
required to be paid or prepaid within one year from the date of determination
of
the existence of any such Funded Debt.
“GAAP”
has the meaning specified in Section 1.3 (Accounting Terms).
“Governmental
Authority” shall mean any (domestic or foreign) federal, state, county,
municipal, parish, provincial, or other government, or any department,
commission, board, court,
NEWY1\8114089.7
8
agency
(including, without limitation, the EPA), or any other instrumentality of
any of
them or any other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory, or administrative functions
of, or
pertaining to, government, including, without limitation, any arbitration
panel,
any court, or any commission.
“Governmental
Requirement” shall mean any order, permit, law, statute (including,
without limitation, any Environmental Protection Statute), code, ordinance,
rule, regulation, certificate, or other direction or requirement of any
Governmental Authority.
“Guaranteed
Obligations” shall have the meaning set forth in Section
11.1.
“Guarantor”
shall mean each of Panhandle Eastern and CCC.
“Guaranty”
shall mean, with respect to any Person, any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt of another Person,
including, without limitation, by means of an agreement to purchase or pay
(or
advance or supply funds for the purchase or payment of) such Debt or to maintain
financial covenants, or to assure the payment of such Debt by an agreement
to
make payments in respect of goods or services regardless of whether delivered
or
to purchase or acquire the Debt of another, or otherwise, provided that
the term “Guaranty” shall not include endorsements for deposit or collection in
the ordinary course of business.
“Hazardous
Materials” shall mean any substance which, pursuant to any
Environmental Laws, requires special handling in its collection, use, storage,
treatment or disposal, including but not limited to any of the following:
(a)
any “hazardous waste” as defined by RCRA; (b) any “hazardous substance” as
defined by CERCLA; (c) asbestos; (d) polychlorinated biphenyls; (e) any
flammables, explosives or radioactive materials; and (f) any substance, the
presence of which on any of Loan Parties’ properties is prohibited by any
Governmental Authority.
“Highest
Lawful Rate” shall mean, with respect to each Bank, the maximum
non-usurious interest rate, if any, that at any time or from time to time
may be
contracted for, taken, reserved, charged, or received with respect to the
Notes
or on other amounts, if any, due to such Bank pursuant to this Agreement,
under
laws applicable to such Bank which are presently in effect, or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect
and
which allow a higher maximum non-usurious interest rate than applicable laws
now
allow.
“HVB”
shall have the meaning set forth in the preamble.
“Indemnified
Parties” shall have the meaning set forth in Section 12.16
(Indemnification).
“Inter-Company
Loan” shall mean the loan made by the Borrower to CCC pursuant to the
Inter-Company Note.
“Inter-Company
Note” shall mean the note dated as of December 1, 2006 by CCC in favor
of Borrower.
NEWY1\8114089.7
9
“Interest
Period” shall mean, for each Eurodollar Rate Loan comprising part of
the same borrowing, the period commencing on the date of such Eurodollar
Rate
Loan or the date of the Conversion of any Alternate Base Rate Loan into such
Eurodollar Rate Loan, and ending on the last day of the period selected by
the
Borrower pursuant to the provisions below and, thereafter, 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 one, two, three or six months (or, if available to each Bank, nine or
twelve
months), 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:
(a) 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
(b) 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.
“Inventory”
shall mean, with respect to the Borrower or any Subsidiary, all of such Person’s
now owned or hereafter acquired or created inventory in all of its forms
and of
every nature, wherever located, whether acquired by purchase, merger, or
otherwise, and all raw materials, work in process therefor and finished goods
thereof, and all supplies, materials, and products of every nature and
description used, usable, or consumed in connection with the manufacture,
packing, shipping, advertising, selling, leasing, furnishing, or production
of
such goods, and shall include, in any event, all “inventory” (within the meaning
of such term in the Uniform Commercial Code in effect in any applicable
jurisdiction), whether in mass or joint, or other interest or right of any
kind
in goods which are returned to, repossessed by, or stopped in transit by
such
Person, and all accessions to any of the foregoing and all products of any
of
the foregoing.
“Investment”
of any Person shall mean any investment so classified under GAAP, and, whether
or not so classified, includes (a) any direct or indirect loan advance made
by
it to any other Person; (b) any direct or indirect Guaranty for the benefit
of
such Person; (c) any capital contribution to any other Person; and (d) any
ownership or similar interest in any other Person; and the amount of any
Investment shall be the original principal or capital amount thereof
(plus any subsequent principal or capital amount) minus all cash
returns of principal or capital thereof.
“Lien”
shall mean any mortgage, deed of trust, pledge, security interest, encumbrance,
lien (including without limitation, any such interest arising under any
Environmental Law), or similar charge of any kind (including without limitation,
any agreement to give any of theforegoing, any conditional sale or other
title
retention agreement or any lease in the nature thereof), or the interest
of the
lessor under any Capital Lease.
10
“Loan”
shall mean the term loan (or loans in the case the Borrower makes more than
one
Type of Borrowing) from each Bank to the Borrower under Section
2.1.
“Loan
Document” shall mean this Agreement, any Note, the Fee Letter and any
other document, agreement or instrument now or hereafter executed and delivered
by any Loan Party in connection with any of the transactions contemplated
by any
of the foregoing, as any of the foregoing may hereafter be amended, modified,
or
supplemented, and “Loan Documents” shall mean, collectively,
each of the foregoing.
“Loan
Party” shall mean each of CCC, Panhandle Eastern and the Borrower and
its Subsidiaries.
“Long-Term
Debt” shall mean any Debt that, in accordance with GAAP, constitutes
(or, when incurred, constituted) a long-term liability.
“Majority
Banks” shall mean at any time Banks holding more than 50% of the unpaid
principal amounts outstanding under the Loans, or, if no such amounts are
outstanding, more than 50% of the Pro Rata Percentages.
“Material
Adverse Change” shall mean, for any Person, any material adverse change
in the business, operations, financial condition or assets of such Person
and
its Subsidiaries, taken as a whole.
“Material
Adverse Effect” shall mean any material adverse effect on (a) the
financial condition, business, properties, assets or operations of Panhandle
Eastern and its Subsidiaries, taken as a whole, or (b) the ability of Panhandle
Eastern, Borrower or CCC to perform its obligations under this Agreement,
any
Note, any other Loan Document or the Inter-Company Note on a timely
basis.
“Maturity
Date” shall mean the fifth anniversary of the Closing
Date.
“Note”
or “Notes” shall mean a promissory note or notes,
respectively, of the Borrower, executed and delivered under this
Agreement.
“Notice
of Borrowing” shall have the meaning set forth in Section 2.2(a)
(Making the Loans).
“Obligations”
shall mean all obligations of Panhandle Eastern, Borrower and CCC to the
Banks
under this Agreement, the Notes and all other Loan Documents to which any
of
them is a party.
“Officer’s
Certificate” shall mean a certificate signed in the name of the
applicable Loan Party, by either its President, one of its Vice Presidents,
its
Treasurer, its Secretary, or one of its Assistant Treasurers or Assistant
Secretaries.
NEWY1\8114089.7
11
“Original
Credit Agreement” shall mean the Credit Agreement, dated as of December
1, 2006, by and among the Borrower, as the borrower, Panhandle Eastern, as
a
guarantor, Crosscountry Citrus, LLC, as a guarantor, the financial institutions
party thereto as banks thereunder from time to time.
“Panhandle
Eastern” shall have the meaning set forth in the preamble
hereto.
“Permitted
Liens” shall mean any of the following Liens:
(c) Any
Lien:
(i) arising
by reason of deposits with or the giving of any form of security to any
Governmental Authority in connection with the financing of the acquisition
or
construction of property to be used in the business of a Loan
Party;
(ii) for
current taxes and assessments or taxes and assessments not at the time
delinquent and for which adequate reserves have been established to the extent
required by GAAP; or
(iii) for
taxes and assessments which are delinquent but the validity of which is being
contested at the time by a Loan Party in good faith and by appropriate
proceedings and for which adequate reserves have been established to the
extent
required by GAAP;
(d) Leases,
whether now or hereafter existing, in the ordinary course of business, of
property and assets now and hereafter owned by a Loan Party (excluding
Capitalized Leases) and any renewals or extensions thereof;
(e) Liens
reserved in leases, or arising by operation of law, for rent and for compliance
with the terms of the lease in the case of the leasehold estates;
(f) Liens
arising by reason of deposits with or the giving of any form of security
to any
Governmental Authority or any other governmental body created or approved
by law
or governmental regulation for any purpose at any time as required by law
or
governmental regulation as a condition to the transaction of any business
or the
exercise of any privilege or license, or to enable a Loan Party to maintain
self-insurance or to participate in any fund for liability on any insurance
risks or in connection with workmen’s compensation, unemployment insurance, old
age pensions or other social security or to share in the privileges or benefits
required for companies participating in such arrangements;
(g) (i)
Mechanics’, materialmen’s, warehousemen’s, landlord’s or similar Liens or any
Lien arising by reason of pledges or deposits to secure payment of workmen’s
compensation or other insurance or social security legislation, (ii) good
faith
deposits or downpayments in connection with tenders or leases of real estate,
bids or contracts (other than contracts for the payment of money), including
contracts for the acquisition of machinery and equipment, (iii) deposits
to
secure public or statutory obligations, (iv) deposits to secure or in lieu
of
surety, stay or appeal bonds, (v) margin
12
deposits
(provided that all such margin deposits shall not exceed $2,000,000 in
the aggregate at any time) and (vi) deposits as security for the payment
of
taxes or assessments or other similar charges;
(h) Liens
of any judgments not constituting an Event of Default under Section 9.9
(Undischarged Judgment);
(i) Any
obligation or duties, affecting the property of a Loan Party, to any
Governmental Authority with respect to any franchise, grant, lease, license,
permit or similar arrangement with such Governmental Authority;
(j) Rights
reserved to or vested in any Governmental Authority by the terms of any right,
power, franchise, grant, license or permit or by any provision of law, to
terminate or to require annual or other periodic payments as a condition
to the
continuance of such right, power, franchise, grant, license or
permit;
(k) Rights
reserved to or vested in any Governmental Authority to control or regulate
any
property of a Loan Party, or to use such property in any manner which does
not
materially impair the use of such property for the purpose for which it is
held
by a Loan Party;
(l) Zoning
laws and ordinances;
(m) Restrictive
covenants, easements on, exceptions to or reservations in respect of any
property of a Loan Party granted or reserved for the purpose of electric
lines,
fiber optic lines, water and sewer lines, pipelines, other utilities, roads,
streets, alleys, highways, railroad purposes, the removal of oil, gas,
hydrocarbon, coal or other minerals, and other like purposes, or for the
use of
real property or interests therein, facilities and equipment, which do not
materially impair the use thereof for the purposes for which it is held by
a
Loan Party, and any and all rents, royalties, reservations, Liens and rights
or
interests of third parties, in each case not securing any Debt, arising in
the
ordinary course of business of a Loan Party by virtue of any lease or
exploration, development, drilling, unitization, communitization or operating
agreement relating to or affecting any oil, gas, hydrocarbon, coal or other
mineral properties in which a Loan Party has an interest;
(n) Defects
or irregularities of title, and inaccuracies of legal descriptions, affecting
any portion of the property of a Loan Party or any of its Subsidiaries that
individually or in the aggregate do not materially interfere with the operation,
value of use of the properties of such Loan Party or such Subsidiaries taken
as
a whole;
(o) Liens
securing Debt with respect to Debt of any Person that becomes a Subsidiary
of a
Loan Party, provided that such Liens were in existence prior to the
date on which such Person becomes a Subsidiary of such Loan Party and were
not
created in contemplation of such Person becoming a Subsidiary of such Loan
Party;
NEWY1\8114089.7
13
(p) Liens
on any office equipment, data processing equipment (including computer and
computer peripheral equipment), or motor vehicles purchased in the ordinary
course of the applicable Loan Party’s business; and
(q) Liens
created in the ordinary course of business in favor of banks and other financial
institutions over credit balances or any bank accounts of a Loan Party held
at
such banks or financial institutions.
“Person”
shall mean an individual, partnership, joint venture, corporation, joint
stock
company, bank, trust, unincorporated organization and/or a government or
any
department or agency thereof.
“Plan”
shall mean any plan subject to Title IV of ERISA and maintained for employees
of
any Loan Party or of any member of a “controlled group of corporations,” as such
term is defined in the Code, of which a Loan Party is a member, or any such
plan
to which a Loan Party thereof is required to contribute on behalf of its
employees.
“Prime
Rate” shall mean, on any day, the rate determined by the Administrative
Agent and announced to its customers as being its prime rate for that
day. Without notice to the Borrower or any other Person, the Prime
Rate shall change automatically from time to time as and in the amount by
which
said Prime Rate shall fluctuate, with each such change to be effective as
of the
date of each change in such Prime Rate. The Prime Rate is a reference
rate and does not necessarily represent the lowest or best rate actually
charged
to any customer. The Administrative Agent may make commercial or
other loans at rates of interest at, above or below the Prime Rate.
“Priority
Obligations Amount” shall mean the sum (without duplication) of (i) all
Attributable Indebtedness with respect to any Sale-Leaseback Transaction
entered
into by Panhandle Eastern or any of its Subsidiaries, (ii) all Debt of Panhandle
Eastern or any of its Subsidiaries secured by a Lien (other than Liens permitted
by clauses (a) through (c) of Section 6.2 (Liens, Etc.)) and (iii) all Debt
of
Subsidiaries of Panhandle Eastern (other than Borrower or TLNG), other than
such
Debt owed to Panhandle Eastern or another Subsidiary.
“Pro-Rata
Percentage” shall mean with respect to any Bank, a fraction (expressed
as a percentage), the numerator of which shall be the amount of such Bank’s
outstanding Loans (or Commitment) and the denominator of which shall be the
aggregate amount of all the outstanding Loans (or Commitments) of the Banks,
as
adjusted from time to time in accordance herewith.
“Property”
shall mean any interest or right in any kind of property or asset, whether
real,
personal, or mixed, owned or leased, tangible or intangible, and whether
now
held or hereafter acquired.
“Register”
shall have the meaning set forth in Section 12.14(d).
“Release”
shall mean a “release”, as such term is defined in CERCLA.
“Restricted
Payment” shall mean a Person’s declaration or payment of any dividends,
the purchase, redemption, retirement, defeasance or other acquisition for
value
of any of its
NEWY1\8114089.7
14
Equity
Interests now or hereafter outstanding, return any capital to its stockholders,
partners or members (or the equivalent Persons thereof) as such, making any
distribution of assets, Equity Interests, obligations or securities to its
stockholders, partners or members (or the equivalent Persons thereof) as
such or
making of any interest payment on any Debt owing to its direct or indirect
parent (or any equity owner thereof).
“Required
Banks” shall mean, at any time, Banks holding more than 66 2/3% of the
aggregate unpaid principal amount of Loans outstanding at such time, or,
if no
such principal is outstanding, 66 2/3 or more of the Pro Rata
Percentage.
“Sale-Leaseback
Transaction” has the meaning set forth in Section 6.8 (Sales and
Leasebacks).
“Senior
Funded Debt” shall mean Funded Debt of Panhandle Eastern excluding Debt
that is contractually subordinated in right of payment to any other Debt
of
Panhandle Eastern.
“Southern
Union” shall mean Southern Union Company.
“Subsidiary”
of any Person shall mean 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 (or similar board) of such Person
(irrespective of whether at the time capital stock of any other class or
classes
of such Person shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership,
joint venture or limited liability company 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.
“SUG
Change of Control” shall occur if any Person or “group” (within the
meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
as
amended from time to time, and any successor statute) shall have acquired
beneficial ownership of 50% or more on a fully diluted basis of the voting
and/or economic interest in Southern Union.
“TLNG”
shall mean Trunkline LNG Company, LLC, a Delaware limited liability
company.
“TWH
Indebtedness” shall have the meaning set forth in Section 2.13 (Use of
Proceeds).
“Type”
shall mean, with respect to any Loan, any Alternate Base Rate Loan
or
any Eurodollar Rate Loan.
“Withdrawing
Bank” means each such Existing Bank that does not communicate to the
Administrative Agent its intention to be a Continuing Bank.
1.2 Computation
of Time Periods; Other Definitional Provisions. In this
Agreement and the other Loan Documents in the computation of periods of time
from a specified date to a later specified date, the word
“from” shall mean “from and including” and the
words
NEWY1\8114089.7
15
“to”
and “until” each shall mean “to but
excluding”. References in the Loan Documents to any agreement or
contract “as amended” shall mean and be a reference to such
agreement or contract as amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with its terms.
1.3 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”). If, at any time after the date of this
Agreement, any material change is made to GAAP or Panhandle Eastern’s, CCC’s or
the Borrower’s accounting practices that would affect in any material respect
the determination of compliance with the covenants set forth in this Agreement,
the Borrower and the Administrative Agent shall negotiate in good faith to
amend
any such covenant to restore the Borrower and the Banks to the position they
occupied before the implementation of such material change in GAAP or accounting
practices if the Borrower notifies the Administrative Agent of such change
(or
if the Administrative Agent notifies the Borrower that the Required Banks
request an amendment to any such covenant for such purpose); provided
that, until so amended, such covenant shall continue to be computed on the
basis
of GAAP as in effect and applied immediately before such change shall have
become effective.
2. AMOUNTS
AND TERMS OF THE LOANS
2.1 The
Loan. Each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make a single Loan to the Borrower on
the
Closing Date in an amount equal to such Bank’s Commitment at such
time. The Borrowing shall consist of the Loans made simultaneously by
the Banks ratably according to their Commitments. Amounts borrowed
under this Section 2.1 and repaid or prepaid may not be reborrowed.
2.2 Making
of the Loans.
(a) The
Borrowing shall be made on irrevocable notice, given not later than 11:00
A.M.
(New York City time) on the third Business Day prior to the date of Borrowing
if
the Borrowing consists of Eurodollar Rate Loans, or not later than 9:00 A.M.
(New York City time) on the date of the Borrowing if the Borrowing consists
of
Alternate Base Rate Loans, by the Borrower to the Administrative Agent, which
shall give to each Bank prompt notice thereof. The notice of
Borrowing (the “Notice of Borrowing”) shall be in writing, in
form and substance satisfactory to the Administrative Agent, specifying therein
the requested (i) date of the Borrowing, (ii) Type of Loans comprising the
Borrowing, (iii) aggregate amount of the Borrowing, which shall not exceed
the
aggregate amount of the Commitments and (iv) if the Borrowing consists of
Eurodollar Rate Loans, the initial Interest Period for each such
Loan. Each Bank shall, before 11:00 A.M. (New York City time) on the
date of Borrowing, 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 Bank’s portion of the Borrowing in accordance with Section
2.1 (The Loans). After the Administrative Agent’s receipt of such
funds and upon fulfillment of the applicable conditions set forth in Section
4
(Conditions to Funding), the Administrative Agent will make such
funds
NEWY1\8114089.7
16
available
to the Borrower by electronic transfer of same day funds to the Borrower’s
account.
(b) The
Notice of Borrowing shall be irrevocable and binding on the
Borrower. If the Notice of Borrowing specifies the Borrowing is to be
comprised of Eurodollar Rate Loans, the Borrower shall indemnify each Bank
against any loss, cost or expense incurred by such Bank as a result of any
failure to fulfill on or before the date specified in the Notice of Borrowing
the applicable conditions set forth in Section 4 (Conditions to Funding),
including, without limitation, any loss, cost or expense incurred by reason
of
the liquidation or reemployment of deposits or other funds acquired by such
Bank
to fund the Loan to be made by such Bank as part of the Borrowing when such
Loan, as a result of such failure, is not made on such date.
(c) Unless
the Administrative Agent shall have received written notice from a Bank prior
to
the date of the Borrowing that such Bank will not make available to the
Administrative Agent such Bank’s ratable portion of such Borrowing, the
Administrative Agent may assume that such Bank has made such portion available
to the Administrative Agent on the date of Borrowing in accordance with clause
(a) of this Section 2.2 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 Bank shall not have so made
such ratable portion available to the Administrative Agent, such Bank and
the
Borrower severally agree to repay or pay to the Administrative Agent forthwith
on demand such corresponding amount and to pay interest thereon, for each
day
from the date such amount is made available to the Borrower until the date
such
amount is repaid or paid to the Administrative Agent, at (i) in the case
of the
Borrower, the interest rate applicable at such time under Section 2.6 (Interest)
to Loans comprising the Borrowing and (ii) in the case of such Bank, the
Federal
Funds Rate. If such Bank shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such Bank’s Loan as
part of the Borrowing for all purposes.
(d) The
failure of any Bank to make the Loan to be made by it as part of the Borrowing
shall not relieve any other Bank of its obligation, if any, hereunder to
make
its Loan on the date of the Borrowing, but no Bank shall be responsible for
the
failure of any other Bank to make the Loan to be made by such other Bank
on the
date of the Borrowing.
2.3 Repayment
of the Loan. The Borrower shall repay to the Administrative
Agent for the ratable account of the Banks the aggregate outstanding principal
amount of each Bank’s Loan on the Maturity Date.
2.4 Termination
of the Commitments. The Commitment of each Bank shall be
automatically and permanently reduced to $0 simultaneously with the funding
of
the Loans on the Closing Date.
2.5 Prepayments.
(a) Voluntary
Prepayments. The Borrower may, upon at least three Business Days’
irrevocable notice in the case of Eurodollar Rate Loans and at least
one
Business Day’s irrevocable notice in the case of Alternate Base Rate Loans, in
each case to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall prepay the outstanding aggregate principal amount of the Loan comprising
the Borrowing in whole or ratably in part, together with accrued interest
to the
date of such prepayment on the aggregate principal amount prepaid;
provided, however, that (i) each partial prepayment shall be
in an aggregate principal amount of $1,000,000 in the case of Eurodollar
Rate
Loans and $1,000,000 in the case of Alternate Base Rate Loans, or in each
case
an integral multiple of $1,000,000 in excess thereof and (ii) if any prepayment
of a Eurodollar Rate Loan is made on a date other than the last day of an
Interest Period for such Loan, the Borrower shall also pay any amounts owing
pursuant to Section 12.2(b) (Reimbursement of Expenses-breakage expenses).
The
Administrative Agent shall promptly notify each Bank of any notice received
from
Borrower pursuant to this Section 2.5.
(b) Mandatory
Prepayments. No later than the first Business Day following the
date of receipt by Borrower or any of its Subsidiaries of any repayment of
principal by or on behalf of CCC of the Inter-Company Loan including repayments
made pursuant to Section 8.5, Borrower shall prepay the Loan in an aggregate
amount equal to the amount of principal of the Inter-Company Loan so prepaid,
together with interest on the principal amount of the Loan being prepaid
that is
accrued but unpaid to the date of such Loan prepayment hereunder;
provided, that if any prepayment of a Eurodollar Rate Loan is made on a
date other than the last day of an Interest Period for such Loan, the Borrower
shall also pay any amounts owing pursuant to Section 12.2(b) (Reimbursement
of
Expenses-breakage expenses).
2.6 Interest.
(a) The
Borrower shall pay interest on the unpaid principal amount of each Loan owing
to
each Bank from the date of such Loan until such principal amount shall be
paid
in full, at the following rates per annum:
(i) During
such periods as such Loan is an Alternate Base Rate Loan, a rate per annum
equal
at all times to the sum of (a) the Alternate Base Rate in effect from time
to
time, plus (b) the Applicable Margin in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September
and
December during such periods and on the date such Alternate Base Rate Loan
shall
be Converted or paid in full.
(ii) During
such periods as such Loan is a Eurodollar Rate Loan, a rate per annum equal
at
all times during each Interest Period for such Loan to the sum of (a) the
Eurodollar Rate for such Interest Period for such Loan (b) the Applicable
Margin
in effect on the first day of such Interest Period, 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
NEWY1\8114089.7
17
Period
every three months from the first day of such Interest Period and on the
date
such Eurodollar Rate Loan shall be Converted or paid in full.
(b) To
the fullest extent permitted by applicable law, the amount of any principal,
interest, fee or other amount payable under this Agreement or any other Loan
Document to any Administrative Agent or any Bank 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% per annum above the rate per
annum
required to be paid, in the case of principal or interest, on the Type of
Loan
relating to such principal or interest pursuant to clause (i) or (ii) of
clause
(a) above, as applicable, and, in all other cases, on Alternate Base Rate
Loans
pursuant to clause (i) of clause (a) above.
(c) Promptly
after receipt of the Notice of Borrowing pursuant to Section 2.2(a) (Making
of
the Loans), a notice of Conversion pursuant to Section 2.8 (Conversion of
Loans)
or a notice of selection of an Interest Period pursuant to the terms of the
definition of “Interest Period”, the Administrative Agent shall give notice to
the Borrower and each Bank of the applicable Interest Period and the applicable
interest rate determined by the Administrative Agent for purposes of clause
(a)(i) or (a)(ii) above. If the Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate Loans in accordance
with
the provisions contained in the definition of “Interest Period”, the
Administrative Agent will forthwith so notify the Borrower and the Banks,
whereupon the Borrower shall be deemed to have selected a one-month Interest
Period for each such Eurodollar Rate Loan.
2.7 Fees.
(a)
Each of the Borrower and the Guarantors agrees, jointly and severally, to
pay or
cause to be paid to the Administrative Agent and the Joint Lead Arrangers
such
fees as may from time to time be agreed between the Borrower and the
Administrative Agent, including the fees specified in the Fee
Letter.
(b) All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent, (or to such other person as may be specified
in the Fee Letter). Fees paid shall not be refundable under any
circumstances.
2.8 Conversion
of Loans.
(a) 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 Section
2.6 (Interest) and 2.9 (Increased Costs), Convert all or any portion of the
Loans of one Type into Loans of the other Type; provided,
however, that any Conversion of Eurodollar Rate Loans into Alternate
Base Rate Loans shall be made only on the last day of an Interest Period
for
such Eurodollar Rate Loans and each Conversion of Loans shall be made ratably
among the Banks in accordance with their Pro Rata Percentages; and also
provided that, upon giving effect to such Conversions, no more than
five Interest
NEWY1\8114089.7
18
Periods
shall be in effect. Each such notice of Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii)
the
Loans to be Converted and (iii) if such Conversion is into Eurodollar Rate
Loans, the duration of the initial Interest Period for such
Loans. Each notice of Conversion shall be in writing and shall be
irrevocable and binding on the Borrower. The Administrative Agent
shall promptly notify each Bank of any notice received from the Borrower
pursuant to this Section 2.8.
(b) Upon
the occurrence and during the continuation of any Default and if the Required
Banks shall so direct, (i) each Eurodollar Rate Loan will automatically,
on the
last day of the then existing Interest Period therefor, Convert into an
Alternate Base Rate Loan and (ii) the obligation of the Banks to make, or
to
Convert Loans into, Eurodollar Rate Loans shall be suspended.
2.9 Increased
Costs, Etc.
(a) If,
due to a Change in Law, there shall be any increase in the cost to any Bank
of
agreeing to make or of making, funding or maintaining Eurodollar Rate Loans
(excluding, for purposes of this Section 2.9, any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.11 (Taxes) shall govern),
(ii) changes in the rate of taxation or basis of taxation of overall net
income
or overall gross income by the United States or by the foreign jurisdiction
or
state under the laws of which such Bank is organized or has its principal
office
or Applicable Lending Office or any political subdivision thereof and (iii)
reserve requirements contemplated by Section 2.9(b) below, then the Borrower
shall from time to time, within 10 days of receipt of a certificate from
such
Bank setting forth in reasonable detail a calculation of the amount necessary
to
compensate such Bank (with a copy of such certificate to the Administrative
Agent), pay to the Administrative Agent, for the account of such Bank,
additional amounts sufficient to compensate such Bank for such increased
cost;
provided, however, that a Bank claiming additional amounts under this
Section 2.9(a) 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 that may thereafter
accrue and would not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate as to the amount of such
increased cost, submitted to the Borrower by such Bank, shall be conclusive
and
binding for all purposes, absent manifest error.
(b) The
Borrower shall pay to each Bank, as long as such Bank shall be required to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as
“Eurocurrency Liabilities”), additional interest on the unpaid
principal amount of each Eurodollar Rate Loan equal to the actual costs of
such
reserves allocated to such Loan by such Bank (as determined by such Bank
in good
faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the
Borrower shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such Bank (which notice
shall contain a calculation of such additional interest in reasonable
detail). If a Bank fails to
NEWY1\8114089.7
19
give
notice 10 days prior to the relevant date on which interest is payable, such
additional interest shall be due and payable 10 days from receipt of such
notice.
(c) If,
with respect to any Eurodollar Rate Loans, the Majority Banks notify the
Administrative Agent that the Eurodollar Rate for any Interest Period for
such
Loans will not adequately reflect the cost to the Banks of making, funding
or
maintaining their Eurodollar Rate Loans for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Banks,
whereupon (i) each such Eurodollar Rate Loan will automatically, on the last
day
of the then existing Interest Period therefor, Convert into an Alternate
Base
Rate Loan and (ii) the obligation of the Banks to make, or to Convert Loans
into, Eurodollar Rate Loans shall be suspended until the Administrative Agent
shall notify the Borrower that the Banks have determined that the circumstances
causing such suspension no longer exist.
(d) Notwithstanding
any other provision of this Agreement, if the introduction or effectiveness
of
or any change in the interpretation of any law or regulation shall make it
unlawful, or any central bank or other Governmental Authority shall assert
that
it is unlawful, for any Bank or its Eurodollar Lending Office to perform
its
obligations hereunder to make Eurodollar Rate Loans or to continue to fund
or
maintain Eurodollar Rate Loans hereunder, then, on notice thereof and demand
therefor by such Bank to the Borrower through the Administrative Agent, (i)
each
Eurodollar Rate Loan will automatically, upon such demand, Convert into an
Alternate Base Rate Loan and (ii) the obligation of the Banks to make, or
to
Convert Loans into, Eurodollar Rate Loans shall be suspended until the
Administrative Agent shall notify the Borrower that such Bank has determined
that the circumstances causing such suspension no longer exist;
provided, however, that, before making any such demand, such
Bank 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 Bank or its
Eurodollar Lending Office to continue to perform its obligations to make
Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate
Loans
and would not, in the judgment of such Bank, be otherwise disadvantageous
to
such Bank.
(e) A
Bank shall only be entitled to recover increased costs pursuant to this Section
2.9 to the extent such costs were incurred during any time or period commencing
not more than 120 days prior to the date on which such Bank notifies the
Administrative Agent and the Borrower that it proposes to demand such
compensation and identifies to the Administrative Agent and the Borrower
the
statute, regulation or other basis upon which the claimed compensation is
or
will be based; provided that, if the Change in Law giving rise to such
increased costs is retroactive, then the 120-day period referred to above
shall
be extended to include the period of retroactive effect thereof.
2.10 Payments
and Computations.
(a) The
Borrower shall make each payment hereunder and under the Notes, irrespective
of
any right of counterclaim or set-off, not later than 12:00 P.M. (New York
City
time) on the day when due in U.S. dollars to the Administrative Agent at
the
NEWY1\8114089.7
20
Administrative
Agent’s account in same day funds, with payments being received by the
Administrative Agent after such time being deemed to have been received on
the
next succeeding Business Day. The Administrative Agent will promptly
thereafter cause like funds to be distributed (x) if such payment by the
Borrower is in respect of principal, interest or any other Obligation then
payable hereunder and under the Notes to more than one Bank, to such Banks
for
the account of their respective Applicable Lending Offices ratably in accordance
with the amounts of such respective Obligations then payable to such Banks
and
(y) if such payment by the Borrower is in respect of any Obligation then
payable
hereunder to one Bank, to such Bank 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 12.14(d) (Sale or Assignment), from and after the effective date
of such
Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby
to the
Bank 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 Bank and each of its Affiliates, if and to
the
extent payment owed to such Bank is not made when due hereunder or, in the
case
of a Bank, under the Note held by such Bank, to charge from time to time,
to the
fullest extent permitted by law, against any or all of the Borrower’s accounts
with such Bank or such Affiliate any amount so due.
(c) (x)
All computations of interest based on the Prime 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 (y) all computations of interest based on the Eurodollar Rate or
the
Federal Funds Rate shall be made by the Administrative Agent on the basis
of a
year of 360 days, in each of (x) and (y) above, the computation shall be
for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable. Each
determination by the Administrative Agent of an interest rate hereunder shall
be
conclusive and binding for all purposes, absent manifest error.
(d) Whenever
any payment hereunder or under the Notes is 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; provided, however, that if such extension
causes the payment of interest on or principal of Eurodollar Rate Loans 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 receives notice from the Borrower prior to the date
on
which any payment is due to any Bank 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 such Bank on such due date an amount equal to the amount
then due such Bank. If
NEWY1\8114089.7
21
and
to
the extent the Borrower does not make such payment in full to the Administrative
Agent, each such Bank shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Bank together with interest thereon,
for
each day from the date such amount is distributed to such Bank until the
date
such Bank repays such amount to the Administrative Agent, at the Federal
Funds
Rate.
(f) If
the Administrative Agent receives funds for application to the Obligations
of
the Loan Parties under or in respect of the Loan Documents under circumstances
for which the Loan Documents do not specify the Loans to which, or the manner
in
which, such funds are to be applied, the Administrative Agent may, but shall
not
be obligated to, elect to distribute such funds to each of the Banks in
accordance with such Bank’s pro rata share of the aggregate principal amount of
all Loans outstanding at such time, for application to such principal repayment
installments thereof, as the Administrative Agent shall direct.
2.11 Taxes.
(a) Any
and all payments by any Loan Party to or for the account of any Bank or any
Administrative Agent hereunder or under the Notes or any other Loan Document
shall be made, in accordance with Section 2.10 (Payments and Computations)
or
the applicable provisions of such other Loan Document, if any, 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 Bank and each Administrative Agent,
taxes that are imposed on its overall net income by the United States (and
franchise taxes imposed in lieu thereof) and taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state
or
foreign jurisdiction under the laws of which such Bank or such Administrative
Agent, as the case may be, is organized or any political subdivision thereof
and, in the case of each Bank, taxes that are imposed on its overall net
income
(and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction of such Bank’s principal office or Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as
“Taxes”). If any Loan Party shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder or under
any
Note or any other Loan Document to any Bank or any Administrative Agent,
(i) the
sum payable by such Loan Party shall be increased as may be necessary so
that
after such Loan Party and the Administrative Agent have made all required
deductions (including deductions applicable to additional sums payable under
this Section 2.11) such Bank or such 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) such Loan Party shall make all such deductions
and
(iii) such Loan Party shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable
law.
(b) In
addition, a Loan Party shall pay any present or future stamp, documentary,
excise, property or similar taxes, charges or levies that arise from any
payment
made by such Loan Party hereunder or under any Notes or any other
Loan
NEWY1\8114089.7
22
Documents
or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement, the Notes or the other Loan Documents
(hereinafter referred to as “Other Taxes”).
(c) Panhandle
Eastern, Borrower and CCC shall indemnify each Bank and the Administrative
Agent
for and hold them harmless against the full amount of Taxes and Other Taxes,
imposed on or paid by such Bank or such Administrative Agent (as the case
may
be) with respect to any payment by or on account of any obligation of the
Loan
Parties hereunder (including Taxes or Other Taxes imposed or asserted by
any
jurisdiction on amounts payable under this Section 2.11) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30
days from the date such Bank or such Administrative Agent (as the case may
be)
makes written demand therefor.
(d) Within
30 days after the date of any payment of Taxes, the appropriate Loan Party
shall
furnish to the Administrative Agent, at its address referred to in Section
12.3
(Notices), 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 the
other Loan Documents by or on behalf of a Loan Party through an account or
branch outside the United States or by or on behalf of a Loan Party by a
payor
that is not a United States person, if such Loan Party determines that no
Taxes
are payable in respect thereof, such Loan Party shall furnish, or shall cause
such payor to furnish, to the Administrative Agent, at such address, an opinion
of counsel reasonably acceptable to the Administrative Agent stating that
such
payment is exempt from Taxes. For purposes of subsections (d) and (e)
of this Section 2.11, the terms “United States” and
“United States person” shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each
Bank organized under the laws of a jurisdiction outside the United States
shall,
on or prior to the date of its execution and delivery of this Agreement or
on
the date of the Assignment and Acceptance pursuant to which it becomes a
Bank,
as the case may be, and from time to time thereafter as reasonably requested
in
writing by a Loan Party (but only so long thereafter as such Bank remains
lawfully able to do so), or upon the obsolescence or invalidity of any form
previously provided provide each of the Administrative Agent and such Loan
Party
with two original Internal Revenue Service Forms W-8BEN or W-8ECI, as
appropriate, or any other form prescribed by the Internal Revenue Service,
certifying that such Bank is exempt from or entitled to a reduced rate of
United
States withholding tax on payments pursuant to this Agreement or the Notes
or
any other Loan Document, or (in the case of a Bank that is claiming exemption
from U.S. federal withholding with respect to payments of “portfolio interest”
and has certified in writing to the Administrative Agent that it is not (i)
a
“bank” as defined in Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of such Loan Party or (iii) a controlled foreign
corporation related to such Loan Party (within the meaning of Section 864(d)(4)
of the Internal Revenue Code)) Internal Revenue Service Form W-8BEN, or any
successor or other form prescribed by the Internal Revenue Service, or,
in
NEWY1\8114089.7
23
the
case
of a Bank that certifies that it is not a “bank” as described above, certify
that such Bank is a foreign corporation, partnership, estate or
trust. If the forms provided by a Bank at the time such Bank first
becomes a party to this Agreement indicate a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Bank provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such
lesser
rate only shall be considered excluded from Taxes for periods governed by
such
forms; provided, however, that if, at the effective date of
the Assignment and Acceptance pursuant to which a Bank becomes a party to
this
Agreement, the Bank assignor was entitled to payments under subsection (a)
of
this Section 2.11 in respect of United States withholding tax with respect
to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if
any,
applicable with respect to the Bank assignee on such date. If any
form or document referred to in this subsection (e) requires the disclosure
of
information, other than information necessary to compute the tax payable
and
information required on the date hereof by Internal Revenue Service Form
W-8BEN
or W-8ECI or the related certificate described above, that the applicable
Bank
reasonably considers to be confidential, such Bank shall give notice thereof
to
the applicable Loan Party and shall not be obligated to include in such form
or
document such confidential information.
(f For
any period with respect to which a Bank fails to provide a Loan Party with
the
appropriate form, certificate or other document described in subsection (e)
above (other than if such failure is due to a change in law, or in the
interpretation or application thereof, occurring after 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 Bank shall not be entitled to indemnification under subsection
(a) or (c) of this Section 2.11 with respect to Taxes imposed by the United
States by reason of such failure; provided, however, that
should a Bank become subject to Taxes because of its failure to deliver a
form,
certificate or other document required hereunder, the Loan Parties shall,
at the
sole expense of such Bank, take such steps as such Bank shall reasonably
request
to assist such Bank to recover such Taxes.
(g) Any
Bank claiming any additional amounts payable pursuant to this Section 2.11
agrees to use reasonable efforts (consistent with its internal policy and
legal
and regulatory restrictions) to change the jurisdiction of its Applicable
Lending Office or assign its rights and obligations under this Agreement
to
another of its offices, branches or Affiliates if the making of such a change
or
assignment 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 Bank, be otherwise disadvantageous to such Bank.
(h) If
a Bank or Administrative Agent actually receives a refund of any Taxes or
Other
Taxes as to which it has been indemnified by a Loan Party or with respect
to
which a Loan Party has paid additional amounts pursuant to this Section 2.11,
it
shall pay such refund to the Loan Party (but only to the extent of indemnity
payments made, or
NEWY1\8114089.7
24
additional
amounts paid, by the Loan Party under this Section 2.11 with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Bank or Administrative Agent
and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Loan Party,
upon the request of the Administrative Agent or such Bank or Administrative
Agent, agrees to repay the amount paid over to the Loan Party (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Bank or Administrative Agent
in
the event the Administrative Agent or such Bank or Administrative Agent is
required to repay such refund to such Governmental Authority. This Section
2.11(h) shall not be construed to require the Administrative Agent or any
Bank
or Administrative Agent to claim a refund or make available its tax returns
(or
any other information relating to its taxes which it deems confidential)
to the
Loan Parties or any other Person.
2.12 Sharing
of Payments, Etc. If any Bank shall obtain at any time any
payment (whether voluntary, involuntary, through the exercise of any right
of
set-off, or otherwise, other than as a result of an assignment pursuant to
Section 12.14 (Sale and Assignment)) (a) on account of Obligations due and
payable to such Bank hereunder and under the Notes and the other Loan Documents
at such time in excess of its ratable share (according to the proportion
of (i)
the amount of such Obligations due and payable to such Bank at such time
to (ii)
the aggregate amount of the Obligations due and payable to all Banks hereunder
and under the Notes and the other Loan Documents at such time) of payments
on
account of the Obligations due and payable to all Banks hereunder and under
the
Notes at such time obtained by all the Banks at such time or (b) on account
of
Obligations owing (but not due and payable) to such Bank hereunder and under
the
Notes and the other Loan Documents at such time in excess of its ratable
share
(according to the proportion of (i) the amount of such Obligations owing
to such
Bank at such time to (ii) the aggregate amount of the Obligations owing (but
not
due and payable) to all Banks hereunder and under the Notes and the other
Loan
Documents at such time) of payments on account of the Obligations owing (but
not
due and payable) to all Banks hereunder and under the Notes at such time
obtained by all of the Banks at such time, such Bank shall forthwith purchase
from the other Banks such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall
be
necessary to cause such purchasing Bank to share the excess payment ratably
with
each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank, such purchase
from each other Bank shall be rescinded and such other Bank shall repay to
the
purchasing Bank the purchase price to the extent of such Bank’s ratable share
(according to the proportion of (i) the purchase price paid to such Bank
to (ii)
the aggregate purchase price paid to all Banks) of such recovery together
with
an amount equal to such Bank’s ratable share (according to the proportion of (i)
the amount of such other Bank’s required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid
or
payable by the purchasing Bank in respect of the total amount so recovered;
provided, further that, so long as the Obligations under the Loan
Documents shall not have been accelerated, any excess payment received by
any
Bank shall be shared on a pro rata basis only with other Banks. The
Borrower agrees that any Bank so purchasing an interest or participating
interest from another Bank pursuant to this Section 2.12 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the
right
of set-off) with respect to such interest or
NEWY1\8114089.7
25
participating
interest, as the case may be, as fully as if such Bank were the direct creditor
of the Borrower in the amount of such interest or participating interest,
as the
case may be.
2.13 Use
of Proceeds. The Borrower used the proceeds of the loans
under the Original Credit Agreement to fund the Inter-Company Loan to
CCC. CCC used the proceeds of the Inter-Company Loan received by it
to repay in full (a) the then-existing Debt under the Amended and Restated
Credit Agreement dated as of December 21, 2005 by and among Transwestern
Holding
Company, LLC, CCC, the lenders party thereto, Wachovia Bank, National
Association, as administrative agent, Bank of America, N.A., as syndication
agent, and JPMorgan Chase Bank, N.A., Sun Trust Bank and Calyon, New York
Branch, as co-documentation agents and (b) the then-existing Debt under the
notes issued pursuant to the Note Purchase Agreement, dated as of November
17,
2004, between Transwestern Holding Company, LLC and the holders listed therein
(the Debt referred to in clause (a) and (b) shall collectively be referred
to as
the “TWH Indebtedness”).
2.14 Evidence
of Debt.
(a) (i) Each
Bank shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Bank resulting from each
Loan owing to such Bank from time to time, including the amounts of principal
and interest payable and paid to such Bank from time to time
hereunder. The Borrower agrees that upon request by any Bank to the
Borrower (with a copy of such request to the Administrative Agent) to the
effect
that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Bank to evidence (whether for purposes of pledge,
enforcement or otherwise) the Loans owing to, or to be made by, such Bank,
the
Borrower shall promptly execute and deliver to such Bank, with a copy to
the
Administrative Agent, a Note payable to the order of such Bank in a principal
amount equal to the Loans of such Bank. All references to Notes in
the Loan Documents shall mean Notes, if any, to the extent issued
hereunder.
(b) The
Register maintained by the Administrative Agent pursuant to Section 12.14(d)
(Sale and Assignment) shall include a control account, and a subsidiary account
for each Bank, in which accounts (taken together) shall be recorded (i) the
date
and amount of each Borrowing made hereunder, the Type of Loans 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 Bank hereunder, and (iv) the amount of
any sum
received by the Administrative Agent from the Borrower hereunder and each
Bank’s
share thereof.
(c) Entries
made in good faith by the Administrative Agent in the Register pursuant to
subsection (b) above, and by each Bank 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 Bank and, in the case of such
account or accounts, such Bank, under this Agreement, absent manifest error;
provided, however, that the failure of the Administrative Agent or such
Bank to make an entry, or any finding that an entry is
NEWY1\8114089.7
26
incorrect,
in the Register or such account or accounts shall not limit or otherwise
affect
the obligations of the Borrower under this Agreement.
2.15 Replacement
of Banks. If (a) any Bank requests compensation under
Section 2.9 (Increased Costs) or asserts, pursuant to Section 2.9(d) that
it is
unlawful for such Bank to make Eurodollar Rate Loans, (b) the Borrower is
required to pay any additional amount to any Bank or any Governmental Authority
for the account of any Bank pursuant to Section 2.11 (Taxes), (c) any Bank
defaults in its obligation to fund Loans hereunder, or (d) with respect to
any
Bank that does not approve any amendment or waiver of any provision of any
Loan
Document that requires the unanimous consent of all of the Banks pursuant
to
Section 12.1 (Amendments; Waivers, Etc.), if such amendment or waiver is
agreed
to by the Required Banks, then the Borrower may, at its sole expense, upon
prior
notice to such Bank and the Administrative Agent, require such Bank to assign
and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 12.14 (Sale and Assignment)), all its
interests, rights and obligations under this Agreement to an assignee that
shall
assume such obligations (which assignee may be another Bank, if a Bank accepts
such assignment); provided that (i) to the extent required under
Section 12.14 (Sale and Assignment), the Borrower shall have received the
prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Bank shall have received payment of an
amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from
the
assignee (to the extent of such outstanding principal and accrued interest
and
fees) or the Borrower (in the case of all other amounts) and (iii) in the
case
of any such assignment resulting from a claim for compensation under Section
2.9
(Increased Costs) or payments required to be made pursuant to Section 2.11
(Taxes), such assignment will result in a reduction in such compensation
or
payments. A Bank shall not be required to make any such assignment
and delegation if, prior thereto, as a result of a waiver by such Bank or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
3. REPRESENTATIONS
AND WARRANTIES OF THE LOAN PARTIES.
Each
of
Panhandle Eastern, Borrower and CCC represents and warrants to the
Administrative Agent and the Banks that:
3.1 Organization
and Qualification. Such Loan Party:
(a) is
duly organized, validly existing, and in good standing under the laws of
its
state of organization;
(b) has
the corporate or organizational power to own its properties and to carry
on its
respective businesses as now conducted; and
(c) is
duly qualified as a foreign limited partnership or limited liability company,
as
applicable, to do business and is in good standing in every jurisdiction
where
such qualification is necessary except when the failure to so qualify would
not
or does not have a Material Adverse Effect.
NEWY1\8114089.7
27
The
Borrower has the Subsidiaries as applicable listed on Schedule 3.1
attached hereto and made a part hereof for all purposes, and no others, each
of
which is a Delaware limited liability company unless otherwise noted on
Schedule 3.1.
3.2 Authorization,
Validity, Etc. Each such Loan Party has the limited
liability company or limited partnership power and authority to make, execute,
deliver and perform under this Agreement, the Loan Documents and the
Inter-Company Note to which it is a party and the transactions contemplated
herein and therein, and all such action has been duly authorized by all
necessary limited partnership or limited liability company proceedings on
its
part. Each Loan Document and the Inter-Company Note to which a Loan
Party is a party has been duly and validly executed and delivered by such
Loan
Party and constitutes the valid and legally binding agreement of such Loan
Party
enforceable against such Loan Party in accordance with its terms, except
as
limited by Debtor Laws.
3.3 Conflicting
or Adverse Agreements or Restrictions. No Loan Party is a
party to any contract or agreement or subject to any restriction which would
materially adversely affect the ability of any Loan Party to perform its
obligations under the Loan Documents and the Inter-Company Note to which
it is a
party. Neither the execution and delivery of this Agreement, any
other Loan Document or the Inter-Company Note by any Loan Party that is or
is to
become a party thereto, nor the consummation of the transactions contemplated
hereby or thereby, nor the fulfillment of and compliance with the respective
terms, conditions and provisions hereof or thereof or of any instruments
required hereby will conflict with or result in a breach of any of the terms,
conditions or provisions of, or constitute a default under, or result in
any
violation of, or result in the creation or imposition of any lien (other
than as
contemplated or permitted by this Agreement) on any of the property of such
Loan
Party pursuant to (a) the charter or bylaws or similar organizational documents
applicable to such Loan Party; (b) any law or any regulation of any Government
Authority; (c) any order, writ, injunction or decree of any court; or (d)
the
terms, conditions or provisions of any agreement or instrument to which such
Loan Party is a party or by which it is bound or to which it is subject,
except
in the case of clauses (b), (c) and (d) for conflicts, breaches, defaults,
violations or the creation or imposition of liens that could not be reasonably
expected to have a Material Adverse Effect.
3.4 No
Consents Required. No action, approval, consent, waiver,
exemption, variance, franchise, order, permit, authorization, right or license
of or from a Governmental Authority, and no notice to or filing with, any
Governmental Authority (including without limitation the SEC under PUHCA)
or any
other third party is required for (a) the due execution, delivery or performance
by any Loan Party of any Loan Document or the Inter-Company Note to which
it is
or is to be a party, or for the consummation of the transactions contemplated
hereby, including without limitation the incurrence of Debt under this Agreement
and the Inter-Company Note and the borrowing and repayment of Loans hereunder
and thereunder; or (b) the exercise by any Administrative Agent or any Bank
of
its rights under the Loan Documents, except for those authorizations, approvals,
actions, notices and filings (A) which have been duly obtained or made or
which
are not required under the terms of the Loan Documents to have been obtained
or
made on or prior to such date or (B) with respect to the consummation of
the
transactions contemplated hereby, the failure of which to be obtained or
made
could not reasonably be expected to have a Material Adverse Effect.
NEWY1\8114089.7
28
3.5 Financial
Statements.
(a) Panhandle
Eastern has furnished the Banks with its audited financial report as of the
fiscal year ending December 31, 2006 and its unaudited financial reports
as of
the quarterly period ending March 31, 2007. These statements are
complete and correct and present fairly, in all material respects, in accordance
with GAAP, consistently applied throughout the periods involved, the
Consolidated financial position of Panhandle Eastern and its Subsidiaries
and
the results of their operations as at the dates and for the periods
indicated.
(b) The
Borrower has furnished the Banks with the Borrower’s unaudited financial report
as of the fiscal year ending December 31, 2006 and its unaudited financial
reports as of the quarterly period ending March 31, 2007. These
statements are complete and correct and present fairly, in all material
respects, in accordance with GAAP, consistently applied throughout the periods
involved, the Consolidated financial position of the Borrower and its
Subsidiaries and the results of their operations as at the dates and for
the
periods indicated.
(c) CCC
has furnished the Banks with its unaudited financial report as of the fiscal
year ending December 31, 2006 and its unaudited financial reports as of the
quarterly period ending March 31, 2007. These statements are complete
and correct and present fairly, in all material respects, in accordance with
GAAP, consistently applied throughout the periods involved, the Consolidated
financial position of CCC and the results of its operations as at the dates
and
for the periods indicated.
(d) Since
December 31, 2006, there has not occurred any event or condition which,
individually or in the aggregate, has resulted in, or could reasonably be
expected to result in, a Material Adverse Change respecting Panhandle Eastern,
Borrower or CCC.
3.6 Litigation. Except
as disclosed pursuant to Section 3.17 (Environmental Matters), there is no:
(a)
action or proceeding pending or, to the knowledge of Panhandle Eastern, Borrower
or CCC, threatened against any Loan Party before any court, administrative
agency or arbitrator which is reasonably expected to have a Material Adverse
Effect; (b) unsatisfied judgment outstanding against such Loan Party for
the
payment of money; or (c) other outstanding judgment, order or decree affecting
such Loan Party before or by any administrative or governmental authority,
compliance with or satisfaction of which may reasonably be expected to have
a
Material Adverse Effect.
3.7 Default. No
Loan Party is in default under or in violation of the provisions of any
instrument evidencing any Debt or of any agreement relating thereto or any
judgment, order, writ, injunction or decree of any court or any order,
regulation or demand of any administrative or governmental instrumentality,
which default or violation could reasonably be expected to have a Material
Adverse Effect.
3.8 Compliance. Each
Loan Party is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property, except where the
failure to
NEWY1\8114089.7
29
do
so,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Effect.
3.9 Title
to Assets. Each Loan Party has good title to its respective
assets, subject to no Liens except those permitted in Section 6.2 (Liens,
Etc.),
Section 7.1 (Liens, Etc.), Section 8.1 (Liens, Etc.) and Permitted
Encumbrances. For purposes of this Section 3.9, “Permitted
Encumbrances” shall mean easements, rights-of-way, restrictions, minor
defects or irregularities in title and other similar charges or encumbrances
not
interfering in any material respect with the ordinary conduct of the business
of
such Loan Party.
3.10 Payment
of Taxes. Each Loan Party has filed all material tax returns
required to be filed and has paid all taxes shown on said returns and all
assessments which are due and payable (except such as are being contested
in
good faith by appropriate proceedings for which adequate reserves for their
payment have been provided in a manner consistent with the accounting practices
followed by the applicable Loan Party as of December 31, 2006). No
Loan Party is aware of any pending investigation by any taxing authority
or of
any claims by any Governmental Authority for any unpaid taxes. Except
as disclosed on Schedule 3.10, no Loan Party is party to any tax sharing
agreement or arrangement.
3.11 Investment
Company Act Not Applicable. No Loan Party is an “investment
company” or a company “controlled” by an “investment company”, within the
meaning of the Investment Company Act of 1940, as amended.
3.12 Reserved
3.13 Regulations
G, T, U and X. No Loan shall be a “purpose credit secured
directly or indirectly by margin stock” within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System (“margin stock”); none of
the proceeds of any Loan will be used by any Loan Party to extend credit
to
others for the purpose of purchasing or carrying any margin stock, or for
any
other purpose which would constitute this transaction a “purpose credit secured
directly or indirectly by margin stock” within the meaning of said Regulation U,
as now in effect or as the same may hereafter be in effect. No Loan
Party will take or permit any action which would involve the Banks in a
violation of Regulation G, Regulation T, Regulation U, Regulation X or any
other
regulation of the Board of Governors of the Federal Reserve System or a
violation of the Securities Exchange Act of 1934, in each case as now or
hereafter in effect.
3.14 ERISA. Except
as provided in Schedule 3.14, (a) no Reportable Event (as defined in §
4043(c) of ERISA) has occurred with respect to any Plan, (b) each
Plan complies
in all material respects with applicable provisions of ERISA, and each Loan
Party has filed all reports required by ERISA and the Code to be filed with
respect to each Plan, (c) no Loan Party has any knowledge of any event which
could result in a liability of a Loan Party to the Pension Benefit Guaranty
Corporation, and (d) each Loan Party has met all requirements with respect
to
funding the Plans imposed by ERISA or the Code. Since the effective
date of Title IV of ERISA, there have not been any, nor are there now existing
any, events or conditions that would permit any Plan to be terminated under
circumstances which would cause the lien provided under § 4068 of ERISA to
attach to any property of a Loan Party.
NEWY1\8114089.7
30
3.15 No
Financing of Certain Security Acquisitions. None of the
proceeds of any Loan will be used to acquire any security in any transaction
that is subject to §▇▇ ▇▇ §▇▇ of the Securities Exchange Act of 1934, as
amended.
3.16 Franchises,
Co-Licenses, Etc. Each Loan Party owns or has obtained all
the material governmental permits, certificates of authority, leases, patents,
trademarks, service marks, trade names, copyrights, franchises and licenses,
and
rights with respect thereto, required or necessary (or, in the sole and
independent judgment of the Borrower, prudent) in connection with the conduct
of
their respective businesses as presently conducted or as proposed to be
conducted, except where the failure to have any of the foregoing could not
be
reasonably expected to have a Material Adverse Effect.
3.17 Environmental
Matters. Except as disclosed in Schedule 3.17, (a)
all facilities and property owned or leased by a Loan Party have been and
continue to be, owned or leased and operated by such Loan Party in material
compliance with all Environmental Laws; (b) there has not been (during the
period of such Loan Party’s ownership or lease) any Release of Hazardous
Materials at, on, under or from any property now (or, to such Loan Party’s
knowledge, previously) owned or leased by such Loan Party (i) that required,
or
may reasonably be expected to require, such Loan Party to expend funds on
remediation or cleanup activities pursuant to any Environmental Law except
for
remediation or clean-up activities that would not be reasonably expected
to have
a Material Adverse Effect, or (ii) that otherwise, singly or in the aggregate,
has, or may reasonably be expected to have, a Material Adverse Effect; (c)
each
Loan Party has been issued and is in material compliance with all permits,
certificates, approvals, orders, licenses and other authorizations relating
to
environmental matters necessary for the conduct of its businesses; (d) there
are
no polychlorinated biphenyls (PCB’s) or asbestos-containing materials or surface
impoundments in any of the facilities now (or, to the knowledge of such Loan
Party, previously) owned or leased by such Loan Party, except for PCB’s and
asbestos-containing materials of the type and in quantities that, to the
knowledge of such Loan Party, do not currently require remediation, and if
remediation of such PCB’s and asbestos-containing materials is hereafter
required for any reason, such remediation activities would not reasonably
be
expected to have a Material Adverse Effect; (e) Hazardous Materials have
not
been generated, used, treated, recycled, stored or disposed of at, on, under
or
from any of the facilities or property now (or, to the knowledge of such
Loan
Party, previously) owned or leased by such Loan Party during the time of
such
Loan Party’s ownership or lease of such property that may require remediation or
clean-up activities that would be reasonably expected to have a Material
Adverse
Effect; and (f) all underground storage tanks located on the property now
(or,
to the knowledge of such Loan Party, previously) owned or leased by such
Loan
Party have been (and to the extent currently owned or leased are) operated
in
material compliance with all applicable Environmental Laws.
3.18 Existing
Liens. There shall not exist any Liens on any Property of
the Borrower or its Subsidiaries other than Permitted Liens. There
shall not exist any Liens on any Property of CCC or its
Subsidiaries.
3.19 Disclosure. No
written information (other than any projections) concerning any Loan Party
and
the transactions contemplated hereby furnished by or on behalf of such Loan
Party to the Administrative Agent or any Bank in connection with the negotiation
of this
31
Agreement
or delivered hereunder (as modified or supplemented by other information
so
furnished), taken as a whole, contains any untrue statement of a material
fact
or omits to state a material fact necessary in order to make the statements
contained therein not misleading in any material respect in light of the
circumstances under which such statements were, or are, made. The
projections were prepared by or on behalf of each Loan Party in good faith
based
upon assumptions that such Loan Party believes to be reasonable as of the
Closing Date (it being understood that such projections are subject to
significant uncertainties and contingencies, many of which are beyond such
Loan
Party’s control, and accordingly no assurance can be given and no
representations are made that the assumptions are correct or that the
projections will be realized).
3.20 Insurance. Each
Loan Party has insurance with a responsible and reputable insurer covering
its
assets against loss or damage of the kinds customarily insured against by
companies similarly situated in the industry in which such Person conducts
its
business, in such amounts and with such deductibles as are customary for
similarly situated companies; and such Person (a) has not received notice
from
any insurer or agent of such insurer that any material capital improvements
or
other material expenditures are required or necessary to be made in order
to
continue such insurance or (b) does not have any reason to believe that it
will
not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage at commercially available rates from
similar insurers as may be necessary to continue its business.
3.21 Subsidiaries. TLNG
is wholly owned by the Borrower. The Borrower is wholly owned,
directly or indirectly, by Panhandle Eastern. CCC is an Affiliate of
the Borrower and is wholly owned by Southern Union.
4. CONDITIONS
TO THE CLOSING DATE.
The
obligation on the Closing Date of the Banks to make any Loans on the Closing
Date is subject to the following conditions:
4.1 Representations
True and No Defaults.
(a) The
representations and warranties contained in Section 3 (Representations and
Warranties of the Loan Parties) shall be true and correct on and as of the
Closing Date as though made on and as of such date;
(b) None
of Panhandle Eastern, Borrower or CCC shall be in default in the due performance
of any covenant on its part contained in this Agreement;
(c) No
Material Adverse Change shall have occurred with respect to (i) Panhandle
Eastern reflected in the Consolidated annual financial statements of Panhandle
Eastern dated December 31, 2006, (ii) the Borrower reflected in the Consolidated
annual financial statements of the Borrower dated December 31, 2006, or (iii)
CCC reflected in the annual financial statements of CCC dated December 31,
2006;
and
(d) No
Event of Default or Default shall have occurred and be continuing.
NEWY1\8114089.7
32
4.2 Intentionally
Omitted.
4.3 Compliance
With Law. The business and operations of each Loan Party as
conducted at all times relevant to the transactions contemplated by this
Agreement to and including the close of business on the Closing Date shall
have
been and shall be in compliance in all material respects with all applicable
State and Federal laws, regulations and orders affecting such Loan Party
and the
business and operations of any of them.
4.4 Notice
of Borrowing and Other Documents. The Banks shall have
received (a) the Notice of Borrowing; and (b) such other documents and
certificates relating to the transactions herein contemplated as the Banks
may
reasonably request.
4.5 Payment
of Fees and Expenses. The Borrower shall have paid (a) all
expenses of the type described in Section 12.2 (Reimbursement of Expenses)
through the date of such Loan and (b) all closing, structuring and other
invoiced fees owed as of the Closing Date to the Administrative Agent or
any of
the Banks by the Borrower under this Agreement or any other written agreement
between a Loan Party and the Administrative Agent, the applicable Bank(s),
or
any of their Affiliates.
4.6 Repayment
of Debt. The Borrower shall have repaid, or simultaneously with the
Borrowing hereunder shall repay, (i) to all Withdrawing Banks the outstanding
principal balance of their loans under the Original Credit Agreement, together
with all accrued interest, applicable breakage expenses and other expenses
owed
in relation to such repayment; and (ii) to each Continuing Bank that has
communicated its intention to reduce its loans under the Original Credit
Agreement in part, an amount equal to the reduction of such Continuing Bank’s
loan under the Original Credit Agreement, together with all accrued interest,
applicable breakage expenses and other expenses owed in relation to such
partial
repayment.
4.7 Loan
Documents Satisfactory. The Administrative Agent shall have
received a copy of each of the Loan Documents, each of which shall be in
form
and substance reasonably satisfactory to the Administrative Agent.
4.8 Inter-Company
Note Satisfactory. The Administrative Agent shall have
received a copy of the Inter-Company Note together with any amendments and
waivers thereto, which Note shall be in form and substance reasonably
satisfactory to the Administrative Agent.
4.9 Loan
Documents, Opinions and Other Instruments. As of the Closing
Date, the Loan Parties shall have delivered to the Administrative Agent the
following:
(a) this
Agreement, each of the Notes, all other Loan Documents and the Inter-Company
Note required by the Administrative Agent and the Banks to be executed and
delivered by the applicable Loan Parties in connection with this
Agreement;
(b) a
certificate from the Secretary of State of the State of Delaware as to the
continued existence and good standing of Panhandle Eastern, the Borrower
and CCC
in the State of Delaware;
NEWY1\8114089.7
33
(c) a
certificate from Secretary of State of each State in which such certification
is
necessary as to the good standing of TLNG and each Loan Party as a foreign
entity to do business in such State;
(d) a
Secretary’s Certificate executed by the duly elected Secretary or a duly elected
Assistant Secretary of Panhandle Eastern, the Borrower and CCC, in a form
acceptable to the Administrative Agent, whereby such Secretary or Assistant
Secretary certifies that one or more resolutions adopted by the Board of
Managers of such Loan Party (or, in the case of Panhandle Eastern, the Board
of
Managers of its general partner) remain in full force and effect authorizing
such Loan Party to enter into the transactions contemplated hereby and perform
its obligations under the Loan Documents and the Inter-Company Note;
and
(e) a
legal opinion from in house counsel for the Borrower and each Guarantor,
and New
York counsel to the Administrative Agent and the BAS, each dated as of the
Closing Date, addressed to the Administrative Agent and the Banks and otherwise
acceptable in all respects to the Administrative Agent in its
discretion.
4.10 PATRIOT
Act. Pursuant to the requirements of the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)), the Administrative Agent shall have obtained, verified and
recorded information that identifies the Loan Parties, which information
includes the name and address of the Loan Parties and other information that
will allow such Bank to identify the Loan Parties in accordance with said
Act.
5. AFFIRMATIVE
COVENANTS OF THE LOAN PARTIES.
Each
of
Panhandle Eastern, Borrower and CCC covenants and agrees that, so long as
the
Borrower may borrow hereunder and until payment in full of the Obligations,
each
of Panhandle Eastern, Borrower and CCC, as applicable, will:
5.1 Financial
Statements and Information.
Deliver
to the Banks:
(a) as
soon as available, and in any event within 120 days after the end of each
fiscal
year of Panhandle Eastern, a copy of the annual audit report of Panhandle
Eastern and its Subsidiaries for such fiscal year containing a balance sheet,
statement of income and stockholders equity and a cash flow statement, all
in
reasonable detail and certified by PriceWaterhouseCoopers or another independent
certified public accountant of recognized standing reasonably satisfactory
to
the Banks; and
(b) as
soon as available, and in any event within 120 days after the end of each
fiscal
year of the Borrower and CCC, an unaudited financial report of the Borrower
and
its Subsidiaries and an unaudited report of CCC and its Subsidiaries for
such
fiscal year containing a balance sheet, statement of income and stockholders
equity and cash flow statement, all in reasonable detail and certified by
a
financial officer of such Loan Party to have been prepared in accordance
with
GAAP, except as may be explained in such certificate; and
34
(c) as
soon as available, and in any event within 60 days after the end of each
quarterly accounting period in each fiscal year of Panhandle Eastern, CCC
and
the Borrower (excluding the fourth quarter), an unaudited financial report
of
Panhandle Eastern and its Subsidiaries, CCC and its Subsidiaries and the
Borrower and its Subsidiaries as at the end of such quarter and for the period
then ended, containing a balance sheet, statements of income and stockholders
equity and a cash flow statement, all in reasonable detail and certified
by a
financial officer of such Loan Party to have been prepared in accordance
with
GAAP, except as may be explained in such certificate;
(d) such
additional financial or other information as the Banks may reasonably request;
and
(e) copies
of all regular, periodic and special reports, and all registration statements,
that such Loan Party files with the SEC or any governmental authority that
may
be substituted therefor, or with any national securities exchange.
All
financial statements specified in clauses (a), (b) and (c) above shall be
furnished in Consolidated form for Panhandle Eastern and its Subsidiaries,
CCC
and its Subsidiaries and the Borrower and its Subsidiaries with comparative
Consolidated figures for the corresponding period in the preceding
year. Together with each delivery of financial statements required by
clauses (a), (b) and (c) above, each of Panhandle Eastern, CCC and the Borrower,
as applicable, will deliver to the Banks an Officer’s Certificate stating that
there exists no Event of Default or Default, or, if any such Event of Default
or
Default exists, stating the nature thereof, the period of existence thereof
and
what action the Borrower has taken or proposes to take with respect
thereto. Together with each delivery of financial statements required
by clauses (a) and (c) above, Panhandle Eastern will deliver to the Banks
an
Officer’s Certificate demonstrating compliance with the covenants set forth in
Section 6.1 (Financial Covenant). The Banks are authorized to deliver a copy
of
any financial statement delivered to it to any regulatory body having
jurisdiction over them, and to disclose same to any prospective assignees
or
participant Banks.
5.2 Books
and Records. Maintain, and cause each of its Subsidiaries to
maintain, proper books of record and account in accordance with sound accounting
practices in which true, full and correct entries will be made of all their
respective dealings and business affairs.
5.3 Insurance. Maintain,
and cause each of its Subsidiaries to maintain, insurance with financially
sound, responsible and reputable companies in such types and amounts and
against
such casualties, risks and contingencies as is customarily carried by owners
of
similar businesses and properties.
5.4 Maintenance
of Property. Maintain and preserve, and cause each of its
Subsidiaries to maintain and preserve, all of its properties that are used
or
useful in the conduct of its business in accordance with such Loan Party’s
established maintenance plan as in effect from time to time consistent with
past
practices.
5.5 Inspection
of Property and Records. Permit any officer, director or
agent of the Administrative Agent or any Bank, on written notice and at such
Bank’s expense, to visit and
NEWY1\8114089.7
35
inspect
during normal business hours any of the properties, corporate books and
financial records of each Loan Party and discuss their respective affairs
and
finances with their principal officers, all at such times as the Administrative
Agent or any Bank may reasonably request.
5.6 Existence,
Laws, Obligations, Taxes. Maintain, and cause each of its
Subsidiaries to maintain, its corporate existence and franchises, and any
license agreements and tariffs that permit the recovery of a return that
such
Loan Party considers to be fair (and as to licenses, franchises, and tariffs
that are subject to regulatory determinations of recovery of returns, such
Loan
Party has presented or is presenting favorable defense thereof); and to comply,
and cause each of its Subsidiaries to comply, with all statutes and governmental
regulations noncompliance with which might have a Material Adverse Effect,
and
pay, and cause each of its Subsidiaries to pay, all taxes, assessments,
governmental charges, claims for labor, supplies, rent and other obligations
which if unpaid might become a lien against the property of such Loan Party
and
its Subsidiaries except liabilities being contested in good faith.
5.7 Notice
of Certain Matters. Notify the Administrative Agent promptly
upon acquiring knowledge of the occurrence of any of the following
events:
(a) the
institution or threatened institution of any lawsuit or administrative
proceeding affecting a Loan Party that is not covered by insurance (less
applicable deductible amounts) and which, if determined adversely to such
Loan
Party, could reasonably be expected to have a Material Adverse
Effect;
(b) the
occurrence of any Material Adverse Change, or of any event that in the good
faith opinion of such Loan Party is likely to result in a Material Adverse
Change, affecting such Loan Party;
(c) the
occurrence of any Event of Default or any Default;
(d) a
change by ▇▇▇▇▇’▇ Investors Service, Inc. or by Standard and Poor’s Ratings
Group in the rating of the Funded Debt of Panhandle Eastern; and
(e) such
other information respecting the business, financial condition, operations
or
assets of the Loan Parties as any Administrative Agent, or any Bank through
the
Administrative Agent, may from time to time reasonably request.
5.8 ERISA.
(a) to
the extent required of a Loan Party under applicable law, maintain and keep
in
full force and effect each Plan, subject to Southern Union’s right, in
accordance with applicable legal requirements, (i) to amend any such Plans,
(ii)
to merge any such Plans, and to (iii) cease benefit accruals under any such
Plans;
(b) to
the extent required of a Loan Party under applicable law, make contributions
to
each Plan in a timely manner and in an amount sufficient to comply with the
minimum funding standards requirements of ERISA;
NEWY1\8114089.7
36
(c) promptly
after acquiring knowledge of any “reportable event” or of any “prohibited
transaction” (as such terms are defined in § 4043 and § 406 of ERISA) in
connection with any Plan, furnish the Banks with a statement executed by
the
president or chief financial officer of a Loan Party setting forth the details
thereof and the action which the Borrower proposes to take with respect thereto
and, when known, any action taken by the Internal Revenue Service with respect
thereto;
(d) notify
the Banks promptly upon receipt by a Loan Party or any Subsidiary of any
notice
of the institution of any proceeding or other action which may result in
the
termination of any Plan and furnish to the Banks copies of such
notice;
(e) to
the extent required of a Loan Party under applicable law, acquire and maintain
Pension Benefit Guaranty Corporation employer liability coverage insurance
required under ERISA;
(f) furnish
the Banks with copies of the summary annual report for each Plan filed with
the
Internal Revenue Service as the Administrative Agent or the Banks may request;
and
(g) furnish
the Banks with copies of any request for waiver of the funding standards
or
extension of the amortization periods required by § 303 and § 304 of ERISA or §
412 of the Code promptly after the request is submitted to the Secretary
of the
Treasury, the Department of Labor or the Internal Revenue Service, as the
case
may be.
5.9 Compliance
with Environmental Laws. At all times:
(a) (i)
use and operate, and cause each of its Subsidiaries to use and operate, all
of
their respective facilities and properties in material compliance with all
Environmental Laws; (ii) keep, and cause each of its Subsidiaries to keep,
all
necessary permits, approvals, orders, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
material compliance therewith; (iii) handle, and cause each of its Subsidiaries
to handle, all Hazardous Materials in material compliance with all applicable
Environmental Laws; and (iv) dispose, and cause each of its Subsidiaries
to
dispose, of all Hazardous Materials with carriers that maintain valid permits,
approvals, certificates, licenses or other authorizations for such disposal
in
material compliance with applicable Environmental Laws;
(b) promptly
notify the Administrative Agent and provide copies upon receipt of all written
claims, complaints, notices or inquiries relating to the condition of the
facilities and properties of such Loan Party under, or their respective
compliance with, applicable Environmental Laws wherein the condition or the
noncompliance that is the subject of such claim, complaint, notice, or inquiry
involves, or could reasonably be expected to involve, liability of or
expenditures of (1) in the case of Borrower, CCC or any of their respective
Subsidiaries, $10,000,000 or more, and (2) in the case of Panhandle Eastern
and
its Subsidiaries taken as a whole, $30,000,000 or more, to the extent in
each
case that such matters are not reflected in the financial statements provided
pursuant to Sections 3.5 (a) and (b) hereof for the period ended March 31,
2007;
and
NEWY1\8114089.7
37
(c) provide
such information and certifications which the Banks may reasonably request
from
time to time to evidence compliance with this Section 5.9.
6. NEGATIVE
COVENANTS OF PANHANDLE EASTERN.
So
long
as the Borrower may borrow hereunder and until payment in full of the
Obligations, except with the written consent of the Banks:
6.1 Financial
Covenant. Panhandle Eastern will not permit its
Debt/Capitalization Ratio as of the last day of any fiscal quarter to be
greater
than 65.0%.
6.2 Liens,
Etc. Panhandle Eastern will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien on or
with
respect to any of its Property, or sign or file or suffer to exist, under
the
Uniform Commercial Code of any jurisdiction, a financing statement that names
Panhandle Eastern or any of its Subsidiaries as debtor, or sign or suffer
to
exist any security agreement authorizing any secured party thereunder to
file
such financing statement, or assign any accounts or other right to receive
income, except:
(a) Permitted
Liens for Panhandle Eastern and its Subsidiaries;
(b) Liens
existing on the date hereof and any replacement, extension or renewal of
the
indebtedness secured by such Lien, provided that the amount of Debt or
other obligations secured thereby is not increased and is not secured by
any
additional assets; and
(c) Liens
arising in connection with Capitalized Leases; provided that no such
Lien shall extend to or cover any assets other than the assets subject to
such
Capitalized Leases) and purchase money Liens upon or in real property, equipment
or other fixed or capital assets acquired or held by Panhandle Eastern or
any of
its Subsidiaries to secure the purchase price of such property, equipment
or
other fixed or capital assets or to secure Debt incurred for the purpose
of
financing the acquisition, construction or improvement of any such property,
equipment or other fixed or capital assets, or Liens existing on any such
property, equipment or other fixed or capital assets at the time of acquisition,
or extensions, renewals or replacements of any of the foregoing for the same
or
a lesser amount (provided that no such Lien shall extend to or cover
any property other than the property, equipment or other fixed or capital
assets
being acquired, constructed or improved, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore subject
to the
Lien being extended, renewed or replaced); provided that the aggregate
principal amount of the Debt secured by Liens permitted by this clause (c)
shall
not exceed $50,000,000 at any time outstanding;
provided,
however, that Panhandle Eastern or any of its Subsidiaries may create or
assume any other Lien securing Debt if, after giving effect to such Debt,
the
Priority Obligations Amount does not exceed 10% of the Consolidated Net Tangible
Assets.
6.3 Debt. Panhandle
Eastern will not, and will not permit any Subsidiary (other than the Borrower
or
TLNG) to, create, incur, assume or suffer to exist any Debt, unless if
after
NEWY1\8114089.7
38
giving
effect to such Debt, the Priority Obligations Amount does not exceed 10%
of the
Consolidated Net Tangible Assets.
6.4 Change
in Nature of Business. Panhandle Eastern will not make any
material change in the nature of Panhandle Eastern’s business as carried on at
the date hereof.
6.5 Mergers,
Consolidation. Panhandle Eastern will not merge into or
consolidate with any Person or permit any Person to merge into it, or liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution), or
permit
any of its Subsidiaries to do so, except that:
(a) any
Subsidiary of Panhandle Eastern may merge into or consolidate with Panhandle
Eastern, provided that Panhandle Eastern is the continuing or surviving
Person;
(b) any
Subsidiary of Panhandle Eastern may merge into or consolidate with any other
Subsidiary of Panhandle Eastern; provided that if such Subsidiary is
the Borrower, such transaction shall comply with Section 7.3(c);
(c) any
Subsidiary of Panhandle Eastern may be liquidated or dissolved if Panhandle
Eastern determines in good faith that such liquidation or dissolution is
in the
best interest of Panhandle Eastern and is not materially disadvantageous
to the
Banks;
(d) any
Subsidiary of Panhandle Eastern may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with it;
provided that either (i) the Person surviving such merger shall be a
Subsidiary of Panhandle Eastern or (ii) such transaction complies with Sections
6.6(b), 7.3 and 7.4; and
(e) Panhandle
Eastern may merge with any Person; provided that if Panhandle Eastern
is not the surviving entity, the surviving entity agrees to assume and be
bound
by the terms and conditions of this Agreement pursuant to documentation
satisfactory to the Administrative Agent to such effect;
provided,
however, that in each case, immediately before and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing
and such transaction shall not cause or have caused a Material Adverse
Effect.
6.6 Sale
of Assets. Panhandle Eastern will not, and will not permit
any of its Subsidiaries to, sell, lease, transfer or otherwise dispose of,
in
one transaction or in a series of transactions, assets representing all or
substantially all of the Consolidated assets of Panhandle Eastern,
except:
(a) in
a transaction authorized by Section 6.5 (Mergers); and
(b) sales,
transfers or other dispositions of assets among Panhandle Eastern and its
Subsidiaries.
6.7 Restricted
Payments. Panhandle Eastern will not, and will not permit
any of its Subsidiaries to, pay or declare any Restricted Payment, except
that,
(a) any of its Subsidiaries
NEWY1\8114089.7
39
may
make
Restricted Payments to Panhandle Eastern or another Subsidiary of Panhandle
Eastern (except that the Borrower may not make any such payment to any Person
other than Panhandle Eastern and Subsidiaries of the Borrower may not make
any
such payment to any Person other than the Borrower or Panhandle Eastern)
and (b)
so long as no Event of Default has occurred and is continuing and Panhandle
Eastern is in pro forma compliance with Section 6.1(b) (Financial Covenant)
after giving effect to such Restricted Payments, Panhandle Eastern may make
distributions to Southern Union and Southern Union Panhandle, LLC.
6.8 Sales
and Leasebacks. Panhandle Eastern will not enter into any
arrangement with any Person (other than Subsidiaries of Panhandle Eastern)
providing for the leasing by Panhandle Eastern or any Subsidiary of real
or
personal property that has been or is to be sold or transferred by Panhandle
Eastern or such Subsidiary to such Person or to any other Person to whom
funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of Panhandle Eastern or such Subsidiary (each a
“Sale-Leaseback Transaction”), unless if after giving effect to
such Sale-Leaseback Transaction, the Priority Obligations Amount does not
exceed
10% of the Consolidated Net Tangible Assets.
6.9 Transactions
with Related Parties. Panhandle Eastern will not, and will
not permit any Subsidiary to, enter into any transaction or agreement with
any
officer, director or holder (other than Southern Union and its Subsidiaries)
of
ten percent (10%) or more of any class of the outstanding capital stock of
Panhandle Eastern or any Subsidiary (or any Affiliate of any such Person)
unless
the same is upon terms substantially similar to those obtainable from wholly
unrelated sources.
6.10 Hazardous
Materials. Panhandle Eastern will not, and will not permit
any Subsidiary to, (a) cause or permit any Hazardous Materials to be placed,
held, used, located, or disposed of on, under or at any of such Person’s
property or any part thereof by any Person in a manner which could reasonably
be
expected to have a Material Adverse Effect; (b) cause or permit any part
of any
of such Person’s property to be used as a manufacturing, storage, treatment or
disposal site for Hazardous Materials, where such action could reasonably
be
expected to have a Material Adverse Effect; or (c) cause or suffer any liens
to
be recorded against any of such Person’s property as a consequence of, or in any
way related to, the presence, remediation, or disposal of Hazardous Materials
in
or about any of such Person’s property, including any so-called state, federal
or local “superfund” lien relating to such matters, where such recordation could
reasonably be expected to have a Material Adverse Effect.
7. NEGATIVE
COVENANTS OF THE BORROWER.
So
long
as the Borrower may borrow hereunder and until payment in full of the
Obligations, except with the written consent of the Banks:
7.1 Liens,
Etc. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or suffer to exist any Lien on or with
respect to any of its Property, or sign or file or suffer to exist, under
the
Uniform Commercial Code of any jurisdiction, a financing statement that names
the Borrower or any of its Subsidiaries as debtor, or sign or suffer to exist
any security agreement authorizing any secured party thereunder to file such
financing statement, or assign any accounts or other right to receive income,
except:
NEWY1\8114089.7
40
(a) Permitted
Liens for the Borrower and its Subsidiaries;
(b) Liens
existing on the date hereof and any replacement, extension or renewal of
the
indebtedness secured by such Lien, provided that the amount of Debt or
other obligations secured thereby is not increased and is not secured by
any
additional assets; and
(c) Liens
arising in connection with Capitalized Leases; provided that no such
Lien shall extend to or cover any assets other than the assets subject to
such
Capitalized Leases) and purchase money Liens upon or in real property, equipment
or other fixed or capital assets acquired or held by the Borrower or any
of its
Subsidiaries to secure the purchase price of such property, equipment or
other
fixed or capital assets or to secure Debt incurred for the purpose of financing
the acquisition, construction or improvement of any such property, equipment
or
other fixed or capital assets, or Liens existing on any such property, equipment
or other fixed or capital assets at the time of acquisition, or extensions,
renewals or replacements of any of the foregoing for the same or a lesser
amount
(provided that no such Lien shall extend to or cover any property other
than the property, equipment or other fixed or capital assets being acquired,
constructed or improved, and no such extension, renewal or replacement shall
extend to or cover any property not theretofore subject to the Lien being
extended, renewed or replaced); provided that the aggregate principal
amount of the Debt secured by Liens permitted by this clause (c) shall not
exceed $10,000,000 at any time outstanding.
7.2 Debt. The
Borrower will not, and will not permit any Subsidiary to, incur or permit
to
exist any Debt, except:
(a) Debt
under this Agreement;
(b) Debt
of TLNG to the Borrower and unsecured Debt of the Borrower to any
Subsidiary;
(c) Debt
under the March 2007 Credit Agreement;
(d) endorsements
in the ordinary course of business of negotiable instruments in the course
of
collection;
(e) Debt
of TLNG or any other Subsidiary of the Borrower subordinated to the Loans
on
terms and pursuant to documentation satisfactory to the Administrative
Agent;
(f) Unsecured
Debt of the Borrower; and
(g) Capitalized
Leases of the Borrower with Subsidiaries as permitted pursuant to
7.1(c).
7.3 Merger,
Consolidation. The Borrower will not, and will not permit
any Subsidiary to, merge or consolidate with any other Person or sell, lease,
transfer or otherwise dispose of (whether in one transaction or a series
of
transactions) all or a substantial part of its
NEWY1\8114089.7
41
assets
or
acquire (whether in one transaction or a series of transactions) all or a
substantial part of the assets of any Person, except that:
(a) any
Subsidiary of the Borrower may merge or consolidate with the Borrower
(provided that the Borrower shall be the continuing or surviving
corporation) or with any one or more Subsidiaries of the Borrower;
(b) any
Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose
of any
of its assets to the Borrower or another Subsidiary of the
Borrower;
(c) the
Borrower may acquire the assets of or merge with any Person, provided
that if the Borrower is not the surviving entity, the surviving entity agrees
to
assume and be bound by the terms and conditions of this Agreement pursuant
to
documentation satisfactory to the Administrative Agent; and
(d) the
Borrower or any Subsidiary of the Borrower may sell, lease, assign or otherwise
dispose of assets as otherwise permitted under Section 7.4 (Sale of Assets),
which shall include without limitation the transfer of assets to a Subsidiary
and the subsequent sale of the equity interests in such Subsidiary;
provided
that, after giving effect to any transaction, no Default or Event of Default
shall have occurred and be continuing and such transaction shall not cause
or
have caused a Material Adverse Effect.
7.4 Sale
of Assets. The Borrower will not, and will not permit any
Subsidiary to, except as permitted under this Section 7.4, sell, assign,
lease,
or otherwise dispose of (whether in one transaction or in a series of
transactions) all or any part of its Property (whether now owned or hereafter
acquired); provided, however, that
(a) the
Borrower or any Subsidiary may in the ordinary course of business dispose
of (i)
Property consisting of Inventory; and (ii) Property consisting of goods or
equipment that are, in the opinion of the Borrower or any Subsidiary of the
Borrower, obsolete or unproductive, but if in the good faith judgment of
the
Borrower or any Subsidiary of the Borrower such disposition without replacement
thereof would have a Material Adverse Effect, such goods and equipment shall
be
replaced, or their utility and function substituted, by new or existing goods
or
equipment; and
(b) the
Borrower or any Subsidiary may dispose of Property other than Inventory (in
consideration of such amount as in the good faith judgment of the Borrower
or
such Subsidiary represents a fair consideration therefor), provided
that the aggregate value of such property disposed of (determined after
depreciation and in accordance with GAAP) after the Closing Date does not
exceed
ten percent (10%) of the aggregate value of all of the Borrower’s and its
Subsidiaries’ real property and tangible personal property other than Inventory
considered on a Consolidated basis and determined after depreciation and
in
accordance with GAAP, as of December 31, 2006.
NEWY1\8114089.7
42
7.5 Restricted
Payments. The Borrower will not pay or declare any
Restricted Payment to any Person other than to Panhandle Eastern. The
Borrower will not permit any Subsidiary to pay or declare any Restricted
Payment
to any Person other than the Borrower.
7.6 Securities
Credit Regulations. Neither the Borrower nor any Subsidiary
will take or permit any action which might cause the Loans or this Agreement
to
violate Regulation G, Regulation T, Regulation U, Regulation X or any other
regulation of the Board of Governors of the Federal Reserve System or a
violation of the Securities Exchange Act of 1934, in each case as now or
hereafter in effect.
7.7 Nature
of Business. The Borrower will not, and will not permit any
Subsidiary, to, make any material change in the nature of the Borrower’s
business as carried on at the date hereof.
7.8 Transactions
with Related Parties. The Borrower will not, and will not
permit any Subsidiary to, enter into any transaction or agreement with any
officer, director or holder (other than Southern Union and its Subsidiaries)
of
ten percent (10%) or more of any class of the outstanding capital stock of
the
Borrower or any Subsidiary (or any Affiliate of any such Person) unless the
same
is upon terms substantially similar to those obtainable from wholly unrelated
sources.
7.9 Hazardous
Materials. The Borrower will not, and will not permit any
Subsidiary to, (a) cause or permit any Hazardous Materials to be placed,
held,
used, located, or disposed of on, under or at any of such Person’s property or
any part thereof by any Person in a manner which could reasonably be expected
to
have a Material Adverse Effect; (b) cause or permit any part of any of such
Person’s property to be used as a manufacturing, storage, treatment or disposal
site for Hazardous Materials, where such action could reasonably be expected
to
have a Material Adverse Effect; or (c) cause or suffer any liens to be recorded
against any of such Person’s property as a consequence of, or in any way related
to, the presence, remediation, or disposal of Hazardous Materials in or about
any of such Person’s property, including any so-called state, federal or local
“superfund” lien relating to such matters, where such recordation could
reasonably be expected to have a Material Adverse Effect.
7.10 Use
of Proceeds. The Borrower will not, and will not permit any
Subsidiary to, use the proceeds of any Loan for any purpose other than for
purposes set forth in Section 2.13 (Use of Proceeds); or use any such proceeds
in a manner which violates or results in a violation of any law or
regulation.
7.11 Changes
to Inter-Company Note or Other Debt Documents. The Borrower
will not, and will not permit any Subsidiary to, amend, restate or otherwise
modify or waive any provision or condition of (a) any instrument or
agreement relating to any secured Debt of such Person if the effect of such
modification or waiver is to increase the obligations of such Person in a
manner
that is adverse to the Banks without the consent of the Majority Banks or
(b)
the Inter-Company Note if the effect of such modification or waiver is to
violate Section 7.8 (Transactions with Related Parties), decrease the interest
rate to a rate below the interest rate under this Agreement in effect at
such
time, alter the frequency of interest payments if the effect of
such
NEWY1\8114089.7
43
alteration
would be that CCC pays interest less frequently than once per calendar quarter
or extend the maturity date thereof to a date that is later than the Maturity
Date.
8. NEGATIVE
COVENANTS OF CCC.
So
long
as the Borrower may borrow hereunder and until payment in full of the
Obligations, except with the written consent of the Banks:
8.1 Liens,
Etc. CCC will not, and will not permit any Subsidiary to,
create, incur, assume or suffer to exist any Lien on or with respect to any
of
its Property, or sign or file or suffer to exist, under the Uniform Commercial
Code of any jurisdiction, a financing statement that names CCC or any of
its
Subsidiaries as debtor, or sign or suffer to exist any security agreement
authorizing any secured party thereunder to file such financing statement,
or
assign any accounts or other right to receive income, except:
(a) Permitted
Liens for CCC and its Subsidiaries;
(b) Liens
arising in connection with Capitalized Leases; provided that no such
Lien shall extend to or cover any assets other than the assets subject to
such
Capitalized Leases) and purchase money Liens upon or in real property, equipment
or other fixed or capital assets acquired or held by CCC or any of its
Subsidiaries to secure the purchase price of such property, equipment or
other
fixed or capital assets or to secure Debt incurred for the purpose of financing
the acquisition, construction or improvement of any such property, equipment
or
other fixed or capital assets, or Liens existing on any such property, equipment
or other fixed or capital assets at the time of acquisition, or extensions,
renewals or replacements of any of the foregoing for the same or a lesser
amount
(provided that no such Lien shall extend to or cover any property other
than the property, equipment or other fixed or capital assets being acquired,
constructed or improved, and no such extension, renewal or replacement shall
extend to or cover any property not theretofore subject to the Lien being
extended, renewed or replaced); provided that the aggregate principal
amount of the Debt secured by Liens permitted by this clause (c) shall not
exceed $10,000,000 at any time outstanding.
8.2 Debt. CCC
will not, and will not permit any Subsidiary to, incur or permit to exist
any
Debt, except:
(a) Debt
under this Agreement;
(b) Debt
under the Inter-Company Note;
(c) Debt
existing as of March 31, 2007 as reflected on CCC’s financial statements
delivered under Section 3.2 (Financial Statements) and refinancings thereof,
other than the Debt constituting TWH Indebtedness;
(d) endorsements
in the ordinary course of business of negotiable instruments in the course
of
collection;
NEWY1\8114089.7
44
(e) Debt
of Subsidiaries of CCC subordinated to the Loans on terms and pursuant to
documentation satisfactory to the Administrative Agent;
(f) Unsecured
Debt of CCC in a principal amount not to exceed $10,000,000; and
(g) Capitalized
Leases of CCC with Subsidiaries as permitted pursuant to 8.1(b).
8.3 Merger,
Consolidation. CCC will not, and will not permit any
Subsidiary to, merge or consolidate with any other Person or sell, lease,
transfer or otherwise dispose of (whether in one transaction or a series
of
transactions) all or a substantial part of its assets or acquire (whether
in one
transaction or a series of transactions) all or a substantial part of the
assets
of any Person, except that:
(a) any
Subsidiary of CCC may merge or consolidate with CCC (provided that CCC
shall be the continuing or surviving corporation) or with any one or more
Subsidiaries of CCC;
(b) any
Subsidiary of CCC may sell, lease, transfer or otherwise dispose of any of
its
assets to CCC or another Subsidiary of CCC;
(c) CCC
may acquire the assets of or merge with any Person, provided that if
the Borrower is not the surviving entity, the surviving entity agrees to
assume
and be bound by the terms and conditions of this Agreement pursuant to
documentation satisfactory to the Administrative Agent.
(d) CCC
or any Subsidiary of CCC may sell, lease, assign or otherwise dispose of
assets
as otherwise permitted under Section 8.4 (Sale of Assets), which shall include
without limitation the transfer of assets to a Subsidiary and the subsequent
sale of the equity interests in such Subsidiary;
provided
that, after giving effect to any transaction, no Default or Event of Default
shall have occurred and be continuing and such transaction shall not cause
or
have caused a Material Adverse Effect.
8.4 Sale
of Assets. CCC will not, and will not permit any Subsidiary
to, except as permitted under this Section 8.4, sell, assign, lease, or
otherwise dispose of (whether in one transaction or in a series of transactions)
all or any part of its Property (whether now owned or hereafter acquired);
provided, however, that
(a) CCC
or any Subsidiary may in the ordinary course of business dispose of (i) Property
consisting of Inventory; and (ii) Property consisting of goods or equipment
that
are, in the opinion of CCC or any Subsidiary of CCC, obsolete or unproductive,
but if in the good faith judgment of CCC or any Subsidiary of CCC such
disposition without replacement thereof would have a Material Adverse Effect,
such goods and equipment shall be replaced, or their utility and function
substituted, by new or existing goods or equipment; and
NEWY1\8114089.7
45
(b) CCC
or any Subsidiary may dispose of Property other than Inventory (in consideration
of such amount as in the good faith judgment of CCC or such Subsidiary
represents a fair consideration therefor), provided that the aggregate
value of such property disposed of (determined after depreciation and in
accordance with GAAP) after the Closing Date does not exceed ten percent
(10%)
of the aggregate value of all of CCC’s and its Subsidiaries’ real property and
tangible personal property other than Inventory considered on a Consolidated
basis and determined after depreciation and in accordance with GAAP, as of
December 31, 2006.
8.5 Restricted
Payments. CCC will not pay or declare any Restricted Payment
to any Person other than to Southern Union and its Subsidiaries. Restricted
Payments by CCC in any period shall not exceed the sum of (i) Consolidated
Net
Income of CCC in such period (provided that for purpose of this Section
8.5(i), Consolidated Net Income shall not include special dividends and
distributions received by CCC) and (ii) 75% of (a) special dividends or
distributions received by CCC in such period less (b) the portion of any
special
dividends or distributions that are required to be paid by CCC to third parties
under indemnification or refund arrangements with such third parties in such
period, provided that, concurrent with the making of a Restricted
Payment by CCC based on a special dividend or distribution received, CCC
shall
prepay the Inter-Company Loan in an amount equal to 25% of (a) special dividends
or distributions received by CCC in such period less (b) the portion of any
special dividends or distributions that are required to be paid by CCC to
third
parties under indemnification or refund arrangements with such third parties
in
such period. Notwithstanding the foregoing, CCC may use the proceeds
of the Inter-Company Loan as contemplated by Section 2.13 (Use of Proceeds).
CCC
will not permit any Subsidiary to pay or declare any Restricted Payment to
any
Person other than CCC.
8.6 Securities
Credit Regulations. Neither CCC nor any Subsidiary will take
or permit any action which might cause the Loans or this Agreement to violate
Regulation G, Regulation T, Regulation U, Regulation X or any other regulation
of the Board of Governors of the Federal Reserve System or a violation of
the
Securities Exchange Act of 1934, in each case as now or hereafter in
effect.
8.7 Nature
of Business. CCC will not, and will not permit any
Subsidiary to, make any material change in the nature of CCC’s business as
carried on at the date hereof.
8.8 Transactions
with Related Parties. CCC will not, and will not permit any
Subsidiary to, enter into any transaction or agreement with any officer director
or holder (other than Southern Union and its Subsidiaries) of ten percent
(10%)
or more of any class of the outstanding capital stock of CCC or any Subsidiary
(or any Affiliate of any such Person) unless the same is upon terms
substantially similar to those obtainable from wholly unrelated
sources.
8.9 Hazardous
Materials. CCC will not, and will not permit any Subsidiary
to, (a) cause or permit any Hazardous Materials to be placed, held, used,
located, or disposed of on, under or at any of such Person’s property or any
part thereof by any Person in a manner which could reasonably be expected
to
have a Material Adverse Effect; (b) cause or permit any part of any of such
Person’s property to be used as a manufacturing, storage, treatment or disposal
site for Hazardous Materials, where such action could reasonably be expected
to
have a Material
NEWY1\8114089.7
46
Adverse
Effect; or (c) cause or suffer any liens to be recorded against any of such
Person’s property as a consequence of, or in any way related to, the presence,
remediation, or disposal of Hazardous Materials in or about any of such Person’s
property, including any so-called state, federal or local “superfund” lien
relating to such matters, where such recordation could reasonably be expected
to
have a Material Adverse Effect.
8.10 Use
of Proceeds. CCC will not, and will not permit any
Subsidiary to, use the proceeds of any Loan for any purpose other than for
purposes set forth in Section 2.13 (Use of Proceeds); or use any such proceeds
in a manner which violates or results in a violation of any law or
regulation.
8.11 Other
Documents. CCC will not, and will not permit any Subsidiary
to, amend, restate or otherwise modify or waive any provision or condition
of
any instrument or agreement relating to any secured Debt of such Person if
the
effect of such modification or waiver is to increase the obligations of such
Person in a manner that is adverse to the Banks without the consent of the
Majority Banks.
9. EVENTS
OF DEFAULT; REMEDIES.
If
any of
the following events shall occur, then the Administrative Agent shall at
the
request, or may with the consent, of the Majority Banks, declare the Notes
and
all interest accrued and unpaid thereon, and all other amounts payable under
the
Notes, this Agreement and the other Loan Documents, to be forthwith due and
payable, whereupon the Notes, all such interest and all such other amounts,
shall become and be forthwith due and payable without presentment, demand,
protest, or further notice of any kind (including, without limitation, notice
of
default, notice of intent to accelerate and notice of acceleration), all
of
which are hereby expressly waived by the Borrower; provided, however,
that with respect to any Event of Default described in Sections 9.7 (Bankruptcy)
or 9.8 (Dissolution) hereof, the entire unpaid principal amount of the Notes,
all interest accrued and unpaid thereon, and all such other amounts payable
under the Notes, this Agreement and the other Loan Documents, shall
automatically become immediately due and payable, without presentment, demand,
protest, or any notice of any kind (including, without limitation, notice
of
default, notice of intent to accelerate and notice of acceleration), all
of
which are hereby expressly waived by the Borrower:
9.1 Failure
to Pay Obligations When Due. The Borrower fails to pay,
repay or prepay any principal on the date when due, or any other Obligation
within five (5) Business Days after the date when due.
9.2 Intentionally
Omitted.
9.3 Failure
to Pay Other Debt. (a) The Borrower or any Subsidiary of the
Borrower fails to pay principal or interest on any unsecured Debt aggregating
more than $10,000,000 or any secured Debt when due and any related grace
period
has expired, or the holder of any of such other Debt declares such Debt due
prior to its stated maturity because of the Borrower’s or any Subsidiary’s
default thereunder and the expiration of any related grace period; (b) Panhandle
Eastern or any of its Subsidiaries fails to pay principal or interest on
any
other Debt aggregating more than $50,000,000 when due and any related grace
period has
NEWY1\8114089.7
47
expired,
or the holder of any of such other Debt declares such Debt due prior to its
stated maturity because of Panhandle Eastern’s or any such Subsidiary’s default
thereunder and the expiration of any related grace period; (c) CCC or any
of its
Subsidiaries fails to pay principal or interest on any other Debt aggregating
more than $10,000,000 when due and any related grace period has expired,
or the
holder of any of such other Debt declares such Debt due prior to its stated
maturity because of CCC’s or any such Subsidiary’s default thereunder and the
expiration of any related grace period; or (d) the holder of any Debt
aggregating more than $10,000,000 of Citrus Corp. declares such Debt due
prior
to its stated maturity because of Citrus Corp.’s default thereunder and the
expiration of any related grace period.
9.4 Misrepresentation
or Breach of Warranty. Any representation or warranty made
by any Loan Party herein or otherwise furnished to the Bank in connection
with
this Agreement or any other Loan Document shall be incorrect, false or
misleading in any material respect when made.
9.5 Violation
of Certain Covenants. Any Loan Party violates any covenant,
agreement or condition contained in Sections 5.6 (Existence), 5.7(c) (Notice
of
Defaults), 6.1 (Financial Covenant), 6.2 (Liens), 6.3 (Debt), 6.5 (Merger),
6.6
(Sale of Assets), 6.7 (Restricted Payments), 7.1 (Liens), 7.2 (Debt), 7.3
(Merger, Consolidation), 7.4 (Sale of Assets), 7.5 (Restricted Payments),
8.1
(Liens), 8.2 (Debt), 8.3 (Merger, Consolidation), 8.4 (Sale of Assets) or
8.5
(Restricted Payments).
9.6 Violation
of Other Covenants, Etc. Any Loan Party violates any other
covenant, agreement or condition contained herein (other than the covenants,
agreements and conditions set forth or described in Sections 9.1 (Failure
to Pay
Obligations When Due), 9.3 (Cross Default), 9.4 (Representations), and 9.5
(Certain Covenants) above) or in any other Loan Document and such violation
shall not have been remedied within (30) days after the earlier of (i) actual
discovery by a Loan Party of such violation or (ii) written notice has been
received by the Borrower from the Bank or the holder of the Note.
9.7 Bankruptcy
and Other Matters. Any Loan Party or Southern Union (a)
makes an assignment for the benefit of creditors; or (b) admits in writing
its
inability to pay its debts generally as they become due; or (c) generally
fails
to pay its debts as they become due; or (d) files a petition or answer seeking
for itself, or consenting to or acquiescing in, any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under
any
applicable Debtor Law (including, without limitation, the Federal Bankruptcy
Code); or (e) there is appointed a receiver, custodian, liquidator, fiscal
agent, or trustee of any Loan Party or Southern Union or of the whole or
any
substantial part of their respective assets; or (f) any court enters an order,
judgment or decree approving a petition filed against any Loan Party or Southern
Union seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any Debtor Law and either
such
order, decree or judgment so filed against it is not dismissed or stayed
(unless
and until such stay is no longer in effect) within thirty (30) days of entry
thereof or an order for relief is entered pursuant to any such law.
9.8 Dissolution. Any
order is entered in any proceeding against any Loan Party or Southern Union
decreeing the dissolution, liquidation, winding-up or split-up of any Loan
Party
or Southern Union, and such order remains in effect for thirty (30)
days.
NEWY1\8114089.7
48
9.9 Undischarged
Judgment. (a) A final judgment or judgments in the
aggregate, that might be or give rise to Liens on any property of the Borrower
or any of its Subsidiaries, for the payment of money in excess of $10,000,000
shall be rendered against the Borrower or any of its Subsidiaries and the
same
shall remain undischarged for a period of sixty (60) days during which execution
shall not be effectively stayed, (b) a final judgment or judgments in the
aggregate, that might be or give rise to Liens on any property of Panhandle
Eastern or any of its Subsidiaries, for the payment of money in excess of
$50,000,000 shall be rendered against Panhandle Eastern or any of its
Subsidiaries and the same shall remain undischarged for a period of sixty
(60)
days during which execution shall not be effectively stayed or (c) a final
judgment or judgments in the aggregate, that might be or give rise to Liens
on
any property of CCC or any of its Subsidiaries, for the payment of money
in
excess of $10,000,000 shall be rendered against CCC or any of its Subsidiaries
and the same shall remain undischarged for a period of sixty (60) days during
which execution shall not be effectively stayed.
9.10 Loan
Documents. Any material provision in any Loan Document or
the Inter-Company Note shall for any reason cease to be valid and binding
on any
party thereto except upon fulfillment of such party’s obligations thereunder (or
any such party shall so state in writing), or shall be declared null and
void,
or the validity or enforceability thereof shall be contested by any party
thereto (other than the Administrative Agent and the Banks) or any Governmental
Authority, or any such party shall deny in writing that it has any liability
or
obligation thereunder, except upon fulfillment of its obligations
thereunder.
9.11 Change
of Control. Any of the following events shall
occur:
(a) Panhandle
Eastern shall cease to own or control, directly or indirectly, 100% of the
Equity Interests and voting power of the Borrower;
(b) Southern
Union shall cease to own, or control, directly or indirectly, at least 51%
of
the Equity Interests and voting power of Panhandle Eastern or of
CCC;
(c) CCC
shall cease to own or control, directly or indirectly, at least 50% of the
Equity Interests and voting power of Citrus Corp.; or
(d) CCC
shall cease to own or control, directly or indirectly, at least 40% of the
Equity Interests and voting power of Florida Gas Transmission
Company.
9.12 Other
Remedies. In addition to and cumulative of any rights or
remedies expressly provided for in this Section 9, if any one or more Events
of
Default shall have occurred, the Administrative Agent shall at the request,
and
may with the consent, of the Majority Banks proceed to protect and enforce
the
rights of the Banks hereunder by any appropriate proceedings. The
Administrative Agent shall at the request, and may with the consent, of the
Majority Banks also proceed either by the specific performance of any covenant
or agreement contained in this Agreement or by enforcing the payment of the
Notes or by enforcing any other legal or equitable right provided under this
Agreement or the Notes or otherwise existing under any law in favor of the
holder of the Notes.
9.13 Remedies
Cumulative. No remedy, right or power conferred upon the
Banks is intended to be exclusive of any other remedy, right or power given
hereunder or now or hereafter
NEWY1\8114089.7
49
existing
at law, in equity, or otherwise, and all such remedies, rights and powers
shall
be cumulative.
10. THE
ADMINISTRATIVE AGENT.
10.1 Authorization
and Action. Each Bank hereby appoints HVB as its
Administrative Agent under and irrevocably authorizes the Administrative
Agent
(subject to this Section 10.1 and Section 10.7 (Successor Administrative
Agent))
to take such action as the Administrative Agent and to exercise such powers
under this Agreement, the Loan Documents and the Notes as are delegated to
the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto. Without limitation of the foregoing,
each Bank expressly authorizes the Administrative Agent to execute, deliver,
and
perform its obligations under this Agreement and the Loan Documents, and
to
exercise all rights, powers, and remedies that the Administrative Agent may
have
hereunder and thereunder. As to any matters not expressly provided
for by this Agreement (including, without limitation, enforcement or collection
of the Notes), the Administrative Agent shall not be required to exercise
any
discretion or take any action, but shall be required to act, or to refrain
from
acting (and shall be fully protected in so acting or refraining from acting),
upon the instructions of the Majority Banks, and such instructions shall
be
binding upon all the Banks and all holders of any Note; provided,
however, that the Administrative Agent shall not be required to take any
action which exposes the Administrative Agent to personal liability or which
is
contrary to this Agreement or applicable law. The Administrative
Agent agrees to give to each Bank prompt notice of each notice given to it
by
the Borrower pursuant to the terms of this Agreement.
10.2 Administrative
Agent’s Reliance, Etc. Neither the Administrative Agent nor
any of its directors, officers, agents, or employees shall be liable to any
Bank
for any action taken or omitted to be taken by it or them under or in connection
with this Agreement, the Notes and the other Loan Documents, except for its
or
their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Administrative Agent: (a) may treat
the
original or any successor holder of any Note as the holder thereof until
the
Administrative Agent receives notice from the Bank which is the payee of
such
Note concerning the assignment of such Note; (b) may employ and consult with
legal counsel (including counsel for the Borrower), independent public
accountants, and other experts selected by it and shall not be liable to
any
Bank for any action taken, or omitted to be taken, in good faith by it or
them
in accordance with the advice of such counsel, accountants, or experts received
in such consultations and shall not be liable for any negligence or misconduct
of any such counsel, accountants, or other experts; (c) makes no warranty
or
representation to any Bank and shall not be responsible to any Bank for any
opinions, certifications, statements, warranties, or representations made
in or
in connection with this Agreement; (d) shall not have any duty to any Bank
to
ascertain or to inquire as to the performance or observance of any of the
terms,
covenants, or conditions of this Agreement or any other instrument or document
furnished pursuant thereto or to satisfy itself that all conditions to and
requirements for any Loan have been met or that the Borrower is entitled
to any
Loan or to inspect the property (including the books and records) of the
Borrower or any Subsidiary; (e) shall not be responsible to any Bank for
the due
execution, legality, validity, enforceability, genuineness, sufficiency,
or
value of this Agreement or any other instrument or document furnished pursuant
thereto; and (f) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate, or
NEWY1\8114089.7
50
other
instrument or writing believed by it to be genuine and signed or sent by
the
proper party or parties.
10.3 Defaults. The
Administrative Agent shall not be deemed to have knowledge of the occurrence
of
a Default (other than the nonpayment of principal of or interest hereunder
or of
any fees) unless the Administrative Agent has received notice from a Bank
or the
Borrower specifying such Default and stating that such notice is a Notice
of
Default. In the event that the Administrative Agent receives such a
notice of the occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Banks (and shall give each Bank prompt notice
of
each such nonpayment). The Administrative Agent shall (subject to
Section 10.7 (Successor Administrative Agent)) take such action with respect
to
such Default; provided that, unless and until the Administrative Agent
shall have received the directions referred to in Sections 10.1 (Authorization
and Action) or 10.7 (Successor Administrative Agent), the Administrative
Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable and
in the
best interest of the Banks.
10.4 HVB
and Affiliates. With respect to its Commitment, any Loan
made by it, and the Note issued to it, HVB shall have the same rights and
powers
under this Agreement as any other Bank and may exercise the same as though
it
were not the Administrative Agent; and the term “Bank” or “Banks” shall, unless
otherwise expressly indicated, include HVB in its individual
capacity. HVB and its respective Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in
any
kind of business with, the Borrower, any of its respective Affiliates and
any
Person who may do business with or own securities of the Borrower or any
such
Affiliate, all as if HVB were not the Administrative Agent and without any
duty
to account therefor to the Banks.
10.5 Non-Reliance
on Administrative Agent and Other Banks. Each Bank agrees
that it has, independently and without reliance on the Administrative Agent
or
any other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and each Subsidiary
and its decision to enter into the transactions contemplated by this Agreement
and that it will, independently and without reliance upon the Administrative
Agent or any other Bank, and based on such documents and information as it
shall
deem appropriate at the time, continue to make its own analysis and decisions
in
taking or not taking action under this Agreement. The Administrative
Agent shall not be required to keep itself informed as to the performance
or
observance by the Borrower of this Agreement or to inspect the properties
or
books of Panhandle Eastern, the Borrower or any Subsidiary. Except
for notices, reports, and other documents and information expressly required
to
be furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide
any
Bank with any credit or other information concerning the affairs, financial
condition, or business of Southern Union, Panhandle Eastern, the Borrower
or any
Subsidiary (or any of their Affiliates) which may come into the possession
of
the Administrative Agent or any of its Affiliates.
10.6 Indemnification. Notwithstanding
anything to the contrary herein contained, the Administrative Agent shall
be
fully justified in failing or refusing to take any action hereunder unless
it
shall first be indemnified to its satisfaction by the Banks against any and
all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits,
costs, expenses, and
NEWY1\8114089.7
51
disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising
out
of its taking or continuing to take any action. Each Bank agrees to
indemnify the Administrative Agent (to the extent not reimbursed by the
Borrower), according to such Bank’s Pro Rata Percentage, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, and disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement
or
the Notes or any action taken or omitted by the Administrative Agent under
this
Agreement or the Notes; provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements resulting from the gross
negligence or willful misconduct of the person being indemnified; and
provided, further, that it is the intention of each Bank to indemnify
the Administrative Agent against the consequences of the Administrative Agent’s
own negligence, whether such negligence be sole, joint, concurrent, active
or
passive. Without limitation of the foregoing, each Bank agrees to
reimburse the Administrative Agent promptly upon demand for its Pro Rata
Percentage of any out-of-pocket expenses (including attorneys’ fees) incurred by
the Administrative Agent in connection with the preparation, administration,
or
enforcement of, or legal advice in respect of rights or responsibilities
under,
this Agreement and the Notes, to the extent that the Administrative Agent
is not
reimbursed for such expenses by the Borrower.
10.7 Successor
Administrative Agent. The Administrative Agent may resign at
any time as Administrative Agent under this Agreement by giving written notice
thereof to the Banks and the Borrower and may be removed at any time with
or
without cause by the Majority Banks. Upon any such resignation or
removal, the Majority Banks shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Banks or shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent’s giving of
notice of resignation or the Majority Banks’ removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf
of
the Banks, 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 combined capital and surplus of at least $500,000,000.
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, 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 Section
10
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.
10.8 Administrative
Agent’s Reliance. The Borrower shall notify the
Administrative Agent in writing of the names of its officers and employees
authorized to request a Loan on behalf of the Borrower and shall provide
the
Administrative Agent with a specimen signature of each such officer or
employee. The Administrative Agent shall be entitled to rely
conclusively on such officer’s or employee’s authority to request a Loan on
behalf of the Borrower until the Administrative Agent receives written notice
from the Borrower to the contrary. The Administrative Agent shall
have no duty to verify the authenticity of the signature appearing on any
Notice
of Borrowing, and, with respect to any oral request for a Loan, the
NEWY1\8114089.7
52
Administrative
Agent shall have no duty to verify the identity of any Person representing
himself as one of the officers or employees authorized to make such request
on
behalf of the Borrower. Neither the Administrative Agent nor any Bank
shall incur any liability to the Borrower in acting upon any telephonic notice
referred to above which the Administrative Agent or such Bank believes in
good
faith to have been given by a duly authorized officer or other Person authorized
to borrow on behalf of the Borrower or for otherwise acting in good
faith.
11. GUARANTY.
11.1 Guaranty. Each
Guarantor hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or by acceleration,
demand or otherwise, of all Obligations of the Borrower now or hereafter
existing under or in respect of the Loan Documents (including, without
limitation, any extensions, modifications, substitutions, amendments or renewals
of any or all of the foregoing Obligations), whether direct or indirect,
absolute or contingent, and whether for principal, interest, premiums, fees,
indemnities, contract causes of action, costs, expenses or otherwise (such
Obligations being the “Guaranteed Obligations”).
11.2 Guaranty
Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in
effect
in any jurisdiction affecting any of such terms or the rights of any Bank
with
respect thereto. The Obligations of each Guarantor under or in
respect of this Guaranty are independent of any Obligations of the Borrower
under or in respect of the Loan Documents, and a separate action or actions
may
be brought and prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Borrower or whether
the Borrower is joined in any such action or actions. The liability
of each Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and each Guarantor hereby irrevocably waives
any
defenses it may now have or hereafter acquire in any way relating to, any
or all
of the following:
(a) any
lack of validity or enforceability of any Loan Document or any agreement
or
instrument relating thereto;
(b) any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Guaranteed Obligations or any other Obligations of the Borrower
under or in respect of the Loan Documents, or any other amendment or waiver
of
or any consent to departure from any Loan Document, including, without
limitation, any increase in the Guaranteed Obligations resulting from the
extension of additional credit to any Loan Party or any of its Subsidiaries
or
otherwise;
(c) any
taking, exchange, release or non-perfection of any collateral, or any taking,
release or amendment or waiver of, or consent to departure from, any other
guaranty, for all or any of the Guaranteed Obligations;
(d) any
manner of application of any collateral, or proceeds thereof, to all or any
of
the Guaranteed Obligations, or any manner of sale or other disposition of
any
collateral for all or any of the Guaranteed Obligations or any other Obligations
of any
NEWY1\8114089.7
53
Loan
Party under the Loan Documents or any other assets of any Loan Party or any
of
its Subsidiaries;
(e) any
change, restructuring or termination of the corporate structure or existence
of
any Loan Party or any of its Subsidiaries;
(f) any
failure of any Bank to disclose to any Loan Party any information relating
to
the business, operations, financial condition, assets or prospects of any
other
Loan Party now or hereafter known to such Bank (each Guarantor waiving any
duty
on the part of the Banks to disclose such information);
(g) the
failure of any other Person to execute or deliver any other guaranty or
agreement or the release or reduction of liability of any other guarantor
or
surety with respect to the Guaranteed Obligations; or
(h) any
other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Bank that might
otherwise constitute a defense available to, or a discharge of, any Loan
Party
or any other guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the case may
be, if
at any time any payment of any of the Guaranteed Obligations is rescinded
or
must otherwise be returned by any Bank or any other Person upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, all as though
such
payment had not been made.
11.3 Waivers
and Acknowledgments.
(a) Each
Guarantor hereby unconditionally and irrevocably waives promptness, diligence,
notice of acceptance, presentment, demand for performance, notice of
nonperformance, default, acceleration, protest or dishonor and any other
notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that any Bank protect, secure, perfect or insure any Lien or
any
property subject thereto or exhaust any right or take any action against
any
Loan Party or any other Person or any collateral.
(b) Each
Guarantor hereby unconditionally and irrevocably waives any right to revoke
this
Guaranty and acknowledges that this Guaranty is continuing in nature and
applies
to all Guaranteed Obligations, whether existing now or in the
future.
(c) Each
Guarantor hereby unconditionally and irrevocably waives (i) any defense arising
by reason of any claim or defense based upon an election of remedies by any
Bank
that in any manner impairs, reduces, releases or otherwise adversely affects
the
subrogation, reimbursement, exoneration, contribution or indemnification
rights
of each Guarantor or other rights of such Guarantor to proceed against the
Borrower, any other guarantor or any other Person and (ii) any defense based
on
any right of set-off or counterclaim against or in respect of the Obligations
of
such Guarantor hereunder.
NEWY1\8114089.7
54
(d) Each
Guarantor hereby unconditionally and irrevocably waives any duty on the part
of
any Bank to disclose to any Guarantor any matter, fact or thing relating
to the
business, operations, financial condition, assets or prospects of the Borrower
or any of its Subsidiaries now or hereafter known by such Bank.
(e) Each
Guarantor acknowledges that it will receive substantial direct and indirect
benefits from the financing arrangements contemplated by the Loan Documents
and
that the waivers set forth in Section 11.2 (Guaranty Absolute) and this Section
11.3 are knowingly made in contemplation of such benefits.
11.4 Subrogation. Each
Guarantor hereby unconditionally and irrevocably agrees not to exercise any
rights that it may now have or hereafter acquire against the Borrower that
arise
from the existence, payment, performance or enforcement of such Guarantor’s
Obligations under or in respect of this Guaranty or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate
in any
claim or remedy of any Bank against the Borrower or any other insider guarantor,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Borrower, directly or indirectly, in cash or other property
or
by set-off or in any other manner, payment or security on account of such
claim,
remedy or right, unless and until all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall have been paid in full in
cash
and the Commitments shall have expired or been terminated. If any
amount shall be paid to any Guarantor in violation of the immediately preceding
sentence at any time prior to the later of (a) the payment in full in cash
of
the Guaranteed Obligations and all other amounts payable under this Guaranty
and
(b) the Maturity Date, such amount shall be received and held in trust for
the
benefit of the Banks, shall be segregated from other property and funds of
such
Guarantor and shall forthwith be paid or delivered to the Administrative
Agent
in the same form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance
with
the terms of the Loan Documents or other amounts payable under this Guaranty
thereafter arising. If (i) any Guarantor shall make payment to any
Bank of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all other amounts payable under this Guaranty
shall
have been paid in full in cash and (iii) the Maturity Date shall have occurred,
the Banks will, at such Guarantor’s request and expense, execute and deliver to
such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation
to
such Guarantor of an interest in the Guaranteed Obligations resulting from
such
payment made by such Guarantor pursuant to this Guaranty.
11.5 Subordination. Each
Guarantor hereby subordinates any and all debts, liabilities and other
Obligations owed to such Guarantor by the Borrower (the “Subordinated
Obligations”) to the Guaranteed Obligations to the extent and in the
manner hereinafter set forth in this Section 11.5:
(a)Except
during the continuance of a Default (including the commencement and continuation
of any proceeding under any Debtor Law relating to the Borrower), a Guarantor
may receive regularly scheduled payments from the Borrower on account
of
NEWY1\8114089.7
55
the
Subordinated Obligations. After the occurrence and during the
continuance of any Default (including the commencement and continuation of
any
proceeding under any Debtor Law relating to the Borrower), however, unless
the
Administrative Agent otherwise agrees, no Guarantor shall demand, accept
or take
any action to collect any payment on account of the Subordinated
Obligations.
(b) In
any proceeding under any Debtor Law relating to the Borrower, each Guarantor
agrees that the Banks shall be entitled to receive payment in full in cash
of
all Guaranteed Obligations (including all interest and expenses accruing
after
the commencement of a proceeding under any Debtor Law, whether or not
constituting an allowed claim in such proceeding (“Post Petition
Interest”)) before any Guarantor receives payment of any Subordinated
Obligations.
(c) After
the occurrence and during the continuance of any Default (including the
commencement and continuation of any proceeding under any Debtor Law relating
to
the Borrower), each Guarantor shall, if the Administrative Agent so requests,
collect, enforce and receive payments on account of the Subordinated Obligations
as trustee for the Banks and deliver such payments to the Administrative
Agent
on account of the Guaranteed Obligations (including all Post Petition Interest),
together with any necessary endorsements or other instruments of transfer,
but
without reducing or affecting in any manner the liability of such Guarantor
under the other provisions of this Guaranty.
(d) After
the occurrence and during the continuance of any Default (including the
commencement and continuation of any proceeding under any Debtor Law relating
to
the Borrower), the Administrative Agent is authorized and empowered (but
without
any obligation to so do), in its discretion, (i) in the name of a Guarantor,
to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post Petition Interest), and (ii) to require
each Guarantor (A) to collect and enforce, and to submit claims in respect
of,
Subordinated Obligations and (B) to pay any amounts received on such obligations
to the Administrative Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
11.6 Continuing
Guaranty. This Guaranty is a continuing guaranty and shall
remain in full force and effect until the later of (a) the payment in full
in
cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty and (b) the Maturity Date.
12. MISCELLANEOUS.
12.1 Amendments,
Waivers, Etc. No amendment or waiver of any provision of any
Loan Document, nor consent to any departure by any Loan Party therefrom,
shall
in any event be effective unless the same shall be in writing and signed
by the
Borrower and the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which
given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by each Bank, do any of the following:
NEWY1\8114089.7
56
(a) waive
any of the conditions specified in Section 4 (Conditions to
Funding);
(b) increase
the Commitment of any Bank or alter the term thereof, or subject any Bank
to any
additional or extended obligations;
(c) change
the principal of, or decrease the rate of interest on, the Loans or any Note,
or
any fees or other amounts payable hereunder (except that the Required Banks
may
waive in writing the increase in Applicable Margin resulting from the occurrence
of an SUG Change of Control);
(d) postpone
any date fixed for any payment of principal of, or interest on, the Loans
or any
Note, or any fees (including, without limitation, any fee) or other amounts
payable hereunder;
(e) change
the definition of “Majority Banks” or “Required Banks”, or the number of Banks
which shall be required for Banks, or any of them, to take any action
hereunder;
(f) amend
this Section 12.1; or
(g) reduce
or limit the obligations of any Guarantor under the Loan Documents or release
any Guarantor from its obligations under the Loan Documents;
provided,
further, that (x) no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to each Bank, affect the rights or duties
of
the Agent under any Loan Document and (y) at any time after the occurrence
of an
SUG Change of Control, the approval of the Required Banks shall be required
in
order to (a) amend or waive, or consent to any departure from, Section 6.1
(Financial Covenant), Section 6.2 (Liens, Etc.), Section 6.7 (Restricted
Payments), Section 7.1 (Liens, Etc.), Section 7.5 (Restricted Payments),
8.1
(Liens, Etc.) or 8.5 (Restricted Payments) or (b) to amend any defined term
relating to any such provision if the effect of any such amendment contemplated
in this clause (b) would be to cause such provision to be less onerous on
the
relevant Loan Party. No failure or delay on the part of any Bank or the Agent
in
exercising any power or right hereunder shall operate as a waiver thereof
nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No course of dealing between the Borrower and any
Bank or the Agent shall operate as a waiver of any right of any Bank or the
Agent. No modification or waiver of any provision of this Agreement or the
Note
nor consent to any departure by the Borrower therefrom shall in any event
be
effective unless the same shall be in writing, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for
which
given. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar
or
other circumstances.
12.2 Reimbursement
of Expenses.
(a) The
Borrower agrees to pay on demand (and whether or not the Closing Date occurs)
(1) all reasonable and documented out-of-pocket costs and expenses of
57
(b) If
any payment of principal of, or Conversion of, any Eurodollar Rate Loan is
made
by the Borrower to or for the account of a Bank other than on the last day
of
the Interest Period for such Loan, as a result of a payment or Conversion
pursuant to Section 2.5 (Prepayments), 2.8 (Conversion of Loans) or 2.9(d)
(Increased Costs, Etc.), acceleration of the maturity of the Notes pursuant
to
Section 9 (Events of Default; Remedies) or for any other reason, or by an
Eligible Assignee to a Bank other than on the last day of the Interest Period
for such Loan upon an assignment of rights and obligations under this Agreement
pursuant to Section 12.14 (Sale or Assignment) as a result of a demand by
the
Borrower pursuant to Section 12.14(a), or if the Borrower fails to make any
payment or prepayment of a Loan for which a notice of prepayment has been
given,
whether pursuant to Section 2.3 (Repayment of Loans), 2.5 (Prepayments) or
Section 9 (Events of Default; Remedies) or otherwise, the Borrower shall,
upon
demand by such Bank (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Bank any amounts
required to compensate such Bank for any additional losses, costs or expenses
reasonably incurred by such Bank as a result of such payment or Conversion
or
such failure to pay or prepay, as the case may be, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation
or
reemployment of deposits or other funds acquired by any Bank to fund or maintain
such Loan.
(c) The
obligations of the Borrower under this Section 12.2 shall survive the
termination of this Agreement and/or the payment of the Notes.
12.3 Notices. Any
communications between the parties hereto or notices provided herein to be
given
shall be given to the following addresses:
(a) If
to Panhandle Eastern,
to: Panhandle
Eastern Pipe Line Company, LP
c/o
Southern Union Company
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
Senior
Vice
President and
Chief
Financial Officer
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
NEWY1\8114089.7
58
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
copies
to: Southern
Union Company
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
|
|
Attn:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
|
|
|
Senior
Vice President and
|
|
|
Associate
General Counsel
|
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇, L.L.P.
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇
▇. ▇▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
(b) If
to the Borrower,
to: Trunkline
LNG Holdings LLC
c/o
Southern Union Company
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
|
|
Attn:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
|
|
|
Senior
Vice President and
|
|
|
Chief
Financial Officer
|
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
copies
to: Southern
Union Company
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
|
|
Attn:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
|
|
|
Senior
Vice President and
|
|
|
Associate
General Counsel
|
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇, L.L.P.
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇
▇. ▇▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
NEWY1\8114089.7
59
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
(c) If
to CCC,
to: CrossCountry
Citrus, LLC
c/o
Southern Union Company
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
|
|
Attn:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
|
|
|
Senior
Vice President and
|
|
|
Chief
Financial Officer
|
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
copies
to: Southern
Union Company
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
|
|
Attn:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
|
|
|
Senior
Vice President and
|
|
|
Associate
General Counsel
|
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇, L.L.P.
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇
▇. ▇▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
If
to the
Administrative
Bayerische Hypo- und Vereinsbank AG,
Agent,
to:
New York Branch
▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Agency
Services, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇/▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
NEWY1\8114089.7
60
with
copies
to: DLA
Piper US LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
and
if to
any Bank, at the address specified in Annex 1 hereto, or as to the Borrower
or
the Administrative Agent, to such other address as shall be designated by
such
party in a written notice to the other party and, as to each other party,
at
such other address as shall be designated by such party in a written notice
to
the Borrower and the Administrative Agent. All notices or other
communications required or permitted to be given hereunder shall be in writing
and shall be considered as properly given (a) if delivered in person, (b)
if
sent by overnight delivery service (including Federal Express, UPS, ETA,
▇▇▇▇▇,
DHL, AirBorne and other similar overnight delivery services), (c) if mailed
by
first class United States Mail, postage prepaid, registered or certified
with
return receipt requested or (d) if sent by facsimile or other electronic
transmission. Notice so given shall be effective upon receipt by the
addressee, except that communication or notice so transmitted by direct written
electronic means shall be deemed to have been validly and effectively given
on
the day (if a Business Day and, if not, on the next following Business Day)
on
which it is transmitted if transmitted before 4:00 p.m. (New York time),
recipient’s time, and if transmitted after that time, on the next following
Business Day; provided, however, that if any notice is tendered to an
addressee and the delivery thereof is refused by such addressee, such notice
shall be effective upon such tender. Any party shall have the right
to change its address for notice hereunder to any other location within the
continental United States by giving of 30 days’ notice to the other parties in
the manner set forth above.
12.4 Governing
Law. This Agreement, and any instrument or agreement
required hereunder (to the extent not otherwise expressly provided for therein),
shall be governed by, and construed under, the laws of the State of New York,
without reference to conflicts of laws (other than Section 5-1401 and Section
5-1402 of the New York General Obligations Law).
12.5 Waiver
of Jury Trial|. THE ADMINISTRATIVE AGENT, THE BANKS
AND EACH LOAN PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE
ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS, OF THE ADMINISTRATIVE AGENT, THE
BANKS
OR THE LOAN PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
BANKS TO ENTER INTO THIS AGREEMENT.
12.6 Consent
to Jurisdiction. The Administrative Agent, the Banks and
each Loan Party agree that any legal action or proceeding by or against any
Loan
Party or with respect to or arising out of this Agreement or any other Loan
Document may be brought in or removed to the Supreme Court of the State of
New
York, in and for the County of New York, or the United States District Court
for
the Southern District of New York, and any court of appeals from
either
NEWY1\8114089.7
61
therefrom
as the Administrative Agent may elect. By execution and delivery of
the Agreement, each of the Banks, the Administrative Agent and each Loan
Party
accepts, for themselves and in respect of their property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The
Administrative Agent, the Banks and each Loan Party irrevocably consent to
the
service of process out of any of the aforementioned courts in any manner
permitted by law. Nothing herein shall affect the right of the
Administrative Agent and the Banks to bring legal action or proceedings in
any
other competent jurisdiction. The Administrative Agent, the Banks and
each Loan Party further agree that the aforesaid courts of the State of New
York
and of the United States of America shall have exclusive jurisdiction with
respect to any claim or counterclaim of any Loan Party based upon the assertion
that the rate of interest charged by the Banks on or under this Agreement,
the
Loans and/or the other Loan Documents is usurious. The Administrative Agent,
the
Banks and each Loan Party hereby waive any right to stay or dismiss any action
or proceeding under or in connection with this Agreement or any other Loan
Document brought before the foregoing courts on the basis of an inconvenient
forum.
12.7 Survival
of Representations, Warranties and Covenants. All
representations, warranties and covenants contained herein or made in writing
by
any Loan Party in connection herewith shall survive the execution and delivery
of the Loan Documents and the Notes, and will bind and inure to the benefit
of
the respective successors and assigns of the parties hereto, whether so
expressed or not, provided that the undertaking of the Banks to make
the Loans to the Borrower shall not inure to the benefit of any successor
or
assign of the Borrower. No investigation at any time made by or on
behalf of the Banks shall diminish the Banks’ rights to rely on any
representations made herein or in connection herewith. All statements
contained in any certificate or other written instrument delivered by any
Loan
Party or by any Person authorized by the Borrower under or pursuant to this
Agreement or in connection with the transactions contemplated hereby shall
constitute representations and warranties hereunder as of the time made by
such
Loan Party.
12.8 Counterparts. This
Agreement may be executed in several counterparts, and by the parties hereto
on
separate counterparts, and each counterpart, when so executed and delivered,
shall constitute an original instrument and all such separate counterparts
shall
constitute but one and the same instrument.
12.9 Severability. Should
any clause, sentence, paragraph or section of this Agreement be judicially
declared to be invalid, unenforceable or void, such decision shall not have
the
effect of invalidating or voiding the remainder of this Agreement, and the
parties hereto agree that the part or parts of this Agreement so held to
be
invalid, unenforceable or void will be deemed to have been stricken herefrom
and
the remainder will have the same force and effectiveness as if such part
or
parts had never been included herein. Each covenant contained in this
Agreement shall be construed (absent an express contrary provision herein)
as
being independent of each other covenant contained herein, and compliance
with
any one covenant shall not (absent such an express contrary provision) be
deemed
to excuse compliance with one or more other covenants.
12.10 Descriptive
Headings. The section headings in this Agreement have been
inserted for convenience only and shall be given no substantive meaning or
significance whatsoever in construing the terms and provisions of this
Agreement.
NEWY1\8114089.7
62
12.11 Accounting
Terms. All accounting terms used herein which are not
expressly defined in the Agreement, or the respective meanings of which are
not
otherwise qualified, shall have the respective meanings given to them in
accordance with GAAP.
12.12 Limitation
of Liability. No claim may be made by any Person for any
special, indirect, consequential, or punitive damages in respect to any claim
for breach of contract arising out of or related to the transactions
contemplated by this Agreement, or any act, omission, or event occurring
in
connection herewith and the parties hereto hereby waive, release, and agree
not
to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether
or not known or suspected to exist in its favor.
12.13 Set-Off. Each
Loan Party hereby gives and confirms to each Bank a right of set-off of all
moneys, securities and other property of such Loan Party (whether special,
general or limited) and the proceeds thereof, now or hereafter delivered
to
remain with or in transit in any manner to such Bank, its Affiliates,
correspondents or agents from or for such Loan Party, whether for safekeeping,
custody, pledge, transmission, collection or otherwise or coming into possession
of such Bank, its Affiliates, correspondents or agents in any way, and also,
any
balance of any deposit accounts and credits of such Loan Party with, and
any and
all claims of security for the payment of the Loans and of all other liabilities
and obligations now or hereafter owed by any Loan Party to such Bank, contracted
with or acquired by such Bank, whether such liabilities and obligations be
joint, several, absolute, contingent, secured, unsecured, matured or unmatured,
and each Loan Party hereby authorizes each Bank, its Affiliates, correspondents
or agents at any time or times, without prior notice, to apply such money,
securities, other property, proceeds, balances, credits of claims, or any
part
of the foregoing, to such liabilities in such amounts as it may select, whether
such liabilities be contingent, unmatured or otherwise, and whether any
collateral security therefor is deemed adequate or not. The rights
described herein shall be in addition to any collateral security, if any,
described in any separate agreement executed by any Loan Party.
12.14 Sale
or Assignment.
(a) Each
Bank may assign and, so long as no Default shall have occurred and be continuing
pursuant to Section 9.1 (Failure to Pay Obligations When Due) or 9.7 (Bankruptcy
and Other Matters), if demanded by the Borrower (pursuant to Section 2.15
(Replacement of Banks)) upon at least five Business Days’ notice to such Bank
and the Administrative Agent, a Bank will assign, to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
and the other Loan Documents (including, without limitation, all or a portion
of
the Loans owing to it and the Note or Notes held by it); provided
that
(i) each
such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations under and in respect of the Loan Agreement;
(ii) except
in the case of an assignment of all of a Bank’s rights and obligations under
this Agreement or any assignment to any Bank, an Affiliate of any Bank or
an
Approved Fund, the aggregate amount of the Loans being
NEWY1\8114089.7
63
assigned
to such assignee pursuant to such assignment (determined as of the date of
the
Assignment and Acceptance with respect to such assignment) shall in no event
be
less than $5,000,000;
(iii) except
in the case of an assignment to a Person that, immediately prior to such
assignment, was a Bank, an Affiliate of any Bank or an Approved Fund, such
assignment shall be approved by the Administrative Agent, and so long as
no
Default shall have occurred and be continuing pursuant to Section 9.1 (Failure
to Pay Obligations When Due) or 9.7 (Bankruptcy and Other Matters) at the
time
of effectiveness of such assignment, the Borrower (in each case such approvals
not to be unreasonably withheld or delayed); provided that no Borrower
approval shall be required for any assignment made by HVB to any Eligible
Assignee from the Closing Date through and including the two-month anniversary
of the Closing Date;
(iv) each
such assignment made as a result of a demand by the Borrower pursuant to
this
Section 12.14 shall be made in accordance with Section 2.15 (Replacement
of
Banks);
(v) no
Bank shall be obligated to make any such assignment as a result of a demand
by
the Borrower pursuant to this Section 12.14 unless and until such Bank shall
have received one or more payments from either the Borrower or one or more
assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Loans owing to such Bank, together with accrued interest
thereon to the date of payment of such principal amount and all other amounts
payable to such Bank under this Agreement;
(vi) 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 or Notes subject to such assignment and
a
processing and recordation fee of $3,500 (provided, however, that for
each such assignment made as a result of a demand by the Borrower pursuant
to
this Section 12.14, the Borrower shall pay to the Administrative Agent the
applicable processing and recordation fee); and
(vii) the
assignee, if it shall not be a Bank, shall deliver to the Administrative
Agent
an administrative questionnaire in the form prepared by the Administrative
Agent.
(b) Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in such Assignment and Acceptance,
(i) 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 Bank hereunder and
NEWY1\8114089.7
64
(ii) the
Bank assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.9 (Increased
Costs), 2.11 (Taxes) and 12.2 (Reimbursement of Expenses)) 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 of the remaining portion of an assigning
Bank’s rights and obligations under this Agreement, such Bank shall cease to be
a party hereto).
(c) By
executing and delivering an Assignment and Acceptance, each Bank assignor
thereunder and each assignee thereunder confirm to and agree with each other
and
the other parties thereto and hereto as follows:
(i) other
than as provided in such Assignment and Acceptance, such assigning Bank makes
no
representation or warranty and assumes no responsibility with respect to
any
statements, warranties or representations made in or in connection with any
Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with,
any
Loan Document or any other instrument or document furnished pursuant
thereto;
(ii) such
assigning Bank makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Loan Party or the performance
or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto;
(iii) such
assignee confirms that it has received a copy of this Agreement, together
with
copies of the financial statements most recently delivered hereunder 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 any Administrative
Agent,
such assigning Bank or any other Bank 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 the
Loan
Documents as are delegated to such Administrative Agent by the terms hereof
and
thereof, together with such powers and discretion as are reasonably incidental
thereto; and
NEWY1\8114089.7
65
(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 Bank.
(d) The
Administrative Agent shall maintain at its address 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 Banks and the principal amount of the Loans
owing
to, each Bank from time to time (the
“Register”). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Banks may treat each Person whose
name is recorded in the Register as a Bank hereunder for all purposes of
this
Agreement. The Register shall be available for inspection by the
Borrower or any Administrative Agent or any Bank at any reasonable time and
from
time to time upon reasonable prior notice.
(e) Upon
its receipt of an Assignment and Acceptance executed by an assigning Bank
and an
assignee, together with any Note or Notes 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, (1) accept such
Assignment and Acceptance, (2) record the information contained therein in
the
Register and (3) give prompt notice thereof to the Borrower. In the
case of any assignment by a Bank, 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 or Notes a new
Note to
the order of such Eligible Assignee in an amount equal to the Loans assumed
by
it pursuant to such Assignment and Acceptance and, if any assigning Bank
has
retained any Loans hereunder, a new Note to the order of such assigning Bank
in
an amount equal to the Loans retained by it hereunder. Such new Note
or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes and shall be dated the
effective date of such Assignment and Acceptance. No assignment shall
be effective for purposes of this Agreement unless it has been recorded in
the
Register as provided in this Section 12.14.
(f) Each
Bank may sell participations to one or more Persons (other than any Loan
Party
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 Commitments, the Loans owing to it and the Note or Notes (if
any)
held by it); provided, however, that (1) such Bank’s obligations under
this Agreement shall remain unchanged, (2) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(3) such Bank shall remain the holder of any such Note for all purposes of
this
Agreement, (4) the Borrower, the Administrative Agent and the other Banks
shall
continue to deal solely and directly with such Bank in connection with such
Bank’s rights and obligations under this Agreement and (5) no participant under
any such participation shall have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure by
any
Loan Party 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, 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
NEWY1\8114089.7
66
extent
subject to such participation, or release any Guarantor. Subject to
the last two sentences of this clause (f), the Borrower agrees that each
participant shall be entitled to the benefits of Section 2.9 (Increased Costs),
2.11 (Taxes) and 12.2(b) (Breakage Expenses) to the same extent as if it
were a
Bank and had acquired its interest by assignment. To the extent
permitted by law, each participant also shall be entitled to the benefits
of
Section 12.13 (Set-Off) as though it were a Bank, provided such
participant agrees to be subject to Section 2.12 (Sharing of Payments, Etc.)
as
though it were a Bank. A participant shall not be entitled to receive
any greater payment under Section 2.9 (Increased Costs) or 2.11 (Taxes) than
the
applicable Bank 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. A
participant that is organized under the laws of a jurisdiction outside the
United States shall not be entitled to the benefits of Section 2.11 (Taxes)
unless the Borrower is notified of the participation sold to such participant
and such participant agrees, for the benefit of the Borrower, to comply with
Section 2.11(e) as though it were a Bank.
(g) Any
Bank may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 12.14, disclose to the
assignee or participant or proposed assignee or participant any information
relating to the Borrower furnished to such Bank by or on behalf of the Borrower;
provided, however, 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 received by it from such
Bank.
(h) Notwithstanding
any other provision to the contrary set forth in this Agreement, any Bank
may at
any time create a security interest in all or any portion of its rights under
this Agreement and the other Loan Documents (including, without limitation,
the
Loans owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank.
(i) Notwithstanding
anything to the contrary contained herein, any Bank that is a fund that invests
in bank loans may create a security interest in all or any portion of the
Loans
owing to it and the Note or Notes held by it to the trustee for holders of
obligations owed, or securities issued, by such fund as security for such
obligations or securities, provided, that unless and until such trustee
actually becomes a Bank in compliance with the other provisions of this Section
12.14, (1) no such pledge shall release the pledging Bank from any of its
obligations under the Loan Documents and (2) such trustee shall not be entitled
to exercise any of the rights of a Bank under the Loan Documents even though
such trustee may have acquired ownership rights with respect to the pledged
interest through foreclosure or otherwise.
12.15 Interest. All
agreements between a Loan Party, the Administrative Agent or any Bank, whether
now existing or hereafter arising and whether written or oral, are hereby
expressly limited so that in no contingency or event whatsoever, whether
by
reason of demand being made on any Note or otherwise, shall the amount paid,
or
agreed to be paid, to the Administrative Agent or any Bank for the use,
forbearance, or detention of the money to be loaned under this Agreement
or
otherwise or for the payment or performance of any covenant or
NEWY1\8114089.7
67
obligation
contained herein or in any document related hereto exceed the amount permissible
at the Highest Lawful Rate. If, as a result of any circumstances
whatsoever, fulfillment of any provision hereof or of any of such documents,
at
the time performance of such provision shall be due, shall involve transcending
the limit of validity prescribed by applicable usury law, then, ipso
facto, the obligation to be filled shall be reduced to the limit of such
validity, and if, from any such circumstance, the Administrative Agent or
any
Bank shall ever receive interest or anything which might be deemed interest
under applicable law which would exceed the amount permissible at the Highest
Lawful Rate, such amount which would be excessive interest shall be applied
to
the reduction of the principal amount owing on account of the Notes or the
amounts owing on other obligations of the Borrower to the Administrative
Agent
or any Bank under this Agreement or any document related hereto and not to
the
payment of interest, or if such excessive interest exceeds the unpaid principal
balance of the Notes and the amounts owing on other obligations of the Borrower
to the Administrative Agent or any Bank under this Agreement or any document
related hereto, as the case may be, such excess shall be refunded to the
Borrower. All sums paid or agreed to be paid to the Administrative Agent
or any
Bank for the use, forbearance, or detention of the indebtedness of the Borrower
to the Administrative Agent or any Bank shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout
the
full term of such indebtedness until payment in full of the principal thereof
(including the period of any renewal or extension thereof) so that the interest
on account of such indebtedness shall not exceed the Highest Lawful
Rate. The terms and provisions of this Section 12.15 shall control
and supersede every other provision of all agreements between the Borrower
and
the Banks.
12.16 Indemnification. THE
BORROWER AGREES TO INDEMNIFY, DEFEND, AND SAVE HARMLESS THE ADMINISTRATIVE
AGENT, EACH BANK AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
AND ATTORNEYS, AND EACH OF THEM (THE “INDEMNIFIED PARTIES”),
FROM AND AGAINST ALL CLAIMS, ACTIONS, SUITS, AND OTHER LEGAL PROCEEDINGS,
DAMAGES, COSTS, INTEREST, CHARGES, TAXES, COUNSEL FEES, AND OTHER EXPENSES
AND
PENALTIES (INCLUDING WITHOUT LIMITATION ALL ATTORNEY FEES AND COSTS OR EXPENSES
OF SETTLEMENT) WHICH ANY OF THE INDEMNIFIED PARTIES MAY SUSTAIN OR INCUR
BY
REASON OF OR ARISING OUT OF (a) THE MAKING OF ANY LOAN HEREUNDER, THE EXECUTION
AND DELIVERY OF THIS AGREEMENT AND THE NOTES AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THE EXERCISE OF ANY OF THE BANKS’ RIGHTS
UNDER THIS AGREEMENT AND THE NOTES OR OTHERWISE, INCLUDING, WITHOUT LIMITATION,
DAMAGES, COSTS, AND EXPENSES INCURRED BY ANY OF THE INDEMNIFIED PARTIES IN
INVESTIGATING, PREPARING FOR, DEFENDING AGAINST, OR PROVIDING EVIDENCE,
PRODUCING DOCUMENTS, OR TAKING ANY OTHER ACTION IN RESPECT OF ANY COMMENCED
OR
THREATENED LITIGATION UNDER ANY FEDERAL SECURITIES LAW OR ANY SIMILAR LAW
OF ANY
JURISDICTION OR AT COMMON LAW OR (b) ANY AND ALL CLAIMS OR PROCEEDINGS (WHETHER
BROUGHT BY A PRIVATE PARTY, GOVERNMENTAL AUTHORITY OR OTHERWISE) FOR BODILY
INJURY, PROPERTY DAMAGE, ABATEMENT, REMEDIATION, ENVIRONMENTAL DAMAGE, OR
IMPAIRMENT OR ANY OTHER INJURY OR DAMAGE RESULTING FROM OR RELATING TO THE
RELEASE OF ANY HAZARDOUS MATERIALS LOCATED UPON, MIGRATING INTO,
NEWY1\8114089.7
68
FROM,
OR
THROUGH OR OTHERWISE RELATING TO ANY PROPERTY OWNED OR LEASED BY THE BORROWER
OR
ANY SUBSIDIARY (WHETHER OR NOT THE RELEASE OF SUCH HAZARDOUS MATERIALS WAS
CAUSED BY THE BORROWER, ANY SUBSIDIARY, A TENANT, OR SUBTENANT OF THE BORROWER
OR ANY SUBSIDIARY, A PRIOR OWNER, A TENANT, OR SUBTENANT OF ANY PRIOR OWNER
OR
ANY OTHER PARTY AND WHETHER OR NOT THE ALLEGED LIABILITY IS ATTRIBUTABLE
TO THE
HANDLING, STORAGE, GENERATION, TRANSPORTATION, OR DISPOSAL OF ANY HAZARDOUS
MATERIALS OR THE MERE PRESENCE OF ANY HAZARDOUS MATERIALS ON SUCH PROPERTY;
PROVIDED THAT THE BORROWER SHALL NOT BE LIABLE TO THE INDEMNIFIED
PARTIES WHERE THE RELEASE OF SUCH HAZARDOUS MATERIALS OCCURS AT ANY TIME
AT
WHICH THE BORROWER OR ANY SUBSIDIARY CEASES TO OWN OR LEASE SUCH PROPERTY);
AND
PROVIDED FURTHER THAT NO INDEMNIFIED PARTY SHALL BE ENTITLED TO THE
BENEFITS OF THIS SECTION 12.16 TO THE EXTENT ITS OWN GROSS NEGLIGENCE OR
WILLFUL
MISCONDUCT CONTRIBUTED TO ITS LOSS; AND PROVIDED FURTHER THAT IT IS THE
INTENTION OF THE BORROWER TO INDEMNIFY THE INDEMNIFIED PARTIES AGAINST THE
CONSEQUENCES OF THEIR OWN NEGLIGENCE. THIS AGREEMENT IS INTENDED TO
PROTECT AND INDEMNIFY THE INDEMNIFIED PARTIES AGAINST ALL RISKS HEREBY ASSUMED
BY THE BORROWER. THE OBLIGATIONS OF THE BORROWER UNDER THIS SECTION
12.16 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT AND THE REPAYMENT OF
THE
NOTES.
12.17 Payments
Set Aside. To the extent that the Borrower makes a payment
or payments to the Administrative Agent or any Bank, or the Administrative
Agent
or any Bank exercises its right of set off, and such payment or payments
or the
proceeds of such set off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other Person under any Debtor Law or
equitable cause, then, to the extent of such recovery, the obligation or
part
thereof originally intended to be satisfied, and all rights and remedies
therefor, shall be revived and shall continue in full force and effect as
if
such payment had not been made or set off had not occurred.
12.18 Loan
Agreement Controls. If there are any conflicts or
inconsistencies among this Agreement and any other document executed in
connection with the transactions connected herewith, the provisions of this
Agreement shall prevail and control.
12.19 Obligations
Several. The obligations of each Bank under this Agreement
and the Note to which it is a party are several, and no Bank shall be
responsible for any obligation or Commitment of any other Bank under this
Agreement and the Note to which it is a party. Nothing contained in
this Agreement or the Note to which it is a party, and no action taken by
any
Bank pursuant thereto, shall be deemed to constitute the Banks to be a
partnership, an association, a joint venture, or any other kind of
entity.
12.20 Final
Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF
PRIOR, CONTEMPORANEOUS, OR
NEWY1\8114089.7
69
SUBSEQUENT
ORAL AGREEMENT’S OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
NEWY1\8114089.7
70
IN
WITNESS WHEREOF, the parties hereto, by their respective officers thereunto
duly
authorized, have executed this Agreement on the dates set forth below to
be
effective as of June ___, 2007.
|
TRUNKLINE
LNG HOLDINGS LLC
As
Borrower
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
PANHANDLE
EASTERN PIPE LINE COMPANY, LP
As
a Guarantor
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
CROSSCOUNTRY
CITRUS, LLC
As
a Guarantor
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
_______________________________
|
|||||
|
BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH
As
a Bank, as the Administrative Agent for the Banks, and on behalf
of
Unicredit Markets and Investment Banking, Joint Lead Arranger and
Joint
Book Manager.
and
on behalf of Unicredit Markets & Investment Banking, as Joint Lead
Arranger and Joint Book Manager.
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
[Signature
Page to Credit Agreement]
|
||||||
|
BANK
OF AMERICA N.A.
As
Syndication
Agent
|
||||||
|
By:
___________________________________
|
||||||
|
Name:
________________________________
|
||||||
|
Title:
_________________________________
|
||||||
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
||||||
|
JPMORGAN
CHASE BANK, N.A.,
As
Co-Documentation Agent
|
||||||
|
By:
___________________________________
|
||||||
|
Name:
________________________________
|
||||||
|
Title:
_________________________________
|
||||||
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
||||||
|
[Signature
Page to Credit Agreement]
|
||||||
|
BAYERSICHE
LANDESBANK, New York Branch
As
Co-Documentation Agent
|
||||||
|
By:
___________________________________
|
||||||
|
Name:
________________________________
|
||||||
|
Title:
_________________________________
|
||||||
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
||||||
|
MIZUHO
CORPORATE BANK, LTD.
As
Co-Documentation Agent
|
||||||
|
By:
___________________________________
|
||||||
|
Name:
________________________________
|
||||||
|
Title:
_________________________________
|
||||||
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
||||||
|
[Signature
Page to Credit Agreement]
|
||||||
|
BANC
OF AMERICA SECURITIES LLC
As
Joint Lead Arranger and Joint
Book Manager
|
||||||
|
By:
___________________________________
|
||||||
|
Name:
________________________________
|
||||||
|
Title:
_________________________________
|
||||||
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
||||||
8059018-6
NEWY1\8114089.7
|
CALYON
NEW YORK BRANCH
|
|
|
By:
___________________________________
|
|
|
Name:
________________________________
|
|
|
Title:
_________________________________
|
|
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
[Signature
Page to Credit Agreement]
8059018-6
NEWY1\8114089.7
|
MALAYAN
BANKING BERHAD, NEW YORK BRANCH
|
|
|
By:
___________________________________
|
|
|
Name:
________________________________
|
|
|
Title:
_________________________________
|
|
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
8059018-6
NEWY1\8114089.7
|
[SUNTRUST
BANK]
|
|
|
By:
___________________________________
|
|
|
Name:
________________________________
|
|
|
Title:
_________________________________
|
|
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
[Signature
Page to Credit Agreement]
|
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD.
|
|
|
By:
___________________________________
|
|
|
Name:
________________________________
|
|
|
Title:
_________________________________
|
|
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
[Signature
Page to Credit Agreement]
8059018-6
NEWY1\8114089.7
|
NATIONAL
BANK OF EGYPT, NEW YORK BRANCH
|
|
|
By:
___________________________________
|
|
|
Name:
________________________________
|
|
|
Title:
_________________________________
|
|
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
[Signature
Page to Credit Agreement]
8059018-6
NEWY1\8114089.7
|
▇▇▇▇▇
FARGO BANK, N.A.
|
|
|
By:
___________________________________
|
|
|
Name:
________________________________
|
|
|
Title:
_________________________________
|
|
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
[Signature
Page to Credit Agreement]
8059018-6
NEWY1\8114089.7
|
[UMB
BANK]
|
|
|
By:
___________________________________
|
|
|
Name:
________________________________
|
|
|
Title:
_________________________________
|
|
|
ADDRESS
FOR NOTICE:
____________________
____________________
____________________
Tel:
Fax:
|
[Signature
Page to Credit Agreement]
8059018-6
NEWY1\8114089.7
ANNEX
1
COMMITMENTS
[to
the extent you have more than one address for delivery of specific notices,
please specify]
|
No.
|
Bank
and Address
|
Commitment
|
|
▇
|
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇- ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇
▇▇▇▇ BRANCH,
Address
for Legal Notices, Financial Statements and Compliance
Notices:
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
and ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Address
for Notices related to Borrowings, Fees and Payments:
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
Tel:
▇▇▇-▇▇▇-▇▇▇▇ and ▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
|
$[60,000,000]
|
|
2
|
Bank
of America, N.A.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Fax:
[▇▇▇-▇▇▇-▇▇▇▇]
|
$[60,000,000]
|
|
3
|
||
|
4
|
||
|
5
|
8059018-6
NEWY1\8114089.7
EXHIBIT
A
NOTE
$___________ ____________,
200__
FOR
VALUE
RECEIVED, the undersigned, TRUNKLINE LNG HOLDINGS LLC, a limited liability
company organized under the laws of Delaware (the “Borrower”),
HEREBY PROMISES TO PAY to the order of ___________________________________
(the
“Bank”), on or before the Maturity Date, the principal sum of
________________ Million and No/ 100ths Dollars ($_,000,000) in accordance
with
the terms and provisions of that certain Credit Agreement dated as of June
__,
2007, by and among the Borrower, Panhandle Eastern Pipe Line Company, LP
and
CrossCountry Citrus, LLC, as Guarantors, the Bank, the other banks named
on the
signature pages thereof, BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH
as
Administrative Agent for the Banks, Bank of America, N.A. as Syndication
Agent,
JPMorgan Chase Bank, N.A., Bayerische Landesbank, New York Branch and Mizuho
Corporate Bank Ltd., as Co-Documentation Agents and Unicredit Markets &
Investment Banking acting through HVB and Banc of America Securities LLC
as
Joint Lead Arrangers and Joint Book Managers (as same may be amended, modified,
increased, supplemented and/or restated from time to time, the “Credit
Agreement”). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Credit
Agreement.
The
outstanding principal balance of this Note shall be payable at the Maturity
Date. The Borrower promises to pay interest on the unpaid principal
balance of this Note from the date of any Loan evidenced by this Note until
the
principal balance thereof is paid in full. Interest shall accrue on
the outstanding principal balance of this Note from and including the date
of
any Loan evidenced by this Note to but not including the Maturity Date at
the
rate or rates, and shall be due and payable on the dates, set forth in the
Credit Agreement. Any amount not paid when due with respect to
principal (whether at stated maturity, by acceleration or otherwise), costs
or
expenses, or, to the extent permitted by applicable law, interest, shall
bear
interest from the date when due to and excluding the date the same is paid
in
full, payable on demand, at the rate provided for in Section 2.6(b) of the
Credit Agreement.
Payments
of principal and interest, and all amounts due with respect to costs and
expenses, shall be made in lawful money of the United States of America in
immediately available funds, without deduction, set off or counterclaim to
the
account of the Administrative Agent at the principal office of Bayerische
Hypo-
und Vereinsbank AG, New York Branch in New York, New York (or such other
address
as the Administrative Agent under the Credit Agreement may specify) not later
than noon (New York time) on the dates on which such payments shall become
due
pursuant to the terms and provisions set forth in the Credit
Agreement.
If
any
payment of interest or principal herein provided for is not paid when due,
then
the owner or holder of this Note may at its option, by notice to the Borrower,
declare the unpaid, principal balance of this Note, all accrued and unpaid
interest thereon and all other amounts payable under this Note to be forthwith
due and payable, whereupon this Note, all such interest
8059018-6
NEWY1\8114089.7
and
all
such amounts shall become and be forthwith due and payable in full, without
presentment, demand, protest, notice of intent to accelerate, notice of actual
acceleration or further notice of any kind, all of which are hereby expressly
waived by the Borrower.
If
any
payment of principal or interest on this Note shall become due on a Saturday,
Sunday, or public holiday on which the Administrative Agent is not open for
business, such payment shall be made on the next succeeding Business Day
and
such extension of time shall in such case be included in computing interest
in
connection with such payment.
In
addition to all principal and accrued interest on this Note, the Borrower
agrees
to pay (a) all reasonable costs and expenses incurred by the Administrative
Agent and all owners and holders of this Note in collecting this Note through
any probate, reorganization bankruptcy or any other proceeding and (b)
reasonable attorneys’ fees when and if this Note is placed in the hands of an
attorney for collection after default.
All
agreements between the Borrower and the Bank, whether now existing or hereafter
arising and whether written or oral, are hereby expressly limited so that
in no
contingency or event whatsoever, whether by reason of demand being made on
this
Note or otherwise, shall the amount paid, or agreed to be paid, to the Bank
for
the use, forbearance, or detention of the money to be loaned under the Credit
Agreement and evidenced by this Note or otherwise or for the payment or
performance of any covenant or obligation contained in the Credit Agreement
or
this Note exceed the amount permissible at Highest Lawful Rate. If as
a result of any circumstances whatsoever, fulfillment of any provision hereof
or
of the Credit Agreement at the time performance of such provision shall be
due,
shall involve transcending the limit of validity prescribed by applicable
usury
law, then, ipso facto, the obligation to be fulfilled shall be reduced
to the limit of such validity, and if from any such circumstance, the Bank
shall
ever receive interest or anything which might be deemed interest under
applicable law which would exceed the amount permissible at the Highest Lawful
Rate, such amount which would be excessive interest shall be applied to the
reduction of the principal amount owing on account of this Note or the amounts
owing on other obligations of the Borrower to the Bank under the Credit
Agreement and not to the payment of interest, or if such excessive interest
exceeds the unpaid principal balance of this Note and the amounts owing on
other
obligations of the Borrower to the Bank under the Credit Agreement, as the
case
may be, such excess shall be refunded to the Borrower. In determining
whether or not the interest paid or payable under any specific contingencies
exceeds the Highest Lawful Rate, the Borrower and the Bank shall, to the
maximum
extent permitted under applicable law, (a) characterize any nonprincipal
payment
as an expense, fee or premium rather than as interest, (b) exclude voluntary
prepayments and the effects thereof and (c) prorate, allocate and spread
in
equal parts during the period of the full stated term of this Note, all interest
at any time contracted for, charged, received or reserved in connection with
the
indebtedness evidenced by this Note.
This
Note
is one of the Notes provided for in, and is entitled to the benefits of,
the
Credit Agreement, which Credit Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of
certain
stated events, for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions and with the effect therein
specified, and provisions to the effect that no provision of the Credit
Agreement or this Note shall require the payment or permit the collection
of
interest in excess of the Highest Lawful Rate. It is contemplated
that by reason of prepayments or repayments hereon prior to the
8059018-6
NEWY1\8114089.7
Maturity
Date, there may be times when no indebtedness is owing hereunder prior to
such
date; but notwithstanding such occurrence this Note shall remain valid and
shall
be in full force and effect as to Loans made pursuant to the Credit Agreement
subsequent to each such occurrence.
Except
as
otherwise specifically provided for in the Credit Agreement, the Borrower
and
any and all endorsers, guarantors and sureties severally waive grace, demand,
presentment for payment, notice of dishonor or default, protest, notice of
protest, notice of intent to accelerate, notice of acceleration and diligence
in
collecting and bringing of suit against any party hereto, and agree to all
renewals, extensions or partial payments hereon and to any release or
substitution of security hereof, in whole or in part, with or without notice,
before or after maturity.
THIS
NOTE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF
NEW YORK AND APPLICABLE FEDERAL LAW.
IN
WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered
by its officer thereunto duly authorized effective as of the date first above
written.
|
TRUNKLINE
LNG HOLDINGS LLC
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
8059018-6
NEWY1\8114089.7
EXHIBIT
B
ASSIGNMENT
AND ACCEPTANCE
[NAME
AND
ADDRESS OF
ASSIGNING
BANK]
_______________,
200__
________________
________________
________________
________________
Re: Trunkline
LNG Holdings Credit Agreement
Ladies
and Gentlemen:
We
have
entered into An Amended and Restated Credit Agreement dated as of June __,
2007
(as same may be amended, modified, increased, supplemented and/or restated
from
time to time, the “Credit Agreement”), among certain banks
(including us), Bayerische Hypo- und Vereinsbank AG, New York Branch (the
“Administrative Agent”), Trunkline LNG Holdings LLC (the
“Company”) and the Guarantors party
thereto. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Credit
Agreement.
Each
reference to the Credit Agreement, the Notes or any other document evidencing
or
governing the Loans (all such documents collectively, the “Financing
Documents”) includes each such document as amended, modified, extended
or replaced from time to time. All times are New York
times.
1. Assignment. We
hereby sell and assign to you without recourse, and you hereby unconditionally
and irrevocably acquire for your own account and risk, a ___ percent (__%)
undivided interest (“your assigned share”) in our Note and all Loans and
interest thereon as provided in Section 2 of the Credit Agreement [, except
that
interest shall accrue on your assigned share in the principal of Alternate
Base
Rate Loans and Eurodollar Rate Loans at an annual rate equal to the rate
provided in the Credit Agreement minus _____%] (collectively, the
“Assigned Obligations”)
2.Materials
Provided Assignee
a. We
will promptly request that the Company issue new Notes to us and to you in
substitution for our Note to reflect the assignment set forth
herein. Upon issuance of such substitute Notes, (i) you will become a
Bank under the Credit Agreement, (ii) you will assume our obligations under
the
Credit Agreement to the extent of your assigned share, and (iii) the Company
will release us from our obligations under the Credit Agreement to the extent,
but only to the extent, of your assigned share. [The Company consents
to such release by signing this Agreement where indicated below.] As
a Bank, you will be entitled to the benefits and subject to
8059018-6
NEWY1\8114089.7
the
obligations of a “Bank”, as set forth in the Credit Agreement, and your rights
and liabilities with respect to the other Banks and the Administrative Agent
will be governed by the Credit Agreement, including without limitation Section
10 (The Administrative Agent) thereof.
b. We
have furnished you copies of the Credit Agreement, our Note and each other
Financing Document you have requested. We do not represent or warrant
(i) the priority, legality, validity, binding effect or enforceability of
any
Loan Document or any security interest created thereunder, (ii) the truthfulness
and accuracy of any representation contained in any Loan Document, (iii)
the
filing or recording of any Loan Document necessary to perfect any security
interest created thereunder, (iv) the financial condition of the Company
or any
other Person obligated under any Loan Document, any financial or other
information, certificate, receipt or other document furnished or to be furnished
under any Loan Document or (v) any other matter not specifically set forth
herein having any relation to any Loan Document, your interest in one Note,
the
Company or any other Person. You represent to us that you are able to
make, and have made, your own independent investigation and determination
of the
foregoing matters, including, without limitation, the creditworthiness of
the
Company and the structure of the transaction.
3. Governing
Law; Jurisdiction. This Agreement, and any instrument
or agreement required hereunder (to the extent not otherwise expressly provided
for therein), shall be governed by, and construed under, the laws of the
State
of New York, without reference to conflicts of laws (other than Section 5-1401
and Section 5-1402 of the New York General Obligations Law).
4. Notices. All
notices and other communications given hereunder to a party shall be given
in
writing (including bank wire, telecopy, telex or similar writing) at such
party’s address set forth on the signature pages hereof or such other address as
such party may hereafter specify by notice to the other party. Notice
may also be given by telephone to the Person, or any other officer in the
office, listed on the signature pages hereof if confirmed promptly by telex
or
telecopy. Notices shall be effective immediately, if given by
telephone; upon transmission, if given by bank wire, electronic mail, telecopy;
five days after deposit in the mails, if mailed; and when delivered, if given
by
other means.
5. Authority. Each
of us represents and warrants that the execution and delivery of this Agreement
have been validly authorized by all necessary corporate action and that this
Agreement constitutes a valid and legally binding obligation enforceable
against
it in accordance with its terms.
6. Counterparts. This
Agreement may be executed in one or more counterparts, and by each party
on
separate counterparts, each of which shall be an original but all of which
taken
together shall be but one instrument.
7. Amendments. No
amendment modification or waiver of any provision of this Agreement shall
be
effective unless in writing and signed by the party against whom enforcement
is
sought.
If
the
foregoing correctly sets forth our agreement, please so indicate by signing
the
enclosed copy of this Agreement and returning it to us.
|
Very
truly yours,
|
||||||||||
|
By:
|
||||||||||
|
Name:
|
||||||||||
|
Title:
|
||||||||||
|
[Street
Address]
|
||||||||||
|
[City,
State, Zip Code]
|
||||||||||
|
Telephone:
|
||||||||||
|
Telecopy:
|
||||||||||
|
AGREED
AND ACCEPTED:
|
||||||||||
|
By:
|
||||||||||
|
Attention:
|
||||||||||
|
Telephone:
|
||||||||||
|
Telecopy:
|
||||||||||
|
Account
for Payments:
|
||||||||||
ASSIGNMENT
APPROVED PURSUANT TO SECTION 12.14 (SALE OR ASSIGNMENT) OF THE CREDIT AGREEMENT
AND RELEASE APPROVED IN SECTION 2 OF THIS AGREEMENT:
|
TRUNKLINE
LNG HOLDINGS LLC
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
8059018-6
NEWY1\8114089.7
Schedule
3.1
Subsidiaries
Trunkline
LNG Company, LLC
8059018-6
NEWY1\8114089.7
Schedule
3.10
Tax
Matters
Tax
Sharing Agreement, effective as of April 25, 2005, among Panhandle Eastern
Pipe
Line Company, LP, Trunkline LNG Holdings LLC, Trunkline LNG Company, LLC,
PanGas
Storage, LLC, Panhandle Holdings, LLC, Trunkline Gas Company, LLC, Trunkline
Field Services, LLC, Panhandle Storage, LLC, Trunkline Offshore
Pipeline, LLC, Trunkline Deepwater Pipeline, LLC, Sea ▇▇▇▇▇ Pipeline Company,
LLC, Panhandle Lake ▇▇▇▇▇▇▇ Generation, LLC and any other subsidiaries that
may
become a part of the Panhandle group.
8059018-6
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Schedule
3.14
ERISA
Matters
Southern
Union and the members of its “controlled group of corporations,” as defined in
the Code, inadvertently failed to timely submit the information required
by
ERISA Section 4010 to the Pension Benefit Guaranty Corporation (the “PBGC”) for
the information year ending December 31, 2003. This information was
required to be filed by April 15, 2004. Upon discovery of this inadvertent
failure, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Acting General Counsel of Southern Union, advised
the
PBGC and requested a waiver of any penalties that might otherwise be assessed
against Southern Union, and the Borrower and Panhandle Eastern, as members
of
Southern Union’s controlled group. For the information years ending
December 31, 2004 and December 31, 2005, Southern Union submitted the
information required by ERISA Section 4010 to the PBGC on a timely
basis.
2. Southern
Union recently made certain contributions to two of the ERISA Title IV plans
that it sponsors 37 days after such contributions were required to be made
to
the plans. Specifically, on February 21, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ made
the following two fourth quarterly installments for the 2006 plan years that
were due January 15, 2007. On February 21, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
contributed $3,185,000 to Plan B under the Southern Union Company Retirement
Income Plan (“Plan B”). Also on February 21, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
contributed $132,099 to the Southern Union Company Fall River Pension Plan
for
Union Employees (the “Fall River Plan”).
The
missed contributions were the
result of a reorganization and restructuring within the business organization
and the resulting reallocation of responsibilities. Steps have been
taken to ensure that this does not occur again.
The
late contributions to Plan B and
the Fall River Plan constituted reportable events under ERISA Section
4043(c)(5). Two Forms 10 have been filed with the PBGC to report the
late contributions.
In
addition, because the late
contribution to Plan B exceeded $1,000,000, a statutory lien in the amount
of
$3,185,000 (the amount of the missed contribution) arose in favor of Plan
B
under Code Section 412(n) and ERISA Section 302(f) on January 15, 2007 (the
due
date of the missed contribution). A published February 6, 2001 letter
from the General Counsel of the PBGC states that this type of statutory lien
is
imposed to secure the amount of missed contributions. The lien, which
extends to all property and rights to property, whether real or personal,
belonging to Southern Union and each member of its controlled group, as
determined under Code Section 414(b), (c), (m) or (o), may
be perfected and enforced only by the PBGC, or at the direction of the PBGC,
by
Southern Union or a member of its controlled group. Although Code
Section 412(n) and ERISA Section 302(f) provide that the lien continues to
December 31, 2007, the funding obligation that resulted in the imposition
of the
lien has been satisfied as a result of Southern Union’s February 21, 2007
contribution to Plan B. A Form 200 has been filed with the PBGC to
report the missed contribution in excess of $1,000,000.
Although
it is possible that the PBGC
could assess late filing penalties with respect to the
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NEWY1\8114089.7
Forms
10
and the Form 200 that were filed March 1, 2007, it is not yet known whether
penalties will be assessed. If assessed, it is anticipated that the
penalties could be approximately $85,000.
Notwithstanding
the foregoing, the
contributions have now been made, all administrative responsibilities (e.g.,
PBGC filings) with respect to the delayed contributions have been satisfied,
and
steps have been taken to ensure that the administrative oversight does not
recur. Moreover, because the required contributions were made prior to the
60th day after
they were due, no notification to plan participants is required.
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TABLE
OF
CONTENTS
Page
Schedule
3.17
Environmental
Matters
None.
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