1
THIS LOAN AGREEMENT (this "Agreement") dated ____ __, ____ between
____________________________, a corporation duly organized and existing under
the laws of the State of _________ (hereinafter called the "Company"), having
its principal office at __________________, __________, ___________________,
and The Columbia Gas System, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (hereinafter called the "Lender," and
together with the Company, the "Parties").
RECITALS OF THE COMPANY
WHEREAS, the Company has requested that the Lender make loans in
accordance with the terms of this Agreement to finance the Company's on-going
capital needs, and the Lender is willing to make the loans subject to the terms
and conditions set forth herein;
WHEREAS, the Company expects to derive substantial benefit from the
receipt of said loans; and
NOW, THEREFORE, in consideration of the respective representations and the
agreements herein contained, the Parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control," when used with respect to any specified person, means the power to
direct the management and policies of such person directly or indirectly,
whether through the ownership of voting securities (not limited to majority
ownership of voting securities), by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" means this Agreement as it may be amended from time to time.
"Approved Funding Period" has the meaning as set forth in Section 2.02.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
Federal or state law for the relief of debtors or any state or Federal
insolvency and receivership law.
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board of Directors
in respect hereof.
"Board Resolution" means a resolution duly adopted by the Board of
Directors of the Company, a copy of which shall be certified by the Secretary
or an Assistant Secretary, as being in full force and effect on the date of
such certification.
PAGE 1
2
"Borrowing" has the meaning as set forth in Section 2.03.
"Business Day" means each day which is not a Legal Holiday.
"Bylaws" means the Bylaws of the Company as amended from time to time.
"Capital Lease Obligations" of a person means any obligation which is
required to be classified and accounted for as a capital lease obligation on
the balance sheet of such person prepared in accordance with generally accepted
accounting principles; the amount of such obligation shall be the capitalized
amount thereof, determined in accordance with generally accepted accounting
principles; and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Custodian" means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.
"Debt" of any person means, without duplication,
(i) the principal of and premium, if applicable, in respect of (a)
indebtedness of such person for money borrowed and (b) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such person is responsible or liable;
(ii) all Capital Lease Obligations of such person;
(iii) all obligations of such person issued or assumed as the
deferred purchase price of property (but excluding trade accounts payable
arising in the ordinary course of business);
(iv) all obligations of such person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations -- other than those obligations described in (i)
through (iii) above -- entered into in the ordinary course of business of
such person to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than the
third Business Day following receipt by such person of a demand for
reimbursement following payment on the letter of credit);
(v) all obligations of the type referred to in clauses (i) through
(iv) of other persons for the payment of which such person is responsible
or liable as obligor, guarantor or surety; and
(vi) all obligations of the type referred to in clauses (i) through
(v) of others secured by any Lien on any asset of such person (whether or
not such obligation is assumed by such person), the amount of any such
obligation which is not assumed being deemed to be the lesser of the
amortized cost of such asset or the amount of the obligation so secured.
PAGE 2
3
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default as more fully described in Section 6.01 of
this Agreement.
"Event of Default" has the meaning as set forth in Section 6.01.
"Interest Payment Date" means a date on which interest on any Principal
Amount outstanding on any Note is due and payable.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York. If a
payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
"Lender's Approval" means the Lender's written reply to the Company
approving the Company's Request for Borrowing and stating the terms and
conditions of the Loan made pursuant to such Request for Borrowing in
accordance with Section 2.02 hereof.
"Lien" means any mortgage, pledge, deposit for security, security interest
or other similar lien, whether secured or unsecured, or perfected or
unperfected, or contingent or otherwise, other than the following: (i) liens
for taxes or assessments or other local, state or federal governmental charges
or levies; (ii) any lien to secure obligations under workers' compensation or
unemployment insurance laws or similar legislation or regulation; (iii) any
lien to secure performance in connection with bids, tenders, contracts (other
than contracts for the payment of Debt) or leases (other than Capital Lease
Obligations) made in the ordinary course of business by the Company or any
Affiliate thereof; (iv) liens to secure public or statutory obligations; (v)
materialmen's, mechanics', carriers', workers', repairmen's, construction, or
other liens or charges arising in the ordinary course of business, or deposits
to obtain the release of such liens; (vi) any lien to secure indemnity,
performance, surety or similar bonds to which the Company or any Affiliate of
the Company is a party; (vii) liens created by or resulting from court or
administrative proceedings which are currently being contested in good faith by
appropriate actions or proceedings or for the purpose of obtaining a stay or
discharge in the course of any court or legal proceedings for which appropriate
accounting reserves have been made to the extent required by generally accepted
accounting principles; (viii) leases (other than Capital Lease Obligations)
made, or existing on property acquired, constructed or improved by or on behalf
of the Company, in the ordinary course of business, together with repairs and
additions thereto and improvements thereof; (ix) landlords' liens; (x) zoning
restrictions, easements, licenses, reservations or restrictions in respect of
currently owned or hereafter acquired, constructed, or improved tangible
property or defects or irregularities (including any terms, conditions,
agreements, covenants, exceptions and reservations expressed or provided in
deeds or other agreements) in title thereto, which do not materially impair the
conduct of the business of the Company; (xi) any of such liens described in
clauses (i) through (x), whether or not delinquent, whose validity or
applicability is at the time being contested in good faith by appropriate
actions or proceedings of the Company or any Affiliate thereof; (xii) any right
which any municipal or governmental body or agency may have by virtue of any
franchise, license, contract or statute to purchase, or designate a purchaser
of or order the sale of, any property of the Company or any Affiliate thereof
upon payment of reasonable compensation therefor, or to terminate any
franchise, license or other rights or to regulate the property and business of
the Company or any Affiliate thereof; (xiii) the lien of judgments covered by
insurance, or upon appeal and covered, if
PAGE 3
4
necessary, by the filing of an appeal bond, or if not so covered, not exceeding
at any one time $ __________ in aggregate amount; (xiv) any lien or
encumbrance, moneys sufficient for the discharge of which have been deposited
in trust with the trustee or mortgagee under the instrument evidencing such
lien or encumbrance, with irrevocable authority to the trustee or mortgagee to
apply such moneys to the discharge of such lien or encumbrance to the extent
required for such purpose; (xv) rights reserved to or vested in others to take
or receive any part of the gas, by-products of gas or steam or electricity
generated or produced by or from any properties of the Company or any Affiliate
thereof or with respect to any other rights concerning supply, transportation,
or storage of a commodity which is used in the ordinary course of business; and
(xvi) liens created or assumed by the Company or any Affiliate thereof in
connection with the issuance of debt securities, the interest on which is
excludable from the gross income of the holders of such securities pursuant to
Section 103 of the Internal Revenue Code of 1986, or any successor section.
"Loan" means the funds which the Lender agrees to make available for
borrowing by the Company in a Lender's Approval.
"Notes" means the notes issued and outstanding under this Agreement.
"Notice of Borrowing" has the meaning as set forth in Section 2.03.
"Notice of Default" has the meaning as set forth in Section 6.01.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Secretary, the Controller, any Assistant
Treasurer, any Assistant Secretary, any Assistant Controller, or any officers
of the Company designated by Board Resolution or the Bylaws.
"Officers' Certificate" means a certificate on behalf and in the name of
the Company signed by two Officers of the Company.
"Principal Amount" of a Debt or other obligation means the principal
amount of the same plus the premium, if applicable, payable on the same which
is due or overdue or is to become due at the relevant time.
"Production Payment" means any economic interest in oil, gas or mineral
reserves which generally entitles the holder thereof to a specified share of
future production from such reserves, excluding the costs and expenses of such
production, and terminates when a specified quantity of such share of future
production from such reserves has been delivered, or a specified sum has been
realized from the sale of such share of future production from such reserves,
or any similar arrangement commonly referred to as a "production payment".
"Property" means all receivables, inventory, equipment, general
intangibles, contracts and contract rights, checking, savings, deposit or other
accounts, government permits, and all other real property, personal property,
goods, instruments, chattel paper, documents, credits, claims, demands and
assets of the Company, and any additions and accessions thereto and proceeds
and products thereof, as of the date of any grant of security interest by the
Company in accordance with Section 4.04 of this Agreement.
PAGE 4
5
"Requested Funding Period" has the meaning as set forth in Section 2.01.
"Request for Borrowing" has the meaning as set forth in Section 2.01.
"Secured Debt" means Debt secured by a Lien.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
SECTION 1.02. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
as in effect from time to time;
(3) "including" means including, without limitation;
(4) "person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
(5) "or" is not exclusive;
(6) words in the singular include the plural and words in the plural
include the singular; and
(7) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared
in accordance with generally accepted accounting principles, and accretion
of principal on such security shall not be deemed to be the issuance of
Debt.
ARTICLE 2
THE LOANS
Section 2.01. Request for Borrowing. If the Company wishes to request a
Loan(s) under the terms of this Agreement, it shall give the Lender a written
request for funds (a "Request for Borrowing") on or before October 1st of each
calendar year, or such other date designated by the Lender. Each such Request
for Borrowing shall state the amount of funds requested to be loaned by the
Lender during the specified period requested by the Company (the "Requested
Funding Period").
Section 2.02. Lender's Consideration of Request. After receipt of a
Request for Borrowing, the Lender shall provide a written response to the
Company at least sixty (60) days prior to the first day of the Requested
Funding Period, or such other time as the Lender and the Company
PAGE 5
6
may mutually agree. If the Lender determines in its sole discretion that it
will not make any Loan in response to a Request for Borrowing, the Lender shall
notify the Company in accordance with the foregoing, indicating that the
Request for Borrowing has been denied, but shall not be obligated to set forth
any explanation of the denial. If the Lender determines in its sole discretion
that it is willing to loan funds to the Company in response to its Request for
Borrowing, the Lender shall provide a Lender's Approval which shall specify the
aggregate amount and the terms, or the method of or procedure or manner for
determining the terms, of any Loan or Borrowing and the period of time during
which the Lender is willing to make such Loan and Borrowings to the Company
(the "Approved Funding Period"). The Lender may, in its sole discretion,
include in the Lender's Approval the terms, or the method of or procedure or
manner for determining such terms, on which the Lender agrees to make a Loan to
the Company, including but not limited to: (i) the rate or rates, or the method
of determination thereof, of interest on the Loan and the date or dates from
which such interest shall accrue, and the Interest Payment Dates on which such
interest shall be payable, (ii) the place or places where the principal of and
interest on the Loan shall be payable, (iii) the period or periods within
which, the price or prices at which and the terms upon which any Note
evidencing the Loan may be redeemed, in whole or in part, at the option of the
Company, or shall be mandatorily redeemed, in whole or in part, and any
premiums, if applicable, (iv) if other than the Principal Amount thereof, the
portion of the Principal Amount of the Loan which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.02
and (v) any other terms to be reasonably determined by the Lender. Without
limiting the foregoing, the Lender may, in its sole discretion, determine that
it is willing to make a Loan to the Company in an aggregate amount, for a
period of time and on other terms different from those requested by the
Company.
Section 2.03. Notice of Borrowing. Whenever during the Approved Funding
Period the Company wishes to make a drawing of borrowed funds under a Loan
approved by the Lender and which shall be consistent with and pursuant to the
applicable Lender's Approval (a "Borrowing"), it shall give the Lender notice
of such Borrowing (a "Notice of Borrowing") prior to 10:00 a.m. on a Business
Day. A Notice of Borrowing shall state the amount of the Borrowing and shall
be in writing and executed by an Officer of the Borrower. As a condition
precedent to the first Borrowing under a Loan which has been approved by the
Lender under an applicable Lender's Approval, the Company shall provide the
Lender with (i) a Note, executed by the Company, evidencing the Loan and (ii) a
certified copy of Board Resolutions authorizing such Borrowing of the Loan upon
the terms provided in or pursuant to the applicable Lender's Approval and this
Agreement, and further authorizing the issuance and sale of the Note to the
Lender in connection therewith.
ARTICLE 3
THE NOTES
SECTION 3.01. Form of Notes. A Loan will be evidenced by a Note
substantially in the form of Exhibit A attached hereto. Each Borrowing shall
be evidenced by a notation on the schedule attached to the applicable Note
which shall specifically state the date and amount of the Borrowing, the
maturity or amortization dates, the interest rate and such other terms as the
Lender shall have designated.
PAGE 6
7
SECTION 3.02. Execution. An Officer having proper authority to execute
debt instruments on behalf of the Company shall sign the Notes for the Company
by manual or facsimile signature. If an Officer whose signature is on a Note
no longer holds that office at the time the Note is issued, the Note shall be
valid nevertheless.
SECTION 3.03. Replacement Notes. If the Lender claims in writing to the
Company that a Note has been lost, destroyed or wrongfully taken, the Company
shall issue to the Lender a replacement Note with equivalent terms.
SECTION 3.04. Cancellation. The Lender may cancel a Note when the
obligation represented thereby has been fully satisfied in accordance with the
terms of this Agreement and such Note. The Company and no one else shall
cancel and destroy all Notes properly surrendered for transfer or exchange
pursuant to the terms of this Agreement.
SECTION 3.05. Default Interest. If the Company defaults in a payment of
interest or principal on a Note, the Company shall pay defaulted interest (plus
interest on such defaulted interest to the extent lawful at the rate or rates
prescribed therefor in the Note) in an amount equal to two percent (2.00%)
above the applicable rate or rates noted on the schedule attached to the
applicable Note, commencing on the due date thereof until the same is paid in
full.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Notes. The Company, as obligor, shall pay the
principal of and interest on the Notes on the dates and in the manner provided
in the Notes and in this Agreement.
SECTION 4.02. Limitation on Secured Debt. The Company or any Subsidiary
shall not issue any Secured Debt unless contemporaneously therewith the Notes
are secured equally and ratably with such Secured Debt for so long as such
Secured Debt is secured by a Lien; except, however, that incurrence of the
following Secured Debt shall not require the Company or any Subsidiary to
equally and ratably secure the Notes:
(1) Debt of the Company or any Subsidiary which is incurred to
finance the acquisition, construction or improvement of assets of the
Company or its Subsidiaries, which acquisition is consummated, or which
construction or improvement is commenced, after the date of this
Agreement; provided, however, that such Debt shall not be secured by any
assets of the Company or any Subsidiary other than assets so acquired,
constructed or improved (together with (i) to the extent the terms of
Secured Debt so provide, repairs and additions thereto and improvements
thereof, and (ii) with respect to construction and improvement, any
theretofore unimproved real property on which the property so constructed
or improved is located);
(2) Debt of the Company or any Subsidiary which is secured by assets
of a person where such Debt was existing at the time such person was
merged or consolidated with the Company or any Subsidiary or at the time
of sale, other disposition, or lease, of the properties of such person as
an entirety (or substantially as an entirety) to the Company or
PAGE 7
8
any Subsidiary; provided, however, that such Debt shall not be secured by
any assets of the Company or any Subsidiary other than the assets subject
thereto at the time of the acquisition (together with, to the extent the
terms of Secured Debt so provide, repairs and additions thereto and
improvements thereof);
(3) Debt of the Company or any Subsidiary issued to refinance such
Debt incurred under paragraphs (1) and (2) of this Section 4.02, provided
that the Debt so issued is not secured by a Lien on assets other than
those which secure the Debt being refinanced (together with, to the extent
the terms of new Secured Debt so provide, repairs and additions thereto
and improvements thereof);
(4) Debt of the Company or any Subsidiary which is secured by
inventory, accounts receivable, or customers' installment paper or the
proceeds thereof, including by means of asset securitization; and
(5) obligations arising with respect to Production Payments.
SECTION 4.03. Compliance Certificate. The Company shall deliver to the
Lender within 30 days after the end of each fiscal year of the Company a
certificate from its principal executive officer, principal financial officer
or principal accounting officer stating that in the course of the performance
by such signer of his duties as an Officer of the Company he would normally
have knowledge of any Default by the Company or any noncompliance with the
conditions and covenants under the Agreement and whether or not he knows of any
Default or any such noncompliance that occurred during such period. If such
Officer does, the certificate shall describe the Default or noncompliance, its
status and what action the Company is taking or proposes to take with respect
thereto. For purposes of this Section 4.03, such noncompliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Agreement.
SECTION 4.04. Further Assurances; Reservation of Security Interest. (a)
The Company hereby agrees that it shall, from time to time, promptly and duly
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such further instruments and documents and take such further action
as the Lender may reasonably request for the purpose of obtaining or preserving
the full benefits of this Agreement and of the rights and powers herein
granted. The Company also hereby authorizes the Lender to file any financing
or continuation statement without the signature of the Company to the extent
permitted by applicable law, provided, however, that the foregoing shall not
create any obligation or duty on the part of the Lender. A carbon,
photographic or other reproduction of this Agreement shall be sufficient as a
financing statement for filing in any jurisdiction.
(b) Grant of Security Interest. In the event that the Lender in its sole
discretion shall become insecure at any time during the term of this Agreement
as to the Company's ability to fulfill any of its obligations hereunder or
under any Note, or comply with any agreement or other provision hereunder or
under any Note, and if the Company is unable to otherwise provide adequate
assurances of its ability to perform such obligations or comply with such other
agreements satisfactory to the Lender within five (5) days after receipt of
notice from the Lender of such insecurity, then the Company shall grant,
mortgage, pledge, assign, transfer, set over, convey and deliver to the Lender
a security interest in and a lien on such Property of the Company as the Lender
in its sole discretion shall
PAGE 8
9
select, provided, however, that the taking of such action on the part of the
Company shall not relieve the Company from liability for any of its obligations
under this Agreement or the Notes.
(c) Appointment of Attorney-in-Fact. The Company hereby irrevocably
constitutes and appoints the Lender and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Company and in
the name of the Company or in its own name, from time to time in the Lender's
discretion after the occurrence of an Event of Default or the Company's failure
to provide adequate assurances in accordance with paragraphs (a) or (b) of this
Section 4.04, for the purposes of carrying out this Agreement, to take any and
all appropriate action and to execute any and all documents and instruments
which may be, in the Lender's sole judgement, necessary or desirable to
accomplish the purpose of this Agreement, including, but not limited to,
providing security to the Lender with respect to the Company's obligations
under the Notes or this Agreement. The powers conferred on the Lender
hereunder are solely to allow the Lender to protect its interest in the
Company's Property and shall not impose any duty upon the Lender to exercise
any such powers.
(d) Cumulative Remedies; No Waivers. The rights and remedies provided in
this Section 4.04 are cumulative, may be exercised singly or concurrently and
are not exclusive of any rights or remedies provided by law or this Agreement.
No failure to exercise, nor delay in exercising, on the part of the Lender any
right, power or privilege under this Section 4.04 shall operate as a waiver
thereof.
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. When Company May Merge or Transfer. The Company shall not
consolidate with or merge with or into, or convey or otherwise transfer, or
lease, its assets as an entirety (or substantially as an entirety) to, any
person, unless:
(i) the resulting, surviving or transferee person (if not the Company)
shall be a person organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall expressly
assume, by written agreement, executed and delivered to the Lender, in form
reasonably satisfactory to the Lender, all obligations of the Company under
this Agreement and the Notes;
(ii) immediately after giving effect to such transaction no Default shall
have happened and be continuing; and
(iii) the Company shall have delivered to the Lender an Officers'
Certificate stating that such consolidation, merger, conveyance, transfer or
lease complies with this Agreement.
SECTION 5.02. Substitution of Successor. Upon any consolidation by the
Company with or merger by the Company into any other entity or any conveyance
or other transfer, or lease, of the assets of the Company as an entirety (or
substantially as an entirety) in accordance with Section 5.01, the successor
entity formed by such consolidation or into which the Company is merged or to
which such conveyance or other transfer, or lease, is made shall succeed to,
and be substituted for, and may
PAGE 9
10
exercise every right and power of, the Company under this Agreement with the
same effect as if such successor entity had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor entity shall be
relieved of all obligations and covenants under this Agreement and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on any Note when the
same becomes due and payable thereunder and such default continues uncured for
a period of 10 days immediately thereafter;
(2) the Company defaults in the payment of the principal of any Note when
the same becomes due and payable thereunder;
(3) the Company fails to comply with Section 5.01 hereunder;
(4) the Company fails to comply with any of its agreements in the Notes
or this Agreement (other than those referred to in paragraphs (1), (2) or (3)
of this Section 6.01) and such failure continues uncured for a period of 60
days after notice by the Company. The Company shall deliver to the Lender,
within 30 days after the occurrence thereof, written notice in the form of an
Officers' Certificate of any event which with the giving of notice and the
lapse of time would become an Event of Default under the first sentence of this
paragraph (4), its status and what action the Company is taking or proposes to
take with respect thereto, provided, however, that such event may become an
Event of Default notwithstanding a failure by the Company to so notify the
Lender.
A Default under this paragraph (4) is not an Event of Default until the
Lender provides to the Company a Notice of Default and the Company does not
cure such Default within the time specified in this paragraph after receipt of
such notice, provided, however, that the Default shall be deemed continuing and
may become an Event of Default notwithstanding the failure of the Lender to so
notify the Company. Such notice must specify the Default, demand that it be
remedied and state that such notice is a "Notice of Default."
(5) the Company or any Subsidiary has entered against it a final,
non-appealable court judgment for the payment of money exceeding, in the
aggregate, a material amount, as specified in Item 103 of Regulation X-X, 00
C.F.R. Section 229.103, in uninsured liability, and such judgment is not
discharged, paid or adequately provided for within 60 days after such judgment
becomes final and non-appealable;
PAGE 10
11
(6) the Company or any Subsidiary pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
(7) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case;
(B) appoints a Custodian of the Company or for any substantial part
of its property; or
(C) orders the winding up or liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days; or
(8) the Lender ceases to own at least eighty percent (80%) of the
outstanding equity or other voting securities of the Company.
SECTION 6.02. Waiver of Event of Default. The Lender may, in its sole
discretion, waive in writing an Event of Default occurring under this Agreement
or the Notes at any time. No such waiver shall extend to any subsequent or
other Event of Default or impair, or be deemed a waiver of, any other right.
The extent of any such waiver shall be in the sole discretion of the Lender.
SECTION 6.03. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 6.01(6) or (7)) occurs and is continuing, the
Lender may declare the principal of and accrued interest on the Notes to be
immediately due and payable. Upon such a declaration, such principal (or
portion thereof) and interest shall be due and payable immediately. If an
Event of Default specified in Section 6.01(6) or (7) occurs and is continuing,
the principal of and interest on all the Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Lender. The Lender may rescind any acceleration under this Section 6.03
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived (except
with respect to nonpayment of principal or interest that has become due solely
because of the acceleration). No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
PAGE 11
12
SECTION 6.04. Other Remedies. If an Event of Default occurs and is
continuing, the Lender may pursue any available remedy to collect the payment
of principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Agreement.
A delay or omission by the Lender in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.05. Waiver of Past Defaults. The Lender may waive in writing
an existing Default and its consequences. No such waiver shall extend to any
subsequent or other Default or impair, or be deemed a waiver of, any other
right. The extent of any such waiver shall be in the sole discretion of the
Lender.
SECTION 6.06. Rights of Lender To Receive Payment. Notwithstanding any
other provision of this Agreement, the right of the Lender to receive payment
of principal of and interest on the Notes held by such Lender, on or after the
respective due dates expressed in the Notes, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Lender.
SECTION 6.07. Waiver of Stay or Extension Laws. The Company (to the
extent it may lawfully do so) shall not at any time insist upon, or plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which
may adversely affect the covenants or the performance of this Agreement; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law. The provisions of this Section 6.07
shall survive the termination of this Agreement.
ARTICLE 7
TERMINATION OF AGREEMENT
SECTION 7.01. Termination. This Agreement may be terminated upon mutual
written consent of the Lender and the Company; provided, however, that (i) such
termination shall not be effective unless no obligations of the Company under
the Notes or this Agreement (excluding, for this purpose, the provisions of
Section 6.07 and Article 10 of this Agreement) are outstanding and (ii) the
provisions of Section 6.07 and Article 10 shall survive any such termination.
ARTICLE 8
AMENDMENTS
SECTION 8.01. Amendment of Agreement and Notes. Any provision of this
Agreement or the Notes may be amended if, but only if, such amendment is in
writing and signed by the Company and the Lender. Except as provided in
Section 6.02 and Section 6.05, no waiver of any provision of this Agreement and
the Notes shall be valid unless signed by both parties.
SECTION 8.02. Notation on or Exchange of Notes. If an amendment changes
the terms of a Note, the Company may require the Lender to deliver the Note to
the Company for the purpose of reflecting such changes thereto. In that event,
the Company shall place an appropriate notation on the
PAGE 12
13
Note regarding the changed terms to properly reflect the provisions of the
amendment and return it to the Lender; alternatively, if the Company so
determines, the Company in exchange for the Note shall issue a new Note that
reflects the changed terms. Failure to make the appropriate notation or to
issue a new Note shall not affect the validity of such amendment.
ARTICLE 9
REDEMPTION
SECTION 9.01. Applicability. Notes which are made redeemable by their
terms pursuant to this Agreement before their final maturity shall be
redeemable in accordance with this Article 9 (except as otherwise specified as
contemplated by Section 2.02).
SECTION 9.02. Right of Redemption. If a Note is made redeemable by its
terms in accordance with the provisions of Section 2.02 of this Agreement, and
the Company wants to redeem such Note pursuant to the terms of such redemption
established in accordance with Section 2.02 of this Agreement, the Company
shall notify the Lender in writing at least 20 days prior to the redemption
date, which notice shall specify such date and the principal amount of the Note
to be redeemed, all in accordance with the terms thereof and hereof. If the
Company is obligated to redeem such Note, it shall redeem the Note on the date
specified in accordance with Section 2.02 of this Agreement.
SECTION 9.03. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part in accordance with the provisions thereof and hereof, the
Company shall issue to the Lender a new Note with equivalent terms, equal in
aggregate Principal Amount to the unredeemed portion of the Note surrendered.
ARTICLE 10
INDEMNIFICATION
In addition to any other amounts payable by the Company under this
Agreement, the Company shall indemnify, defend and hold harmless the Lender
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including, without limitation, attorneys' fees and
expenses) which the Lender may incur or be subject to as a consequence,
directly or indirectly, of (i) any breach by the Company of any representation,
warranty, covenant, term, or condition in, or occurrence of any Default or
Event of Default under, this Agreement or any Note or (ii) involvement in any
legal suit, investigation, proceeding, inquiry or action (including but not
limited to any environmental suit, investigation, proceeding, inquiry or
action) as to which the Lender is involved as a consequence, direct or
indirect, of its execution of this Agreement or any other event or transaction
contemplated by or related to the foregoing. The obligations of the Company
under this Article 10 shall constitute additional indebtedness hereunder and
shall survive any termination of this Agreement and cancellation of any Note.
PAGE 13
14
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices. Any notice or communication required or
contemplated hereunder or under the Notes shall be in writing and transmitted
by either electronic facsimile transmission, delivery in person or mailed by
first-class mail addressed as follows:
If to the Company:
__________________
__________________
If to the Lender:
The Columbia Gas System, Inc.
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Treasurer
FAX: (000) 000-0000
The Company or the Lender by notice to the other, in accordance with the
requirements of this Section 11.01, may designate additional or different
addresses for subsequent notices or communications.
If a notice or communication is mailed in the manner provided above, it is
duly given at the time mailed, whether or not the addressee receives it.
SECTION 11.02. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of
Delaware but without giving effect to applicable principles of conflicts-of-law
to the extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 11.03. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Notes or this Agreement or for any claim
based on, in respect of or by reason of such obligations or their creation.
SECTION 11.04. Successors. This Agreement and the Notes shall bind the
Company and its permitted assigns and inure to the benefit of the Lender and
its assigns. The Company shall not be permitted to assign this Agreement or
the Notes, in whole or in part, without the prior written consent of the
Lender. The Lender may assign this Agreement or any Note, in whole or in part,
without the consent of the Company.
PAGE 14
15
SECTION 11.05. Multiple Originals. This Agreement may be signed in any
number of counterparts (including copies thereof), each of which (including
copies) shall be deemed an original, and all of which shall constitute a single
agreement, with the same effect as if the signature thereto and hereto were
upon the same instrument.
SECTION 11.06. Table of Contents; Headings. The table of contents and
headings contained in this Agreement are for convenience of reference only, are
not intended to be considered a part of the substance hereof and shall not
modify or restrict any of the terms or provisions hereof.
PAGE 15
16
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the date first written above.
COMPANY NAME
Attest: SEAL
by
Title: Title:
Attest: SEAL
by
Title: Title:
PAGE 16
17
STATE OF DELAWARE
ss:
New Castle County
On this day of , 199 , before me personally came , to me known, who,
being by me duly sworn, did depose and say that he resides at Xxxxxxxxxx,
Xxxxxxxx 00000; that he is Executive Vice President of COMPANY NAME one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
bearing the corporate name of said corporation is such corporate seal; that it
was so affixed by order of the Board of Directors of said corporation; and that
he signed his name thereto by like order.
Notary Public
STATE OF
ss:
County of
On the day of , 199 , before me personally came , to me known, who,
being by me duly sworn, did depose and say that he resides at , and that he
is an of , one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
bearing the corporate name of said corporation is such corporate seal; that it
was so affixed by authority of the Board of Directors of said corporation; and
that he signed his name thereto by like authority.
Notary Public
PAGE 17
