Exhibit 10.1
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF SEPTEMBER 29,
2005
BY AND AMONG
SOUTHERN UNION COMPANY
as the Borrower
AND
THE BANKS NAMED HEREIN
as the Banks
AND
JPMORGAN CHASE BANK, N.A.
as the Administrative
Agent
AND
BANK OF AMERICA, NA
as the Syndication
Agent
AND
J.P. MORGAN SECURITIES INC.
&
WACHOVIA CAPITAL MARKETS,
LLC
as the Co-Book Runners and
Co-Lead Arrangers
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Reference is hereby made to that certain Third
Amended and Restated Revolving Credit Agreement dated as of May 28,
2004, executed by and between SOUTHERN UNION COMPANY, a corporation
organized under the laws of Delaware (the “Borrower”),
the financial institutions listed on the signature pages of said
Revolving Credit Agreement (each of said financial institutions now
or hereafter a party to said Revolving Credit Agreement being
hereinafter referred to collectively as “Banks” and
individually as a “Bank”), and JPMORGAN CHASE BANK, a
New York banking corporation association now known as JPMORGAN
CHASE BANK, N.A., a national banking association
(“JPMorgan”), in its capacity as agent (the
“Agent”) for the Banks. Said Third Amended and Restated
Revolving Credit Agreement has been previously amended by that
certain First Amendment to Third Amended and Restated Revolving
Credit Agreement dated November 9, 2004, executed by and among the
Borrower, the Agent and the Majority Banks, and said Third Amended
and Restated Revolving Credit Agreement, as previously amended, is
referred to herein as the “Original
Agreement.”
As a result of certain discussions between the
Borrower, the Agent and the Banks, the parties to the Original
Agreement now desire to amend and restate the Original Agreement in
its entirety. Accordingly, the Original Agreement is hereby amended
and restated in its entirety to hereafter be and read as
follows:
SOUTHERN UNION COMPANY, a
corporation organized under the laws of Delaware (hereinafter
called the “Borrower”), the financial institutions
listed on the signature pages hereof (collectively, the
“Banks” and individually, a “Bank”),
JPMORGAN CHASE BANK, N.A., a national banking association
(“JPMorgan”), in its capacity as administrative agent
(the “Agent”) for the Banks hereunder, and BANK OF
AMERICA, NA, in its capacity as syndication agent
(“Syndication Agent”) for the Banks hereunder, hereby
agree as follows:
CERTAIN
DEFINITIONS. As used in
this Agreement, the following terms shall have the following
meanings:
“Additional Costs” shall mean, with
respect to any Rate Period in the case of any Eurodollar Rate Loan,
all costs, losses or payments, as determined by any Bank in its
sole and absolute discretion (which determination shall be
conclusive in the absence of manifest error) that such Bank or its
Domestic Lending Office or its Eurodollar Lending Office does, or
would, if such Eurodollar Rate Loan were funded during such Rate
Period by the Domestic Lending Office or the Eurodollar Lending
Office of such Bank, incur, suffer or make by reason of:
(a) any and all present or future taxes (including,
without limitation, any interest equalization tax or any similar
tax on the acquisition of debt obligations, or any stamp or
registration tax or duty or official or sealed papers tax), levies,
imposts or any other charge of any nature whatsoever imposed by any
taxing authority on or with regard to any aspect of the
transactions contemplated by this Agreement, except such taxes as
may be measured by the overall net income of such Bank or its
Domestic Lending Office or its Eurodollar Lending Office and
imposed by the jurisdiction, or any political subdivision or taxing
authority thereof, in which such Bank's Domestic Lending Office or
its Eurodollar Lending Office is located; and
(b) any increase in the cost to such Bank of
agreeing to make or making, funding or maintaining any Eurodollar
Rate Loan because of or arising from (i) the introduction of, or
any change (other than any change by way of imposition or increase
of reserve requirements, in the case of any Eurodollar Rate Loan,
included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation or administration of, any law or regulation or (ii)
the compliance with any request from any central bank or other
governmental authority (whether or not having the force of
law).
“Additional Offering” shall mean,
collectively, the previous issuance, offering and sale in any
offering or issuance of capital stock, Equity-Preferred Securities
or any other equity interests in the Borrower (to the extent
permitted under Section 10.5), where all net cash proceeds thereof
were applied to finance or refinance a portion of the acquisition
costs for the Cross Country Acquisition.
“Affiliate” shall mean any Person
controlling, controlled by or under common control with any other
Person. For purposes of this definition, “control”
(including “controlled by” and “under common
control with”)
means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person,
whether through the ownership of voting securities or otherwise. If
any Person shall own, directly or indirectly, beneficially or of
record, twenty percent (20%) or more of the voting equity (whether
outstanding capital stock, partnership interests or otherwise) of
another Person, such Person shall be deemed to be an
Affiliate.
“Agent” shall have the meaning set
forth in the preamble hereto.
“Agreement” shall mean this
Revolving Credit Agreement, as the same may be amended, modified,
supplemented or restated from time to time.
“Alternate Base Rate” shall mean,
for any day, a rate, per annum (rounds upward to the nearest 1/16
of 1%) equal to: (a) the greatest of (i) the Prime Rate (computed
on the basis of the actual number of days elapsed over a year of
365 or 366 days, as the case may be) in effect on such day; or (ii)
the Federal Funds Rate in effect for such day plus one-half
of one percent (1/2%) (computed on the basis of the actual number
of days elapsed over a year of 360 days).
“Alternate Base Rate Loan” shall
mean any Loan which bears interest at the Alternate Base
Rate.
“Applicable Lending Office” shall
mean, with respect to each Bank, such Bank's (a) Domestic
Lending Office in the case of an Alternate Base Rate Loan; and (b)
Eurodollar Lending Office in the case of a Eurodollar Rate
Loan.
“Approved Fund” means any Person
(other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and
that is administered or managed by (a) a Bank, (b) an Affiliate of
a Bank or (c) an entity or an Affiliate of an entity that
administers or manages a Bank.
“Assignment and Acceptance” shall
have the meaning set forth in Section 13.13.
“Bank” shall have the meaning set
forth in the preamble hereto and shall include the Agent, in its
individual capacity.
“Borrower” shall have the meaning
set forth in the preamble hereto.
“Borrowing Date” shall mean a date
upon which the Borrower has requested a Loan is to be made in a
Notice of Borrowing delivered pursuant to Section 2.1.
“Business Day” shall mean a day when
the Agent is open for business, provided that, if the applic-able
Business Day relates to any Eurodollar Rate Loan, it shall mean a
day when the Agent is open for business and banks are open for
business in the London interbank market and in New York
City.
“Capital Lease” shall mean any lease
of any Property (whether real, personal, or mixed) which, in
conformity with GAAP, is accounted for as a capital lease on the
balance sheet of the lessee.
“Capitalized Lease Obligations”
shall mean, for the Borrower and its Subsidiaries, any of their
obligations that should, in accordance with GAAP, be recorded as
Capital Leases.
“Cash Interest Expense” shall mean,
for any period, total interest expense to the extent paid in cash
(including the interest component of Capitalized Lease Obligations
and capitalized interest and all dividends and interest paid on or
with respect to Borrower’s Structured Securities) of the
Borrower and any Subsidiary for such period all as determined in
conformity with GAAP.
“CCE Acquisition” shall mean CCE
Acquisition LLC, a Delaware limited liability company formed by the
Borrower for the purpose of ultimately owning and holding 50% of
all issued and outstanding equity interest in CCE
Holdings.
“CCE Group” means CCE Holdings and
its Subsidiaries.
“CCE Holdings” shall mean CCE
Holdings LLC, a Delaware limited liability company.
“CCE Holdings LLC Agreement” shall
mean the Limited Liability Company Agreement of CCE Holdings dated
as June 18, 2004, as amended from time to time, among the members
of CCE Holdings.
“Closing
Date” shall mean September 29, 2005.
“Code” shall mean the Internal
Revenue Code of 1986, as amended, as now or hereafter in effect,
together with all regulations, rulings and interpretations thereof
or thereunder issued by the Internal Revenue Service.
“Commitment” shall have the meaning
set forth in Section 2.1(a) and “Commitments” shall
mean, collectively, the Commitments of all of the Banks.
“Consolidated Net Income” shall mean
for any period the consolidated net income of the Borrower and all
Subsidiaries, determined in accordance with GAAP, for such
period.
“Consolidated Net Worth” shall mean,
for any period for the Borrower and all Subsidiaries, (a) the sum
of the following consolidated items, all determined in accordance
with GAAP and without duplication: the consolidated stockholders'
equity of all classes of stock (whether common, preferred,
mandatorily convertible preferred or preference) of the Borrower
and its Subsidiaries; the Equity-Preferred Securities; the other
preferred securities of the Borrower’s Subsidiaries not
constituting Equity-Preferred Securities; and the minority
interests in the Borrower’s Subsidiaries, less (b) the
sum of the following consolidated items, without duplication: the
book amount of any deferred charges (including, but not limited to,
unamortized debt discount and expenses, organization expenses,
experimental and development expenses, but excluding prepaid
expenses) that are not permitted to be recovered by the Borrower or
its applicable Subsidiaries under rates permitted under rate
tariffs, plus (c) the sum of all amounts contributed or paid
by the Borrower to the Rabbi Trusts for purposes of funding the
same, but only to the extent such contributions and payments are
required to be deducted from the consolidated stockholders’
equity of the Borrower and its Subsidiaries in accordance with
GAAP.
“Consolidated Total Capitalization”
shall mean at any time the sum of: (a) Consolidated Net Worth at
such time; plus (b) the principal amount of outstanding Debt
(other than Equity-Preferred Securities (to the extent included in
Debt of the Borrower and its Subsidiaries) not to exceed 10% of
Consolidated Total Capitalization [calculated for purposes of this
clause without reference to any Equity-Preferred Securities]) of
the Borrower and its Subsidiaries.
“Consolidated Total Indebtedness”
shall mean all Debt of the Borrower and all Subsidiaries including
any current maturities thereof, plus , without duplication,
all amounts outstanding under Standby Letters of Credit and,
without duplication, all Facility Letter of Credit Obligations,
less , without duplication and to the extent included in
Debt of the Borrower and its Subsidiaries, Equity-Preferred
Securities not to exceed 10% of Consolidated Total Capitalization
(calculated for purposes of this clause without reference to any
Equity-Preferred Securities).
“Cross Country” shall mean
CrossCountry Energy, LLC, a Delaware limited liability
company.
“Cross Country Acquisition” shall
mean the acquisition by CCE Holdings of 100% of all issued and
outstanding equity interest in Cross Country in accordance with the
Cross Country Acquisition Agreement, so long as such acquisition is
in substantial compliance with the following specified
terms:
(a)
immediately after the consummation
of such acquisition, Cross Country is a wholly-owned Subsidiary of
CCE Holdings;
(b)
the aggregate consideration paid
for all equity interest in Cross Country shall be approximately
$2,450,000,000 (which amount includes the assumption of
approximately $461,000,000 of outstanding Debt of Transwestern
Pipeline Company and is subject to customary purchase price
adjustment as set forth in the Cross Country Acquisition
Agreement);
(c)
neither the Borrower nor any of its
Subsidiaries shall have, incur or assume any liability with respect
to any Debt of Cross Country and its Subsidiaries immediately after
the consummation of such acquisition; and
(d)
all material requisite approvals
and consents from any Governmental Authority with respect to such
acquisition shall have been received by the Borrower and its
Subsidiaries in a form acceptable to the Agent.
“Cross Country Acquisition
Agreement” shall mean that certain Purchase Agreement dated
as of June 24, 2004 and amended by Amendment No. 1 dated as of
September 1, 2004, by and among Enron Operations Services, LLC,
Enron Transportation Services, LLC, EOC Preferred, L.L.C. and Enron
Corp., as sellers, and CCE Holdings, as purchaser, as the same may
hereafter be amended (the form of any such amendment to be approved
by the Agent, such approval not to be unreasonably withheld,
conditioned or delayed).
“Cross Country Acquisition Closing
Date” means the date on which the Cross Country Acquisition
is consummated.
“Debt” means (without duplication),
for any Person indebtedness for money borrowed determined in
accordance with GAAP but in any event including, (a) indebtedness
of such Person for borrowed money or arising out of any extension
of credit to or for the account of such Person (including, without
limitation, extensions of credit in the form of reimbursement or
payment obligations of such Person relating to letters of credit
issued for the account of such Person) or for the deferred purchase
price of property or services, except indebtedness which is owing
to trade creditors in the ordinary course of business and which is
due within thirty (30) days after the original invoice date; (b)
indebtedness of the kind described in clause (a) of this definition
which is secured by (or for which the holder of such Debt has any
existing right, contingent or otherwise, to be secured by) any Lien
upon or in Property (including, without limitation, accounts and
contract rights) owned by such Person, whether or not such Person
has assumed or become liable for the payment of such indebtedness
or obligations; (c) Capitalized Lease Obligations of such Person;
(d) obligations under direct or indirect Guaranties other than
Guaranties issued by the Borrower covering obligations of the
Southern Union Trusts under the Structured Securities. Whenever the
definition of Debt is being used herein in order to compute a
financial ratio or covenant applicable to the consolidated business
of the Borrower and its Subsidiaries, Debt which is already
included in such computation by virtue of the fact that it is owed
by a Subsidiary of the Borrower will not also be added by virtue of
the fact that the Borrower has executed a guaranty with respect to
such Debt that would otherwise require such guaranteed indebtedness
to be considered Debt hereunder. Nothing contained in the foregoing
sentence is intended to limit the other provisions of this
Agreement which contain limitations on the amount and types of Debt
which may be incurred by the Borrower or its
Subsidiaries.
“Debtor Laws” shall mean all
applicable liquidation, conservatorship, bankruptcy, moratorium,
arrangement, receivership, insolvency, reorganization, or similar
laws, or general equitable principles from time to time in effect
affecting the rights of creditors generally.
“Default” shall mean any of the
events specified in Section 11, whether or not there has been
satisfied any requirement in connection with such event for the
giving of notice, or the lapse of time, or the happening of any
further condition, event or act.
“Dollars” and “$” shall
mean lawful currency of the United States of America.
“Domestic Lending Office” shall
mean, with respect to each Bank, the office of such Bank located at
its “Address for Notices” set forth below the name of
such Bank on the signature pages hereof or such other office of
such Bank as such Bank may from time to time specify to the
Borrower and the Agent.
“EBDIT” shall mean for any period
the sum of (a) consolidated net earnings for the Borrower and its
Subsidiaries (excluding for all purposes hereof all extraordinary
items), plus (b) each of the following to the extent
actually deducted in deriving such net earnings: (i) depreciation
and amortization expense; (ii) interest expense; (iii) federal and
state income taxes; and (iv) dividends charged against income on or
with respect to Structured Securities, in each case before
adjustment for extraordinary items, as shown in the financial
statements of Borrower
and its
Subsidiaries referred to in Section 7.2 hereof (excluding for
all purposes hereof all extraordinary items), and determined in
accordance with GAAP, and (c) plus (or minus , if
applicable) the net amount of non-cash deductions from (or
additions to, if applicable) such net earnings for such period
attributable to fluctuations in the market price(s) of securities
which the Borrower is obligated to purchase in future periods under
any of the Rabbi Trusts, but only to the extent that such
deductions (or additions, if applicable) are required to be taken
in accordance with GAAP.
“Eligible Assignee” shall mean: (i)
any Bank, or any Affiliate of any Bank, any Approved Fund, or any
institution 100% of the voting stock of which is directly, or
indirectly owned by such Bank or by the immediate or remote parent
of such Bank; or (ii) a commercial bank, a foreign branch of a
United States commercial bank, a domestic branch of a foreign
commercial bank or other financial institution having in each case
assets in excess of $1,000,000,000.00.
“Environmental Law” shall mean (a)
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C.A. § 9601 et
seq . ), as amended from time to time, and any and all
rules and regulations issued or promulgated thereunder
(“CERCLA”); (b) the Resource Conservation and Recovery
Act (as amended by the Hazardous and Solid Waste Amendment of 1984,
42 U.S.C.A. § 6901 et seq .), as amended from
time to time, and any and all rules and regulations promulgated
thereunder (“RCRA”); (c) the Clean Air Act, 42 U.S.C.A.
§ 7401 et seq ., as amended from time to time,
and any and all rules and regulations promulgated thereunder; (d)
the Clean Water Act of 1977, 33 U.S.CA § 1251 et
seq ., as amended from time to time, and any and all rules and
regulations promulgated thereunder; (e) the Toxic Substances
Control Act, 15 U.S.C.A. § 2601 et seq. ,
as amended from time to time, and any and all rules and regulations
promulgated thereunder; or (f) any other federal or state law,
statute, rule, or emulation enacted in connection with or relating
to the protection or regulation of the environment (including,
without limitation, those laws, statutes, rules, and regulations
regulating the disposal, removal, production, storing, refining,
handling, transferring, processing, or transporting of Hazardous
Materials) and any rules and regulations issued or promulgated in
connection with any of the foregoing by any governmental authority,
and “Environmental Laws” shall mean each of the
foregoing.
“EPA” shall mean the Environmental
Protection Agency, or any successor organization.
“Equity-Preferred Securities” means
(i) Debt, preferred equity or any other securities that are
mandatorily convertible by the issuer thereof at a date certain,
without cash payment by the issuer, into common shares of stock of
the Borrower or (ii) any other securities (A) that are issued by
the Borrower or any Subsidiary, (B) that are not subject to
mandatory redemption at any time, directly or indirectly, (C) that
are perpetual or mature not less than 30 years from the date of
issuance, (D) the Debt component, if any, issued in connection
therewith, including any guaranty, is subordinate in right of
payment to all other unsecured and unsubordinated Debt of the
issuer of such Debt component (including any such guaranty, if
applicable), and (E) the terms of which permit the issuer thereof
to defer at any time, without any additional payment or premium,
the payment of any and all interest and/or distributions thereon,
as applicable, to a date occurring after the Maturity
Date.
“ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended from time to
time, and all rules, regulations, rulings and interpretations
thereof issued by the Internal Revenue Service or the Department of
Labor thereunder.
“Eurocurrency Liabilities” shall
have the meaning assigned to that term in Regulation D of the Board
of Governors of the Federal Reserve System, as in effect from time
to time.
“Eurodollar Lending Office” shall
mean, with respect to each Bank, the office of such Bank located at
its “Address for Notices” set forth below the name of
such Bank on the signature pages hereof, or such other office of
such Bank as such Bank may from time to time specify to the
Borrower and the Agent.
“Eurodollar Rate” shall mean with
respect to the applicable Rate Period in effect for each Eurodollar
Rate Loan, the sum of (a) the quotient obtained by dividing (i) the
rate appearing on Page 3750 of the Dow Jones Market Service (or on
any successor or substitute page of such Service, or any successor
to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such
Service, as determined by the
Agent from time
to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Rate Period, as the rate for dollar
deposits with a maturity comparable to such Rate Period (or in the
event that such rate quote is not available at such time for any
reason, then utilizing the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Rate Period are
offered by the principal London office of the Agent in immediately
available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the
commencement of such Rate Period) by (ii) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Rate
Period, plus (b) an additional percentage per annum changing
with the rating of the Borrower’s unsecured, non-credit
enhanced Senior Funded Debt and determined in accordance with the
following grid:
Rating
of the Borrower ’ s
unsecured, non-credit enhanced
Senior Funded Debt
|
Additional Percentage Per
Annum
|
Equal to or
greater than A3 by Moody’s Investor Service, Inc. and equal
to or greater than A- by Standard and Poor’s Ratings
Group
|
|
Baa1 by
Moody’s Investor Service, Inc. or BBB+ by Standard and
Poor’s Ratings Group
|
|
Baa2 by
Moody’s Investor Service, Inc. or BBB by Standard and
Poor’s Ratings Group
|
|
Baa3 by
Moody’s Investor Service, Inc. or BBB- by Standard and
Poor’s Ratings Group
|
|
Ba1 by
Moody’s Investor Service, Inc. or BB+ by Standard and
Poor’s Ratings Group
|
|
Less than Ba1
by Moody’s Investor Service, Inc. and less than BB+ by
Standard and Poor’s Ratings Group
|
|
Notwithstanding
the foregoing provisions, in the event that ratings of the
Borrower’s unsecured, non-credit enhanced Senior Funded Debt
under Standard & Poor’s Ratings Group and under
Moody’s Investor Service, Inc. fall within different rating
categories which are not functional equivalents, the Eurodollar
Rate shall be based on the higher of such ratings if there is only
one category differential between the functional equivalents of
such ratings, and if there is a two category differential between
the functional equivalents of such ratings, the component of
pricing from the grid set forth above shall be based on the rating
category which is then in the middle of or between the two category
ratings which are then in effect, and if there is greater than a
two category differential between the functional equivalents of
such ratings, the component of pricing from the grid set forth
above shall be based on the rating category which is then one
rating category above the lowest of the two category ratings which
are then in effect. Additionally, in the event that Borrower
withdraws from having its unsecured, non-credit enhanced Senior
Funded Debt being rated by Moody’s Investor Service, Inc. or
Standard and Poor’s Ratings Group, so that one or both of
such ratings services fails to rate the Borrower’s unsecured,
non-credit enhanced Senior Funded Debt, the component of pricing
from the grid set forth above for purposes of determining the
applicable Eurodollar Rate for all Rate Periods commencing
thereafter shall be 1.250% until such time as Borrower subsequently
causes its unsecured, non-credit enhanced Senior Funded Debt to be
rated by both of said ratings services.
“
Eurodollar Rate Loan ” shall mean any Loan
that bears interest at the Eurodollar Rate.
“ Eurodollar Rate Reserve
Percentage ” of the Agent for any Rate Period for
any Eurodollar Rate Loan shall mean the reserve percentage
applicable during such Rate Period (or if more than one such
percentages shall be so applicable, the daily average of such
percentages for those days in such Rate Period during which any
such
percentage
shall be so applicable) under regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental, or
other marginal reserve requirement) for member banks of the Federal
Reserve System with deposits exceeding $1,000,000,000 with respect
to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Rate Period.
“ Event of Default
” shall mean any of the events specified in Section 11,
provided that there has been satisfied any
requirement in connection with such event for the giving of notice,
or the lapse of time, or the happening of any further condition,
event or act.
“
Expiration Date ” shall mean the last day of
a Rate Period.
“ Facility Letter(s) of
Credit ” shall mean, in the singular form, any
Standby Letter of Credit issued by an Issuing Bank for the account
of the Borrower pursuant to Section 3 and, in the plural form, all
such Standby Letters of Credit issued for the account of the
Borrower.
“ Facility Letter of Credit Fee
Percentage ” shall mean a fee expressed as a percent
per annum for all periods equal to a percentage per annum changing
with the rating of the Borrower’s unsecured, non-credit
enhanced Senior Funded Debt and determined in accordance with the
following grid:
Rating
of the Borrower ’ s
unsecured, non-credit enhanced Senior Funded
Debt
|
Additional Percentage Per
Annum
|
Equal to or
greater than A3 by Moody’s Investor Service, Inc. and equal
to or greater than A- by Standard and Poor’s Ratings
Group
|
|
Baa1 by
Moody’s Investor Service, Inc. or BBB+ by Standard and
Poor’s Rating
|
|
Baa2 by
Moody’s Investor Service, Inc. or BBB by Standard and
Poor’s Rating Group
|
|
Baa3 by
Moody’s Investor Service, Inc. or BBB- by Standard and
Poor’s Rating Group
|
|
Ba1
Moody’s Investor Service, Inc. or BB+ by Standard and
Poor’s Rating Group
|
|
Less than Ba1
by Moody’s Investor Service, Inc. and less than BB+ by
Standard and Poor’s Rating Group
|
|
Notwithstanding
the foregoing provisions, in the event that ratings of the
Borrower’s unsecured, non-credit enhanced Senior Funded Debt
under Standard & Poor’s Ratings Group and under
Moody’s Investor Service, Inc. fall within different rating
categories which are not functional equivalents, the Facility
Letter of Credit Fee Percentage shall be based on the higher of
such ratings if there is only one category differential between the
functional equivalents of such ratings, and if there is a two
category differential between the functional equivalents of such
ratings, the component of pricing from the grid set forth above
shall be based on the rating category which is then in the middle
of or between the two category ratings which are then in effect,
and if there is greater than a two category differential between
the functional equivalents of such ratings, the component of
pricing from the grid set forth above shall be based on the rating
category which is then one rating category above the lowest of the
two category ratings which are then in effect. Additionally, in the
event that Borrower withdraws from having its unsecured, non-credit
enhanced Senior Funded Debt being rated by Moody’s Investor
Service, Inc. or Standard and
Poor’s
Ratings Group, so that one or both of such ratings services fails
to rate the Borrower’s unsecured, non-credit enhanced Senior
Funded Debt, the component of pricing from the grid set forth above
for purposes of determining the applicable Facility Letter of
Credit Fee Percentage for all periods thereafter shall be 1.250%
until such time as the Borrower subsequently causes its unsecured,
non-credit enhanced Senior Funded Debt to be rated by both of said
ratings services.
“
Facility Letter of Credit Obligations ”
shall mean, at any particular time, the sum of (a) the
Reimbursement Obligations, plus (b) the aggregate undrawn
face amount of all outstanding Facility Letters of Credit, in each
case as determined by the Agent.
“ Federal Funds Rate
” shall mean, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average
of the rates (rounded to the nearest 1/100 of 1%) on overnight
federal fund transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions
received by the Agent from Fulton Prebon and Garvin Guy Butler or
two other federal funds brokers of recognized standing selected by
the Agent.
“ Funded Debt ”
means all Debt of a Person which matures more than one year from
the date of creation or matures within one year from such date but
is renewable or extendible, at the option of such Person, by its
terms or by the terms of any instrument or agreement relating
thereto, to a date more than one year from such date or arises
under a revolving credit or similar agreement which obligates Banks
to extend credit during a period of more than one year from such
date, including, without limitation, all amounts of any Funded Debt
required to be paid or prepaid within one year from the date of
determination of the existence of any such Funded Debt.
“ GAAP ” shall mean
generally accepted accounting principles, applicable to the
circumstances as of the date of determination, applied consistently
with such principles as applied in the preparation of the Borrowers
audited financial statements referred to in Section 7.2.
“ General Intangibles
” shall mean all of the Borrower’s contract rights now
existing or hereafter acquired, arising or created under contracts
or arrangements for the purchase, sale, storage or transportation
of gas or other Inventory.
“ Governmental Authority
” shall mean any (domestic or foreign) federal, state,
county, municipal, parish, provincial, or other government, or any
department, commission, board, court, agency (including, without
limitation, the EPA), or any other instrumentality of any of them
or any other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory, or
administrative functions of, or pertaining to, government,
including, without limitation, any arbitration panel, any court, or
any commission.
“ Governmental
Requirement ” means any Order, Permit, law, statute
(including, without limitation, any Environmental Protection
Statute), code, ordinance, rule, regulation, certificate, or other
direction or requirement of any Governmental Authority.
“ Guaranty ” means,
with respect to any Person, any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
Debt of another Person, including, without limitation, by means of
an agreement to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or to maintain financial
covenants, or to assure the payment of such Debt by an agreement to
make payments in respect of goods or services regardless of whether
delivered or to purchase or acquire the Debt of another, or
otherwise, provided that the term “Guaranty” shall not
include endorsements for deposit or collection in the ordinary
course of business.
“ Hazardous Materials
” shall mean any substance which, pursuant to any
Environmental Laws, requires special handling in its collection,
use, storage, treatment or disposal, including but not limited to
any of the following: (a) any “hazardous waste” as
defined by RCRA; (b) any “hazardous substance” as
defined by CERCLA; (c) asbestos; (d) polychlorinated biphenyls; (e)
any flammables, explosives or radioactive materials; and (f) any
substance, the presence of which on any of the Borrower’s or
any Subsidiary's properties is prohibited by any Governmental
Authority.
“ Highest Lawful Rate
” shall mean, with respect to each Bank, the maximum
nonusurious interest rate, if any, that at any time or from time to
time may be contracted for, taken, reserved, charged, or received
with respect to the Notes or on other amounts, if any, due to such
Bank pursuant to this Agreement, under laws applicable to such Bank
which are presently in effect, or, to the extent allowed by law,
under such applicable laws which may hereafter be in effect and
which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
“ Indemnified Parties
” shall have the meaning set forth in Section
13.16.
“ Interest Payment Date
” shall mean (a) as to any Eurodollar Rate Loan in which the
Rate Period with respect thereto is not greater than three (3)
months, the date on which such Rate Period ends; (b) as to any
Eurodollar Rate Loan in which the Rate Period with respect thereto
is greater than three (3) months, the date on which the third month
of such Rate Period ends, and the date on which each such Rate
Period ends; (c) as to any Alternate Base Rate Loan in which the
Rate Period with respect thereto is not greater than ninety (90)
days, the date on which such Rate Period ends; (d) as to any
Alternate Base Rate Loan in which the Rate Period with respect
thereto is greater than ninety (90) days, the ninetieth (90th) day
of such Rate Period, and the date on which each such Rate Period
ends; and (e) as to all Loans, such time as the principal of and
interest on the Notes shall have been paid in full.
“ Inventory ”
means, with respect to Borrower or any Subsidiary, all of such
-Person's now owned or hereafter acquired or created inventory in
all of its forms and of every nature, wherever located, whether
acquired by purchase, merger, or otherwise, and all raw materials,
work in process therefor and finished goods thereof, and all
supplies, materials, and products of every nature and description
used, usable, or consumed in connection with the manufacture,
packing, shipping, advertising, selling, leasing, furnishing, or
production of such goods, and shall include, in any event, all
“inventory” (within the meaning of such term in the
Uniform Commercial Code in effect in any applicable jurisdiction),
whether in mass or joint, or other interest or right of any kind in
goods which are returned to, repossessed by, or stopped in transit
by such Person, and all accessions to any of the foregoing and all
products of any of the foregoing.
“ Investment ” of
any Person means any investment so classified under GAAP, and,
whether or not so classified, includes (a) any direct or indirect
loan advance made by it to any other Person; (b) any direct or
indirect Guaranty for the benefit of such Person; provided ,
however , that for purposes of determining Investments of
Borrower hereunder, the existing Guaranty by Borrower of certain
tax increment financing extended by The Fidelity Deposit and
Discount Bank to The Redevelopment Authority of the County of
Lackawanna shall be deemed to not be an Investment; (c) any capital
contribution to any other Person; and (d) any ownership or similar
interest in any other Person; and the amount of any Investment
shall be the original principal or capital amount thereof (
plus any subsequent principal or capital amount)
minus all cash returns of principal or capital
thereof.
“ Issuing Bank ”
shall mean (a) any Bank and/or any Affiliate of any Bank listed on
the signature pages of this Agreement attached hereto and made a
part hereof, or (b) any Bank or any Affiliate of any Bank not
listed on the signature pages of this Agreement, but only in the
event that such Bank or such Affiliate agrees, in its sole
discretion at the request of the Borrower, and on the terms and
conditions mutually acceptable to such Bank or such Affiliate, as
the case may be, to become an Issuing Bank for the purpose of
issuing one or more Facility Letters of Credit pursuant to Section
3. When a Bank is referred to as an Issuing Bank under this
Agreement, such reference to such Bank shall be interpreted to
refer to such Bank solely in its capacity as an Issuing
Bank.
“ L/C Subfacility ”
shall mean that portion of the Commitments equal to
$40,000,000.00.
“ Letter(s) of Credit
” shall mean, in the singular form, any letter of credit
issued by any Person for the account of the Borrower and, in the
plural form, all such letters of credit issued by any Person for
the account of the Borrower.
“ Letter of Credit
Commitment ” shall mean, with respect to each
Issuing Bank, such Issuing Bank's commitment to issue Facility
Letters of Credit.
“ Letter of Credit Reimbursement
Agreement ” shall mean, with respect to a Facility
Letter of Credit, such form of application therefor and form of
reimbursement agreement therefor (whether in a single or
several
documents,
taken together) as the Issuing Bank from which the Facility Letter
of Credit is requested may employ in the ordinary course of
business for its own account, whether or not providing for
collateral security, with such modifications thereto as may be
agreed upon by such Issuing Bank and the account party and as are
not materially adverse to the interests of any Bank;
provided , however , in the event of any conflict
between the terms of any Letter of Credit Reimbursement Agreement
and this Agreement, the terms of this Agreement shall control; and
provided , further , that any grant or purported
grant of a security interest in favor of the Issuing Bank contained
in any Letter of Credit Reimbursement Agreement shall be
void.
“ Lien ” shall mean
any mortgage, deed of trust, pledge, security interest,
encumbrance, lien (including without limitation, any such interest
arising under any Environmental Law), or similar charge of any kind
(including without limitation, any agreement to give any of the
foregoing, any conditional sale or other title retention agreement
or any lease in the nature thereof), or the interest of the lessor
under any Capital Lease.
“ Loan ” or “
Loans ” shall mean a loan or loans,
respectively, from the Banks to the Borrower made under Section
2.1.
“ Loan Document ”
shall mean this Agreement, any Note, or any other document,
agreement or instrument now or hereafter executed and delivered by
the Borrower or any other Person in connection with any of the
transactions contemplated by any of the foregoing, as any of the
foregoing may hereafter be amended, modified, or supplemented, and
“ Loan Documents ” shall mean,
collectively, each of the foregoing.
“ Majority Bank ”
shall mean at any time Banks holding more than 50% of the unpaid
principal amounts outstanding under the Notes, or, if no such
amounts are outstanding, more than 50% of the Pro Rata
Percentages.
“ Material Adverse Effect
” shall mean any material adverse effect on (a) the financial
condition, business, properties, assets, prospects or operations of
the Borrower and its Subsidiaries taken as a whole, or (b) the
ability of the Borrower to perform its obligations under this
Agreement, any Note or any other Loan Document on a timely
basis.
“ Maturity Date ”
shall mean May 28, 2010.
“ Non-Facility Letter of
Credit ” shall mean any Letter of Credit which is
not a Facility Letter of Credit.
“ Note ” or “
Notes ” shall mean a promissory note or
notes, respectively, of the Borrower, executed and delivered under
this Agreement.
“ Notice of Borrowing
” shall have the meaning set forth in Section
2.1(c).
“ Obligations ”
shall mean (a) all obligations of the Borrower to the Bank under
this Agreement, the Notes and all other Loan Documents to which it
is a party; (b) all Reimbursement Obligations; and (c) any other
obligations of the Borrower with respect to a Facility Letter of
Credit.
“ Officer ’
s Certificate ” shall mean a certificate
signed in the name of the Borrower or a Subsidiary, as the case may
be, by either its President, one of its Vice Presidents, its
Treasurer, its Secretary, or one of its Assistant Treasurers or
Assistant Secretaries.
“ Panhandle Eastern
” shall mean Panhandle Eastern Pipe Line Company, LP, a
Delaware limited partnership.
“ Panhandle Eastern Refinancing
Debt ” shall mean any Debt of Panhandle Eastern
and/or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace,
defease or refund, any Debt of Panhandle Eastern and/or any of its
Subsidiaries existing as of the Closing Date, provided ,
that:
(a) the principal amount of such Panhandle Eastern
Refinancing Debt does not exceed the then outstanding principal
amount of the Debt so extended, refinanced, renewed, replaced,
defeased or refunded;
(b) the interest rate or rates to accrue under such
Panhandle Eastern Refinancing Indebtedness do not exceed the lesser
of (i) the interest rate or rates then accruing on the Debt so
extended, refinanced, renewed, replaced, defeased or refunded or
(ii) the prevailing market interest rate or rates which are then
applicable to, and generally available for, Debt which is similar
in type, amount, maturity and other terms to the Indebtedness so
extended, refinanced, renewed, replaced, defeased or
refunded;
(c) the maturities, amortization schedules,
covenants, defaults, remedies, collateral security provisions (or
absence thereof) and other terms of such Panhandle Eastern
Refinancing Indebtedness, including without limitation, any
restrictions on the payment by Panhandle Eastern and/or its
applicable Subsidiaries of any dividends or other shareholder
distributions, are in each case the same or more favorable to
Panhandle Eastern and/or its applicable Subsidiaries as those in
the Debt so extended, refinanced, renewed, replaced, defeased or
refunded; and
(d) no Default or Event of Default has occurred and
is continuing or would result from the issuance or origination of
such Panhandle Eastern Refinancing Indebtedness.
“ Person ” shall
mean an individual, partnership, joint venture, corporation, joint
stock company, bank, trust, unincorporated organization and/or a
government or any department or agency thereof.
“ Plan ” shall mean
any plan subject to Title IV of ERISA and maintained for employees
of the Borrower or of any member of a “controlled group of
corporations,” as such term is defined in the Code, of which
the Borrower or any Subsidiary is a member, or any such plan to
which the Borrower or any Subsidiary is required to contribute on
behalf of its employees.
“ Prime Rate ”
shall mean, on any day, the rate determined by the Agent as being
its prime rate for that day. Without notice to the Borrower or any
other Person, the Prime Rate shall change automatically from time
to time as and in the amount by which said Prime Rate shall
fluctuate, with each such change to be effective as of the date of
each change in such Prime Rate. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate actually
charged to any customer. The Agent may make commercial or other
loans at rates of interest at, above or below the Prime
Rate.
“ Prior Acquisitions
” shall mean collectively the Borrower’s previous
acquisitions of and mergers with Fall River Gas Company, Providence
Energy Corporation and Valley Resources, Inc.
“ Pro-Rata Percentage
” shall mean with respect to any Bank, a fraction (expressed
as a percentage), the numerator of which shall be the amount of
such Bank's Commitment and the denominator of which shall be the
aggregate amount of all the Commitments of the Banks, as adjusted
from time to time in accordance with Section 4.6.
“ Property ” shall
mean any interest or right in any kind of property or asset,
whether real, personal, or mixed, owned or leased, tangible or
intangible, and whether now held or hereafter acquired.
“ Qualifying Assets
” shall mean (i) equity interests owned one hundred percent
(100%) by the Borrower in entities engaged primarily in one or more
of the Borrower’s lines of business described in Section 7.15
(singly, a “Qualified Entity,” collectively,
“Qualified Entities”), or productive assets used in one
or more of such lines of business; and (ii) equity interests of
less than one hundred percent (100%) owned by the Borrower in one
or more Qualifying Entities, provided that at any time the
aggregate amount of the Borrower’s investment in Qualifying
Assets described in clause (ii) that are then held by the Borrower
as of the applicable determination date (measured by the aggregate
purchase price paid therefor, including the aggregate amount of
Debt assumed or deemed incurred by Borrower in connection with such
acquisitions) does not exceed twenty percent (20%) of the
Consolidated Net Worth of the Borrower and its Subsidiaries as of
the applicable determination date.
“ Rabbi Trusts ”
shall mean those four (4) certain non-qualified deferred
compensation irrevocable trusts existing as of the Closing Date,
previously established by the Borrower for the benefit of its
executive employees, so long as the assets in each of such trusts
which have not yet been distributed to one or more executive
employees of the Borrower remain subject to the claims of the
Borrower’s general creditors.
“ Rate Period ”
shall mean the period of time for which the Alternate Base Rate or
the Eurodollar Rate shall be in effect as to any Alternate Base
Rate Loan or Eurodollar Rate Loan, as the case may be, commencing
with the Borrowing Date or the Expiration Date of the immediately
preceding Rate Period, as the case may be, applicable to and ending
on the effective date of any reborrowing made as provided in
Section 2.2(a) as the Borrower may specify in the related Notice of
Borrowing, subject, however, to the early termination provisions of
the second sentence of Section 2.3(c) relating to any Eurodollar
Rate Loan; provided , however , that any Rate Period
that would otherwise end on a day which is not a Business Day shall
be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such
Rate Period shall end on the next preceding Business Day. For any
Alternate Base Rate Loan, the Rate Period shall be 90 days; and for
any Eurodollar Rate Loan the Rate Period may be 15 days, 1, 2, 3,
or 6 months, in each case as specified in the applicable Notice of
Borrowing, subject to the provisions of Sections 2.2 and
2.3.
“ Reimbursement
Obligations ” shall mean the reimbursement or
repayment obligations of the Borrower to Issuing Banks pursuant to
this Agreement or the applicable Letter of Credit Reimbursement
Agreement with respect to Facility Letters of Credit issued for the
account of the Borrower.
“ Release ” shall
mean a “release”, as such term is defined in
CERCLA.
“ Restricted Payment
” shall mean the Borrower's declaration or payment of any
dividend on, or purchase or agreement to purchase any of, or making
of any other distribution with respect to, any of its capital
stock, except any such dividend, purchase or distribution
consisting solely of capital stock of the Borrower, and except any
dividend or interest paid on or with respect to the
Borrower’s Structured Securities to the extent that such
amounts are included in Cash Interest Expense.
“ Securities Act ”
shall have the meaning set forth in Section 13.1.
“ Senior Funded Debt
” shall mean Funded Debt of the Borrower excluding Debt that
is contractually subordinated in right of payment to any other
Debt.
“ Senior Notes ”
means (a) the $475,000,000 of 7.6% Senior Notes of the Borrower
previously placed with investors on or about January 31, 1994, and
(b) the $300,000,000 of 8.25% Senior Notes of the Borrower
previously placed with investors on or about November 3, 1999, as
such Senior Notes may be amended, modified, or supplemented from
time to time in accordance with the terms of this Agreement; and
“ Senior Note ” means each such note
individually.
“ Significant Property
” shall mean at any time property or assets of the -Borrower
or any Subsidiary having a book value (net of accumulated
depreciation taken in accordance with GAAP) of at least
$5,000,000.00 or that contributed (or is an integrated physical
portion of an assemblage of assets that contributed) at least 5% of
the gross income of the owner thereof for the fiscal quarter most
recently ended.
“ Southern Union
Panhandle ” shall mean
Southern Union Panhandle LLC, a Delaware limited liability
company.
“ Southern Union Trust
” means any of those certain Delaware business trusts
organized for the sole purpose of purchasing Subordinated Debt
Securities constituting a portion of, and described in the
definition of, Structured Securities and issuing the Preferred
Securities and Common Securities also constituting a portion of,
and described in the definition of, Structured Securities, and
having no assets other than the Borrower’s Subordinated Debt
Securities, the Guaranties (as described in the definition of
Structured Securities) and the proceeds thereof. Southern Union
Trusts shall be considered to be Subsidiaries for purposes hereof
so long as their affairs are consolidated under GAAP and for
federal income tax purposes with the affairs of the
Borrower.
“ Standby Letter of
Credit ” shall mean any standby letter of credit
issued to support obligations (contingent or otherwise) of the
Borrower.
“ Structured Securities
” shall mean collectively (a) the Subordinated Debt
Securities, the Guaranties, the Common Securities and the Preferred
Securities of the Southern Union Trusts, all as described and
defined in the Registration Statement on Form S-3 filed by the
Borrower with the Securities and Exchange Commission on
March
25, 1995, and
(b) subordinated debt securities, guaranties, common securities
and/or preferred securities issued in connection with the
consummation of the Prior Acquisitions in an aggregate face amount
of not more than $150,000,000 upon terms and conditions
substantially similar in all material respects to the terms and
conditions described and defined in such Registration Statement on
Form S-3 filed by the Borrower with the Securities and Exchange
Commission on March 25, 1995. For all purposes of this Agreement,
the amounts payable by Southern Union Trusts under the Preferred
Securities and Common Securities (or similar securities provided
for under subclause (b) above) and the amounts payable by the
Borrower under the Subordinated Debt Securities or the Guaranties
(or similar securities provided for under subclause (b) above)
shall be treated without duplication, it being recognized that the
amounts payable by Southern Union Trusts are funded with payments
made or to be made by the Borrower to Southern Union Trusts and are
also guaranteed by the Borrower under the Guaranties described in
the S-3 mentioned above (or similar guaranties provided for under
subclause (b) above).
“ Subsidiary ” of a
Person shall mean a corporation, partnership, limited liability
company or other business entity of which a majority of the shares
of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than
securities or interests having such power only by reason of the
happening of a contingency) are at the time beneficially owned, or
the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such
Person. Notwithstanding the fact that the management of Cross
Country is or may be controlled by the Borrower, neither Cross
Country nor any of its subsidiaries shall be deemed to constitute a
Subsidiary of the Borrower for purposes of this Agreement so long
as the Borrower does not beneficially own, directly, or indirectly,
a majority of the shares of securities or other interests in Cross
Country having ordinary voting power for the election of directors
or other governing body (other than securities or interests having
such power only by reason of the happening of a
contingency).
“ Trunkline LNG Holdings
” shall mean CMS Trunkline LNG Holdings, LLC, a Delaware
limited liability company.
“ Type ” shall
mean, with respect to any Loan, any Alternate Base Rate Loan or any
Eurodollar Rate Loan.
“ Unused L/C Subfacility
” shall mean, at any time, the amount, if any, by which the
L/C Subfacility then in effect exceeds the aggregate outstanding
amount of all Facility Letter of Credit Obligations.
THE
LOANS
The
Loans
Subject to the terms and conditions and relying
upon the representations and warranties of the Borrower herein set
forth, each Bank severally agrees to make Loans to the Borrower on
any one or more Business Days prior to the Maturity Date, up to an
aggregate principal amount of Loans not exceeding at any time
outstanding: (i) the amount set opposite such Banks name on the
signature pages hereof (such Bank's “Commitment”);
minus (ii) such Bank’s Pro Rata Percentage of the
Facility Letter of Credit Obligations. Within such limits and
during such period and subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow
hereunder.
The Borrower shall execute and deliver to the
Agent for each Bank to evidence the Loans made by each Bank under
such Bank’s Commitment, a Note, which shall be: (i) dated the
date of the Closing
Date;
(ii) in the principal amount of such Bank’s maximum
Commitment; (iii) in substantially the form attached hereto as
Exhibit A , with blanks appropriately filled; (iv) payable
to the order of such Bank on the Maturity Date; and (v) subject to
acceleration upon the occurrence of an Event of Default. Each Note
shall bear interest on the unpaid principal amount thereof from
time to time outstanding at the rate per annum determined as
specified in Sections 2.2(a), 2.2(b), 2.3(b) and 2.3(c),
payable on each Interest Payment Date and at maturity, commencing
with the first Interest Payment Date following the date of each
Note.
Each Loan shall be: (i) in the case of any
Eurodollar Rate Loan, in an amount of not less than $1,000,000.00
or an integral multiple of $1,000,000.00 in excess thereof; or (ii)
in the case of any Alternate Base Rate Loan, in an amount of not
less than $500,000.00 or an integral multiple of $100,000.00 in
excess thereof and, at the option of the Borrower, any borrowing
under this Section 2.1(c) may be comprised of two or more such
Loans bearing different rates of interest. Each such borrowing
shall be made upon prior notice from the Borrower to the Agent in
the form attached hereto as Exhibit B (the “Notice of
Borrowing”) delivered to the Agent not later than 11:00 am
(Houston time): (i) on the third Business Day prior to the
Borrowing Date, if such borrowing consists of Eurodollar Rate
Loans; and (ii) on the Borrowing Date, if such borrowing consists
of Alternate Base Rate Loans. Each Notice of Borrowing shall be
irrevocable and shall specify: (i) the amount of the proposed
borrowing and of each Loan comprising a part thereof; (ii) the
Borrowing Date; (iii) the rate of interest that each such Loan
shall bear; (iv) the Rate Period with respect to each such Loan and
the Expiration Date of each such Rate Period; and (v) the demand
deposit account of the Borrower at JPMorgan into which the proceeds
of the borrowing are to be deposited by the Agent. The Borrower may
give the Agent telephonic notice by the required time of any
proposed borrowing under this Section 2.1(c); provided
that such telephonic notice shall be confirmed in
writing by delivery to the Agent promptly (but in no event later
than the Borrowing Date relating to any such borrowing) of a Notice
of Borrowing. Neither the Agent nor any Bank shall incur any
liability to the Borrower in acting upon any telephonic notice
referred to above which the Agent believes in good faith to have
been given by the Borrower, or for otherwise acting in good faith
under this Section 2.1(c).
In the
case of a proposed borrowing comprised of Eurodollar Rate Loans,
the Agent shall promptly notify each Bank of the applicable
interest rate under Section 2.2. Each Bank shall, before 11:00
am (Houston time) on the Borrowing Date, make available for the
account of its Applicable Lending Office to the Agent at the
Agent's address set forth in Section 13.4, in same day funds, its
Pro Rata Percentage of such borrowing. After the Agent's receipt of
such funds and upon fulfillment of the applicable conditions set
forth in Section 8, on the Borrowing Date, the Agent shall
make the borrowing available to the Borrower at its Applicable
Lending Office in immediately available funds. Each Bank shall post
on a schedule attached to its Note(s): (i) the date and principal
amount of each Loan made under such Note; (ii) the rate of
interest each such Loan will bear; and (iii) each payment of
principal thereon; provided , however , that any
failure of such Bank so to mark such Note shall not affect the
Borrower's obligations thereunder; and provided
further that such Bank's records as to such matters shall be
controlling whether or not such Bank has so marked such Note. Any
deposit to the Borrower’s demand deposit account by the Agent
or by JPMorgan Chase Bank (of funds received from the Agent)
pursuant to a request (whether written or oral) believed by the
Agent or by JPMorgan Chase Bank to be an authorized request by the
Borrower for a Loan hereunder shall be deemed to be a Loan
hereunder for all purposes with the same effect as if the Borrower
had in fact requested the Agent to make such
Loan.
Unless the Agent shall have received notice
from a Bank prior to the date of any borrowing that such Bank will
not make available to the Agent such Bank’s Pro Rata
Percentage of such borrowing, the Agent may assume that such Bank
has made such portion available to the Agent on the date of such
borrowing in accordance with this Section 2.1 and the Agent may, in
reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such
Bank shall not have so made such Pro Rata Percentage available to
the Agent, such Bank and the Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid
to the Agent, (i) in the case of the Borrower, at the interest rate
applicable at the time to the Loans comprising such borrowing, and
(ii) in the case of such Bank, at the Federal Funds Rate. If such
Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such
Bank's
Loan as part of such borrowing for purposes of this
Agreement.
The failure of any Bank to make the Loan to be
made by it as part of any borrowing shall not relieve any other
Bank of its obligation, if any, hereunder to make its Loan on the
date of such borrowing, but no Bank shall be responsible for the
failure of any other Bank to make the Loan to be made by such other
Bank on the date of any borrowing.
Interest Rate Determination
Except as specified in Sections 2.3(b) and
2.3(c), the Loans shall bear interest on the unpaid principal
amount thereof from time to time outstanding, until maturity, at a
rate per annum (calculated based on a year of 360 days in the case
of the Eurodollar Rate or the Alternate Base Rate based on the
Federal Funds Rate and a year of 365 or 366 days, as the case may
be, in the case of the Alternate Base Rate based on the Prime Rate)
equal to the lesser of (A) the rate specified in the Notice of
Borrowing with respect thereto or (B) the Highest Lawful Rate from
the first day to, but not including, the Expiration Date of the
Rate Period then in effect with respect
thereto.
Any principal, interest, fees or other amount
owing hereunder, under any Note or under any other Loan Document
that is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest at a rate per annum
equal to the lesser of (i) two percent (2%) above the Alternate
Base Rate in effect from time to time or (ii) the Highest Lawful
Rate.
Additional Interest Rate
Provisions
The Note may be held by each Bank for the
account of its respective Domestic Lending Office or its respective
Eurodollar Lending Office, and may be transferred from one to the
other from time to time as each Bank may
determine.
If the Borrower shall have chosen the
Eurodollar Rate in a Notice of Borrowing and prior to the Borrowing
Date, any Bank in good faith determines (which determination shall
be conclusive) that (i) deposits in Dollars in the principal amount
of such Eurodollar Rate Loan are not being offered to the
Eurodollar Lending Office of such
Bank in
the Eurodollar interbank market selected by such Bank in its sole
discretion in good faith or (ii) adequate and reasonable means do
not exist for ascertaining the chosen Eurodollar Rate in respect of
such Eurodollar Rate Loan or (iii) the Eurodollar Rate for any Rate
Period for such Eurodollar Rate Loan will not adequately reflect
the cost to such Bank of making such Eurodollar Rate Loan for such
Rate Period, then such Bank will so notify the Borrower and the
Agent and such Eurodollar Rate shall not become effective as to
such Eurodollar Rate Loan on such Borrowing Date or at any time
thereafter until such time thereafter as the Borrower receives
notice from the Agent that the circumstances giving rise to such
determination no longer apply.
Anything in this Agreement to the contrary
notwithstanding, if at any time any Bank in good faith determines
(which determination shall be conclusive) that the introduction of
or any change in any applicable law, rule or regulation or any
change in the interpretation or administration thereof by any
governmental or other regulatory authority charged with the
interpretation or administration thereof shall make it unlawful for
the Bank (or the Eurodollar Lending Office of such Bank) to
maintain or fund any Eurodollar Rate Loan, such Bank shall give
notice thereof to the Borrower and the Agent. With respect to any
Eurodollar Rate Loan which is outstanding when such Bank so
notifies the Borrower, upon such date as shall be specified in such
notice the Rate Period shall end and the lesser of (i) the
Alternate Base Rate or (ii) the Highest Lawful Rate shall commence
to apply in lieu of the Eurodollar Rate in respect of such
Eurodollar Rate Loan and shall continue to apply unless and until
the Borrower changes the rate as provided in Section 2.2(a). No
more than five (5) Business Days after such specified date, the
Borrower shall pay to such Bank (x) accrued and unpaid interest on
such Eurodollar Rate Loan at the Eurodollar Rate in effect at the
time of such notice to but not including such specified date
plus (y) such amount or amounts (to the extent that such
amount or amounts would not be usurious under applicable law) as
may be necessary to compensate such Bank for any direct or indirect
costs and losses incurred by it (to the extent that such amounts
have not been included in the Additional Costs in calculating such
Eurodollar Rate), but otherwise without penalty. If notice has been
given by such Bank pursuant to the foregoing provisions of this
Section 2.3(c), then, unless and until such Bank notifies the
Borrower that the circumstances giving rise to such notice no
longer apply, such Eurodollar Rate shall not again apply to such
Loan or any other Loan and the obligation of such Bank
to
continue any Eurodollar Rate Loan as a
Eurodollar Rate Loan shall be suspended. Any such claim by such
Bank for compensation under clause (y) above shall be accompanied
by a certificate setting forth the computation upon which such
claim is based, and such certificate shall be conclusive and
binding for all purposes, absent manifest
error.
THE BORROWER WILL INDEMNIFY EACH BANK AGAINST,
AND REIMBURSE EACH BANK ON DEMAND FOR, ANY LOSS (INCLUDING LOSS OF
REASONABLY ANTICIPATED PROFITS DETERMINED USING REASONABLE
ATTRIBUTION AND ALLOCATION METHODS), OR REASONABLE COST OR EXPENSE
INCURRED OR SUSTAINED BY SUCH BANK (INCLUDING WITHOUT LIMITATION,
ANY LOSS OR EXPENSE INCURRED BY REASON OF THE LIQUIDATION OR
REEMPLOYMENT OF DEPOSITS OR OTHER FUNDS ACQUIRED BY SUCH BANK TO
FUND OR MAINTAIN ANY EURODOLLAR RATE LOAN) AS A RESULT OF (i) ANY
ADDITIONAL COSTS INCURRED BY SUCH BANK; (ii) ANY PAYMENT OR
REPAYMENT (WHETHER AUTHORIZED OR REQUIRED HEREUNDER OR OTHERWISE)
OF ALL OR A PORTION OF ANY LOAN ON A DAY OTHER THAN THE EXPIRATION
DATE OF A RATE PERIOD FOR SUCH LOAN; (iii) ANY PAYMENT OR
PREPAYMENT (WHETHER REQUIRED HEREUNDER OR OTHERWISE) OF ANY LOAN
MADE AFTER THE DELIVERY OF A NOTICE OF BORROWING BUT BEFORE THE
APPLICABLE BORROWING DATE IF SUCH PAYMENT OR PREPAYMENT PREVENTS
THE PROPOSED BORROWING FROM BECOMING FULLY EFFECTIVE; OR (iv) AFTER
RECEIPT BY THE AGENT OF A NOTICE OF BORROWING, THE FAILURE OF ANY
LOAN TO BE MADE OR EFFECTED BY SUCH BANK DUE TO ANY CONDITION
PRECEDENT TO A BORROWING NOT BEING SATISFIED BY THE BORROWER OR DUE
TO ANY OTHER ACTION OR INACTION OF THE BORROWER. ANY BANK DEMANDING
PAYMENT UNDER THIS SECTION 2.3(d) SHALL DELIVER TO THE BORROWER AND
THE AGENT A STATEMENT REASONABLY SETTING FORTH THE AMOUNT AND
MANNER OF DETERMINING SUCH LOSS, COST OR EXPENSE. THE FACTS SET
FORTH IN SUCH STATEMENT SHALL BE CONCLUSIVE AND BINDING FOR ALL
PURPOSES, ABSENT MANIFEST ERROR.
If, after the date of this Agreement, any Bank
shall have determined that the adoption of any applicable law,
rule, guideline, interpretation or regulation regarding capital
adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable
agency
charged with the interpretation or administration thereof, or
compliance by such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Bank's
capital as a consequence of its obligations hereunder and under
similar lending arrangements to a level below that which such Bank
could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material
then the Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such
reduction.
A certificate of such Bank setting forth such
amount or amounts as shall be necessary to compensate such Bank as
specified in subparagraph (e) above shall be delivered as soon as
practicable to the Borrower (with a copy thereof to the agent) and
to the extent determined in accordance with subparagraph (e) above
shall be conclusive and binding, absent manifest error. The
Borrower shall pay such Bank the amount shown as due on any such
certificate within fifteen (15) days after such Bank delivers such
certificate. In preparing such certificate, such Bank may employ
such assumptions and allocations (consistently applied with respect
to advances made by such Bank or commitments by such Bank to make
advances) of costs and expenses as it shall in good faith deem
reasonable and may use any reasonable averaging and attribution
method (consistently applied with respect to advances made by such
Bank or commitments by such Bank to make
advances).
Increase of Commitments
At any time after the Closing Date, provided
that no Default or Event of Default shall have occurred and be
continuing, the Borrower may request from time to time one or more
increases of the Commitments by notice to the Agent in writing of
the amount of each such proposed increase (each such notice, a
“ Commitment Increase Notice ”). Any such
Commitment Increase Notice must offer each Bank the opportunity to
subscribe for its pro rata share of the requested increase in the
Commitments, and the Agent shall promptly provide to each Bank a
copy of any Commitment Increase Notice received by the Agent.
Within 10 Business Days after receipt by the Agent of the
applicable Commitment Increase Notice, each Bank wishing to
subscribe for its pro rata share of the
requested
increase in the Commitments must deliver written
notice of such fact to the Agent. If any portion of the requested
increase in the Commitments is not subscribed for by the Banks
within such 10-day period, the Borrower may, in its sole
discretion, but with the consent of the Agent as to any Person that
is not at such time a Bank (which consent shall not be unreasonably
withheld or delayed so long as such Person is an Eligible
Assignee), offer to any existing Bank or to one or more additional
banks or financial institutions the opportunity to participate in
all or a portion of such unsubscribed portion of the requested
increase in the Commitments pursuant to Section 2.4 (b) or (c)
below, as applicable;
Any additional bank or financial institution
that the Borrower selects to offer a participation in the
unsubscribed portion of the increased Commitments, and that elects
to become a party to this Agreement and obtain a Commitment, shall
execute an agreement (a “ New Bank Agreement ”),
in the form required by the Agent, with the Borrower and the Agent,
whereupon such bank or financial institution (a “ New
Bank ”) shall become a Bank for all purposes hereunder to
the same extent as if originally a party hereto and shall be bound
by and entitled to the benefits of this Agreement, and the
signature pages hereof shall be deemed to add the name and
Commitment of such New Bank, provided that the Commitment of any
such New Bank shall be in an amount not less than
$5,000,000;
Any Bank that accepts an offer by the Borrower
to increase its Commitment pursuant to this Section 2.4 shall, in
each case, execute a commitment increase agreement (a “
Commitment Increase Agreement ”), in the form required
by the Agent, with the Borrower and the Agent, whereupon such Bank
shall be bound by and entitled to the benefits of this Agreement
with respect to the full amount of its Commitment as so increased,
and the signature pages hereof shall be deemed to be amended to
reflect such increase in the Commitment of such
Bank;
The effectiveness of any New Bank Agreement or
Commitment Increase Agreement shall be contingent upon receipt by
the Agent of such corporate resolutions of the Borrower and legal
opinions of in-house counsel to the Borrower, if any, as the Agent
shall reasonably request with respect thereto;
If any bank or financial institution becomes a
New Bank pursuant to Section 2.4(b) or if any Bank’s
Commitment is increased pursuant to Section 2.4(c), additional
Loans and additional liability for
Facility Letters of Credit made or issued on or
after the effectiveness thereof (the “ Re-Allocation
Date ”) shall be made pro rata based on each Bank’s
(including each New Bank’s) respective Commitment in effect
on and after such Re-Allocation Date (except to the extent that any
such pro rata borrowings or incurring of liability would result in
any Bank making an aggregate principal amount of Loans and
incurring liability for the Facility Letters of Credit in excess of
its Commitment, in which case such excess amount will be allocated
to, and made or incurred by, such New Bank and/or Banks with such
increased Commitments to the extent of, and pro rata based on,
their respective Commitments), and continuations of Eurodollar Rate
Loans outstanding on such Re-Allocation Date shall be effected by
repayment of such Eurodollar Rate Loans on the last day of the Rate
Period applicable thereto and the extension of new Eurodollar Rate
Loans pro rata based on the Banks’ respective Commitments in
effect on and after such Re-Allocation Date. In the event that on
any such Re-Allocation Date there are Alternate Base Rate Loans
outstanding, the Borrower shall make prepayments thereof and borrow
new Alternate Base Rate Loans so that, after giving effect thereto,
the Alternate Base Rate Loans outstanding are held pro rata based
on the Banks’ respective Commitments in effect on and after
such Re-Allocation Date. In the event that on any such
Re-Allocation Date there are Eurodollar Rate Loans outstanding,
such Eurodollar Rate Loans shall remain outstanding with the
respective holders thereof until the expiration of their respective
Rate Periods (unless the Borrower elects to prepay any thereof in
accordance with the applicable provisions of this Agreement), and
interest on and repayments of such Eurodollar Rate Loans will be
paid thereon to the respective Banks holding such Eurodollar Rate
Loans pro rata based on the respective principal amounts thereof
outstanding;
Notwithstanding anything to the contrary in
this Section 2.4, (i) no Bank shall have any obligation to increase
its Commitment under this Section 2.4 unless it agrees in writing
to do so in its sole discretion, (ii) no Bank shall have any right
to decrease the amount of its Commitment as a result of any
requested increase of the Commitments pursuant to this Section 2.4,
(iii) the Agent shall have no obligation to find or locate any New
Bank to participate in any unsubscribed portion of any increase in
the Commitments requested by the Borrower, (iv) each increase in
the Commitments requested by the Borrower shall not be less than
$10,000,000, (v) after giving effect to any increase in the
Commitments pursuant to this Section 2.4, the sum of the
Commitments shall not exceed $500,000,000, and (vi)
in
the
event the Borrower reduces the Commitments pursuant to Section 4.6
or any other provision of this Agreement more than one time during
the term of this Agreement, the ability of the Borrower to request
increases in the Commitments pursuant to this Section 2.4 shall
automatically terminate; and
The Borrower shall execute and deliver to the
Agent (for delivery by the Agent to each applicable Bank) a new
Note payable to each applicable Bank (including each New Bank)
participating in any increase of the Commitments in the original
principal amount of such Bank’s Commitment after giving
effect to any such increase of the Commitments.
LETTERS OF CREDIT
Obligation to Issue.
Subject to the terms and
conditions of this Agreement, and in reliance upon the
representations and warranties of the Borrower set forth herein or
in any other Loan Document, each Issuing Bank hereby severally
agrees to issue, from time to time during the period commencing on
the Closing Date and ending on the Business Day immediately prior
to the Maturity Date, for the account of the Borrower through such
of the Issuing Bank's branches as it and the Borrower may jointly
agree, one or more Facility Letters of Credit in accordance with
this Section 3. Notwithstanding the foregoing, no Issuing Bank
shall have any obligation to issue, and shall not issue, any
Facility Letter of Credit at any time if:
the aggregate undrawn face amount of Facility
Letters of Credit theretofore issued by such Issuing Bank, after
giving effect to all requested but unissued Facility Letters of
Credit, exceeds any limit imposed by law or regulation upon such
Issuing Bank;
after taking into account the face amount of
the requested Facility Letter of Credit the aggregate principal
amount of Facility Letter of Credit Obligations with respect to
Facility Letters of Credit issued by such Issuing Bank for the
account of the Borrower (which amount shall be calculated without
giving effect to the participation of the Banks pursuant to Section
3.5) would exceed such Issuing Bank's Letter of Credit
Commitment;
immediately after giving effect to the issuance
of such Facility Letter of Credit, the aggregate Facility Letter of
Credit Obligations would exceed the L/C
Subfacility;
immediately after giving effect to the issuance
of such Facility Letter of Credit, the aggregate of outstanding
Loans, would exceed the Banks' aggregate Commitments;
or
such Facility Letter of Credit has an expiry
date (i) more than one year after the date of issuance; or (ii)
after the Business Day immediately preceding the Maturity
Date.
Conditions.
The obligation of an Issuing
Bank to issue any Facility Letter of Credit, and of each Bank to
participate therein as provided in Section 3.5 is subject to the
satisfaction in full of the applicable conditions precedent set
forth in Section 8 and each of the following
conditions:
the Borrower shall have delivered to the
Issuing Bank, at such times and -in such manner as such Issuing
Bank may prescribe, a Letter of Credit application, a Letter of
Credit Reimbursement Agreement, and such other documents and
materials as may be required pursuant to the terms
thereof;
the terms of the proposed Facility Letter of
Credit shall not be inconsistent with any term or provision of this
Agreement and otherwise shall be satisfactory to such Issuing Bank;
and
as of the date of issuance of such Facility
Letter of Credit, no order, judgment, or decree of any court,
arbitrator, or governmental authority shall purport by its terms to
enjoin or restrain the Issuing Bank from issuing such Facility
Letter of Credit, and no law, rule, or regulation applicable to
such Issuing Bank, and no request or directive (whether or not
having the force of law) from any governmental authority having
jurisdiction over such Issuing Bank, shall prohibit or request that
such Issuing Bank refrain from the issuance of Letters of Credit,
generally or the issuance of such Facility Letter of
Credit.
Issuance of Facility Letters of
Credit
The Borrower shall give the Agent written
notice (or telephonic notice confirmed in writing by the Borrower
not later than the requested issuance date of the Facility Letter
of Credit) of its request for the issuance of a Facility Letter of
Credit no later than 11:00 a.m. four (4) Business Days prior to the
date such Facility Letter of Credit is requested to be issued. Such
notice shall be irrevocable and shall specify, with respect to such
requested Facility Letter of Credit, the
face
amount, beneficiary, effective date of issuance, expiry date (which
effective date and expiry date shall be a Business Day and, with
respect to the expiry date, shall be no later than the Business Day
immediately preceding the Maturity Date), the identity of the
Issuing Bank selected by the Borrower, and the purpose for which
such Facility Letter of Credit is to be issued. At the time a
request for the issuance of a Facility Letter of Credit is made,
the Borrower shall also provide the Agent with a copy of the form
of Letter of Credit that the proposed Issuing Bank has agreed to
issue. If the face amount of the requested Facility Letter of
Credit is less than or equal to the Unused L/C Subfacility, as
determined by the Agent as of the close of business on the date of
its receipt of written notice of the requested issuance, the Agent
shall so notify the proposed Issuing Bank in writing (or by
telephonic notice promptly confirmed thereafter in writing) not
later than the close of business on the second Business Day
following the Agent’s receipt of the Borrower’s written
notice. The Issuing -Bank shall issue such Facility Letter of
Credit on the date requested by the Borrower, unless (i) on
or before the Business Day prior to such issuance date, such
Issuing Bank shall have received written notice from the Agent or
any Bank that the conditions precedent to the issuance of a
Facility Letter of Credit as set forth in Section 3.2 have not been
met; or (ii) on the requested issuance date, such Issuing Bank has
actual knowledge that such conditions precedent have not been met.
If an Issuing Bank receives written notice, or has actual
knowledge, that the conditions precedent to the issuance of a
Facility Letter of Credit have not been met, then such Issuing Bank
shall have no obligation to issue, and shall not issue, any
Facility Letter of Credit until (i) such notice is withdrawn; or
(ii) such Issuing Bank receives a notice from the Agent that the
condition(s) described in such notice have been waived in
accordance with the provisions of this Agreement. The Issuing Bank
shall give the Agent prompt written notice (or telephonic notice
promptly confirmed in writing) of the issuance of any Facility
Letter of Credit. Any Letter of Credit issued by an Issuing Bank in
compliance with the provisions of this Section 3.3 shall be a
Facility Letter of Credit.
An Issuing Bank shall not extend or amend any
Facility Letter of Credit unless the requirements of this Section
3.3 are met as though a new Facility Letter of Credit was being
requested and issued.
An
Issuing Bank or any Bank may issue Non-Facility Letters of Credit
for its own account, and at its own risk. None of the provisions of
this Section 3 shall apply to any Non-Facility Letter of
Credit.
Reimbursement Obligations; Duties of Issuing
Bank
Notwithstanding any provisions to the contrary
in any Letter of Credit Reimbursement
Agreement:
the Borrower shall reimburse the applicable
Issuing Bank for a drawing under a Facility Letter of Credit issued
by such Issuing Bank no later than the earlier of (A) the time
specified in the related Letter of Credit Reimbursement Agreement;
or (B) one (1) Business Day after the payment of such drawing by
such Issuing Bank; and
the Borrower’s Reimbursement Obligations
with respect to a drawing under a Facility Letter of Credit shall
bear interest from the date of such drawing to the date paid in
full at the higher of (A) the interest rate specified in the
applicable Letter of Credit Reimbursement Agreement; or (B) the
interest rate for past due Alternate Base Rate Loans; but not
greater than the Highest Lawful Rate.
No action taken or omitted to be taken by an
Issuing Bank in connection -with any Facility Letter of Credit
shall (i) result in any liability on the part of such Issuing Bank
to any Bank, unless such Issuing Bank’s action or omission
constitutes willful misconduct or gross negligence; or (ii) relieve
any Bank of any of its obligations to such Issuing Bank hereunder,
unless the Facility Letter of Credit in question was issued in
contravention of the provisions of Section 3.3 or at a time during
which a notice, described in Section 3.3, from such Bank to such
Issuing Bank remained in effect. Each Bank agrees that, prior to
making any payment to a beneficiary with respect to a drawing under
a Facility Letter of Credit, the Issuing Bank shall be responsible
only to confirm that documents required by the terms of such
Facility Letter of Credit to be delivered as a condition precedent
to such drawing have been delivered and that the same appear on
their face to conform with the requirements thereof. Each Bank
further agrees that such Issuing Bank may assume that documents
appearing on their face to be the documents required to be
delivered as a condition precedent to a drawing do in fact
comply.
Participations
Immediately upon the issuance by an Issuing Bank
of any Facility Letter of Credit in compliance with the provisions
of Section 3.3, and immediately upon conversion of a Letter of
Credit of an Issuing Bank to a Facility Letter of Credit pursuant
to Section 3.10, each Bank shall be deemed to have irrevocably and
unconditionally purchased and received from such Issuing Bank,
without recourse or warranty, an undivided interest and
participation to the extent of such Bank's Pro Rata Percentage in
such Facility Letter of Credit, including without limitation, all
obligations of the Borrower with respect thereto and any security
therefor or guaranty pertaining thereto.
An Issuing Bank shall promptly notify the
Agent, and the Agent shall promptly notify the other Banks, if the
Borrower fails to reimburse such Issuing Bank for payments made by
such Issuing Bank in respect of drawings by a beneficiary under a
Facility Letter of Credit. Upon each such other Banks receipt of
such notice, such Bank shall unconditionally pay to the Agent, for
the account of such Issuing Bank, an amount equal to such Bank's
Pro Rata Percentage of the unreimbursed payment made by such
Issuing Bank under the Facility Letter of Credit. Such payment
shall be made by such Bank in Dollars and in same day funds on the
day such Bank receives notice from the Agent that such payment is
owing, if such notice is received by such Bank prior to
11:00 a.m. (Houston time) on a Business Day; if such notice is
not received by such time, then such Bank shall remit its payment
on the next Business Day following the day such notice is received.
Any amount payable by a Bank under this Section 3.5(b) which is not
paid when due pursuant to the terms hereof shall be payable on
demand, together with interest thereon at the Federal Funds Rate
from the date such payment was due until paid in full. The failure
of any Bank to make any payment owing by it under this Section
3.5(b) shall neither relieve nor increase the obligation of any
other Bank to make any payment owing by it under this Section
3.5(b). The Agent shall promptly remit to the applicable Issuing
Bank all amounts received by the Agent, for the account of such
Issuing Bank, from each Bank pursuant to this Section 3.5(b). No
payment made by a Bank pursuant to this Section 3.5(b) shall
prejudice the ability of such Bank to claim that the Issuing Bank
to which such payment is made is subject to liability under Section
3.4(b).
Whenever an Issuing Bank receives a payment
with respect to a Reimbursement Obligation (including any interest
thereon) for which such Issuing Bank has received payments from a
Bank pursuant to
Section
3.5(b), such Issuing Bank shall promptly remit to the Agent and the
Agent shall promptly remit to each Bank which has funded its
participating interest therein, in Dollars and in the kind of funds
so received, an amount equal to each Bank's Pro Rata Percentage
thereof. Each such payment shall be made by the Issuing Bank or the
Agent, as the case may be, on the Business Day on which such Person
receives the funds paid to such Person pursuant to the preceding
sentence, if received prior to 11:00 a.m. (Houston time) on
such Business Day, and otherwise on the next succeeding Business
Day.
Upon the request of the Agent or any Bank, an
Issuing Bank shall furnish to the Agent or each Bank copies of any
Facility Letter of Credit, Letter of Credit Reimbursement
Agreement, or Letter of Credit application to which Issuing Bank is
party, and such other documentation as may reasonably be requested
by the Agent or such Bank with respect to a Facility Letter of
Credit issued by such Issuing Bank.
The obligations of a Bank under Section 3.5(b)
to make payments to the Agent for the account of an Issuing Bank
with respect to a Facility Letter of Credit shall be irrevocable,
not subject to any qualification or exception whatsoever, and shall
be made in accordance with, but not subject to, the terms and
conditions of this Agreement under all circumstances (assuming that
such Issuing Bank has issued such Facility Letter of Credit in
compliance with the provisions of Section 3.3), including,
without limitation, any of the following
circumstances:
any lack of validity or enforceability of this
Agreement or any other Loan Document;
the existence of any claim, set off, defense, or
other right which the Borrower may have at any time against a
beneficiary named in a Facility Letter of Credit or any transferee
of any Facility Letter of Credit (or any Person for whom any such
transferee may be acting), the Agent, any Bank, the Issuing Bank,
or any Person, whether in connection with this Agreement, any
Facility Letter of Credit, the transactions contemplated herein, or
any unrelated transactions (including any un-der-lying transactions
between the Borrower and the beneficiary named in any Facility
Letter of Credit);
any draft, certificate, of any other document
presented under the Facility Letter of Credit proving to be forged,
fraudulent, invalid, or
insufficient in any respect or any statement
therein being untrue or inaccurate in any
respect;
the surrender or impairment of any security for
the performance or observance of any of the terms of any Loan
Document;
any failure by the Agent or an Issuing Bank to
make any reports required pursuant to Section 3.8;
or
the occurrence of any Default or Event of
Default.
Payment of Reimbursement
Obligations
The Borrower agrees to pay to each Issuing Bank
the amount of all Reimbursement Obligations, interest, and other
amounts payable to such Issuing Bank under or in connection with
any Facility Letter of Credit immediately when due, irrespective of
any claim, set off, defense, or other right which the Borrower may
have at any time against any Issuing Bank or any other
Person.
In the event any payment by the Borrower
received by an Issuing Bank with respect to a Facility Letter of
Credit and distributed to Banks on account of their respective
participation is thereafter set aside, avoided, or recovered from
such Issuing Bank in connection with any Debtor Laws, each Bank
which received such distribution shall, upon demand by such Issuing
Bank, contribute each Bank's Pro Rata Percentage of the amount set
aside, avoided, or recovered together with interest at the rate
required to be paid by the Issuing Bank upon the amount required to
be repaid by it.
Exoneration.
As between the Borrower,
each Bank, and each Issuing Bank, the Borrower assumes all risks of
the acts and omissions of, or misuse of the Facility Letter of
Credit issued by such Issuing Bank by, the respective beneficiaries
of such Facility Letter of Credit. In furtherance and not in
limitation of the foregoing, subject to the provisions of the
Letter of Credit applications, the Issuing Bank and the Banks shall
not be responsible for:
the form, validity, sufficiency, accuracy,
genuineness, or legal effect of any document submitted by any party
in connection with the application for and issuance of a Facility
Letter of Credit, even if it should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent, or
forged;
the
validity or sufficiency of any instrument transferring or assigning
or purporting to transfer or assign a Facility Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any
reason;
failure of the beneficiary of a Facility Letter
of Credit to comply duly with conditions required in order to draw
upon such Facility Letter of Credit, provided
that the Issuing Bank complies with the provisions of
Section 3.4(b);
errors, omissions, interruptions, or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex, or otherwise, whether or not they be in
cipher;
errors in interpretation of technical
terms;
any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under
any Facility Letter of Credit or of the proceeds
thereof;
the misapplication by the beneficiary of a
Facility Letter of Credit; or
any consequences arising from causes beyond the
control of the Agent, any Bank, or any Issuing Bank, including,
without limitation, any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government
or Governmental Authority. In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any
action taken or omitted by an Issuing Bank under or in connection
with the Facility Letters of Credit or any related certificates, if
taken or omitted in good faith and not constituting gross
negligence or willful misconduct, shall not put the Issuing Bank,
the Agent, or any Bank under any resulting liability to the
Borrower or relieve the Borrower of any of its obligations
hereunder to any such Person.
Issuing Bank's Reporting
Requirements. In
addition to the reports required by Section 3.5, each Issuing Bank
shall, no later than the tenth (10th) Business Day following the
last day of each quarter of such Issuing Bank's fiscal year,
provide to the Agent and the Borrower a schedule for Standby
Letters of Credit issued as Facility Letters of Credit, in form and
substance reasonably satisfactory to the Agent, showing the date of
issue, beneficiary, face amount, expiration date, and the reference
number of each Facility Letter of Credit issued
by such
Issuing Bank which was outstanding at any time during such quarter
and the aggregate amount payable by the Borrower during the quarter
pursuant to Section 3.9.
Compensation for Facility Letters of
Credit
Facility Letter of
Credit Fee . The Borrower agrees to pay to the Agent, for
the account of each Bank, in the case of each Letter of Credit
issued as, or converted to (for transactions which convert Letters
of Credit in existence on the Closing Date to Facility Letters of
Credit pursuant to Section 3.10), a Facility Letter of Credit, a
facility letter of credit fee (the “Facility Letter of Credit
Fee”) payable quarterly in arrears equal to the applicable
Facility Letter of Credit Fee Percentage of the average amount
available to be drawn under such Letter of Credit during the
quarter then ending multiplied by the actual number of days during
such quarter on which such Letter of Credit was outstanding,
divided by 360 but no less than $500.00 per Facility Letter of
Credit per year. The Borrower shall also pay to the Agent in the
event of any extension or modification of a Facility Letter of
Credit which extends the expiration date or increases the maximum
amount available for drawing thereunder an additional fee
calculated and payable on the same basis as that set forth in the
first sentence of this Section 3.9(a) with respect to any such
extension or additional amount. Whenever an Issuing Bank receives a
payment from the Borrower with respect to any fees incurred in
connection with any Facility Letter of Credit issued by such
Issuing Bank, such Issuing Bank shall promptly remit to the Agent,
and the Agent shall promptly remit to each Bank which has funded
its participation in such Facility Letter of Credit, in Dollars and
in same day funds, an amount equal to such Bank's Pro Rata
Percentage of such fees.
Issuing Bank's
Charges . Each Issuing Bank shall have the right to
receive, solely for its own account, such amounts as it and the
Borrower may agree, in writing, to compensate such Issuing Bank
with respect to issuance fees and such Issuing Bank's out-of-pocket
costs of issuing and servicing Facility Letters of
Credit.
Increased
Capital . If either (i) the introduction of or any
change in or in the interpretation of any law or regulation, or
(ii) compliance by any Issuing Bank or any Bank with any guideline
or request from any central bank or other Governmental Authority
(whether or not having the force of law) affects or would affect
(by an amount deemed by such Issuing Bank to be material) the
capital required or expected
to be
maintained by it or any corporation controlling it, and such Bank
or such Issuing Bank determines, on the basis of reasonable
allocations, that the amount of such capital is increased by (an
amount deemed by such Issuing Bank to be material) or is based (to
a degree deemed by such Issuing Bank to be material) upon its
issuance or maintenance of or participation in, or commitment to
issue or to participate in, the Facility Letters of Credit then,
upon demand by such Bank or such Issuing Ba
