SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit
10.1
SECOND
AMENDMENT TO
FOURTH
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(the
“Amendment”) is made effective as of October 19, 2007, by and among SOUTHERN
UNION COMPANY, a Delaware corporation (the “Borrower”), the financial
institutions listed on the signature pages of the Credit Agreement (as
hereinafter defined) (individually the “Bank” and collectively the “Banks”) and
JPMORGAN CHASE BANK, N.A., a national banking association (“JPMorgan”), in its
capacity as agent (the “Agent”) for the Banks.
RECITALS:
WHEREAS,
the Borrower, the Banks and the Agent have executed a certain Fourth Amended
and
Restated Revolving Credit Agreement dated effective September 29, 2005, as
amended pursuant to the terms of that certain First Amendment to Fourth Amended
and Restated Revolving Credit Agreement dated effective February 27, 2006,
executed by the Borrower, the Majority Banks and the Agent (collectively
the
“Credit Agreement”); and
WHEREAS,
the Majority Banks, the Agent and the Borrower desire to further amend the
Credit Agreement in certain respects.
NOW,
THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
AGREEMENTS:
1. Amendment
of Debt Negative Covenant. Sections 10.3(a)
and 10.3(g) of the Credit Agreement are hereby amended and restated in
their entirety to hereafter be
and
read
as follows:
(a) Debt
evidenced by the Notes or the Facility Letter of Credit Obligations, or
outstanding under any Equity-Preferred Securities (to the extent the same
constitutes Debt) not in default, as well as (i) Debt of Panhandle Eastern
and/or any of its Subsidiaries, so long as such Debt is otherwise permitted
under Section 10.3(g), and (ii) any loans or advances by the Borrower to
Panhandle Eastern and/or any of the Borrower’s other Subsidiaries permitted
under Section 10.4(b).
(g) additional
Debt of the Borrower, Structured Securities of the Borrower and the Southern
Union Trusts, and additional Debt of Panhandle Eastern and/or any of Panhandle
Eastern’s Subsidiaries, provided that after giving effect to the issuance
thereof, there shall exist no Default or Event of Default; and (i) the ratio
of
Consolidated Total Indebtedness to Consolidated Total Capitalization shall
be no
greater than 0.65 to 1.00 at all times; (ii) the ratio of EBDIT for the four
fiscal quarters most recently ended to pro forma Cash Interest Expense for
the
following four fiscal quarters shall be no less than 2.00 to 1.0 at all times;
provided, however, that if the additional Debt for which the
determinations required to be made by this subparagraph (g) will be used
to
finance in whole or in part the consideration to be paid by the Borrower
for the
acquisition of any entity otherwise permitted under the terms of this Agreement,
the determination of EBDIT for purposes of this ratio shall include not only
the
EBDIT of the Borrower and its Subsidiaries for the four fiscal quarters most
recently ended, but shall also include the EBDIT of such entity to be acquired
for such four fiscal quarters most recently ended; and (iii) (A) such Debt
and
Structured Securities shall have a final maturity or mandatory redemption
date,
as the case may be, no earlier than the Maturity Date and shall mature or
be
subject to mandatory redemption or mandatory defeasance no earlier than the
Maturity Date (as so extended) and shall be subject to no mandatory redemption
or “put” to the Borrower, any Southern Union Trust, Panhandle Eastern or any of
Panhandle Eastern’s Subsidiaries exercisable, or sinking fund or other similar
mandatory principal payment provisions that require payments to be made toward
principal, prior to such Maturity Date (as so extended); or (B) (x) such
additional Debt shall have a final maturity date prior to the Maturity Date,
(y)
such additional Debt shall not exceed Two Hundred Fifty Million Dollars
($250,000,000.00) in the aggregate plus Twenty Million Dollars ($20,000,000.00)
of reimbursement obligations incurred in connection with Non-Facility Letters
of
Credit issued by a Bank or Banks or by any other financial institution, and
(z)
such additional Debt shall be borrowed from a Bank or Banks as a loan or
loans
arising independent of this Agreement or shall be borrowed from a financial
institution that is not a Bank under this Agreement.
2. Amendment
of Addresses for Notices. Section 13.4 of the
Credit Agreement is hereby amended and restated in its entirety to hereafter
be
and read as follows:
13.4 Notices.
All notices and other communications provided for herein
shall be in writing (including telex, facsimile, or cable communication)
and
shall be mailed, telecopied, telexed, cabled or delivered addressed as
follows:
(a) If
to the Borrower, to it
at: Southern
Union Company
0000
Xxxxxxxxxx Xxxx
Xxxxxxx,
Xxxxx 00000
Attention: Xx.
Xxxxxxx X. Xxxxxxxx
Fax: (000)
000-0000
(b) If
to the Agent, to it
at: XXXxxxxx
Xxxxx Xxxx, X.X.
XX
XX00000
000
X.
0xx Xxxxxx,
0xx
Xxxxx
Xxxxxx,
Xxxxx 00000
Attention: Manager/Commercial
Lending
Fax: (000)
000-0000
with
a copy
to: JPMorgan
Chase Bank, N.A.
Loan
and Agency Services
0000
Xxxxxx, Xxxxx 00
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxxxx
Xxxxxxxxx
Fax: (000)
000-0000
and
if to
any Bank, at the address specified below its name on the signature pages
hereof,
or as to the Borrower or the Agent, to such other address as shall be designated
by such party in a written notice to the other party and, as to each other
party, at such other address as shall be designated by such party in a written
notice to the Borrower and the Agent. All such notices and
communications shall, when mailed, telecopied, telexed, transmitted, or cabled,
become effective when deposited in the mail, confirmed by telex answer back,
transmitted to the telecopier, or delivered to the cable company, except
that
notices and communications to the Agent under Sections 2.1(c) or 2.2 shall
not
be effective until actually received by the Agent.
3. Other
Sections. Except as expressly amended by this Amendment,
the provisions of the Credit Agreement and the Notes shall remain in full
force
and effect, and the Borrower acknowledges and reaffirms its liability to
the
Banks thereunder. In the event of any inconsistency between this
Amendment and the terms of the Credit Agreement or the Notes, this Amendment
shall govern.
4. Representations
and Warranties. The Borrower represents and warrants to
the Banks as of the Borrower’s execution of this Amendment and as of the
effective date hereof that:
a. Representations
and Warranties. The representations and warranties contained in
Section 7 of the Credit Agreement, as amended hereby, are true and
correct, and no Default or Event of Default has occurred and is
continuing.
b. Corporate
Power and Authorization. The Borrower is duly authorized and
empowered to execute, deliver and perform its obligations under this Amendment
and to make the borrowings provided for in the Credit Agreement, and all
requisite corporate action on the Borrower’s part for the due execution,
delivery and performance of this Amendment has been duly and effectively
taken.
c. Binding
Obligations. This Amendment constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except as limited by Debtor Laws.
d. No
Conflict or Resultant Lien. The execution, delivery and
performance of this Amendment and the consummation of the transactions
contemplated herein do not and will not violate any provision of, or result
in a
default under, the certificate of incorporation or bylaws of the Borrower,
or
any contract, agreement or instrument or any governmental requirement to
which
the Borrower is subject, or result in the creation or imposition of any Lien
upon any property of the Borrower (other than as contemplated or permitted
by
the Credit Agreement).
e. No
Consent. The Borrower’s execution, delivery and performance of
this Amendment does not require the consent or approval of any
Person.
5. Miscellaneous.
a. In
accordance with the terms of Section 13.2 of the Credit Agreement, this
Amendment shall become effective when executed and delivered by the Borrower,
the Agent and the Majority Banks, so long as (i) no material adverse change
shall have occurred as of such effective date with respect to the business,
assets, properties or condition (financial or otherwise) of the Borrower
reflected in the quarterly financial statements of the Borrower dated June
30,
2007 (copies of such financial statements having been supplied to the Agent
and
each Bank), and (ii) all fees owed by the Borrower in connection with this
Amendment pursuant to the Credit Agreement or any other written agreement
between the Borrower and the Agent shall have been paid by the
Borrower.
b. No
Bank, by its execution of this Amendment, waives any rights it may have against
any person not a party hereto.
c. This
Amendment may be executed in multiple counterparts, each of which shall
constitute an original instrument, but all of which shall constitute one
and the
same Amendment.
d. All
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Credit Agreement.
e. The
invalidity of any one or more covenants, phrases, clauses, sentences or
paragraphs of this Amendment shall not affect the remaining portion of this
Amendment, or any part thereof, and in case of any such invalidity, this
Amendment shall be construed as if such invalid covenants, phrases, clauses,
sentences or paragraphs had not been inserted. The section headings
in this Amendment are for convenience only and shall not limit or in any
way
affect the meaning of the terms and provisions of this Amendment.
f. THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF TEXAS AND THE UNITED STATES OF AMERICA.
THIS
WRITTEN AMENDMENT, TOGETHER WITH THE CREDIT AGREEMENT, THE NOTES AND THE
LOAN
DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT
OF THE PARTIES.
THERE
ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder
of page left intentionally blank]
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment to be effective
as of the date first above written.
SOUTHERN
UNION COMPANY
By:
Name: ___________________________________
Title: ___________________________________
JPMORGAN
CHASE BANK, N.A., for itself and as Agent for the Banks
By:
Name:
Title:
WACHOVIA
BANK, N.A.
By:
Name:
Title:
BANK
OF AMERICA, N.A.
By:
Name:
Title:
KBC
BANK N.V.
By:
Name:
Title:
XXXXX
FARGO BANK, NA
By:
Name:
Title:
CALYON
NEW YORK BRANCH
By:
Name:
Title:
XXXXXXX
XXXXX BANK USA
By:
Name:
Title:
SOVEREIGN
BANK
By:
Name:
Title:
LASALLE
BANK NATIONAL ASSOCIATION
By:
Name:
Title:
THE
BANK
OF TOKYO-MITSUBISHI UFJ, LTD.
By:
Name:
Title:
UMB
BANK,
N.A.
By:
Name:
Title:
BAYERISCHE
LANDESBANK,
CAYMAN
ISLANDS BRANCH
By:
Name:
Title:
CREDIT
SUISSE, CAYMAN ISLANDS
BRANCH
By:
Name:
Title:
PNC
BANK,
NATIONAL ASSOCIATION
By:
Name:
Title:
SUMITOMO
MITSUI BANKING
CORPORATION
By:
Name:
Title:
MIZUHO
CORPORATE BANK (USA)
By:
Name:
Title:
BANK
OF
CHINA, NEW YORK BRANCH
By:
Name:
Title:
ROYAL
BANK OF CANADA
By:
Name:
Title:
BANK
OF
COMMUNICATIONS,
NEW
YORK
BRANCH
By:
Name:
Title:
CHINATRUST
COMMERCIAL BANK,
NEW
YORK
BRANCH
By:
Name:
Title:
