FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO
FOURTH
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(the
“Amendment”) is made effective as of February 27, 2006, 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 (the
“Credit Agreement”); and
WHEREAS,
the Majority Banks, the Agent and the Borrower desire to 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 Definitions.
(a) The
definition of “Additional Offering” contained in Section
1
of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
“Additional
Offering”
shall
mean, collectively, either or both of the following securities offerings,
but
only to the extent necessary to cause the net cash proceeds thereof to be
sufficient to fully pay all amounts then outstanding under the Bridge Loan:
(a)
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) issued after the Xxx Xxxxxxxxxx Acquisition Closing Date; and (b) an
offering made pursuant to Rule 144A of the Securities Act of debt securities
of
Southern Union Gathering.
(b)
The
definitions of “Cross Country Acquisition,” “Cross Country Acquisition
Agreement” and “Cross Country Acquisition Closing Date” contained in
Section
1
of the
Credit Agreement are hereby deleted in their entirety and shall be of no
further
force or effect.
2. New
Definitions.
The
following additional definitions are hereby added to Section
1
of the
Credit Agreement:
“Bridge
Loan”
shall
mean a short-term credit facility to be obtained by the Borrower and ESSI,
as
co-borrowers, in an aggregate principal amount not to exceed $1,600,000,000
for
purposes of financing the EAT Entities Loan, so long as such short-term credit
facility to the Borrower and ESSI is obtained upon terms and conditions
substantially similar to the terms and conditions set forth in the term sheet
attached hereto as Exhibit
D,
together with (a) structural changes to such credit facility contemplated
under
the flow chart attached as Exhibit
E
and (b)
such other changes to such term sheet and flow chart as the Agent reasonably
determines are not material to the Banks.
“EAT
Entities”
shall
mean SUG EAT, Inc. and SUG EAT, LLC.
“EAT
Entities Loan”
shall
mean a short-term loan by ESSI to the EAT Entities in an aggregate principal
amount not to exceed $1,600,000,000 for purposes of financing the payment
by the
EAT Entities of the purchase price to be paid under the Xxx Xxxxxxxxxx
Acquisition Agreement.
“Leapartners”
shall
mean Leapartners, L.P., a Texas limited partnership.
“Qualified
Intermediary”
shall
mean that certain entity created and owned by Chicago Deferred Exchange
Corporation that the Borrower hereafter enters into a “qualified exchange
accommodation agreement” with for purposes of facilitating the Xxx Xxxxxxxxxx
Acquisition.
“REM”
shall
mean Richardson Energy Marketing, Ltd., a Texas limited
partnership.
“SRES”
shall
mean Xxx Xxxxxxxxxx Energy Services, Ltd., a Texas limited
partnership.
“Xxx
Xxxxxxxxxx Acquisition”
shall
mean, collectively, (a) the acquisition by SUG EAT, Inc. of 100% of all issued
and outstanding limited partner interests in SRES and REM in accordance with
the
Xxx Xxxxxxxxxx Acquisition Agreement, and (b) the acquisition by SUG EAT,
LLC of
100% of all issued and outstanding general partner interests in SRES, REM
and
Leapartners in accordance with the Xxx Xxxxxxxxxx Acquisition Agreement,
so long
as such acquisitions are in substantial compliance with the following specified
terms:
(a) immediately
after the consummation of such acquisitions, (i) SUG EAT, Inc. owns and holds
100% of all issued and outstanding limited partner interests in SRES and
REM,
(ii) SUG EAT, LLC owns and holds 100% of all issued and outstanding general
partner interests in SRES, REM and Leapartners, (iii) as security for the
EAT
Entities Loan, the EAT Entities have granted to ESSI a second priority security
interest in 100% of all issued and outstanding limited partner interests
in SRES
and REM and 100% of all issued and outstanding general partner interests
in
SRES, REM and Leapartners, subject only to the first priority security interest
granted by the EAT Entities in such partnership interests as security for
the
Bridge Loan, and (iv) Southern Union Panhandle is and shall remain as the
sole
manager of SUG EAT, LLC, and (v) the EAT Entities have granted to the Borrower
a
"call option" whereby the Borrower can effectively require (1) distributions
by
the Qualified Intermediary to the EAT Entities of the net cash proceeds received
by the Qualified Intermediary from any sale by the Borrower of any of its
operating divisions permitted under Section 10.8(ix), together with
corresponding partial prepayments by the EAT Entities of the EAT Entities
Loan
in an amount equal to such net cash proceeds distribution, and (2) full
prepayment of the EAT Entities Loan at any time later than 180 days after
the
Xxx Xxxxxxxxxx Acquisition Closing Date;
(b) the
aggregate consideration paid by the EAT Entities for all partnership interests
in SRES and REM and the general partner interest in Leapartners shall be
approximately $1,600,000,000 (which amount is subject to customary purchase
price adjustment as set forth in the Xxx Xxxxxxxxxx Acquisition Agreement);
and
(c) all
material requisite approvals and consents from any Governmental Authority
with
respect to such acquisition shall have been received by the EAT Entities,
the
Borrower and its Subsidiaries, as applicable, in a form acceptable to the
Agent.
“Xxx
Xxxxxxxxxx Acquisition Agreement”
shall
mean that certain Purchase and Sale Agreement dated as of December 15, 2005,
by
and among SRCG, Ltd., a Texas limited partnership, and SRCG Genpar, L.P.,
a
Delaware limited partnership, as Sellers, and Southern Union Gathering and
Southern Union Panhandle, as Buyers, as assigned or to be assigned by Southern
Union Gathering and Southern Union Panhandle to the EAT Entities, and 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).
“Xxx
Xxxxxxxxxx Acquisition Closing Date”
means
the date on which the Xxx Xxxxxxxxxx Acquisition is consummated.
“Southern
Union Gathering”
shall
mean Southern Union Gathering Company LLC, a Delaware limited liability
company.
“SUG
EAT, Inc.”
shall
mean SUG EAT, Inc., a Delaware corporation.
“SUG
EAT, LLC”
shall
mean SUG EAT, LLC, a Delaware limited liability company.
3. Additional
Required Payments and Prepayments.
New
Sections
4.1(c)
and
4.1(d)
are
hereby added to the Credit Agreement to read as follows:
(c) All
net
cash proceeds payable as a result of any sale by the Borrower of any of its
operating divisions permitted under Section 10.8(ix) shall be distributed
and
applied as follows: (i) if SRES, REM and Leapartners have not yet become
wholly-owned Subsidiaries of the Borrower, then substantially contemporaneously
with the consummation of the applicable operating division sale, (1) the
Borrower shall assign to the Qualified Intermediary all of the Borrower's
rights
to receive all net cash proceeds payable as a result of such sale of such
operating division of the Borrower, (2) the Borrower shall exercise its call
option rights to cause the Qualified Intermediary to distribute to the EAT
Entities all such net cash proceeds received by the Qualified Intermediary
from
such sale of such operating division, (3) upon receipt of such proceeds from
the
Qualified Intermediary, the EAT Entities will make a corresponding partial
or
full prepayment, as applicable, to ESSI of the EAT Entities Loan in an amount
equal to such net cash proceeds distribution as required by the terms of
the EAT
Entities Loan, (4) the Borrower shall cause ESSI to make a corresponding
partial
or full prepayment, as applicable, of the Bridge Loan in an amount equal
to such
proceeds received by ESSI from such prepayment of the EAT Entities Loan,
and (5)
any remaining amounts of such net sales proceeds paid to or otherwise received
by the Qualified Intermediary, ESSI or the Borrower and not distributed or
applied in accordance with the foregoing requirements shall be applied towards
payment of Obligations under this Agreement to the extent then outstanding;
and
(ii) if SRES, REM and Leapartners have become wholly-owned Subsidiaries of
the
Borrower, then all net cash proceeds payable as a result of such sale of
such
operating division of the Borrower shall be applied (1) first, to payment
of the
Bridge Loan until the same is fully paid, and (2) second, to payment of
Obligations under this Agreement to the extent then outstanding.
(d) All
net
cash proceeds received by the Borrower or Southern Union Gathering from the
Additional Offering and from additional Funded Debt of Southern Union Gathering
incurred in accordance with the terms of Section
9.12,
shall
be applied (i) first, to payment of the Bridge Loan until the same is fully
paid, and (ii) second, to payment of Obligations under this Agreement to
the
extent then outstanding; provided,
however,
that to
the extent applicable, the following shall not be required to applied in
accordance with the foregoing requirements: (A) any net proceeds of issuances
pursuant to employee stock plans after the Closing Date by the Borrower;
and (B)
any net proceeds resulting from the settlement of forward stock purchase
contracts or remarketing of the senior notes associated with the Equity Units
(defined below), so long as such net proceeds are promptly applied to repay
Obligations under this Agreement to the extent then outstanding. For purposes
of
the foregoing, “Equity Units” mean the 2,500,000 equity units issued by the
Borrower on June 11, 2003, with each such equity unit consisting of a forward
stock purchase contract for the purchase of shares of the Borrower’s common
stock and a 2.75% senior note of the Borrower due August 16, 2008, which
2008
senior notes were issued pursuant to Supplemental Indenture No. 1, dated
as of
June 11, 2003 between the Borrower and JPMorgan Chase Bank, as trustee.
4. Lines
of Business Modification.
Section
7.15
of the
Credit Agreement is hereby amended and restated in its entirety to hereafter
be
and read as follows:
7.15 Lines
of Business. The
nature of the Borrower's lines of business are predominately the following:
(a)
the operation of energy distribution and transportation services, including
without limitation, natural gas sales, storage and transportation and
distribution, propane sales and distribution and promotion, marketing and
sale
of compressed natural gas and the terminalling and storage of liquefied natural
gas; (b) the development and marketing of fuel cell and distributive energy
options; (c) electric marketing/generation; (d) the operation of fuel oil
distribution and transportation networks; (e) gathering and processing of
natural gas; and (f) sales and rentals of appliances utilizing one or more
of
the fuel or energy options specified in this Section 7.15.
5. Pledge
of Xxx Xxxxxxxxxx Equity Representation and Warranty.
A new
Section
7.19
is
hereby added to the Credit Agreement to read as follows:
7.19 No
Agreements Prohibiting Pledge of Xxx Xxxxxxxxxx Equity.
Except
for the
applicable negative covenants of this Agreement and the Bridge Loan, neither
the
Borrower nor Southern Union Gathering nor Southern Union Panhandle is a party
to
any contract or other agreement with any Person that directly or indirectly
prohibits the Borrower or any of its Subsidiaries (including without limitation,
Southern Union Gathering and Southern Union Panhandle) from granting any
Lien
against the partnership interests in SRES, REM or Leapartners at any time
owned
and held by the Borrower or any of its Subsidiaries as security for any Debt
of
the Borrower or any of its Subsidiaries.
6. New
Affirmative Covenants.
New
Sections
9.12
and
9.13
are
hereby added to the Credit Agreement to read as follows:
9.12 Additional
Offering; Additional Funded Debt. To
the
extent necessary to fully pay the Bridge Loan on or before 364 days after
the
Xxx Xxxxxxxxxx Acquisition Closing Date, the Borrower agrees to cause (a)
the
Additional Offering and/or the incurrence of additional Funded Debt of Southern
Union Gathering to be consummated in full and (b) the proceeds received by
the
Borrower and/or Southern Union Gathering from the Additional Offering and/or
such additional Funded Debt of Southern Union Gathering to be utilized to
fully
pay the Bridge Loan.
9.13 Conveyance
of Xxx Xxxxxxxxxx Equity Interests to Subsidiaries. Contemporaneously
with the consummation of the final sale by the Borrower of its operating
divisions permitted under Section 10.8(ix), the Borrower shall cause SRES,
REM
and Leapartners to become wholly-owned Subsidiaries of the Borrower by requiring
(i) SUG EAT, Inc. to assign and convey to Southern Union Gathering 100% of
all
issued and outstanding limited partner interests in SRES and REM, and (ii)
SUG
EAT, LLC to assign and convey to Southern Union Panhandle 100% of all issued
and
outstanding general partner interests in SRES, REM and Leapartners.
7. Amendment
of Capital Requirements Negative Covenant.
Section
10.1(b)
of the
Credit Agreement is hereby amended and restated in its entirety to hereafter
be
and read as follows:
(b) permit
the ratio of its Consolidated Total Indebtedness to its Consolidated Total
Capitalization to be greater than (i) 0.65 to 1.00 at the end of any fiscal
quarter ending prior to the Xxx Xxxxxxxxxx Acquisition Closing Date; (ii)
0.70
to 1.00 at the end of any fiscal quarter ending on or after the Xxx Xxxxxxxxxx
Acquisition Closing Date, but before the earlier to occur of (x) payment
in full
of the Bridge Loan and (y) 364 days after the Xxx Xxxxxxxxxx Acquisition
Closing
Date; and (iii) 0.65 to 1.00 at the end of any fiscal quarter ending on or
after
the earlier to occur of (x) payment in full of the Bridge Loan and (y) 364
days
after the Xxx Xxxxxxxxxx Acquisition Closing Date.
8. Amendment
of Liens Negative Covenant.
Section
10.2(d)
of the
Credit Agreement is hereby amended and restated in its entirety to hereafter
be
and read as follows:
(d) (i)
Liens
on property existing at the time of acquisition thereof by the Borrower or
any
Subsidiary, including without limitation, (A) any property acquired by the
Borrower in consummating and finalizing any of the Prior Acquisitions, (B)
any
Liens existing on any property of Panhandle Eastern or any of its Subsidiaries
to secure existing Debt of Panhandle Eastern or any of its Subsidiaries as
of
the Closing Date and (C) any Liens against any property of Panhandle Eastern
or
any of its Subsidiaries to secure Panhandle Eastern Refinancing Debt
(provided
such
Liens are limited to property of Panhandle Eastern or any of its Subsidiaries
securing the Debt so extended, refinanced, renewed, replaced, defeased or
refunded), (ii) Liens against (A) the partnership and other equity interests
in
Panhandle Eastern, and (B) the partnership and other equity interests in
SRES,
REM and Leapartners, in each case to secure the Bridge Loan, or (iii) purchase
money Liens placed on an item of real or personal property purchased by the
Borrower or any Subsidiary to secure a portion of the purchase price of such
property; provided
that no
such Lien may encumber or cover any other property of the Borrower or any
Subsidiary.
9. 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 the Bridge Loan, or issued pursuant to the Additional Offering
and 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 outstanding as of the Closing Date, (ii) any Panhandle Eastern
Refinancing Debt, (iii) any working capital credit facility or facilities
provided directly to Panhandle Eastern and/or any of Panhandle Eastern’s
Subsidiaries by any party other than the Borrower, so long as the principal
amount of all such outstanding working capital facilities, together with
the
outstanding principal amount of any working capital loans or advances by
the
Borrower to Panhandle Eastern and/or any of Panhandle Eastern’s Subsidiaries,
does not exceed (A) $50,000,000 in the aggregate at any time that the ratio
of
Consolidated Total Indebtedness to Consolidated Total Capitalization for
Panhandle Eastern and Panhandle Eastern’s Subsidiaries (excluding the Borrower
and all other Subsidiaries of the Borrower for purposes of such calculation)
is
greater than 0.65 to 1.00 and (B) $75,000,000 in the aggregate at any time
that
the ratio of Consolidated Total Indebtedness to Consolidated Total
Capitalization for Panhandle Eastern and Panhandle Eastern’s Subsidiaries
(excluding the Borrower and all other Subsidiaries of the Borrower for purposes
of such calculation) is less than or equal to 0.65 to 1.00, (iv) Funded Debt
of
Southern Union Gathering to the extent that the net proceeds thereof are
applied
to the Bridge Loan, and (v) 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 and Structured Securities of the Borrower and the Southern
Union Trusts, 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 (A) 0.65 to 1.00
at
all times prior to the Xxx Xxxxxxxxxx Acquisition Closing Date; (B) 0.70
to 1.00
at all times on or after the Xxx Xxxxxxxxxx Acquisition Closing Date, but
before
the earlier to occur of (x) payment in full of the Bridge Loan and (y) 364
days
after the Xxx Xxxxxxxxxx Acquisition Closing Date; and (C) 0.65 to 1.00 at
all
times after the earlier to occur of (x) payment in full of the Bridge Loan
and
(y) 364 days after the Xxx Xxxxxxxxxx Acquisition Closing Date; (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 or any
Southern Union Trust 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.
10. Amendment
of Investment Negative Covenant.
Sections
10.4(a)
and
10.4(b)
of the
Credit Agreement are hereby amended and restated in their entirety to hereafter
be and read as follows:
(a) stock
or
other equity interests of (i) the Subsidiaries named in Section 7.1; (ii)
other
entities that are acquired by the Borrower or any Subsidiary but that are
promptly merged with and into the Borrower; (iii) Southern Union Panhandle,
Panhandle Eastern and any Subsidiaries of Panhandle Eastern acquired as a
result
of the Panhandle Eastern Acquisition, (iv) Southern Union Gathering, SRES,
REM
and any Subsidiaries of SRES or REM acquired as a result of the Xxx Xxxxxxxxxx
Acquisition; (v) CCE Holdings; and (vi) the same Qualifying Entities as the
Qualifying Entities under subparagraph (ii) of the definition of "Qualifying
Assets,” provided
that at
any one time the aggregate purchase price paid for such stock in such Qualifying
Entities, including the aggregate amount of Debt assumed or deemed incurred
by
the Borrower in connection with the purchase of such stock, is not more than
twenty percent (20%) of the Consolidated Net Worth of the Borrower and its
Subsidiaries as of the applicable determination date.
(b) loans
or
advances to a Subsidiary, as well as advances of proceeds of (i) the Bridge
Loan
by ESSI to the EAT Entities for purposes of facilitating the consummation
of the
Xxx Xxxxxxxxxx Acquisition, and (ii) the Additional Offering and permitted
Funded Debt of Southern Union Gathering by Southern Union Gathering to the
Borrower for purposes of facilitating the payment of the Bridge Loan;
provided,
however,
that
the principal amount of such loans and advances for working capital purposes
at
any time outstanding to Panhandle Eastern and/or any of Panhandle Eastern’s
Subsidiaries, together with the principal amount of any outstanding working
capital credit facility or facilities provided directly to Panhandle Eastern
and/or any of Panhandle Eastern’s Subsidiaries by any party other than the
Borrower, does not exceed $25,000,000 in the aggregate at any time.
11. Amendment
of Sale of Assets Negative Covenant.
Section
10.8
of the
Credit Agreement is hereby amended and restated in its entirety to hereafter
be
and read as follows:
10.8 Sale
or Other Disposition of Assets. The
Borrower will not, and will not permit any Subsidiary to, except as permitted
under this Section 10.8, sell, assign, lease, or otherwise dispose of (whether
in one transaction or in a series of transactions) all or any part of its
Property (whether now owned or hereafter acquired); provided,
however,
that
(i) the Borrower or any Subsidiary may in the ordinary course of business
dispose of (a) Property consisting of Inventory; and (b) Property con-sist-ing
of goods or equipment that are, in the opinion of the Borrower or any
Subsidiary, obsolete or unproductive, but if in the good faith judgment of
the
Borrower or any Subsidiary such disposition with-out replacement thereof
would
have a Material Adverse Effect, such goods and equipment shall be replaced,
or
their utility and function substituted, by new or existing goods or equipment;
(ii) the Borrower may transfer or dispose of any of its Significant
Property (in any transaction or series of transactions) to any Subsidiary
or
Subsidiaries only if such Property so transferred or disposed of after the
Closing Date has an aggregate value (determined after depreciation and in
accordance with GAAP) of not more than ten percent (10%) of the aggregate
value
of all of the Borrower’s and its Subsidiaries’ real property and tangible
personal property other than Inventory considered on a consolidated basis
and
determined after depreciation and in accordance with GAAP, as of June 30,
2005;
(iii) the Borrower may dispose of its real property in one or more
sale/leaseback transactions, provided that any Debt incurred in connection
with
such transaction does not create a Default as defined herein; (iv) a Southern
Union Trust may distribute the Borrower’s subordinated debt securities
constituting a portion of the Structured Securities, on the terms and under
the
conditions set out in the registration state-ment therefor filed with the
Securities and Exchange Commission on March 25, 1995 or any similar registration
statement filed with the Securities and Exchange Commission in connection
with
any other Structured Securities issued in connection with the Prior
Acquisitions; (v) the Borrower or any Subsidiary may dispose of real
property or tangible personal property other than Inven-tory (in consideration
of such amount as in the good faith judgment of the Borrower or such Subsidiary
represents a fair consideration therefor), provided that the aggregate value
of
such property disposed of (determined after depreciation and in accordance
with
GAAP) after the Closing Date does not exceed ten percent (10%) of the aggregate
value of all of the Borrower’s and its Subsidiaries’ real property and tangible
personal property other than Inventory considered on a consolidated basis
and
deter-mined after depreciation and in accordance with GAAP, as of June 30,
2005;
(vi) the Borrower may dispose of Qualifying Assets of the type described in
clause (ii) of the definition of Qualifying Assets, provided that the Borrower
applies the net proceeds from such disposition against the Loans in an amount
equal to the amount of Loan proceeds previously advanced to finance the
acquisition of such clause (ii) Qualifying Assets; (vii) the Borrower may
dispose of other Investments of the type acquired under the terms of Section
10.4(h), provided that the Borrower applies the net proceeds from such
disposition against the Loans in an amount equal to the amount of Loan proceeds
previously advanced to finance the acquisition of such other Investments;
(viii)
the Borrower may sell all stock or all or substantially all of the assets
in Sea
Xxxxx Pipeline Company; and (ix) the Borrower may sell any of its operating
divisions, so long as the Bridge Loan has not been fully paid and the net
proceeds from such disposition(s) are assigned, distributed and applied in
accordance with the terms of Section 4.1(c).
12. No
Agreements Prohibiting Pledge of Xxx Xxxxxxxxxx Equity.
A new
Section
10.19
is
hereby added to the Credit Agreement to read as follows:
10.19 No
Agreements Prohibiting Pledge of Xxx Xxxxxxxxxx Equity. Neither
the Borrower nor Southern Union Panhandle nor Southern Union Gathering will
enter into any contract or other agreement with any Person that directly
or
indirectly prohibits the Borrower, Southern Union Panhandle or Southern Union
Gathering from granting any Lien against the partnership interests in SRES,
REM
or Leapartners at any time owned and held by the Borrower or any of its
Subsidiaries as security for any Debt of the Borrower or any of its
Subsidiaries, other than the applicable negative covenants of this Agreement
and
the Bridge Loan.
13. Cross-Default
to Bridge Loan.
Section
11.3
of the
Credit Agreement is hereby amended and restated in its entirety to hereafter
be
and read as follows:
11.3 Other
Debt Default.
The
Borrower or any Subsidiary fails to pay principal or interest on any other
Debt
aggregating more than $3,000,000.00 when due and any related grace period
has
expired, or the holder of any of such other Debt declares such Debt due prior
to
its stated maturity because of the Borrower's or any Subsidiary's default
thereunder and the expiration of any related grace period, or the occurrence
of
a default or event of default under the Bridge Loan that is not cured or
effectively waived prior to the expiration of any related grace
period.
14. 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
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxxxx 00000
Attention:
Xx. Xxxxxxx X. Xxxxxxxx
Fax:
(000) 000-0000
with
copies to: Southern
Union Company
0000
Xxxxxxxxxx Xxxx
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxx Xxxxxxxx, Esq.
Fax:
(000) 000-0000
(b) If
to the
Agent, to it at: JPMorgan
Chase Bank, N.A.
000
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.
15. New
Exhibits.
A new
Exhibit
D
in the
form of Exhibit
D
attached
to this Amendment and a new Exhibit
E
in the
form of Exhibit
E
attached
to this Amendment are hereby added to the Credit Agreement.
16. 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.
17. 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.
18. 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
September 30, 2005 (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]
AUSTIN:
050100.02807: 338404v5
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment to be effective
as of the date first above written.
SOUTHERN
UNION COMPANY
By: /S/
XXXXXXX X. XXXXXXXX
Name:
_Richard
N. Marshall__________________
Title:
Vice
President and Treasurer__________
JPMORGAN
CHASE BANK, N.A., for itself and as Agent for the Banks
By: /S/
XXX X. SAMPLE
Name: Xxx
X.
Sample
Title: Senior
Vice President
AUSTIN:
050100.02807: 338404v5
WACHOVIA
BANK, N.A.
By: By:
Name:
Title:
BANK
OF
AMERICA, N.A.
By: By:
Name:
Title:
KBC
BANK
N.V.
By: By:
Name:
Title:
XXXXX
FARGO BANK, NA
By: By: By:
Name:
Title:
CALYON
NEW YORK BRANCH
By: By: By:
Name:
Title:
XXXXXXX
XXXXX BANK USA
By: By: By:
Name:
Title:
SOVEREIGN
BANK
By: By: By:
Name:
Title:
LASALLE
BANK NATIONAL ASSOCIATION
By: By: By:
Name:
Title:
THE
BANK
OF TOKYO-MITSUBISHI UFJ, LTD.
By: By: By:
Name:
Title:
UMB
BANK,
N.A.
By: By: By:
Name:
Title:
BAYERISCHE
LANDESBANK,
CAYMAN
ISLANDS BRANCH
By: By: By:
Name:
Title:
CREDIT
SUISSE, CAYMAN ISLANDS
BRANCH
By: By: By:
Name:
Title:
PNC
BANK,
NATIONAL ASSOCIATION
By: By: By:
Name:
Title:
SUMITOMO
MITSUI BANKING
CORPORATION
By: By: By:
Name:
Title:
AUSTIN:
050100.02807: 338404v5
MIZUHO
CORPORATE BANK (USA)
By: By: By:
Name:
Title:
BANK
OF
CHINA, NEW YORK BRANCH
By: By: By:
Name:
Title:
ROYAL
BANK OF CANADA
By: By: By:
Name:
Title:
BANK
OF
COMMUNICATIONS,
NEW
YORK
BRANCH
By: By: By:
Name:
Title:
CHINATRUST
COMMERCIAL BANK,
NEW
YORK
BRANCH
By: By: By:
Name:
Title:
AUSTIN:
050100.02807: 338404v5
EXHIBIT
D
SUMMARY
OF TERMS OF UP TO $1.65 BILLION BRIDGE FACILITY
Set
forth below is a summary of certain of the terms of the up to $1.65 Billion
Bridge Facility and the documentation related thereto.
.
I. Parties.
|
Borrower
|
Southern
Union Company, a Delaware corporation (the “Company”).
|
|
Guarantors
|
None.
|
|
Joint
Lead Arrangers and Joint Book-Runners
|
Xxxxxx
Brothers Inc. (“Xxxxxx
Brothers”)
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“MLPF&S”)
(in such capacities, the “Arrangers”).
|
|
Syndication
Agents
|
To
be determined.
|
|
Documentation
Agents
|
To
be determined.
|
|
Administrative
Agent
|
Xxxxxx
Commercial Paper Inc. (“LCPI”)
(in such capacity, the “Administrative
Agent”).
|
|
Lenders
|
Xxxxxx
Brothers Commercial Bank (or one of its affiliates), Xxxxxxx Xxxxx
(or one
of its affiliates), and a syndicate of banks, financial institutions
and
other entities arranged by the Arranger in consultation with the
Company
(collectively, the “Lenders”).
|
II. Type
and Amounts
|
Bridge
Facility
|
A
senior bridge loan facility in an aggregate principal amount of
up to
$1.65 billion (the “Bridge
Facility”)
(the loans made thereunder, the “Bridge
Loans”).
|
|
Availability:
|
The
Bridge Loans will be made in a single drawing on the date of the
consummation of the Acquisition (defined below) (the “Closing
Date”).
Any Bridge Loans that are repaid or prepaid may not be
reborrowed.
|
|
Purpose:
|
The
proceeds of the Bridge Loans will be used by the Company to finance
in
part the Acquisition and to pay related fees and
expenses.
|
|
Maturity:
|
The
Bridge Loans will mature and be due and payable on the date that
is 364
days following the Closing Date (the “Maturity
Date”).
|
III. Certain
Payment Provisions
|
Fees
and Interest Rates
|
As
set forth on Annex A-I attached to this Exhibit A.
|
|
Optional
Prepayments
|
Bridge
Loans may be prepaid in minimum amounts to be agreed upon. Optional
prepayments of the Bridge Loans will be applied to the outstanding
principal amount of such Bridge Loans.
|
|
Mandatory
Prepayments and
Commitment
Reductions
|
(a) Subject
to the clause (b) below in this section, the following amounts
will be
applied to prepay the Bridge Loans, or, to the extent occurring
on or
prior to the Closing Date, to a reduction of the commitments in
respect of
the Bridge Facility on a pro rata
basis:
(i) 100%
of the net proceeds of any sale or issuance of equity of the Company
or
any of its subsidiaries (other than the following: (A) any net
proceeds of
issuances pursuant to employee stock plans after the Closing Date
by the
Company; and (B) any net proceeds resulting from the settlement
of forward
stock purchase contracts or remarketing of the senior notes associated
with the Equity Units (defined below) so long as such net proceeds
are
promptly applied to repay amounts outstanding under the Existing
Revolving
Credit Agreement). “Equity
Units”
mean the 2,500,000 equity units issued by the Company on June 11,
2003,
with each such equity unit consisting of a forward stock purchase
contract
for the purchase of shares of the Company’s common stock and a 2.75%
senior note of the Company due August 16, 2008 (the “2008
Senior Notes”),
which 2008 Senior Notes were issued pursuant to Supplemental Indenture
No.
1, dated as of June 11, 2003 between the Company and JPMorgan Chase
Bank,
as trustee (the “Supplemental
Indenture”);
(ii) 100%
of the net proceeds of any issuance or incurrence of indebtedness
by the
Company or any of its subsidiaries (other than any net proceeds
of
indebtedness issued or incurred that are used to refinance any
indebtedness of the Company or any of its subsidiaries that is
in
existence as of the Closing Date and has a stated maturity date
that is
prior to March 15, 2007); and
(iii) 100%
of the net proceeds of any sale or other disposition (including
as a
result of casualty or condemnation) by the Company or any of its
subsidiaries of any assets.
(b) With
respect to net proceeds of the types described in subclauses (i),
(ii) and
(iii) in clause (a) above, in each case that would otherwise be
required
to be applied as provided in such clause (a) will be applied as
set forth
in such clause (a) if and only to the extent that (x) the Company
or any
of its such subsidiary is not required to use such net proceeds
to repay
its indebtedness (other than intercompany indebtedness) as in effect
of
the date of the Commitment Letter and (y) there are no contractual
or
legal restrictions on the ability of the Company to access such
net
proceeds; provided,
however,
to
the extent that the Company or any of its subsidiaries are restricted
or
otherwise prohibited from using such net proceeds to repay the
Bridge
Loans, the Company shall, and shall cause its subsidiaries, to,
use its
commercially reasonable efforts to remove any such restrictions
or
prohibitions.
|
|
IV.
Collateral
|
The
obligations of the Company in respect of the Bridge Facility will
be
secured by a perfected first priority security interest in (the
“Collateral”)
(i) 100% of the limited partnership interests in Panhandle Eastern
Pipe
Line Company, L.P., (ii) 100% of the partnership interests in each
of REM
and SRES, (iii) 100% of the general partnership interests in Leapartners,
and (iv) any proceeds of the foregoing (it being understood that
the
subsidiary or subsidiaries of the Company that will hold the partnership
interests described in clauses (ii) and (iii) above shall pledge
such
partnership interests). The Collateral shall be free and clear
of all
liens other than the liens in favor of the Administrative Agent,
as
collateral agent for the Banks.
|
|
V.
Certain
Conditions Precedent to Borrowings under the Bridge
Facility
|
Conditions
precedent to the making of each extension of credit under the Bridge
Facility will be (a) those conditions precedent on Exhibit B (Funding
Conditions) to the Commitment Letter to which this Exhibit A is
attached,
(b) the accuracy of all representations and warranties in the definitive
financing documentation with respect to the Bridge Facility (the
“Credit
Documentation”)
(including, without limitation, the material adverse change and
litigation
representations), (c) there being no default or event of default
in
existence at the time of, or after giving effect to the making
of, such
extension of credit and (d) the receipt of a customary borrowing
notice.
|
|
VI.
Certain
Documentation Matters:
|
|
|
Representations
and Warranties.
|
Substantially
similar to the Existing Revolving Credit Agreement (defined below),
with
such modifications as may be reasonably requested by the Arrangers,
and
including those as to (i) accuracy of disclosure, (ii) the Acquisition,
(iii) the Acquired Business, (iv) the Acquisition Agreement, and
(v) the
creation and perfection of security interests.
As
used herein, “Existing
Revolving Credit Agreement”
means the Fourth Amended and Restated Revolving Credit Agreement,
dated as
of September 29, 2005, by and among the Company, as borrower, and
the
banks named therein, as the banks, and JPMorgan Chase Bank, N.A.,
as the
administrative agent, and Bank of America, N.A., as the syndication
agent,
as amended to permit the Transactions.
|
|
Affirmative
Covenants
|
Substantially
similar to the Existing Revolving Credit Agreement, with such
modifications as may be reasonably requested by the Arrangers and
are
customary for a facility similar to the Bridge Facility.
|
|
Financial
Covenants
|
Substantially
similar to the Existing Revolving Credit Agreement, with such
modifications as may be reasonably requested by the Arrangers and
are
customary for a facility similar to the Bridge Facility.
|
|
Negative
Covenants
|
Substantially
similar to the Existing Revolving Credit Agreement, with such
modifications as may be reasonably requested by the Arrangers and
are
customary for a facility similar to the Bridge Facility, including
preservation of the Collateral.
|
|
Events
of Default
|
Substantially
similar to the Existing Revolving Credit Agreement and such additional
events of default as may be reasonably requested by the Arrangers
and are
customary for a facility similar to the Bridge Facility.
|
|
Voting
|
Substantially
similar to the Existing Revolving Credit Agreement, with such
modifications as may be reasonably requested by the Arrangers and
are
customary for a facility similar to the Bridge Facility.
|
|
Assignments
and Participations
|
Substantially
similar to the Existing Revolving Credit Agreement, with such
modifications as may be reasonably requested by the Arrangers and
are
customary for a facility similar to the Bridge Facility.
|
|
Yield
Protection
|
Substantially
similar to the Existing Revolving Credit Agreement, with such
modifications as may be reasonably requested by the Arrangers and
are
customary for a facility similar to the Bridge Facility.
|
|
Expenses
and Indemnification
|
Substantially
similar to the Existing Revolving Credit Agreement, with such
modifications as may be reasonably requested by the Arrangers and
are
customary for a facility similar to the Bridge Facility.
|
|
Governing
Law and Forum...
|
State
of New York.
|
|
Counsel
to the Administrative Agent and the Arrangers..............................
|
Xxxxxx
Xxxxxx & Xxxxxxx llp
|
As
used
in this Exhibit D, the following terms shall have the following
meanings:
“Acquisition
means
the following purchase of partnership interest described below: Southern
Union
Gathering Company LLC, a Delaware limited liability company and a wholly-owned
subsidiary of the Company (“SUGC
LLC”),
and
Southern Union Panhandle LLC, a Delaware limited liability company and a
wholly-owned subsidiary of the Company (“SUP
LLC”),
have
entered into a purchase and sale agreement, dated as of December 15, 2005
(the
“Acquisition
Agreement”),
with
SRCG, Ltd., a Texas limited partnership, as seller (“SRCG”),
and
SRCG Genpar, L.P., a Delaware limited partnership, as seller (“Genpar”
and,
together with SRCG, the “Sellers”),
pursuant to which (a) SUGC LLC will purchase from SRCG (i) 100% of the limited
partner interests in Xxx Xxxxxxxxxx Energy Services, Ltd., a Texas limited
partnership (“SRES”),
and
(ii) 100% of the limited partner interests in Xxxxxxxxxx Energy Marketing,
Ltd.,
a Texas limited partnership (“REM”)
and
(b) SUP LLC will purchase from Genpar (i) 100% of the general partner interests
in SRES, (ii) 100% of the general partner interests in REM and (iii) 100%
of the
general partner interests in Leapartners, L.P., a Texas limited partnership
(“Leapartners”
and
together with SRES and REM, the “Acquired
Business”).
“Transactions”
means,
collectively, the Acquisition, the entering into and borrowings under the
Bridge
Facility by the Company, and the payment of any related fees and
expenses.
Exhibit
X
-
XXXXXX:
050100.02807: 338404v5
Annex
A-I
Interest
Rate OptionsThe
Company may elect that the Bridge Loans comprising each borrowing bear interest
at a rate per annum equal to: (i) the Base Rate plus the Applicable Margin
(“Base
Rate Loans”);
or
(ii) the LIBOR Rate plus the Applicable Margin (“LIBOR
Loans”).
As
used
herein:
“Base
Rate”
means
the higher of (i) the prime lending rate as set forth on the British Banking
Association Telerate Page 5 (the “Prime
Rate”),
and
(ii) the federal funds effective rate from time to time plus 0.5%.
“Applicable
Margin”
means,
in the case of Base Rate Loans and LIBOR Loans, a percentage per annum changing
with the rating of the Company’s unsecured, non-credit enhanced “Senior Funded
Debt” (as defined in the Existing Revolving Credit Agreement (as in effect on
the date hereof) and determined in accordance with the pricing grid attached
hereto as Annex A-II.
“LIBOR
Rate”
means
the rate (adjusted for statutory reserve requirements for eurocurrency
liabilities) at which eurodollar deposits for one, two, three or six months
(as
selected by the Company) are offered in the interbank eurodollar
market.
No
new
LIBOR interest period may be selected when any event of default is
continuing.
Interest
Payment DatesFor
Base
Rate Loans, quarterly in arrears.
For
LIBOR
Loans, on the last day of each relevant interest period and, in the case
of any
interest period longer than three months, on each successive date three months
after the first day of such interest period.
Default
RateSame
as
in the Existing Revolving Credit Agreement.
Rate
and Fee BasisAll
per
annum
rates
will be calculated on the basis of a year of 360 days (or 365 days, in the
case
of Base Rate Loans the interest rate payable on which is then based on the
Prime
Rate) and the actual number of days elapsed.
Annex
A-I
-
AUSTIN:
050100.02807: 338404v5
Annex
A-II
Pricing
Grid -Applicable Margin for LIBOR Loans and Base Rate
Loans
|
Rating
of the Company’s unsecured, non-credit enhanced
Senior
Funded Debt
|
Applicable
Margin
for
LIBOR
Loans
|
Applicable
Margin
for
Base
Rate Loans
|
|
Equal
to or greater than A3 by Moody’s and equal to or greater than A- by
S&P
|
0.425%
|
0.000%
|
|
Baa1
by Moody’s or BBB+ by S&P
|
0.500%
|
0.000%
|
|
Baa2
by Moody’s or BBB by S&P
|
0.575%
|
0.000%
|
|
Baa3
by Moody’s or BBB- by S&P
|
0.725%
|
0.000%
|
|
Ba1
by Moody’s or BB+ by S&P
|
1.100%
|
0.100%
|
|
Less
than Ba1 by Moody’s and less than BB+ by S&P
|
1.350%
|
0.350%
|
Notwithstanding
the foregoing provisions, in the event that ratings of the Company’s unsecured,
non-credit enhanced Senior Funded Debt (as defined in the Existing Revolving
Credit Agreement) under Standard & Poor’s Ratings Group (“S&P”)
and
under Xxxxx’x Investor Service, Inc. (“Moody’s”)
fall
within different rating categories which are not functional equivalents,
the
Applicable Margin for LIBOR Loans and Base Rate Loans 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 Company withdraws from having its
unsecured, non-credit enhanced Senior Funded Debt being rated by Moody’s or
S&P, so that one or both of such ratings services fails to rate the
Borrowers unsecured, non-credit enhanced Senior Funded Debt, the component
of
pricing from the grid set forth above for purposes of determining the applicable
Applicable Margin for LIBOR Loans and Base Rate Loans for all Rate Periods
(as
defined in the Existing Revolving Credit Facility) commencing thereafter
shall
be (x) in the case of LIBOR Loans, 1.350% and (y) in the case of Base Rate
Loans, 0.350%, in each case until such time as the Company subsequently causes
its unsecured, non-credit enhanced Senior Funded Debt to be rated by both
of
said ratings services.
