1
EXHIBIT 4.02
[EXECUTION COPY]
================================================================================
PANHANDLE EASTERN CORPORATION
doing business as
PANENERGY CORP
___________________________________
$400,000,000
CREDIT AGREEMENT
dated as of January 31, 1996
___________________________________
CHEMICAL BANK
as Administrative Agent
================================================================================
2
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2. AMOUNTS AND TERMS OF LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.1 Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.2 Revolving Credit Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.3 Procedure for Revolving Credit Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.4 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.5 Issuance of Commercial L/Cs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.6 Issuance of Standby L/Cs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.7 Participating Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.8 Procedure for Opening Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.9 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.10 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.11 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.12 Letter of Credit Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.13 Competitive Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.14 Competitive Loan Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.15 Procedure for Competitive Loan Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.16 Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.17 Term Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.18 Procedure for Term Loan Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.19 Extension of Revolving Credit Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.20 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3. INTEREST RATE PROVISIONS, FEES, CONVERSIONS AND PAYMENTS . . . . . . . . . . . . . . . . . . . . . . 31
3.1 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.2 Facility and Other Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.3 Letter of Credit Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.4 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.5 Optional Prepayments of Revolving Credit Loans and Term Loans . . . . . . . . . . . . . . . . . . . 34
3.6 Reduction of Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.7 Pro Rata Treatment and Payments; Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.8 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.9 Failure by Lenders to Make Funds Available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.10 Conversion Options for Loans; Minimum Amount of Loans . . . . . . . . . . . . . . . . . . . . . . . 37
3.11 Inability to Determine Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.12 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.13 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.14 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
i
3
Page
----
3.15 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
3.16 Lenders' Obligation to Mitigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.17 Replacement of Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4. CONDITIONS OF LENDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.1 Conditions to the Initial Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.2 Conditions to the Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.3 Conditions to All Loans and All Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.1 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.2 Corporate Existence; Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.3 Corporate Power; Authorization; Enforceable Obligations . . . . . . . . . . . . . . . . . . . . . . 45
5.4 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.5 No Material Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.6 Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.7 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.8 Environmental Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.9 Investment Company Act, Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.3 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.4 Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.5 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.6 Inspection of Property; Books and Records; Discussions . . . . . . . . . . . . . . . . . . . . . . . 49
6.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.1 Maintenance of Consolidated Indebtedness to Consolidated Capitalization Percentage Ratio of the
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.2 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.3 Consolidation, Merger, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.4 Principal Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.5 Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.6 Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9. THE ADMINISTRATIVE AGENT AND THE ISSUING LENDERS . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ii
4
Page
----
9.4 Reliance by Administrative Agent and the Issuing Lenders . . . . . . . . . . . . . . . . . . . . . . 55
9.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.6 Non-Reliance on Administrative Agent, Issuing Lenders and Other Lenders . . . . . . . . . . . . . . 56
9.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.8 Administrative Agent and Issuing Lenders in Their Individual Capacities . . . . . . . . . . . . . . 57
9.9 Successor Administrative Agent and Issuing Lenders . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.4 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.6 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.7 Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.8 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.9 Transfers of Competitive Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
10.10 Register, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
10.11 Adjustments; Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.12 Existing Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.14 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.15 Submission to Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.16 Limitation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.17 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
iii
5
SCHEDULES
---------
1 Lending Offices
2 Revolving Credit Commitments
3 Excluded Sales of Assets
EXHIBITS
--------
A Form of Competitive Loan Confirmation
B Form of Competitive Loan Offer
C Form of Competitive Loan Request
D Form of Letter of Credit Participation
Certificate
E Form of Revolving Credit Note
F-1 Form of Grid Competitive Loan Note
F-2 Form of Individual Competitive Loan Note
G Form of Term Note
H Form of Extension Request
I Form of Opinion of Xxxxxxxx & Xxxxxxxx
J Form of General Counsel's Opinion
K Form of Commitment Transfer Supplement
iv
6
CREDIT AGREEMENT
Dated as of January 31, 1996
PANHANDLE EASTERN CORPORATION, a Delaware corporation doing business
as PanEnergy Corp (the "Company"), the several financial institutions from time
to time parties to this Agreement (collectively, the "Lenders" and
individually, a "Lender") and CHEMICAL BANK, a New York banking corporation
("Chemical"), as Administrative Agent, do hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
have the following meanings:
"ABR Loans": Revolving Credit Loans or Term Loans at such time as
they are made and/or are being maintained at a rate of interest based upon the
Alternate Base Rate.
"Additional Lender": as defined in subsection 2.19(c).
"Adjusted CD Rate": with respect to each day during an Interest
Period for CD Rate Loans, a rate per annum determined for such day in
accordance with the following formula (rounded upward, if necessary, to the
next higher 1/100 of 1%):
CD Rate + Assessment Rate
----------------------------
1.00-CD Reserve Requirements
"Administrative Agent": Chemical, in its capacity as administrative
agent for the Lenders hereunder and its successors and assigns in such
capacity.
"Administrative Agent's Office": the office of the Administrative
Agent located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
office as the Administrative Agent may hereafter designate in writing as such
to the other parties hereto.
"Affiliate": of any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, control of a Person shall
mean the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"AGTCO": Algonquin Gas Transmission Company, a Delaware corporation.
7
"Alternate Base Rate": for any day, a rate per annum (rounded
upward, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day or (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall
mean the rate of interest per annum publicly announced from time to time by
Chemical as its prime rate in effect at its principal office in New York City
(the Prime Rate not being intended to be the lowest rate of interest charged by
Chemical in connection with extensions of credit to debtors); and "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it.
If the Administrative Agent shall have determined that it is unable to
ascertain the Federal Funds Effective Rate, for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof (which determination shall be
prima facie evidence of such inability), the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this
definition, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective as of the opening of
business on the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Applicable Facility Fee Percentage": on any date, the applicable
percentage set forth below based upon the ratings applicable on such date to
the Company's senior, unsecured, non-credit-enhanced long-term indebtedness for
borrowed money ("Index Debt"):
Percentage
----------
CATEGORY 1
Rating
A- or higher by S&P
A3 or higher by Xxxxx'x .075%
CATEGORY 2
Rating
BBB+ by S&P
Baa1 by Xxxxx'x .09%
CATEGORY 3
Rating
BBB by S&P
Baa2 by Xxxxx'x .10%
-2-
8
Percentage
----------
CATEGORY 4
Rating
BBB- by S&P
Baa3 by Xxxxx'x .125%
CATEGORY 5
Rating
BB+ or lower by S&P
Ba1 or lower by Xxxxx'x .175%
For purposes of the foregoing, (i) if the ratings for Index Debt established or
deemed to have been established by S&P and Xxxxx'x shall fall within different
Categories, the Applicable Facility Fee Percentage shall be determined by
reference to the numerically lower of such Categories (i.e., the Category
corresponding to the higher rating); (ii) if S&P or Xxxxx'x shall not have in
effect a rating for Index Debt (other than for a reason not related to the
creditworthiness of the Company or to any act or failure to act on the part of
the Company, or because such rating agency shall no longer be in the business
of rating corporate debt obligations), then the rating of such agency shall be
deemed to fall within Category 5; and (iii) if any rating established or deemed
to have been established by S&P or Xxxxx'x shall be changed (other than as a
result of a change in the rating system of S&P or Xxxxx'x), such change shall
be effective as of the date on which it is first announced by the applicable
rating agency. Each change in the Applicable Facility Fee Percentage shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of S&P or Xxxxx'x shall change, or if either such
rating agency shall no longer have in effect a rating for Index Debt (other
than for one of the reasons referred to in clause (ii) above), the Company and
the Lenders, acting through the Administrative Agent, shall negotiate in good
faith to amend the references to specific ratings in this definition to reflect
such changed rating system or the non-availability of ratings from such rating
agency.
"Applicable Index Rate": in respect of any Index Rate Competitive
Loan of a specified maturity requested pursuant to an Index Rate Competitive
Loan Request, the London interbank offered rate for deposits in Dollars for the
period commencing on the date of such Index Rate Competitive Loan and ending on
the maturity date thereof which appears on Telerate Page 3750 as of 11:00 A.M.,
London time, two Working Days prior to the beginning of such period.
"Applicable L/C Fee Percentage": on any date, the applicable
percentage set forth below based upon the ratings applicable on such date to
the Index Debt:
-3-
9
Percentage
----------
CATEGORY 1
Rating
A- or higher by S&P
A3 or higher by Xxxxx'x .20%
CATEGORY 2
Rating
BBB+ by S&P
Baa1 by Xxxxx'x .235%
CATEGORY 3
Rating
BBB by S&P
Baa2 by Xxxxx'x .275%
CATEGORY 4
Rating
BBB- by S&P
Baa3 by Xxxxx'x .325%
CATEGORY 5
Rating
BB+ or lower by S&P
Ba1 or lower by Xxxxx'x .45%
For purposes of the foregoing, (i) if the ratings for Index Debt established or
deemed to have been established by S&P and Xxxxx'x shall fall within different
Categories, the Applicable L/C Fee Percentage shall be determined by reference
to the numerically lower of such Categories (i.e., the Category corresponding
to the higher rating); (ii) if S&P or Xxxxx'x shall not have in effect a rating
for Index Debt (other than for a reason not related to the creditworthiness of
the Company or to any act or failure to act on the part of the Company, or
because such rating agency shall no longer be in the business of rating
corporate debt obligations), then the rating of such rating agency shall be
deemed to fall within Category 5; and (iii) if any rating established or deemed
to have been established by S&P or Xxxxx'x shall be changed (other than as a
result of a change in the rating system of S&P or Xxxxx'x), such change shall
be effective as of the date on which it is first announced by the applicable
rating agency. Each change in the Applicable L/C Fee Percentage shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of S&P or Xxxxx'x shall change, or if either such rating
agency shall no longer have in effect a rating for Index Debt (other than for
one of the reasons referred to in clause (ii) above), the Company and the
-4-
10
Lenders, acting through the Administrative Agent, shall negotiate in good faith
to amend the references to specific ratings in this definition to reflect such
changed rating system or the non-availability of ratings from such rating
agency.
"Applicable Margin": on any date, for CD Rate Loans and Eurodollar
Loans, the applicable percentage set forth below based upon the ratings
applicable on such date to the Index Debt:
EURODOLLAR
CD RATE LOAN LOAN
Percentage Percentage
------------ ----------
CATEGORY 1
Rating
A- or higher by S&P
A3 or higher by Xxxxx'x .325% .20%
CATEGORY 2
Rating
BBB+ by S&P
Baa1 by Xxxxx'x .36% .235%
CATEGORY 3
Rating
BBB by S&P
Baa2 by Xxxxx'x .40% .275%
CATEGORY 4
Rating
BBB- by S&P
Baa3 by Xxxxx'x .45% .325%
CATEGORY 5
Rating
BB+ or lower by S&P
Ba1 or lower by Xxxxx'x .575% .45%
For purposes of the foregoing, (i) if the ratings for Index Debt established or
deemed to have been established by S&P and Xxxxx'x shall fall within different
Categories, the Applicable Margin shall be determined by reference to the
numerically lower of such categories (i.e., the Category corresponding to the
higher rating); (ii) if S&P or Xxxxx'x shall not have in effect a rating for
Index Debt (other than for a reason not related to the creditworthiness of the
Company or to any act or failure to act on the part of the Company, or because
such rating agency shall no longer be in the business of rating corporate debt
obligations), then the rating
-5-
11
of such rating agency shall be deemed to fall within Category 5; and (iii) if
any rating for Index Debt established or deemed to have been established by S&P
or Xxxxx'x shall be changed (other than as a result of a change in the rating
system of S&P or Xxxxx'x), such change shall be effective as of the date on
which it is first announced by the applicable rating agency. Each change in
the Applicable Margin shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of S&P or Xxxxx'x shall
change, or if either such rating agency shall no longer have in effect a rating
for Index Debt (other than for one of the reasons referred to in clause (ii)
above), the Company and the Lenders, acting through the Administrative Agent,
shall negotiate in good faith to amend the references to specific ratings in
this definition to reflect such changed rating system or the non-availability
of ratings from such rating agency.
"Assessment Rate": for each Interest Period for CD Rate Loans, the
net annual assessment rate (rounded upward, if necessary, to the next higher
1/100 of 1%) estimated by Chemical at the beginning of such Interest Period to
be the current annual assessment rate payable by Chemical to the Federal
Deposit Insurance Corporation (or any successor) for insuring time deposits
made in Dollars at offices of Chemical in the United States.
"Asset Sale": any sale, transfer, lease or other disposition of any
property or asset of the Company or any Subsidiary of the Company except a
sale, transfer, lease or other disposition (a) of cash, (b) of temporary cash
investments, (c) of trade receivables or other rights to receive money (whether
absolute or contingent, or matured or unmatured), (d) of inventories of gas and
materials and supplies other than (i) in connection with a sale, transfer,
lease or other disposition of property, plant and equipment or (ii) for the
primary purpose of financing the purchase, storage or transportation of such
gas or materials and supplies by the Company or a Subsidiary of the Company,
(e) by the Company to a Subsidiary of the Company or by a Subsidiary of the
Company to the Company or to another Subsidiary of the Company (but if the
sale, transfer, lease or other disposition is by one of the Principal
Subsidiaries, then only to another of the Principal Subsidiaries), (f) of other
assets in the ordinary course of business or (g) of other assets listed on
Schedule 3 hereto.
"Borrowing Date": any Business Day or Working Day, as applicable,
specified in a notice pursuant to subsection 2.3, 2.5, 2.6, 2.15 or 2.18 as a
date on which the Lenders are to make Loans or an Issuing Lender is to issue a
Letter of Credit pursuant to such notice.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized or required by
law to close.
"Capital Lease": as to any Person, (a) any lease of property, real
or personal, the obligations under which are capitalized on a balance sheet of
such Person and (b) any other such lease to the extent that the then present
value of the minimum rental commitment thereunder should, in accordance with
GAAP, be capitalized on a balance sheet of the lessee.
-6-
12
"Cash Equivalents": (i) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either S&P or Xxxxx'x; (iii) commercial paper maturing no more than one
year from the date of creation thereof and, at the time of acquisition, having
the highest rating obtainable from either S&P or Xxxxx'x; (iv) certificates of
deposit or banker's acceptances maturing within one year from the date of
acquisition thereof issued by (x) any Lender, (y) any commercial bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia having combined capital and surplus of not less than
$250,000,000 or (z) any bank which has a short-term commercial paper rating
meeting the requirements of clause (iii) above (any such Lender or bank, a
"Qualifying Lender"); (v) eurodollar time deposits having a maturity of less
than one year purchased directly from any Lender (whether such deposit is with
such Lender or any other Lender hereunder) or issued by any Qualifying Lender;
and (vi) repurchase agreements and reverse repurchase agreements with a term of
not more than one year with any Qualifying Lender relating to marketable direct
obligations issued or unconditionally guaranteed by the United States.
"CD Rate": with respect to each day during an Interest Period for CD
Rate Loans, the rate per annum equal to the average (rounded upward, if
necessary, to the next higher of 1/100 of 1%) of the respective rates notified
to the Administrative Agent by each of the Reference Lenders as the average
rate per annum bid by New York certificate of deposit dealers of recognized
standing for the purchase at face value from the Reference Lenders of their
certificates of deposit in The City of New York at or about 10:00 A.M., New
York City time, on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of the CD Rate
Loans of such Reference Lender to be outstanding during such Interest Period.
"CD Rate Loans": Revolving Credit Loans or Term Loans at such time
as they are made and/or are being maintained at a rate of interest based upon
the Adjusted CD Rate.
"CD Reserve Requirements": with respect to any day during an
Interest Period for CD Rate Loans, that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the reserve
requirement for a member bank of the Federal Reserve System in The City of New
York with deposits exceeding $1,000,000,000 in respect of new non-personal time
deposits in Dollars in The City of New York having a maturity comparable to
such Interest Period and in an amount of $100,000 or more.
"Chemical": Chemical Bank.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
-7-
13
"Commercial L/C": a commercial letter of credit in a face amount of
not less than $500,000, payable in Dollars, issued by an Issuing Lender in
accordance with subsections 2.4 and 2.5 for the account of the Company for the
purchase of goods in the ordinary course of business, in which the
Participating Lenders participate pursuant to subsection 2.7.
"Commercial L/C Application": as defined in subsection 2.5(a).
"Commitments": the collective reference to the Revolving Credit
Commitments and the Term Loan Commitments.
"Commitment Percentage": as to any Lender, the percentage of the
aggregate Commitments constituted by such Lender's Commitments (or, at any time
after the Commitments shall have expired or terminated, the ratio, expressed as
a percentage, which the aggregate principal amount of such Lender's Loans then
outstanding bears to the aggregate principal amount of all Loans then
outstanding).
"Commitment Transfer Supplement": as defined in subsection 10.8.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the meaning
of Section 4001 of ERISA.
"Company": Panhandle Eastern Corporation, a Delaware corporation,
doing business as PanEnergy Corp.
"Competitive Loan": each loan made pursuant to subsection 2.13.
"Competitive Loan Assignee": as defined in subsection 10.9(a).
"Competitive Loan Assignment": any assignment by a Competitive Loan
Lender to a Competitive Loan Assignee of a Competitive Loan and related
Individual Competitive Loan Note; any such Competitive Loan Assignment to be
registered in the Register must set forth, in respect of the Competitive Loan
Assignee thereunder, the full name of such Competitive Loan Assignee, its
address for notices, its lending office address (in each case with telephone
and facsimile transmission numbers) and payment instructions for all payments
to such Competitive Loan Assignee, and must contain an agreement by such
Competitive Loan Assignee to comply with the provisions of subsections 3.12,
3.16 and 10.9.
"Competitive Loan Borrowing Period": the period from and including
the Effective Date until the date which is seven days prior to the Revolving
Credit Termination Date or, if earlier, the date on which the Revolving Credit
Commitments shall terminate as provided herein.
"Competitive Loan Confirmation": each confirmation by the Company of
its acceptance of Competitive Loan Offers, which Competitive Loan Confirmation
shall be substantially in the form of Exhibit A and shall be delivered to the
Administrative Agent in writing or by facsimile transmission.
-8-
14
"Competitive Loan Lender": each Lender that has agreed to offer to
make Competitive Loans hereunder.
"Competitive Loan Maturity Date": as to any Competitive Loan, the
date specified by the Company pursuant to subsection 2.15(d)(ii) in its
acceptance of the related Competitive Loan Offer.
"Competitive Loan Note": a Grid Competitive Loan Note or an
Individual Competitive Loan Note.
"Competitive Loan Offer": each offer of a Competitive Loan Lender to
make Competitive Loans pursuant to a Competitive Loan Request, which
Competitive Loan Offer shall contain the information specified in Exhibit B and
shall be delivered to the Administrative Agent by telephone, immediately
confirmed by facsimile transmission.
"Competitive Loan Request": each request by the Company for
Competitive Loan Lenders to submit bids to make Competitive Loans, which
request shall contain the information in respect of such requested Competitive
Loans specified in Exhibit C and shall be delivered to the Administrative Agent
in writing or by facsimile transmission, or by telephone, immediately confirmed
by facsimile transmission.
"Consolidated Capitalization": at a particular date, the sum of (a)
Consolidated Net Worth at such date, (b) the amount of Consolidated
Indebtedness at such date and (c) the aggregate amounts payable upon
involuntary liquidation (other than accrued dividends) to holders of shares of
any classes of preferred stock (other than preferred stock subject to mandatory
redemption or repurchase) of the Company and its Subsidiaries at such date.
"Consolidated Indebtedness": at a particular date, all Indebtedness
of the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which
would be included under common stockholders' equity on a consolidated balance
sheet of the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Consolidated Tangible Assets": at a particular date, the total
assets appearing on the consolidated balance sheet of the Company and its
consolidated Subsidiaries most recently delivered to each Lender pursuant to
subsection 5.1, 6.1(a) or 6.1(b), as the case may be, less intangible assets.
As used herein "intangible assets" means the value (net of applicable reserves)
as shown on or reflected in such balance sheet of goodwill, deferred charges,
patents and trademarks.
"Continuing Lenders": as defined in subsection 2.19.
"Contractual Obligations": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking
to which such Person is a party or by which it or any of its property is bound.
-9-
15
"Credit Availability Amount": at any time, (a) the then aggregate
amount of the Revolving Credit Commitments less (b) the then Extensions of
Credit.
"Credit Documents": as defined in subsection 9.1.
"Credit Exposure": as defined in subsection 10.7.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, event or act, has been satisfied.
"Determining Lenders": (a) Lenders whose Commitment Percentages
aggregate at least 40% and (b) after the Commitments have expired or
terminated, Lenders whose outstanding Loans represent in the aggregate at least
40% of all outstanding Loans.
"Dollars" and "$": the lawful currency of the United States of
America.
"Domestic Lending Office": initially, the office of each Lender
designated as such and set forth on Schedule 1, and thereafter, such other
office of such Lender, if any, of which such Lender shall notify the
Administrative Agent and the Company in writing.
"Effective Date": the earliest date (but not later than March 31,
1996) on which all of the conditions precedent to the initial Loans set forth
in Section 4 shall have occurred (or shall have been waived in accordance with
subsection 10.1).
"ERISA": as defined in subsection 5.7.
"Eurocurrency Reserve Requirements": with respect to each day during
an Interest Period for Eurodollar Loans, the aggregate (without duplication) of
the rates (expressed as a decimal) of reserve requirements in effect on such
day (including, without limitations, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction with
respect thereto), dealing with reserve requirements prescribed for eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during an Interest
Period for Eurodollar Loans, the rate per annum equal to the average (rounded
upward, if necessary, to the next higher 1/16 of 1%) of the respective rates
notified to the Administrative Agent by each of the Reference Lenders as the
rate at which its Eurodollar Lending Office is offered Dollar deposits two
Working Days prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and exchange
operations of such Eurodollar Lending Office are customarily conducted at or
about 10:00 A.M., New York City time, for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Loans of such Reference Lender to be
outstanding during such Interest Period.
-10-
16
"Eurodollar Lending Office": initially, the office of each Lender
designated as such and set forth on Schedule 1, and thereafter, such other
office of such Lender, if any, of which such Lender shall notify the
Administrative Agent and the Company in writing.
"Eurodollar Loans": Revolving Credit Loans or Term Loans at such
time as they are made and/or are being maintained at a rate of interest based
upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during an Interest
Period for Eurodollar Loans, a rate per annum determined for such day in
accordance with the following formula (rounded upward, if necessary, to the
next higher 1/16 of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 8;
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, event or act, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Existing Facilities": (a) the Credit Agreement, dated as of
December 1, 1994, among the Company, the financial institutions parties thereto
and Chemical Bank, as administrative agent, (b) the Credit Agreement, dated as
of December 1, 1994, among TETCO, the financial institutions parties thereto
and Chemical Bank, as administrative agent, and (c) the Credit Agreement, dated
as of December 1, 1994, among PEPL, the financial institutions parties thereto
and Chemical Bank, as administrative agent.
"Extension Effective Date": as defined in subsection 2.19(a).
"Extension Request": as defined in subsection 2.19(a).
"Extensions of Credit": at any particular time, the sum of (a) the
aggregate principal amount of Loans then outstanding and (b) the aggregate
Letter of Credit Obligations (excluding interest, fees and indemnities thereon)
then outstanding.
"Facility Fee": as defined in subsection 3.2(a).
"Fixed Rate Competitive Loan Request": any Competitive Loan Request
requesting the Competitive Loan Lenders to offer to make Fixed Rate Competitive
Loans.
"Fixed Rate Competitive Loans": Competitive Loans the rate of
interest applicable to which is equal to a fixed percentage rate per annum
specified by the Competitive Loan Lender making such Loan in its Competitive
Loan Offer (as opposed to a rate composed of the Applicable Index Rate plus or
minus a margin).
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time.
-11-
17
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Grid Competitive Loan Notes": as defined in subsection 2.14(a).
"Indebtedness": of a Person, at a particular date, the sum (without
duplication) at such date of (a) indebtedness for borrowed money or for the
deferred purchase price of property or services in respect of which such Person
is liable as obligor or arising under any conditional sales contract or other
title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (b) obligations of such Person under Capital Leases, (c) the face
amount available or to be available to be drawn under all letters of credit
issued for the account of such Person (excluding any amount relating to
Indebtedness included in the definition of Indebtedness under another clause of
this definition) and, without duplication, the unreimbursed amount of all
drafts drawn thereunder, (d) any obligations (in the nature of principal or
interest) of such Person in respect of acceptances or similar obligations
issued or created for the account of such Person, (e) Indebtedness referred to
in clause (a), (b), (c) or (d) above or (f) or (g) below secured by any Lien on
any property or asset owned or held by such Person regardless of whether the
Indebtedness secured thereby shall have been assumed by or is a primary
liability of such Person (but in any event not exceeding the fair market value
of such property or asset), (f) all direct guarantees by such Person of
Indebtedness referred to in clause (a), (b), (c), (d) or (e) above of another
Person and (g) all amounts payable in connection with mandatory redemptions or
repurchases of preferred stock of such Person.
"Index Debt": as defined in the definition of "Applicable Facility
Fee Percentage".
"Index Rate Competitive Loans": Competitive Loans bearing interest
at a rate equal to the Applicable Index Rate plus or minus a margin bid.
"Index Rate Competitive Loan Request": any Competitive Loan Request
requesting the Competitive Loan Lenders to offer to make Index Rate Competitive
Loans.
"Individual Competitive Loan Notes": as defined in subsection
2.14(b).
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such ABR Loan is
outstanding, commencing on March 31, 1996, and each date principal is due with
respect to such ABR Loan; (b) as to any Eurodollar Loan in respect of which the
Company has selected an Interest Period of one, two or three months and any CD
Rate Loan in respect of which the Company has selected an Interest Period of
30, 60 or 90 days, the last day of such Interest Period; (c) as to any
Eurodollar Loan and any CD Rate Loan in respect of which the Company has
selected a longer Interest Period than the periods described in clause (b), the
last day of each March, June, September and December falling within such
Interest Period and the last day of such Interest Period; (d) as to any Fixed
Rate Competitive Loan, each interest payment date specified by the Company for
such Loan in the related Competitive Loan Request (including,
-12-
18
in any event, the Competitive Loan Maturity Date in respect of such Loan); and
(e) as to any Index Rate Competitive Loan, (i) the Competitive Loan Maturity
Date in respect of such Loan and (ii) each date (if any) occurring prior to
such Competitive Loan Maturity Date which is three months, or a whole multiple
thereof, after the Borrowing Date in respect of such Loan.
"Interest Period": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and ending
one, two, three or six months (or nine months, to the extent funds are
available for such nine-month period) thereafter, as selected by the
Company in its notice of borrowing as provided in subsection 2.3, or its
notice of conversion as provided in subsection 3.10, as the case may be;
and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six months (or nine months, to the extent funds are
available for such nine-month period) thereafter, as selected by the
Company by irrevocable notice to the Administrative Agent not less than
three Working Days prior to the last day of the then current Interest
Period with respect to such Eurodollar Loan; and
(b) with respect to any CD Rate Loan:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such CD Rate Loan and ending 30,
60, 90, 120 or 180 days (or 360 days, to the extent funds are available
for such 360-day period) thereafter, as selected by the Company in its
notice of borrowing as provided in subsection 2.3, or its notice of
conversion as provided in subsection 3.10, as the case may be; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such CD Rate Loan and ending 30,
60, 90, 120 or 180 days (or 360 days, to the extent funds are available
for such 360-day period) thereafter, as selected by the Company by
irrevocable notice to the Administrative Agent not less than two Business
Days prior to the last day of the then current Interest Period with
respect to such CD Rate Loan.
All of the foregoing provisions relating to Interest Periods are
subject to the following:
(A) if any Interest Period for Eurodollar Loans would otherwise end
on a day which is not a Working Day, that Interest Period shall be extended to
the next succeeding Working Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Working Day;
-13-
19
(B) if any Interest Period for CD Rate Loans would otherwise end on
a day which is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day;
(C) the Company shall have no right to elect an Interest Period with
respect to Revolving Credit Loans which would extend beyond the Revolving
Credit Termination Date or an Interest Period with respect to Term Loans which
would extend beyond the Term Loan Maturity Date;
(D) if the Company shall fail to give notice as provided above, the
Company shall be deemed to have selected an ABR Loan to replace the affected
Eurodollar Loans or CD Rate Loans;
(E) any Interest Period for Eurodollar Loans that begins on the last
Working Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Working Day of a calendar month;
(F) the Company shall select Interest Periods so that there shall be
no more than eight Tranches with respect to the Revolving Credit Loans or Term
Loans in existence at any one time; and
(G) for purposes of determining the availability of a nine-month
Interest Period for Eurodollar Loans, or a 360-day Interest Period for CD Rate
Loans, such Interest Period shall be deemed available if (a) each of the
Reference Banks quotes a rate to the Administrative Agent as provided in the
definition of "Eurodollar Base Rate" or "CD Rate", as the case may be, and (b)
the Determining Lenders shall not have advised the Administrative Agent that
the Eurodollar Rate or the Adjusted CD Rate, as the case may be, determined by
the Administrative Agent on the basis of such quotes will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding their
Eurodollar Loans or CD Rate Loans, as the case may be, for such Interest
Period.
"Issuing Lender": with respect to Letters of Credit, Chemical or
such other Lenders as the Company may from time to time designate as an Issuing
Lender (and which shall accept such designation) and notify the Administrative
Agent of such designation, each in its capacity as issuer of such Letters of
Credit.
"L/C Participating Interest": with respect to any Letter of Credit,
(a) in the case of the Issuing Lender, its interest in such Letter of Credit
and the Letter of Credit Application relating thereto after giving effect to
the granting of any participating interests therein pursuant to subsection 2.7
and (b) in the case of each Participating Lender, its undivided participating
interest in such Letter of Credit and the Letter of Credit Application relating
thereto.
"Lenders": as defined in the preamble to this Agreement, which term
includes Lenders originally executing this Agreement and, thereafter, from the
date upon which the conditions referred to in subsection 10.8 are satisfied,
the Purchasing Lenders.
-14-
20
"Letter of Credit Applications": the collective reference to
Commercial L/C Applications and Standby L/C Applications.
"Letter of Credit Obligations": at any particular time, all
liabilities of the Company with respect to Letters of Credit, whether or not
any such liability is contingent, including without duplication, the sum of (a)
the then outstanding Reimbursement Obligations plus (b) the then aggregate
undrawn face amount of the Letters of Credit.
"Letter of Credit Participation Certificate": a certificate in
substantially the form of Exhibit D.
"Letters of Credit": the collective reference to Commercial L/Cs and
Standby L/Cs.
"Lien": any mortgage, pledge, hypothecation, security interest,
encumbrance, charge or lien (statutory or otherwise) (including, without
limitation, any conditional sale or other title retention agreement and any
Capital Lease having substantially the same economic effect as any of the
foregoing) or the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction in respect of any of the
foregoing.
"Loan": any Revolving Credit Loan, Term Loan or Competitive Loan
made pursuant to this Agreement.
"Xxxxx'x": Xxxxx'x Investors Service, Inc.
"Note": any Revolving Credit Note, Term Note or Competitive Loan
Note.
"Obligations": the unpaid principal amount of, and interest on, the
Notes and all other obligations and liabilities of the Company to the
Administrative Agent and the Lenders (including, without limitation,
Reimbursement Obligations), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with this Agreement, whether on account of
principal, interest, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to the Administrative Agent)
or otherwise.
"Participants": as defined in subsection 10.7.
"Participating Lender": each Lender (other than the Issuing Lender),
with respect to its L/C Participating Interest in each Letter of Credit.
"PENGC": PanEnergy Natural Gas Corporation, a Delaware corporation.
"PEPL": Panhandle Eastern Pipe Line Company, a Delaware corporation.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
-15-
21
"PES": PanEnergy Services, Inc., a Delaware corporation.
"Principal Subsidiaries": TETCO, PEPL, AGTCO, PENGC and PES.
"Purchasing Lender": as defined in subsection 10.8.
"Reference Lenders": Chemical, Xxxxxx Guaranty Trust Company of New
York and NationsBank of Texas, N.A.
"Refunding Extension of Credit": Loans or issuances of Letters of
Credit hereunder which, after application of the proceeds thereof, result in no
net increase in the aggregate outstanding Extensions of Credit with respect to
any Lender.
"Register": as defined in subsection 10.10(a).
"Reimbursement Obligation": the obligation of the Company to
reimburse an Issuing Lender in accordance with the terms of this Agreement and
the related Letter of Credit Application for any payment made by an Issuing
Lender under any Letter of Credit.
"Required Lenders": (a) Lenders whose Commitment Percentages
aggregate at least 50.1% and (b) after the Commitments have expired or
terminated, Lenders whose outstanding Loans represent in the aggregate at least
50.1% of all outstanding Loans.
"Requirements of Law": as to any Person, the articles or certificate
of incorporation and bylaws (or other organizational or governing documents) of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.
"Responsible Officer": as to any Person, the chief executive
officer, president or any vice-president of such Person or, with respect to
financial matters, the chief financial officer, treasurer or controller or any
assistant treasurer, of such Person or any other officer authorized by such
Person to deliver documents with respect to financial matters pursuant to this
Agreement. Unless otherwise qualified, all references to a "Responsible
Officer" in this Agreement shall refer to a Responsible Officer of the Company.
"Revolving Credit Commitments": as defined in subsection 2.1(a).
"Revolving Credit Loans": as defined in subsection 2.1(a).
"Revolving Credit Notes": as defined in subsection 2.2.
"Revolving Credit Termination Date": the date 364 days after the
Effective Date (or the extension of such date pursuant to subsection 2.19).
"S&P": Standard & Poor's Ratings Group.
-16-
22
"SEC Reports": the Company's (a) Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 and (b) Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1995, June 30, 1995 and September 30, 1995.
"Significant Subsidiary": any Subsidiary of the Company that, in
terms of total assets or the investment therein, would be a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X under the Securities Act
of 1933 and the Exchange Act.
"Standby L/C": an irrevocable letter of credit in a face amount of
not less than $500,000, payable in Dollars, issued in accordance with
subsections 2.4 and 2.6 by an Issuing Lender in Dollars for the account of the
Company in respect of obligations of the Company and its Subsidiaries incurred
pursuant to contracts made or performances undertaken or to be undertaken or
like matters relating to contracts to which the Company or any Subsidiary
thereof is or proposes to become a party in the ordinary course of the
Company's or such Subsidiary's, as the case may be, business, including,
without limiting the foregoing, for insurance purposes.
"Standby L/C Application": as defined in subsection 2.6(a).
"Subsidiary": a corporation of which shares of stock having ordinary
voting power (other than stock having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation are at the time owned, or the management of
which is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by the Company.
"Term Loan Commitments": as defined in subsection 2.16(a).
"Term Loan Maturity Date": as defined in subsection 2.17.
"Term Loans": as defined in subsection 2.16(a).
"Term Notes": as defined in subsection 2.17.
"Terminating Lender": as defined in subsection 2.19(b).
"TETCO": Texas Eastern Transmission Corporation, a Delaware
corporation.
"Tranche": Eurodollar Loans or CD Rate Loans, in either case whose
Interest Periods each begin on the same day and end on the same day.
"Transferee": as defined in subsection 10.10(e).
"Type": (a) as to any Revolving Credit Loan or Term Loan, its nature
as an ABR Loan, a Eurodollar Loan or a CD Rate Loan and (b) as to any
Competitive Loan, its nature as a Fixed Rate Competitive Loan or an Index Rate
Competitive Loan .
-17-
23
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Version), International Chamber of Commerce Publication No. 500
and any amendments or revisions thereof.
"Wholly-Owned Subsidiary": a corporation of which all of the shares
of stock having ordinary voting power (other than stock having such power only
by reason of the happening of a contingency) to elect a majority of the Board
of Directors or other managers of such corporation are at the time owned,
directly or indirectly through one or more intermediaries, or both, by the
Company.
"Working Day": any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London, England and
in The City of New York.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
herein, all terms defined in this Agreement or any other Credit Document shall
have the defined meanings when used in any certificate or other document made
or delivered pursuant hereto.
(b) As used herein or in any certificate or document made or
delivered pursuant hereto, accounting terms relating to the Company and its
Subsidiaries not defined in subsection 1.1 and accounting terms partly defined
in subsection 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement, or any other certificate or
document made or delivered pursuant hereto shall refer to this Agreement or
such other certificate or document, as the case may be, as a whole and not to
any particular provision thereof, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNTS AND TERMS OF LOANS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally, and not jointly, agrees to make
revolving credit loans (collectively, the "Revolving Credit Loans") to the
Company from time to time during the period from the Effective Date to, but not
including, the Revolving Credit Termination Date in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth under the
heading "Revolving Credit Commitment" opposite the name of such Lender on
Schedule 2 hereto, as such amount may be reduced or increased from time to time
pursuant to subsection 2.19 or 3.6 hereof (collectively, the "Revolving Credit
Commitments"). The Company may use the Revolving Credit Commitments by
requesting the Lenders to make Revolving Credit Loans, prepaying Revolving
Credit Loans in whole or in part and reborrowing, all in accordance with the
terms and conditions hereof; provided that the Revolving Credit Loans made as
part of any one borrowing shall not exceed the Credit
-18-
24
Availability Amount on the Borrowing Date, after giving effect to the use and
application of the proceeds thereof.
(b) Subject to the terms and conditions hereof, the Revolving Credit
Loans may be (i) ABR Loans, (ii) Eurodollar Loans, (iii) CD Rate Loans or (iv)
any combination thereof, as determined by the Company and notified to the
Administrative Agent in accordance with subsection 2.3.
2.2 Revolving Credit Notes. The Revolving Credit Loans made by each
Lender pursuant hereto shall be evidenced by a promissory note of the Company,
substantially in the form of Exhibit E (collectively, the "Revolving Credit
Notes"), with appropriate insertions therein as to principal amount, payable to
the order of such Lender and representing the obligation of the Company to pay
a principal amount equal to the lesser of (a) such Lender's Revolving Credit
Commitment and (b) the aggregate unpaid principal amount of all Revolving
Credit Loans made by such Lender, with interest thereon as prescribed in
subsection 3.1. Each Lender is hereby authorized to record the date, Type and
amount of each Revolving Credit Loan made by such Lender and the date and
amount of each payment or prepayment of principal thereof and, with respect to
Eurodollar Loans and CD Rate Loans, the length of the Interest Period and the
Eurodollar Rate or CD Rate applicable thereto, on the schedule annexed to and
constituting a part of its Revolving Credit Note, and any such recordation
shall constitute prima facie evidence of the accuracy of the information so
recorded in the absence of manifest error; provided that failure by any Lender
to make any such recordation on such Revolving Credit Note shall not affect any
of the obligations of the Company under such Revolving Credit Note or this
Agreement. The Revolving Credit Note of each Lender shall (i) be dated the
Effective Date, (ii) bear interest, payable as specified in subsection 3.1, for
the period from the date thereof on the unpaid principal amount thereof from
time to time outstanding at the interest rate per annum specified in subsection
3.1 until paid in full and (iii) be stated to mature on the Revolving Credit
Termination Date.
2.3 Procedure for Revolving Credit Borrowings. The Company may
borrow pursuant to subsection 2.1 hereof on any Working Day if the borrowing
(or any portion thereof) consists of Eurodollar Loans or on any Business Day if
the borrowing consists entirely of ABR Loans and/or CD Rate Loans by the
Company giving the Administrative Agent irrevocable written notice (or
telephonic notice promptly confirmed in writing) prior to 11:45 A.M., New York
City time, on, in the case of ABR Loans, two Business Days prior to, in the
case of CD Rate Loans, and three Working Days prior to, in the case of
Eurodollar Loans, the proposed Borrowing Date specifying (a) the amount to be
borrowed, (b) the requested Borrowing Date, (c) whether the borrowing is to be
a Eurodollar Loan, a CD Rate Loan, an ABR Loan, or a combination thereof and
(d) if the borrowing is to be entirely or partly a Eurodollar Loan or a CD Rate
Loan, the length of the Interest Period(s) thereof. Each borrowing shall be in
an aggregate principal amount of the lesser of (i) $10,000,000 or a whole
multiple of $5,000,000 in excess thereof and (ii) the then Credit Availability
Amount. Upon receipt of such notice from the Company, the Administrative Agent
shall promptly notify each Lender thereof. Not later than 1:00 P.M., New York
City time, on the Borrowing Date specified in such notice, each Lender shall
make available to the Administrative Agent at the Administrative Agent's Office
for the account of the Company an amount in immediately available funds equal
to the amount of the Revolving Credit Loan to
-19-
25
be made by such Lender. The proceeds of such Revolving Credit Loans will then
be made available to the Company by the Administrative Agent at the
Administrative Agent's Office by crediting the account of the Company on the
books of the Administrative Agent's Office with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
2.4 Letters of Credit. Subject to the terms and conditions hereof,
the Issuing Lenders agree to issue, and each Participating Lender agrees to
purchase an L/C Participating Interest in, Letters of Credit in the form of
Commercial L/Cs or Standby L/Cs from time to time during the period from the
Effective Date to, but not including, the Revolving Credit Termination Date;
provided that (i) the aggregate face amount of the Letters of Credit issued on
any Borrowing Date shall not exceed the Credit Availability Amount on such
Borrowing Date and (ii) on the date of the issuance of any Letter of Credit,
and after giving effect to the issuance of such Letter of Credit, the aggregate
Letter of Credit Obligations outstanding at such time shall not exceed 50% of
the aggregate Revolving Credit Commitments at such time.
2.5 Issuance of Commercial L/Cs. (a) The Company may request an
Issuing Lender to issue a Commercial L/C in favor of sellers of goods to the
Company or any of its Subsidiaries on any Business Day during the period from
the Effective Date to, but not including, the Revolving Credit Termination Date
by delivering to the Issuing Lender, through the Administrative Agent at its
address specified in subsection 10.2, a commercial letter of credit application
and security agreement in such Issuing Lender's then customary form (as such
form may be agreed to be modified, the "Commercial L/C Application"), completed
to the satisfaction of such Issuing Lender, and such other certificates,
documents and other papers and information as such Issuing Lender may
reasonably request. The Company hereby agrees to observe and perform its
covenants, duties and obligations under each Commercial L/C Application.
(b) Each Commercial L/C issued hereunder shall, among other things,
(i) provide for the payment of sight drafts when presented for honor
thereunder, in accordance with the terms thereof and when accompanied by the
documents described therein or when such documents are presented, as the case
may be, (ii) have an expiry date occurring not later than 180 days after the
date of issuance of such Commercial L/C and in no event occurring later than
the Revolving Credit Termination Date and (iii) have a minimum face amount of
$500,000. Each Commercial L/C Application and each Commercial L/C shall be
subject to the Uniform Customs and, to the extent not inconsistent therewith,
the laws of the State of New York.
2.6 Issuance of Standby L/Cs. (a) The Company may request an
Issuing Lender to issue a Standby L/C on any Business Day during the period
from the Effective Date to, but not including, the Revolving Credit Termination
Date by delivering to such Issuing Lender, through the Administrative Agent at
its address specified in subsection 10.2, a standby letter of credit
application in such Issuing Lender's then customary form (as such form may be
agreed to be modified, the "Standby L/C Application"), completed to the
satisfaction of such Issuing Lender together with the proposed form of such
letter of credit (which shall comply with the applicable requirements of
paragraph (b) below) and such other certificates, documents and other papers
and information as such Issuing Lender may reasonably request.
-20-
26
The Company hereby agrees to observe and perform its covenants, duties and
obligations under each Standby L/C Application.
(b) Each Standby L/C issued hereunder shall, among other things, (i)
be in such form requested by the Company as shall be acceptable to the relevant
Issuing Lender in its sole discretion, (ii) have an expiry date occurring not
later than the Revolving Credit Termination Date and (iii) have a minimum face
amount of $500,000. Each Standby L/C Application and each Standby L/C shall be
subject to the Uniform Customs and, to the extent not inconsistent therewith,
the laws of the State of New York.
2.7 Participating Interests. Effective in the case of each Letter
of Credit as of the date of the issuance thereof, each Issuing Lender agrees to
allot and does allot, to itself and each Participating Lender, and each
Participating Lender severally and irrevocably agrees to take and does take, an
L/C Participating Interest in such Letter of Credit and the related Letter of
Credit Application in a percentage equal to such Participating Lender's
Commitment Percentage. Each Participating Lender hereby agrees that its
obligation to participate in each Letter of Credit issued by such Issuing
Lender hereunder and the drafts drawn thereunder shall be irrevocable and
unconditional.
2.8 Procedure for Opening Letters of Credit. Upon receipt of any
Letter of Credit Application from the Company, the relevant Issuing Lender will
promptly notify each Lender thereof through the Administrative Agent, but in no
event shall such notice to each Lender be given later than the date three
Business Days following receipt of such Letter of Credit Application or the
date such Issuing Lender issues the Letter of Credit, whichever is earlier.
Subject to the terms and conditions hereof, upon such receipt, such Issuing
Lender will process such Letter of Credit Application, and the other
certificates, documents and other papers delivered to such Issuing Lender in
connection therewith, in accordance with its customary procedures and, subject
to fulfillment of the applicable conditions specified in subsection 4.3, shall
promptly open such Letter of Credit (but in no event shall such Issuing Lender
be required to open any Letter of Credit earlier than three Business Days after
receipt by such Issuing Lender of the Letter of Credit Application relating
thereto) by issuing the original of such Letter of Credit to the beneficiary
thereof and by furnishing a copy thereof to the Company and to the other
Lenders.
2.9 Payments. (a) In the event of any request for drawing under
any Letter of Credit by the beneficiary thereof, the relevant Issuing Lender
shall immediately notify the Company and the Administrative Agent, and the
Company shall reimburse such Issuing Lender on the day on which such drawing is
honored in an amount in same day funds equal to the amount of such drawing, and
otherwise in accordance with the terms of the Letter of Credit Application
relating thereto; provided that anything contained in this Agreement to the
contrary notwithstanding, (i) unless the Company shall have notified the
Administrative Agent and such Issuing Lender prior to 11:00 A.M., New York City
time, on the date of such drawing that the Company intends to reimburse such
Issuing Lender for the amount of such drawing with funds other than the
proceeds of Revolving Credit Loans, the Company shall be deemed to have given
notice pursuant to subsection 2.3 to the Administrative Agent requesting the
Lenders to make Revolving Credit Loans on the date on which such drawing is
honored in an amount equal to the amount of such drawing, and (ii) subject to
satisfaction or
-21-
27
waiver of the applicable conditions specified in subsections 4.1 and 4.3, the
Lenders shall, on the date of such drawing, make Revolving Credit Loans that
are ABR Loans in the amount of such drawing, the proceeds of which shall be
applied directly by the Administrative Agent to reimburse such Issuing Lender
for the amount of such drawing, and provided further that if for any reason the
Company does not cause the proceeds of Revolving Credit Loans to be received by
such Issuing Lender on such date in an amount equal to the amount of such
drawing, the Company shall reimburse such Issuing Lender, on the Business Day
immediately following the date of such drawing, in an amount in same day funds
equal to the excess of the amount of such drawing over the amount of such
Revolving Credit Loans, if any, which are so received, plus accrued interest on
such amount at the rate per annum equal to 2% above the Alternate Base Rate.
(b) If the Company shall fail to reimburse an Issuing Lender as
provided in subsection 2.9(a) in an amount equal to the amount of any drawing
honored by such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall promptly notify each Participating Lender through the
Administrative Agent of the unreimbursed amount of such drawing and of such
Participating Lender's respective participation therein based on such
Participating Lender's Commitment Percentage. Forthwith upon its receipt of
any such notice, each Participating Lender will transfer to such Issuing Lender
in immediately available funds an amount equal to such Participating Lender's
Commitment Percentage of the unreimbursed portion of such payment. Upon its
receipt from such Participating Lender of such amount, such Issuing Lender will
complete, execute and deliver to such Participating Lender a Letter of Credit
Participation Certificate dated the date of such receipt and in such amount.
If any Participating Lender fails to make available to such Issuing Lender the
amount of such Participating Lender's Commitment Percentage of such drawing as
provided in this subsection 2.9(b), such Issuing Lender shall be entitled to
recover such amount on demand from such Participating Lender together with
interest at the rate per annum equal to 1/2 of 1% above the then applicable
Federal funds rate for three Business Days and thereafter at the rate per annum
equal to 2% above the Alternate Base Rate.
(c) Whenever, at any time after an Issuing Lender has made a payment
under any Letter of Credit and has received from any Participating Lender such
Participating Lender's Commitment Percentage of the unreimbursed portion of
such payment, such Issuing Lender receives any reimbursement on account of such
unreimbursed portion or any payment of interest on account thereof, such
Issuing Lender will transfer such amount to the Administrative Agent in
immediately available funds, and the Administrative Agent will promptly and in
no event later than one Business Day after it receives such payment, distribute
to each Participating Lender its Commitment Percentage thereof in like funds as
received by the Administrative Agent; provided that in the event that the
receipt by an Issuing Lender of such reimbursement or such payment of interest
(as the case may be) is required to be returned, such Participating Lender will
return to such Issuing Lender any portion thereof previously distributed by
such Issuing Lender to it, and provided further that any payment by the Company
on account of such unreimbursed portion or interest thereon to such Issuing
Lender shall be deemed to satisfy the Company's obligations to such Issuing
Lender and any Participating Lenders with respect to such payment upon receipt
thereof by such Issuing Lender.
-22-
28
2.10 Further Assurances. The Company hereby agrees, from time to
time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by an Issuing Lender more fully to effect the
purposes of this Agreement and the issuance of the Letters of Credit opened
hereunder.
2.11 Obligations Absolute. The payment obligations of the Company
under subsection 2.9 shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(a) the existence of any claim, set-off, defense or other right
which the Company may have at any time against any beneficiary, or any
transferee, of any Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Issuing Lender or any
Participating Lender, or any other Person, whether in connection with this
Agreement, the transactions contemplated herein, or any unrelated transaction;
provided, however, that nothing herein shall prevent the assertion of any such
right by separate suit or compulsory counterclaim;
(b) any statement or any other document presented under any Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(c) payment by any Issuing Lender under any Letter of Credit against
presentation of a draft or certificate which does not comply with the terms of
such Letter of Credit, except payment resulting from the gross negligence or
willful misconduct of such Issuing Lender; or
(d) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing, except circumstances or happenings resulting
from the gross negligence or willful misconduct of such Issuing Lender.
2.12 Letter of Credit Application. The provisions of any Letter of
Credit Application related to any Letter of Credit are supplemental to, and not
in derogation of, any rights and remedies of each Issuing Lender and the
Participating Lenders under this Section 2 and applicable law. The Company
acknowledges and agrees that all rights of each Issuing Lender under any Letter
of Credit Application and this Agreement (other than those pursuant to
subsections 3.3(b) and (c)) shall inure to the benefit of each Participating
Lender to the extent of its Commitment Percentage as fully as if such
Participating Lender was a party to such Letter of Credit Application.
2.13 Competitive Loans. Subject to the terms and conditions of this
Agreement, the Company may borrow Competitive Loans from time to time during
the Competitive Loan Borrowing Period on any Business Day (in the case of Fixed
Rate Competitive Loans) or Working Day (in the case of Index Rate Competitive
Loans), provided that in no event may Competitive Loans exceed the Credit
Availability Amount on the Borrowing Date, after giving effect to the use and
application of the proceeds thereof. Within the limits and on the conditions
hereinafter set forth with respect to Competitive Loans, the Company from time
to time may borrow, repay and reborrow Competitive Loans.
-23-
29
2.14 Competitive Loan Notes. (a) The Competitive Loans made by each
Competitive Loan Lender pursuant hereto shall be evidenced by a promissory note
of the Company, substantially in the form of Exhibit F-1 (collectively, the
"Grid Competitive Loan Notes"), with appropriate insertions therein as to
principal amount, payable to the order of such Lender and representing the
obligation of the Company to pay a principal amount equal to the lesser of (i)
the aggregate Revolving Credit Commitments and (ii) the aggregate unpaid
principal amount of all Competitive Loans made by such Competitive Loan Lender,
with interest thereon as prescribed in subsection 3.1. Each Competitive Loan
Lender is hereby authorized to record the date, amount, interest rate, Interest
Payment Dates and Competitive Loan Maturity Date of each Competitive Loan made
by such Competitive Loan Lender and each payment of principal with respect
thereto on the schedule annexed to and constituting a part of its Grid
Competitive Loan Note, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded; provided that failure
by any Lender to make any such recordation on such Grid Competitive Loan Note
shall not affect any of the obligations of the Company under such Grid
Competitive Loan Note or this Agreement. Each Grid Competitive Loan Note shall
be dated the Effective Date and each Competitive Loan evidenced thereby shall
bear interest, payable as specified in subsection 3.1, for the period from the
date thereof on the unpaid principal amount thereof from time to time
outstanding at the interest rate per annum specified in subsection 3.1 until
paid in full.
(b) Amounts advanced by a Competitive Loan Lender pursuant to
subsection 2.13 on a Borrowing Date which have the same maturity date and
interest rate shall be deemed to constitute one Competitive Loan so long as
such amounts remain evidenced by the Grid Competitive Loan Note of such
Competitive Loan Lender; any such Competitive Loan Lender that wishes such
amounts to constitute more than one Competitive Loan and to have each such
Competitive Loan evidenced by a separate promissory note payable to such
Competitive Loan Lender, substantially in the form of Exhibit F-2 with
appropriate insertions as to Borrowing Date, principal amount and interest rate
(an "Individual Competitive Loan Note"), shall notify the Administrative Agent
and the Company by facsimile transmission of the respective principal amounts
of the Competitive Loans (which principal amounts shall not be less than
$5,000,000 for any of such Competitive Loans) to be evidenced by each such
Individual Competitive Loan Note. Not later than three Business Days after
receipt of such notice, the Company shall deliver to such Competitive Loan
Lender an Individual Competitive Loan Note payable to the order of such
Competitive Loan Lender in the principal amount of each such Competitive Loan
and otherwise conforming to the requirements of this Agreement. Upon receipt
of such Individual Competitive Loan Note, such Competitive Loan Lender shall
endorse on the schedule attached to its Grid Competitive Loan Note the transfer
of such Competitive Loan from such Grid Competitive Loan Note to such
Individual Competitive Loan Note.
2.15 Procedure for Competitive Loan Borrowing. (a) The Company
shall request Competitive Loans by delivering a Competitive Loan Request to the
Administrative Agent, not later than 12:00 Noon (New York City time) four
Working Days prior to the proposed Borrowing Date (in the case of an Index Rate
Competitive Loan Request), and not later than 10:00 A.M., New York City time,
one Business Day prior to the proposed Borrowing Date (in the case of a Fixed
Rate Competitive Loan Request). Each Competitive Loan Request in respect of
any Borrowing Date may solicit bids for Competitive Loans in an aggregate
-24-
30
principal amount of $10,000,000 or an integral multiple of $5,000,000 in excess
thereof and having not more than three alternative Competitive Loan Maturity
Dates. The Competitive Loan Maturity Date for each Fixed Rate Competitive Loan
shall be not less than seven days nor more than 360 days after the Borrowing
Date therefor and the Competitive Loan Maturity Date for each Index Rate
Competitive Loan shall be one, two, three, six or nine months after the
Borrowing Date therefor, and in any event shall be no later than the Revolving
Credit Termination Date. The Administrative Agent shall notify each
Competitive Loan Lender promptly by facsimile transmission of the contents of
such Competitive Loan Request received by the Administrative Agent.
(b) In the case of an Index Rate Competitive Loan Request, upon
receipt of notice from the Administrative Agent of the contents of such
Competitive Loan Request, each Competitive Loan Lender may elect, in its sole
discretion, to offer irrevocably, subject to Section 4, to make one or more
Competitive Loans at the Applicable Index Rate plus or minus a margin
determined by such Competitive Loan Lender in its sole discretion for each such
Competitive Loan. Any such irrevocable offer shall be made by delivering a
Competitive Loan Offer to the Administrative Agent, before 10:30 A.M., New York
City time, on the day that is three Working Days before the proposed Borrowing
Date, setting forth:
(i) the maximum amount of Competitive Loans for each Competitive
Loan Maturity Date and the aggregate maximum amount of Competitive Loans
for all Competitive Loan Maturity Dates which such Competitive Loan Lender
would be willing to make (which amounts may, subject to subsection 2.13,
exceed such Competitive Loan Lender's Revolving Credit Commitment); and
(ii) the margin above or below the Applicable Index Rate at which
such Competitive Loan Lender is willing to make each such Competitive
Loan.
The Administrative Agent shall advise the Company before 11:00 A.M., New York
City time, on the date which is three Working Days before the proposed
Borrowing Date of the contents of each such Competitive Loan Offer received by
it. If the Administrative Agent, in its capacity as a Competitive Loan Lender,
shall elect, in its sole discretion, to make any such Competitive Loan Offer,
it shall advise the Company of the contents of its Competitive Loan Offer
before 10:15 A.M., New York City time, on the date which is three Working Days
before the proposed Borrowing Date.
(c) In the case of a Fixed Rate Competitive Loan Request, upon
receipt of notice from the Administrative Agent of the contents of such
Competitive Loan Request, each Competitive Loan Lender may elect, in its sole
discretion, to offer irrevocably, subject to Section 4, to make one or more
Competitive Loans at a rate of interest determined by such Competitive Loan
Lender in its sole discretion for each such Competitive Loan. Any such
irrevocable offer shall be made by delivering a Competitive Loan Offer to the
Administrative Agent before 9:30 A.M., New York City time, on the proposed
Borrowing Date, setting forth:
(i) the maximum amount of Competitive Loans for each Competitive
Loan Maturity Date and the aggregate maximum amount of Competitive Loans
for all
-25-
31
Competitive Loan Maturity Dates, which such Competitive Loan Lender would
be willing to make (which amounts may, subject to subsection 2.13, exceed
such Competitive Loan Lender's Revolving Credit Commitment); and
(ii) the rate of interest at which such Competitive Loan Lender is
willing to make each such Competitive Loan.
The Administrative Agent shall advise the Company before 10:00 A.M., New York
City time, on the proposed Borrowing Date of the contents of each such
Competitive Loan Offer received by it. If the Administrative Agent, in its
capacity as a Competitive Loan Lender, shall elect, in its sole discretion, to
make any such Competitive Loan Offer it shall advise the Company of the
contents of its Competitive Loan Offer before 9:15 A.M., New York City time, on
the proposed Borrowing Date.
(d) Before 11:30 A.M., New York City time, three Working Days before
the proposed Borrowing Date (in the case of Index Rate Competitive Loans) and
before 10:30 A.M., New York City time, on the proposed Borrowing Date (in the
case of Fixed Rate Competitive Loans), the Company, in its absolute discretion,
shall:
(i) cancel such Competitive Loan Request by giving the
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a
Competitive Loan Confirmation in writing) (1) subject to the provisions of
subsection 2.15(e), accept one or more of the offers made by any
Competitive Loan Lender or Competitive Loan Lenders pursuant to subsection
2.15(b) or subsection 2.15(c), as the case may be, of the amount of
Competitive Loans for each relevant maturity date and (2) reject any
remaining offers made by Competitive Loan Lenders pursuant to subsection
2.15(b) or subsection 2.15(c), as the case may be.
(e) The Company's acceptance of Competitive Loans in response to any
Competitive Loan Request shall be subject to the following limitations:
(i) The amount of Competitive Loans accepted for each Competitive
Loan Maturity Date specified by any Competitive Loan Lender in its
Competitive Loan Offer shall not exceed the maximum amount for such
Competitive Loan Maturity Date specified in such Competitive Loan Offer;
(ii) the aggregate amount of Competitive Loans accepted for all
Competitive Loan Maturity Dates specified by any Competitive Loan Lender
in its Competitive Loan Offer shall not exceed the aggregate maximum
amount specified in such Competitive Loan Offer for all such Competitive
Loan Maturity Dates;
(iii) the Company may not accept offers for Competitive Loans for any
Competitive Loan Maturity Date in an aggregate principal amount in excess
of the maximum principal amount requested in the related Competitive Loan
Request; and
-26-
32
(iv) if the Company accepts any of such offers, (1) it must accept
such offers based solely upon pricing for such relevant Competitive Loan
Maturity Date (including any amounts which shall be payable to the
relevant Competitive Loan Lender in respect of the relevant Competitive
Loans pursuant to subsection 3.14) and upon no other criteria whatsoever
and (2) if two or more Competitive Loan Lenders submit offers for any
Competitive Loan Maturity Date at identical pricing and the Company
accepts any of such offers but does not wish to (or by reason of the
limitations set forth in subsection 2.13 or in this subsection 2.15,
cannot) borrow the total amount offered by such Competitive Loan Lenders
with such identical pricing, the Company shall accept offers from all of
such Competitive Loan Lenders in amounts allocated among them pro rata
according to the amounts offered by such Competitive Loan Lenders (or as
nearly pro rata as shall be practicable after giving effect to the
requirement that Competitive Loans made by a Competitive Loan Lender on a
Borrowing Date for each relevant Competitive Loan Maturity Date shall be
in a principal amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof), provided that if the number of Competitive Loan
Lenders that submit offers for any Competitive Loan Maturity Date at
identical pricing is such that, after the Company accepts such offers pro
rata in accordance with the foregoing, the Competitive Loans to be made by
any such Competitive Loan Lender would be less than $5,000,000 principal
amount, the number of such Competitive Loan Lenders shall be reduced by
the Administrative Agent by lot until the Competitive Loans to be made by
each such remaining Competitive Loan Lender would be in a principal amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(f) If the Company notifies the Administrative Agent that a
Competitive Loan Request is cancelled pursuant to subsection 2.15(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the
Competitive Loan Lenders.
(g) If the Company accepts pursuant to subsection 2.15(d)(ii) one or
more of the offers made by any one or more Competitive Loan Lenders, the
Administrative Agent promptly shall notify each Competitive Loan Lender which
has made such a Competitive Loan Offer of (i) the aggregate amount of such
Competitive Loans to be made on such Borrowing Date for each Competitive Loan
Maturity Date and (ii) the acceptance or rejection of any offers to make such
Competitive Loans made by such Competitive Loan Lender. Before 12:00 Noon, New
York City time, on the Borrowing Date specified in the applicable Competitive
Loan Request, each Competitive Loan Lender whose Competitive Loan Offer has
been accepted shall make available to the Administrative Agent at the
Administrative Agent's Office the amount of Competitive Loans to be made by
such Competitive Loan Lender, in immediately available funds. The
Administrative Agent will make such funds available to the Company as soon as
practicable on such date at the Administrative Agent's Office. As soon as
practicable after each Borrowing Date, the Administrative Agent shall notify
each Lender of the aggregate amount of Competitive Loans advanced on such
Borrowing Date and the respective maturity dates thereof.
(h) Nothing in subsection 2.13 or this subsection 2.15 shall be
construed as a right of first offer in favor of the Lenders or to otherwise
limit the ability of the Company to request and accept credit facilities from
any Person (including any of the Lenders).
-27-
33
(i) A Competitive Loan Request may request offers for Competitive
Loans to be made on not more than one Borrowing Date and to mature on not more
than three Competitive Loan Maturity Dates. No Competitive Loan Request may be
submitted earlier than five Business Days after submission of any other
Competitive Loan Request.
(j) The Company shall pay to the Administrative Agent, for the
account of each Lender which has made a Competitive Loan, on the applicable
Competitive Loan Maturity Date the then unpaid principal amount of such
Competitive Loan. The Company shall not have the right to prepay any principal
amount of any Competitive Loan.
2.16 Term Loans. (a) Subject to the terms and conditions hereof,
each Lender severally, and not jointly, agrees to make a term loan
(collectively, the "Term Loans") to the Company on the Revolving Credit
Termination Date, in a principal amount not to exceed the principal amount of
the Revolving Credit Loans of such Lender outstanding on the Revolving Credit
Termination Date (collectively, the "Term Loan Commitments").
(b) Subject to the terms and conditions hereof, the Term Loans may
be (i) ABR Loans, (ii) Eurodollar Loans, (iii) CD Rate Loans or (iv) any
combination thereof, as determined by the Company and notified to the
Administrative Agent in accordance with subsection 2.18.
2.17 Term Notes. The Term Loan made by each Lender pursuant hereto
shall be evidenced by a promissory note of the Company, substantially in the
form of Exhibit G (collectively, the "Term Notes"), with appropriate insertions
therein as to principal amount, payable to the order of such Lender and
representing the obligation of the Company to pay a principal amount equal to
the lesser of (a) the amount of the Term Loan Commitment of such Lender and (b)
the aggregate unpaid principal amount of the Term Loan made by such Lender,
with interest thereon as prescribed in subsection 3.1. Each Lender is hereby
authorized to record the date, amount and Type of the Term Loan made by such
Lender,the date and amount of each payment or prepayment of principal thereof,
and, with respect to each Term Loan being maintained as a Eurodollar Loan or CD
Rate Loan, the length of each Interest Period and the Eurodollar Rate or CD
Rate applicable thereto on the schedule annexed to and constituting a part of
its Term Note, and any such recordation shall constitute prima facie evidence
of the accuracy of the information so recorded in the absence of manifest
error; provided that failure by any Lender to make any such recordation on its
Term Note shall not affect any of the obligations of the Company under such
Term Note or this Agreement. The Term Note of each Lender shall (i) be dated
the Revolving Credit Termination Date, (ii) bear interest, payable as specified
in subsection 3.1, for the period from the date thereof on the unpaid principal
amount thereof at the applicable interest rate per annum specified in
subsection 3.1 and (iii) be stated to mature on the date which is one year from
the Revolving Credit Termination Date (the "Term Loan Maturity Date").
2.18 Procedure for Term Loan Borrowing. The Company shall give the
Administrative Agent irrevocable written notice (or telephonic notice promptly
confirmed in writing) prior to 10:00 A.M., New York City time, two Business
Days prior to the Revolving Credit Termination Date requesting that the Lenders
make the Term Loans on the Revolving Credit Termination Date and specifying the
principal amount of the Term Loans and the Term
-28-
34
Loan Maturity Date. The Term Loans made on the Revolving Credit Termination
Date shall initially be ABR Loans unless, treating the borrowing of the Term
Loans as if it were a conversion of Loans pursuant to subsection 3.10, the
Company shall have given notice with respect to Loans of another Type in
accordance with subsection 3.10. Upon receipt of such notice, the Agent shall
promptly notify each Lender thereof. Not later than 12:00 noon, New York City
time, on the Revolving Credit Termination Date, each Lender shall make
available to the Administrative Agent at the Administrative Agent's Office for
the account of the Company an amount in immediately available funds equal to
the amount of the Term Loan to be made by such Lender. The proceeds of such
Loans will then be made available to the Company by the Administrative Agent at
the Administrative Agent's Office by crediting the account of the Company on
the books of the Administrative Agent's Office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent.
2.19 Extension of Revolving Credit Termination Date. (a) The Company
may request, in a notice substantially in the form of Exhibit H (an "Extension
Request") given as herein provided to the Administrative Agent not less than 45
days and not more than 60 days prior to the Revolving Credit Termination Date,
that the Revolving Credit Termination Date be extended, which notice shall
specify that the requested extension is to be effective (the "Extension
Effective Date") on the Revolving Credit Termination Date, and that the new
Revolving Credit Termination Date to be in effect following such extension (the
"Requested Revolving Credit Termination Date") is to be the date 364 days after
the Extension Effective Date. The Administrative Agent shall forthwith
transmit such Extension Request to the Lenders. Each Lender shall, not less
than 30 days and not more than 45 days prior to the Extension Effective Date,
notify the Company and the Administrative Agent of its election to extend or
not to extend the Revolving Credit Termination Date with respect to its
Revolving Credit Commitment. The Company may, not later than 30 days prior to
the Extension Effective Date, revoke its request to extend the Revolving Credit
Termination Date. Notwithstanding any provision of this Agreement to the
contrary, any notice by any Lender of its willingness to extend the Revolving
Credit Termination Date with respect to its Revolving Credit Commitment shall
be revocable by such Lender in its sole and absolute discretion at any time
prior to the date which is 30 days prior to the Extension Effective Date. If
on the date 30 days prior to the Extension Effective Date Lenders having at
least 75% of the aggregate amount of the Revolving Credit Commitments elect to
extend the Revolving Credit Termination Date with respect to their Revolving
Credit Commitments and the Company has not revoked its request to extend the
Revolving Credit Termination Date, then, subject to the provisions of this
subsection 2.19, the Revolving Credit Termination Date shall be extended for
364 days. Any Lender which shall not notify the Company and the Administrative
Agent of its election to extend the Revolving Credit Termination Date on or
prior to the date 30 days prior to the Extension Effective Date shall be deemed
to have elected not to extend the Revolving Credit Termination Date with
respect to its Revolving Credit Commitment.
(b) Provided that Lenders having at least 75% of the aggregate
amount of the Revolving Credit Commitments shall have elected to extend their
Revolving Credit Commitments as provided in this subsection 2.19, if any Lender
shall timely notify the Company and the Administrative Agent pursuant to
subsection 2.19(a) of its election not to extend its Revolving Credit
Commitment or its revocation of any extension, or shall be
-29-
35
deemed to have elected not to extend its Revolving Credit Commitments (any such
Lender being called a "Terminating Lender"), then the remaining Lenders (the
"Continuing Lenders") or any of them shall have the right (but not the
obligation), upon irrevocable notice to the Company and the Administrative
Agent not later than 15 Business Days preceding the Extension Effective Date to
increase their Revolving Credit Commitments, by an amount up to in the
aggregate the Revolving Credit Commitments of any Terminating Lenders. If
Continuing Lenders have elected to increase their Revolving Credit Commitments
pursuant to the preceding sentence by an aggregate amount which exceeds the
aggregate Revolving Credit Commitments of the Terminating Lenders, then the
proposed increase in the Revolving Credit Commitment of each such Continuing
Lender (as specified in the notice referred to in the preceding sentence) shall
be decreased pro rata so that the aggregate increase in the Revolving Credit
Commitments of such Continuing Lenders is equal to the aggregate Revolving
Credit Commitments of the Terminating Lenders. Each increase in the Revolving
Credit Commitment of a Continuing Lender shall be evidenced by a written
instrument executed by such Continuing Lender, the Company and the
Administrative Agent, and shall take effect on the Extension Effective Date.
(c) In the event the aggregate Revolving Credit Commitments of any
Terminating Lenders shall exceed the aggregate amount by which the Continuing
Lenders have agreed to increase their Revolving Credit Commitments pursuant to
subsection 2.19(b), the Company may, with the approval of the Administrative
Agent (which will not be unreasonably withheld), designate one or more other
banking institutions willing to extend Revolving Credit Commitments until the
Requested Revolving Credit Termination Date in an aggregate amount not greater
than such excess. Any such banking institution (an "Additional Lender") shall,
on or prior to the Extension Effective Date, execute and deliver to the Company
and the Administrative Agent a Commitment Transfer Supplement, satisfactory to
the Company and the Administrative Agent, setting forth the amount of such
Additional Lender's Revolving Credit Commitment and containing its agreement to
become, and to perform all the obligations of, a Lender hereunder, and the
Revolving Credit Commitment of such Additional Lender shall become effective on
the Extension Effective Date.
(d) The Company shall deliver to each Continuing Lender whose
Revolving Credit Commitment is being increased pursuant to this subsection 2.19
and to each Additional Lender, on the Extension Effective Date, in exchange for
the Revolving Credit Notes held by such Lender, new Revolving Credit Notes,
maturing on the Requested Revolving Credit Termination Date, in the principal
amount of such Lender's Revolving Credit Commitment after giving effect to the
adjustments made pursuant to this subsection 2.19.
(e) If the Lenders having at least 75% of the aggregate amount of
the Revolving Credit Commitments shall have elected to extend their Revolving
Credit Commitments as provided in this subsection 2.19 and the Company has not
revoked its request to extend the Termination Date as provided in this
subsection 2.19, then (i) the Revolving Credit Commitments of the Continuing
Lenders and any Additional Lenders shall continue until the Requested Revolving
Credit Termination Date specified in the notice from the Company, and as to
such Lenders the terms "Revolving Credit Termination Date", as used herein
shall mean such Requested Revolving Credit Termination Date; (ii) the Revolving
Credit Commitments of any Terminating Lender shall continue until the Extension
Effective Date, and shall then
-30-
36
terminate (as to any Terminating Lender, the term "Revolving Credit Termination
Date", as used herein, shall mean the Extension Effective Date) and any such
Terminating Lender shall receive payment in full of the outstanding principal
amount, together with accrued interest to such date and any other amounts owed
by the Company to such Terminating Lender pursuant to any Credit Document, of
the Revolving Credit Loans of such Terminating Lender; and (iii) from and after
the Extension Effective Date, the term "Lenders" shall be deemed to include the
Additional Lenders and (except with respect to subsection 3.15 and 10.5 to the
extent the rights under such subsections arise after the Revolving Credit
Termination Date in respect of Terminating Lenders) to exclude the Terminating
Lenders.
2.20 Use of Proceeds. The proceeds of the Revolving Credit Loans
and the Competitive Loans shall be used to finance working capital requirements
and investments, and to support commercial paper programs of, the Company and
its Subsidiaries. The proceeds of the Term Loans shall be used solely to
refinance the Revolving Credit Loans. The Letters of Credit shall be used to
secure performance and other bonds and provide credit support for general
corporate purposes.
SECTION 3. INTEREST RATE PROVISIONS, FEES, CONVERSIONS AND PAYMENTS
3.1 Interest Rates and Payment Dates. (a) Each ABR Loan shall bear
interest for the period from and including the date thereof until maturity or
conversion on the unpaid principal amount thereof at a fluctuating rate per
annum equal to the Alternate Base Rate.
(b) Each Eurodollar Loan shall bear interest for each Interest
Period with respect thereto on the unpaid principal amount thereof at a rate
per annum equal to the Eurodollar Rate determined for such Interest Period plus
the Applicable Margin.
(c) Each CD Rate Loan shall bear interest for each Interest Period
with respect thereto on the unpaid principal amount thereof at a rate per annum
equal to the Adjusted CD Rate for such Interest Period plus the Applicable
Margin.
(d) Each Competitive Loan shall bear interest for each day from the
applicable Borrowing Date to (but excluding) the applicable Competitive Loan
Maturity Date at the rate of interest specified in the Competitive Loan Offer
accepted by the Company in connection with such Competitive Loan.
(e) If all or a portion of the principal amount of any of the
Eurodollar Loans or CD Rate Loans shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), each such Eurodollar Loan or CD
Rate Loan shall be converted to an ABR Loan at the end of the last applicable
Interest Period therefor for which the Administrative Agent shall have
determined, on or prior to the date such unpaid principal amount became due, a
Eurodollar Rate or an Adjusted CD Rate, as the case may be. Any overdue
principal amount of any Loan and, to the extent permitted by law, any interest
payable thereon which shall not be paid when due shall bear interest from the
due date thereof until payment in full thereof (as
-31-
37
well after judgment as before judgment) at a rate per annum equal to 2% above
the rate otherwise applicable.
(f) Interest payable under subsection 3.1(a), 3.1(b), 3.1(c) or
3.1(d) shall be payable in arrears on each Interest Payment Date. Interest
payable under subsection 3.1(e) shall be payable on demand.
3.2 Facility and Other Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee (a "Facility
Fee") from the Effective Date to, but not including, the Revolving Credit
Termination Date (or, if the Company shall borrow Term Loans, until the Term
Loan Maturity Date) or such earlier date upon which the Revolving Credit
Commitments shall terminate or be reduced to zero or the Term Loans shall be
repaid in full as provided herein, computed at a rate per annum equal to the
Applicable Facility Fee Percentage from time to time in effect (i) until the
Revolving Credit Termination Date, on the amount of the Revolving Credit
Commitment of such Lender from time to time in effect, whether used or unused
(including the portion of such Revolving Credit Commitment represented by such
Lender's L/C Participating Interest in outstanding Letters of Credit) and (ii)
thereafter, on the unpaid principal amount of such Lender's Term Loan
outstanding from time to time. Such Facility Fee shall be payable quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing March 31, 1996 (such fee to be calculated through the last day of
such quarter) on the Revolving Credit Termination Date and on the Term Loan
Maturity Date or such earlier date as the Revolving Credit Commitments shall
terminate or be reduced to zero as provided herein or the Term Loans shall be
repaid in full.
(b) The Company agrees to pay to the Administrative Agent for its
own account the fees in the amounts and on the dates previously agreed to in
writing by the Company and the Administrative Agent. Each Lender acknowledges
that the Administrative Agent is being paid certain other fees for its own
account in connection with this Agreement in addition to the fees described
herein.
3.3 Letter of Credit Fees. (a) In lieu of any letter of credit
commissions and fees provided for in any Commercial L/C Application or Standby
L/C Application (other than standard administration, amendment, transfer and
negotiation fees referred to in clause (c) below), the Company agrees to pay
the Administrative Agent, for the account of the relevant Issuing Lender and
the Participating Lenders in accordance with their respective Commitment
Percentages, (i) with respect to Standby L/Cs, a non-refundable Letter of
Credit fee computed at a rate per annum equal to the Applicable L/C Fee
Percentage from time to time in effect on the amount from time to time
available to be drawn under all outstanding Standby L/Cs during the period for
which payment is made, commencing on the respective dates of issuance thereof
until the last day a drawing may be made thereunder, payable quarterly in
advance commencing on the date of opening of each Standby L/C and thereafter on
each Interest Payment Date for ABR Loans and (ii) with respect to each
Commercial L/C, a non-refundable Letter of Credit fee equal to .25 of 1% of the
amount drawn on such Commercial L/C from time to time, payable upon each
drawing thereon.
-32-
38
(b) In addition to the fees set forth in subsection 3.3(a), the
Company agrees to pay each Issuing Lender, for such Issuing Lender's own
account, (i) with respect to Standby L/Cs, a Letter of Credit fee equal to .175
of 1% per annum of the amount from time to time available to be drawn under all
outstanding Standby L/Cs issued by it during the period for which payment is
made, commencing on the respective dates of issuance thereof until the last day
a drawing may be made thereunder, payable quarterly in advance commencing on
the date of opening each Standby L/C and thereafter on each Interest Payment
Date for ABR Loans and (ii) with respect to each Commercial L/C, a
non-refundable Letter of Credit fee equal to .0625 of 1% of the face amount of
such Commercial L/C payable upon issuance thereof.
(c) The Company agrees to pay each Issuing Lender for its own
account the customary administration, amendment, transfer and negotiation fees
charged by such Issuing Lender in connection with its issuance and
administration of Letters of Credit.
3.4 Computation of Interest and Fees. (a) Interest on ABR Loans
and all fees shall be calculated on the basis of a year of 365 days (or 366
days, as the case may be) for the actual days elapsed. Interest on Eurodollar
Loans, CD Rate Loans and Competitive Loans shall be calculated on the basis of
a year of 360 days for the actual days elapsed. The Administrative Agent shall
as soon as practicable notify the Company and the Lenders of each determination
of a Eurodollar Rate and of an Adjusted CD Rate. Any change in the interest
rate on a Loan resulting from a change in the Alternate Base Rate, the
Eurocurrency Reserve Requirements or the CD Reserve Requirements, as the case
may be, shall become effective as of the opening of business on the day on
which such change in the Alternate Base Rate is announced or such change in the
Eurocurrency Reserve Requirements or the CD Reserve Requirements shall become
effective, as the case may be. The Administrative Agent shall as soon as
practicable notify the Company and the Lenders of the effective date and the
amount of each such change.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall constitute prima facie
evidence of the rate so determined in the absence of manifest error.
(c) If any Reference Lender's Revolving Credit Commitment shall
terminate (otherwise than on termination of all the Revolving Credit
Commitments), or all of its Loans shall be assigned for any reason whatsoever,
such Reference Lender shall thereupon cease to be a Reference Lender and, if as
a result of the foregoing, there shall only be one Reference Lender remaining,
then the Administrative Agent (after consultation with the Lenders and with the
consent of the Company) shall, by notice to the Company and the Lenders,
designate another Lender as a Reference Lender so that there shall at all times
be at least two Reference Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Reference Lenders shall be unable or otherwise fails to supply such
rates to the Administrative Agent upon its request, the rate of interest shall
be determined on the basis of the quotations of the remaining Reference Lenders
or Reference Lender.
-33-
39
3.5 Optional Prepayments of Revolving Credit Loans and Term Loans.
The Company may from time to time prepay any Revolving Credit Loans or Term
Loans, in whole or in part, without premium or penalty, by giving irrevocable
notice to the Administrative Agent and making such prepayment (i) if the
Revolving Credit Loans or Term Loans to be prepaid are ABR Loans, prior to
11:00 A.M., New York City time, on any Business Day or, if such notice and
prepayment are not so given and made prior to 11:00 A.M., upon at least one
Business Day's irrevocable notice to the Administrative Agent, (ii) if the
Revolving Credit Loans or Term Loans to be prepaid are CD Rate Loans, upon at
least three Business Days' irrevocable notice to the Administrative Agent or
(iii) if the Revolving Credit Loans or Term Loans to be prepaid are Eurodollar
Loans, upon at least three Working Days' irrevocable notice to the
Administrative Agent, in each case specifying the date and amount of prepayment
and whether such Revolving Credit Loans or Term Loans are ABR Loans, CD Rate
Loans or Eurodollar Loans or a combination thereof, and if of a combination
thereof, the amount of prepayment allocable to each and if Eurodollar Loans or
CD Rate Loans are to be prepaid, the Tranche to be prepaid. Upon receipt of
such notice, the Administrative Agent shall promptly notify each Lender
thereof. If such notice is given, the Company shall make such prepayment, and
the payment amount specified in such notice shall be due and payable on the
date specified therein, together with accrued interest to such date on the
amount prepaid. Partial prepayments pursuant to this subsection 3.5 shall be
in an aggregate principal amount of $10,000,000 or a whole multiple of
$5,000,000 in excess thereof. Amounts prepaid in respect of Term Loans may not
be reborrowed.
3.6 Reduction of Revolving Credit Commitments. (a) The Company
shall have the right, upon not less than three Business Days' notice to the
Administrative Agent, from time to time, to reduce the amount of the Revolving
Credit Commitments provided that any such reduction shall be in an amount not
less than $25,000,000 or a whole multiple of $1,000,000 in excess thereof; and
provided further that no such reduction of the Revolving Credit Commitments
shall be permitted if, after giving effect to prepayments of Revolving Credit
Loans, replacements of Letters of Credit and deposits of cash collateral
pursuant to subsection 3.6(b), the aggregate Extensions of Credit outstanding
would exceed the aggregate Revolving Credit Commitments, as so reduced, or the
aggregate Letter of Credit Obligations outstanding would exceed 50% of the
aggregate Commitments, as so reduced. Upon receipt of any notice pursuant to
this subsection 3.6(a), the Administrative Agent shall promptly notify each
Lender thereof.
(b) Any reduction of the Revolving Credit Commitments pursuant to
subsection 3.6(a) shall (i) reduce permanently the amount of the Revolving
Credit Commitments then in effect, (ii) be accompanied by (A) a prepayment of
Revolving Credit Loans outstanding in an amount equal to the excess, if any, of
the aggregate Extensions of Credit outstanding over the aggregate Revolving
Credit Commitments, as so reduced, and (B) a replacement of outstanding Letters
of Credit such that after giving effect to such replacement, the aggregate
Letter of Credit Obligations outstanding are less than or equal to 50% of the
aggregate Commitments, as so reduced. To the extent that the aggregate
Extensions of Credit exceed the aggregate Revolving Credit Commitments, as
reduced, after Revolving Credit Loans have been prepaid in accordance with the
immediately preceding sentence, the Company shall (i) replace outstanding
Letters of Credit such that, after giving effect to such replacement, the
aggregate Extensions of Credit are less than or equal to the
-34-
40
aggregate Revolving Credit Commitments, as reduced, and/or (ii) deposit in a
cash collateral account with the Administrative Agent on terms and conditions
satisfactory to the Administrative Agent and as cash collateral for the
liability of the Issuing Lender (whether direct or contingent) under any Letter
of Credit outstanding, an amount which shall be equal to the amount by which
the aggregate Extensions of Credit exceed the aggregate Revolving Credit
Commitments, as reduced. Any amounts deposited in any cash collateral account
may be withdrawn by the Administrative Agent at any time to pay Obligations
when due. The Administrative Agent shall use its best efforts to invest any
amounts so deposited in United States Treasury bills or other Cash Equivalents
designated by the Company; provided that the Administrative Agent shall not be
liable to the Company for failure to so invest or for any losses suffered as a
result of any such investment or withdrawal. The unused portion of any amounts
deposited by the Company in any such cash collateral account pursuant to this
subsection 3.6(b), and any earnings from investments of amounts on deposit
therein, shall be paid to the Company after sufficient Letters of Credit have
expired undrawn so that the aggregate Extensions of Credit shall no longer
exceed the aggregate Revolving Credit Commitments as then reduced.
3.7 Pro Rata Treatment and Payments; Lending Offices. (a) Each
borrowing by the Company of Revolving Credit Loans and Term Loans hereunder,
each conversion or continuation of a Revolving Credit Loan or Term Loan under
subsection 3.10, each payment (including each prepayment) by the Company on
account of principal of or interest on Revolving Credit Loans or Term Loans,
each payment by the Company on account of fees and other amounts hereunder
(except fees and other amounts referred to in subsections 3.2(b), 3.3(b),
3.3(c), 3.8, 3.12, 3.13, 3.14 and 3.15) and any reduction of the Revolving
Credit Commitments hereunder shall be made pro rata according to the respective
Commitment Percentages of the Lenders. All payments (including prepayments) to
be made by the Company on account of principal, interest, fees and other
amounts shall be made without set-off or counterclaim to the Administrative
Agent, for the account of the Lenders (except with respect to the fees and
other amounts referred to in subsections 3.2(b), 3.3(b), 3.3(c), 3.8, 3.12,
3.13, 3.14 and 3.15), at the Administrative Agent's Office, in Dollars and in
immediately available funds. The Administrative Agent shall promptly
distribute each such payment to each Lender in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans or Index Rate
Competitive Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension. If any payment on a Eurodollar Loan or
Index Rate Competitive Loan becomes due and payable on a day other than a
Working Day, the maturity thereof shall be extended to the next succeeding
Working Day (and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension) unless the result
of such extension would be to extend such payment into another calendar month
in which event such payment shall be made on the immediately preceding Working
Day.
(b) Eurodollar Loans and Index Rate Competitive Loans shall be made
by each Lender at its Eurodollar Lending Office and ABR Loans, CD Rate Loans
and Fixed Rate Competitive Loans shall be made by each Lender at its Domestic
Lending Office.
-35-
41
3.8 Capital Adequacy. In the event that any Lender shall have
reasonably determined that the applicability of any law, rule, regulation or
guideline adopted pursuant to or arising out of the July 1988 report of the
Basle Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards" or the
adoption after the date of this Agreement of any other law, rule, regulation or
guideline regarding capital adequacy, or any change therein or in the
interpretation or application thereof after the date of this Agreement or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) from any central bank or
governmental authority does or shall have the effect of reducing the rate of
return on such Lender's capital as a consequence of the Letters of Credit or
its unused Revolving Credit Commitment hereunder to a level below that which
such Lender could have achieved but for such applicability, adoption, change or
compliance (taking into consideration such Lender's policies with respect to
capital adequacy) by an amount related to such Letters of Credit or unused
Revolving Credit Commitment which is reasonably deemed by such Lender to be
material, then from time to time, promptly after submission by such Lender to
the Company (with a copy to the Administrative Agent) of a written request
therefor, the Company shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction. This covenant shall
survive the termination of this Agreement and payment in full of the
Obligations.
3.9 Failure by Lenders to Make Funds Available. Unless the
Administrative Agent shall have been notified in writing by any Lender prior to
a Borrowing Date that such Lender will not make that amount which would
constitute its share of such borrowing on such Borrowing Date available to the
Administrative Agent, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such Borrowing Date,
and the Administrative Agent may, in reliance upon such assumption, make
available to the Company a corresponding amount. If such amount is made
available to the Administrative Agent on a date after such Borrowing Date, such
Lender shall pay to the Administrative Agent on demand an amount equal to the
product of (i) 1/2 of 1% above the daily average Federal funds rate during such
period as quoted by the Administrative Agent, times (ii) such Lender's share of
such borrowing, times (iii) a fraction the numerator of which is the number of
days that elapse from and including such Borrowing Date to the date on which
such Lender's share of such borrowing shall have become immediately available
to the Administrative Agent and the denominator of which is 360. A certificate
of the Administrative Agent submitted to any Lender with respect to any amounts
owing under this subsection 3.9 shall be conclusive in the absence of manifest
error. If such Lender's share of such borrowing is not in fact made available
to the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall be entitled to recover such
amount, on demand, from the Company with interest thereon at the rate
applicable to the Loans made on such Borrowing Date.
3.10 Conversion Options for Loans; Minimum Amount of Loans. (a)
The Company may elect from time to time to convert (i) Eurodollar Loans to ABR
Loans, CD Rate Loans or a combination thereof, by giving the Administrative
Agent at least one Business Day's prior irrevocable notice of such election if
electing one or more ABR Loans or at least two Business Days' prior irrevocable
notice if electing one or more CD Rate Loans; (ii) CD Rate Loans to Eurodollar
Loans, ABR Loans or a combination thereof, by giving the Administrative Agent
at least three Working Days' prior irrevocable notice of such election if
electing one or more Eurodollar Loans or at least one Business Day's prior
irrevocable notice of such election if electing one or more ABR Loans; or (iii)
ABR Loans to Eurodollar Loans, CD Rate Loans or a combination thereof, by
giving the
-36-
42
Administrative Agent at least three Working Days' prior irrevocable notice of
such election if electing one or more Eurodollar Loans or at least two Business
Days' prior irrevocable notice if electing one or more CD Rate Loans; provided
that any such conversion of Eurodollar Loans or CD Rate Loans shall only be
made on the last day of the Interest Period with respect thereto. Upon receipt
of such notice, the Administrative Agent shall promptly notify each Lender
thereof. All or any part of outstanding Eurodollar Loans, CD Rate Loans and
ABR Loans may be converted in accordance with the terms hereof; provided that
(i) no Loan may be converted into a CD Rate Loan or a Eurodollar Loan when any
Event of Default has occurred and is continuing, (ii) partial conversions shall
be in an aggregate principal amount of $10,000,000 or a whole multiple of
$5,000,000 in excess thereof and (iii) any such conversion may only be made if,
after giving effect thereto, subsection 3.10(c) shall not have been
contravened.
(b) Any Eurodollar Loans or CD Rate Loans may be continued as such
upon the expiration of an Interest Period with respect thereto by compliance by
the Company with the notice provisions contained in subsection 3.10(a)
applicable with respect to each Type of Loan; provided that no Eurodollar Loans
or CD Rate Loans may be continued as such when any Event of Default has
occurred and is continuing, but shall be automatically converted to ABR Loans
on the last day of the last Interest Period for which a Eurodollar Rate or an
Adjusted CD Rate, as the case may be, was determined by the Administrative
Agent on or prior to the Administrative Agent's obtaining knowledge of such
Event of Default. The Administrative Agent shall notify the Lenders promptly
that such automatic conversion contemplated by this subsection 3.10(b) will
occur.
(c) All borrowings, conversions, payments and prepayments hereunder
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, the aggregate principal amount of any Tranche shall not
be less than $10,000,000.
3.11 Inability to Determine Interest Rate. (a) In the event that
the Administrative Agent or the Required Lenders shall have determined (which
determination shall be conclusive and binding upon the Company) that by reason
of circumstances affecting the interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for any
requested Interest Period with respect to (i) proposed Loans that the Company
has requested be made as Eurodollar Loans, (ii) Eurodollar Loans that will
result from the requested conversion of ABR Loans or CD Rate Loans into
Eurodollar Loans or (iii) the continuation of Eurodollar Loans beyond the
expiration of the then current Interest Period with respect thereto, the
Administrative Agent shall forthwith give telephonic notice of such
determination (promptly confirmed thereafter in writing) to the Company and the
Lenders at least two Working Days prior to, as the case may be, the requested
Borrowing Date for such Eurodollar Loans, the conversion date of such ABR Loan
or CD Rate Loan, as the case may be, or the last day of such Interest Period.
If such notice is given (A) any requested Eurodollar Loans shall be made as ABR
Loans, (B) any ABR Loans or CD Rate Loans that were to have been converted to
Eurodollar Loans shall be continued as or converted to ABR Loans or CD Rate
Loans, as the case may be, and (C) any outstanding
-37-
43
Eurodollar Loans shall be converted, on the last day of the then current
Interest Period with respect thereto, to ABR Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans shall be
made, and the Company shall not have the right to convert ABR Loans or CD Rate
Loans to Eurodollar Loans.
(b) In the event that the Administrative Agent or the Required
Lenders shall have determined (which determination shall be conclusive and
binding upon the Company) that by reason of circumstances affecting the
domestic certificate of deposit market, adequate and reasonable means do not
exist for ascertaining the CD Rate for any requested Interest Period with
respect to (i) proposed Loans that the Company has requested be made as CD Rate
Loans, (ii) CD Rate Loans that will result from the requested conversion of ABR
Loans or Eurodollar Loans into CD Rate Loans or (iii) the continuation of CD
Rate Loans beyond the expiration of the then current Interest Period with
respect thereto, the Administrative Agent shall forthwith give telephonic
notice of such determination (promptly confirmed thereafter in writing) to the
Company and the Lenders at least one Business Day prior to, as the case may be,
the requested Borrowing Date for such CD Rate Loans, the conversion date of
such ABR Loan or Eurodollar Loan, as the case may be, or the last day of such
Interest Period. If such notice is given, (A) any requested CD Rate Loans
shall be made as ABR Loans, (B) any ABR Loans or Eurodollar Loans that were to
have been converted to CD Rate Loans shall be continued as or converted to ABR
Loans or Eurodollar Loans, as the case may be, and (C) any outstanding CD Rate
Loans shall be converted, on the last day of the then current Interest Period
with respect thereto, to ABR Loans. Until such notice has been withdrawn by
the Administrative Agent, no further CD Rate Loans shall be made, and the
Company shall not have the right to convert ABR Loans or Eurodollar Loans to CD
Rate Loans.
3.12 Taxes. (a) Except as otherwise required by law, all payments
made by the Company hereunder shall be made free and clear of, and without
reduction for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding income and franchise taxes imposed (a) by the
United States of America or any political subdivision or taxing authority
thereof or therein (including Puerto Rico) or (b) by any jurisdiction in which
such Lender's Eurodollar Lending Office is located or any political subdivision
or taxing authority thereof or therein (such non-excluded taxes being called
"Foreign Taxes"). If any Foreign Taxes are required to be withheld from any
amounts payable to any Lender hereunder or under the Notes, the amounts so
payable to such Lender shall be increased to the extent necessary to yield to
such Lender (after payment of all Foreign Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and its Note(s). Whenever any Foreign Tax is payable by the Company,
as promptly as possible thereafter, the Company shall send to the
Administrative Agent, for the account of such Lender, a certified copy of an
original official receipt showing payment thereof. If the Company fails to pay
any Foreign Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent, for the account of the Lenders, the required
receipts or other required documentary evidence, in either case for any reason
other than any Lender's failure to comply with subsection 3.12(b), the Company
shall indemnify the Lenders for any incremental taxes, interest or penalties
that may become payable by any Lender as a result of any such failure.
-38-
44
(b) Prior to the first Interest Payment Date each Lender that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to the Company and the Administrative Agent (i) two
duly completed copies of United States Internal Revenue Service Form 1001 or
4224 or successor applicable form, as the case may be, certifying in each case
that such Lender is entitled to receive payments under this Agreement and the
Notes payable to it, without deduction or withholding of any United States
federal income taxes, and (ii) an Internal Revenue Service Form W-8 or W-9 or
successor applicable form, as the case may be, to establish an exemption from
United States backup withholding tax. Each Lender which delivers to the
Company and the Administrative Agent a Form 1001 or 4224 and Form W-8 or W-9
pursuant to the next preceding sentence further undertakes to deliver to the
Company and the Administrative Agent two further copies of the said Form 1001
or 4224 and Form W-8 or W-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Company and
the Administrative Agent, and such extensions or renewals thereof as may
reasonably be requested by the Company or the Administrative Agent, certifying
in the case of a Form 1001 or 4224 that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless in any such cases an event (including
without limitation any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and such Lender
advises the Company that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax, and in the case
of a Form W-8 or W-9, establishing an exemption from United States backup
withholding tax.
(c) The agreements in this subsection 3.12 shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
(d) The Company shall not be required to pay any increased amount on
account of Foreign Taxes pursuant to this subsection 3.12 to any Lender to the
extent that such Foreign Taxes would not have been payable if such Lender had
furnished a form (properly and accurately completed in all material respects)
which it was otherwise required to furnish in accordance with this subsection
3.12, unless such failure results from any event subsequent to the date hereof
(including without limitation any change in treaty, law or regulation)
specified in the final sentence of subsection 3.12(b) and such Lender so
notifies the Company.
3.13 Illegality. Notwithstanding any other provisions herein, if,
after the date hereof, any change in any Requirement of Law or in the
interpretation or application thereof, shall make it unlawful for any Lender to
make or maintain Eurodollar Loans or Index Rate Competitive Loans as
contemplated by this Agreement, (a) the commitment of such Lender hereunder to
make or maintain Eurodollar Loans or convert ABR Loans or CD Rate Loans to
Eurodollar Loans shall forthwith be suspended, (b) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
ABR Loans on the respective next succeeding Interest Payment Dates for such
Loans or within such earlier period as required by law and (c) the Company
shall, with respect to any Index Rate Competitive Loan of such Lender, take
such action as such Lender may reasonably request. Promptly upon
-39-
45
becoming aware that any such illegality with respect to Eurodollar Loans ceases
to exist, such Lender shall notify the Company and the Administrative Agent
thereof and, after such notice, such suspension shall cease to exist. The
Company hereby agrees promptly to pay any Lender, upon its demand, any
additional amounts necessary to compensate such Lender for any costs incurred
by such Lender in making any conversion in accordance with this subsection 3.13
(such Lender's notice of such costs, as certified to the Company through the
Administrative Agent, to be prima facie evidence of such costs in the absence
of manifest error).
3.14 Requirements of Law. (a) In the event that any change in any
Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority after
the date hereof (or, in the case of Index Rate Competitive Loans, made
subsequent to acceptance by the Company of such Loans):
(i) does or shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Loans made by
it, or change the basis of taxation of payments to such Lender of
principal, commitment or facility fee, interest or any other amount
payable hereunder (except for changes in the rate of tax on the overall
net income of such Lender or its applicable Lending Office imposed by the
jurisdiction in which such Lender's principal executive office or the
applicable Lending Office is located);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender which are not otherwise
included in the determination of the Eurodollar Rate, the Adjusted CD Rate
or the Applicable Index Rate, as the case may be; or
(iii) does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender
of making, renewing or maintaining advances or extensions of credit or to
reduce any amount receivable hereunder, in each case, in respect of its
Eurodollar Loans, CD Rate Loans or Index Rate Competitive Loans, then, in any
such case, the Company shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such additional cost
or reduced amount receivable which such Lender deems to be material as
reasonably determined by such Lender with respect to such Eurodollar Loans, CD
Rate Loans or Index Rate Competitive Loans.
(b) (i) In the event that any change in any Requirement of Law
shall either (A) impose, modify, deem or make applicable any reserve, special
deposit, assessment or similar requirement against Letters of Credit issued by
or participated in by any Lender or (B) impose on any Lender any other
condition regarding this Agreement or any Letter of Credit, and the result of
any event referred to in clause (A) or (B) above shall be to increase the cost
to such Lender of issuing, maintaining or participating in any Letter of
Credit, then
-40-
46
the Company agrees, upon demand by such Lender, to promptly pay to such Lender,
from time to time as specified by such Lender, additional amounts which shall
be sufficient to compensate such Lender for such increased cost.
(ii) The Company agrees that the provisions of the foregoing
paragraph (b)(i) and the provisions of each Letter of Credit Application
providing for reimbursement or payment to the Issuing Lender in the event of
the imposition or implementation of, or increase in, any reserve, special
deposit or similar requirement in respect of the Letter of Credit relating
thereto shall apply equally to each Participating Lender in respect of its L/C
Participating Interest in such Letter of Credit.
(c) If a Lender or the Administrative Agent becomes entitled to
claim any additional amounts pursuant to this subsection 3.14 or subsection
3.15, it shall promptly notify the Company, through the Administrative Agent,
of the event by reason of which it has become so entitled. A certificate
submitted by such Lender, through the Administrative Agent, to the Company
shall be delivered to the Company at least three Business Days prior to the
date of any requested payment and shall be prima facie evidence of such amounts
in the absence of manifest error. This covenant shall survive the termination
of this Agreement and payment of the outstanding Obligations. Notwithstanding
the foregoing, no Lender shall be entitled to request compensation under this
subsection 3.14 with respect to any Index Rate Competitive Loan if it shall
have obtained actual knowledge of the change giving rise to such request at the
time of submission of such Lender's Competitive Loan Offer pursuant to which
such Competitive Loan shall have been made, unless notice of such Lender's
entitlement to such compensation shall have been furnished to the Company at or
prior to such time.
3.15 Indemnity. The Company agrees to indemnify each Lender and to
hold such Lender harmless from any loss (excluding loss of profits) or expense
which such Lender may sustain or incur as a consequence of (a) default by the
Company in payment of the principal of or interest on any Eurodollar Loans , CD
Rate Loans or Competitive Loans of such Lender, (b) default by the Company in
making a borrowing, continuation or conversion after the Company has given a
notice in accordance with subsection 2.3, 2.15, 2.18 or 3.10, as the case may
be, (c) default by the Company in making any prepayment after the Company has
given a notice in accordance with the provisions of this Agreement and (d) a
prepayment or conversion of a Eurodollar Loan, CD Rate Loan or Competitive Loan
on a day which is not the last day of an Interest Period or the applicable
Competitive Loan Maturity Date, as the case may be, with respect thereto, in
each of clauses (a) through (d) including, but not limited to, any such loss or
expense arising from interest or fees payable by such Lender to lenders of
funds obtained by it in order to maintain its Eurodollar Loans, CD Rate Loans
or Competitive Loans, as the case may be, hereunder. This covenant shall
survive termination of this Agreement and payment in full of the Obligations.
3.16 Lenders' Obligation to Mitigate. Each Lender agrees that, as
promptly as practicable after it becomes aware that it has been or will be
affected by the occurrence of an event or the existence of a condition
described under subsection 3.12, 3.13 or 3.14(a), it will, to the extent not
inconsistent with such Lender's generally applicable internal policies, use its
best efforts to make, fund or maintain the affected Eurodollar Loans, CD Rate
Loans or Competitive Loans, as the case may be, of such Lender through another
lending office of such Lender if as a result thereof the additional moneys
which would otherwise be required to be paid in respect of such Loans pursuant
to subsection 3.12, 3.13 or 3.14(a) would be materially reduced or the
illegality or other adverse circumstances which would otherwise require such
payment pursuant to subsection 3.12, 3.13 or 3.14(a) would cease to exist and
if, as determined by such Lender, in its sole discretion, the making, funding
or maintaining of such Loans through such other lending office would not
otherwise adversely affect such Loans or such Lender. The Company hereby
agrees to pay all reasonable expenses incurred by any Lender in utilizing
another lending office of such
-41-
47
Lender pursuant to this subsection 3.16 if, upon being notified by such Lender
of its intention to change lending offices in accordance with the preceding
sentence, the Company requests such Lender to take the steps specified in this
subsection 3.16. If the Company fails to make a request upon being so
notified, such Lender shall have no obligations under this subsection 3.16.
3.17 Replacement of Lender. If the Company is required to make a
payment to any Lender pursuant to subsection 3.8, 3.12 or 3.14, or the
obligation of any Lender to make Eurodollar Loans is suspended pursuant to
subsection 3.13, the Company may, with the prior written consent of the
Required Lenders (which consent may not be unreasonably withheld) and upon not
less than 15 Business Days' prior notice to the Administrative Agent,
immediately terminate the Revolving Credit Commitment of such Lender and prepay
such Lender's Loans, together with accrued interest thereon and all other
amounts payable with respect thereto. Such termination shall not relieve the
Company of its Obligations to such Lender under subsection 3.15 or 10.5 in
respect of periods prior to such termination. The Required Lenders shall not
withhold their consent to any such termination if the Company, on terms and
conditions reasonably satisfactory to the Required Lenders, shall have located
a banking institution, reasonably satisfactory to the Required Lenders, which
shall have agreed to be substituted for such Lender on such terms and
conditions as a Lender under this Agreement.
SECTION 4. CONDITIONS OF LENDING
4.1 Conditions to the Initial Loans. The obligation of each Lender
to make its initial Loan and the obligation of the relevant Issuing Lender to
issue the initial Letter of Credit on or after the Effective Date shall be
subject to the satisfaction of the following conditions precedent:
(a) Agreement; Revolving Credit Notes and Competitive Loan Notes.
The Administrative Agent shall have received (i) a counterpart of this
Agreement for each Lender, duly executed by a Responsible Officer and (ii) an
appropriate Revolving Credit Note and Grid Competitive Loan Note, for each
Lender, conforming to the requirements hereof and duly executed by a
Responsible Officer.
(b) Corporate Proceedings. The Administrative Agent shall have
received, with a copy for each Lender, a copy of the resolutions of the Board
of Directors of the Company (or duly authorized committee thereof) authorizing
the execution, delivery and performance of this Agreement, the Notes and the
borrowings provided for herein. Such resolutions shall be certified by the
Secretary or an Assistant Secretary of the Company, which certifications shall
-42-
48
state that the resolutions thereby certified have not been amended, modified,
revoked or rescinded and are in full force and effect as of such date.
(c) Legal Opinions. The Administrative Agent shall have received,
with a copy for each Lender, legal opinions, dated the Effective Date, of
Xxxxxxxx & Xxxxxxxx and the General Counsel of the Company or other counsel
satisfactory to the Lenders, substantially in the form of Exhibits I and J.
(d) Cancellation of Existing Facilities. The Administrative Agent
shall have received a copy of written irrevocable notices from the Company,
PEPL and TETCO terminating the Commitments (as defined in each of the Existing
Facilities) and directing the Agent (as so defined) to prepay by wire transfer,
in immediately available funds, in full any loans and other extensions of
credit then outstanding thereunder, together with accrued interest thereon, and
any unpaid facility fees then accrued and all other amounts then due, upon
receipt of the proceeds from the Loans or other funds available to or provided
by the Company, PEPL and/or TETCO (which in the aggregate shall be in an amount
at least sufficient to make all payments referred to in this subsection (d)).
(e) Additional Matters. The Administrative Agent shall have
received, with a copy for each Lender, such other certificates, opinions,
documents and instruments relating to the transactions contemplated hereby as
may have been reasonably requested by any Lender, and all corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative Agent and
the Required Lenders and their respective counsel.
4.2 Conditions to the Term Loans. The obligation of each Lender to
make its Term Loan on the Revolving Credit Termination Date shall be subject to
the satisfaction of the condition that the Administrative Agent shall have
received an appropriate Term Note, for each Lender, conforming to the
requirements hereof and duly executed by a Responsible Officer.
4.3 Conditions to All Loans and All Letters of Credit. The
obligation of each Lender to make any Loan, other than a conversion or
continuation of a Loan under subsection 3.10, or of the relevant Issuing Lender
to issue a Letter of Credit (including, without limitation, its initial Loans
requested to be made by it and, in the case of such Issuing Lender, its
obligation to issue the initial Letter of Credit), is subject to the
satisfaction of the following conditions precedent as of the date such Loan is
made or such Letter of Credit is issued:
(a) Non-Refunding Extensions of Credit. In the case of any Loan or
Letter of Credit which does not involve a Refunding Extension of Credit:
(i) the representations and warranties made by the Company in this
Agreement shall be true and correct in all material respects on and as of
such date immediately prior to and after giving effect to such Extension
of Credit as if made on and as of such date,
-43-
49
except to the extent such representations and warranties relate solely to
an earlier date or period;
(ii) no Default or Event of Default shall have occurred and be
continuing on such date or shall occur after giving effect to the Loans
requested to be made or the Letters of Credit requested to be issued; and
(iii) with respect to the issuance of any Letter of Credit, the
relevant Issuing Lender shall have received a Letter of Credit
Application, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as
such Issuing Lender may reasonably request.
(b) Refunding Extensions of Credit. In the case of any Loan or
Letter of Credit involving solely a Refunding Extension of Credit:
(i) no Event of Default shall have occurred and be continuing on
such date or shall occur after giving effect to the Loans requested to be
made or the Letter of Credit requested to be issued; and
(ii) with respect to the issuance of any Letter of Credit, the
relevant Issuing Lender shall have received a Letter of Credit
Application, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as
such Issuing Lender may reasonably request.
Each borrowing of Loans, other than a conversion or continuation of a Loan
under subsection 3.10, or issuance of a Letter of Credit under this Agreement,
shall constitute a representation or warranty by the Company hereunder as of
the date of such borrowing or such issuance that the conditions in clauses
(a)(i) and (ii) or in clause (b)(i) of this subsection 4.3 applicable thereto
have been satisfied. Each conversion of a Loan into a Eurodollar Loan or CD
Rate Loan under subsection 3.10 shall constitute a representation and warranty
by the Company hereunder as of the date of such conversion that no Event of
Default shall have occurred and be continuing on such date.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to
make the Loans and to induce the Issuing Lenders to issue, and the
Participating Lenders to participate in, the Letters of Credit as herein
provided, the Company hereby represents and warrants to the Administrative
Agent and to each Lender that:
5.1 Financial Condition. The consolidated balance sheet of the
Company and its Subsidiaries as at December 31, 1994 and the related
consolidated statements of income, common stockholders' equity, and cash flows
for the year then ended, certified by KPMG Peat Marwick LLP, copies of which
have been heretofore furnished to each Lender, present fairly the consolidated
financial position of the Company and its Subsidiaries as at such date, and the
consolidated results of their operations and cash flows for the year then
ended, in
-44-
50
accordance with GAAP. The unaudited consolidated balance sheet of the Company
and its Subsidiaries as of September 30, 1995, together with unaudited
consolidated statements of income and cash flows for the nine months ended
September 30, 1994 and 1995, included in the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1995, present fairly the consolidated
financial position of the Company and its Subsidiaries as of September 30, 1995
and the consolidated results of their operations and cash flows for the nine
months ended September 30, 1994 and 1995, in conformity with GAAP applicable to
Reports on Form 10-Q. Since September 30, 1995, there has been no change in
the consolidated financial position or results of operations of the Company and
its Subsidiaries which is reasonably likely to have a material adverse effect
on the ability of the Company to repay the principal of and interest on the
Loans and all other amounts payable under this Agreement in accordance with the
terms of this Agreement and the Notes, except as set forth in, or contemplated
by the disclosures contained in, the SEC Reports.
5.2 Corporate Existence; Qualification. The Company (i) is a
corporation duly organized, validly existing and in good standing under the
laws of Delaware, (ii) has the corporate power and authority to own and operate
its properties, to lease the properties it operates as lessee and to conduct
the business in which it is currently engaged and (iii) is duly qualified as a
foreign corporation and is in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification and where the failure to be so qualified
and in good standing would have a material adverse effect on the business of
the Company and its Subsidiaries taken as a whole.
5.3 Corporate Power; Authorization; Enforceable Obligations. (a)
The Company has the corporate power and authority to execute, deliver and
perform this Agreement and the Notes. The Company has the corporate power and
authority to borrow hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement and the
Notes. The Company has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and the Notes prior to
the execution and delivery thereof.
(b) No consent or authorization of, or filing with or other act by
or in respect of, any Person (including, without limitation, any Governmental
Authority) is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or the Notes or the consummation of the transactions contemplated hereby or
thereby, except (i) for consents, authorizations and filings which have been
obtained or made, as the case may be, and are in full force and effect, (ii)
which are not required to be obtained or made prior to the date on which this
representation is made or deemed made or (iii) the failure of which to obtain
or make (x) would not have a material adverse effect on the business of the
Company and its Subsidiaries taken as a whole or (y) would not materially
adversely affect the ability of the Company to perform its obligations under
this Agreement or the Notes.
(c) This Agreement has been duly executed and delivered by the
Company and constitutes a valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws of general
applicability relating to or affecting creditors' rights
-45-
51
and to general equity principles. The Notes have been duly authorized by the
Company and, when executed, issued and delivered pursuant hereto, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
5.4 No Legal Bar. The execution, delivery and performance by the
Company of this Agreement and the Notes, the borrowings hereunder and the use
of the proceeds thereof will not violate any Requirement of Law or Contractual
Obligation of the Company except for such violations which would not have a
material adverse effect on the business of the Company and its Subsidiaries
taken as a whole, and will not result in, or require, the creation or
imposition of, any Lien on any of its properties or revenues pursuant to any
Requirement of Law or Contractual Obligation.
5.5 No Material Litigation. No litigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the best
knowledge of the Company, threatened by or against the Company or any of its
Subsidiaries which is reasonably likely to have a material adverse effect on
the ability of the Company to repay the principal of and interest on the Loans
and all other amounts payable under this Agreement in accordance with the terms
of this Agreement and the Notes, except as set forth in, or contemplated by the
disclosures contained in, the SEC Reports.
5.6 Margin Regulations. No part of the proceeds of any Loans
hereunder will be used for any purpose which violates the provisions of
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect. The Company is not engaged nor will it
engage, principally, or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under said
Regulation U.
5.7 ERISA. (i) No employee benefit plan established or maintained,
or to which contributions have been made, by the Company or any Commonly
Controlled Entity which is subject to Part 3 of Subtitle B of Title I of the
Employee Retirement Income Security Act of 1974 ("ERISA"), had an accumulated
funding deficiency as of the last day of the most recent fiscal year of such
plan ended prior to the date hereof, (ii) no material liability to the Pension
Benefit Guarantee Corporation has been incurred with respect to any such plan
by the Company and (iii) neither any such plan nor any trustee or administrator
of any such plan has engaged in a prohibited transaction which could subject
any such plan, or any such trustee or administrator, or any party dealing with
any such plan, to the tax or penalty on prohibited transactions imposed by
Section 4975 of the Code, except in any such case referred to in clause (i),
(ii) or (iii) which would not, individually or in the aggregate, have a
material adverse effect on the business of the Company and its Subsidiaries
taken as a whole. As used in this Agreement, the term "accumulated funding
deficiency" has the meaning assigned to such term in ERISA and the term
"prohibited transaction" shall have the meaning assigned to such term in said
Section 4975.
-46-
52
5.8 Environmental Regulations. Except as set forth in, or
contemplated by the disclosures contained in, the SEC Reports, each of the
Company and its Subsidiaries is in compliance with all Requirements of Law
relating to pollution and environmental control in all jurisdictions in which
it is presently doing business, except to the extent that the failure to comply
therewith would not, individually or in the aggregate, have a material adverse
effect on the business of the Company and its Subsidiaries taken as a whole.
5.9 Investment Company Act, Public Utility Holding Company Act. The
Company is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. The Company is not subject to any duty, obligation or liability as
a "holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 6. AFFIRMATIVE COVENANTS
The Company agrees that, so long as the Commitments remain in effect,
any Loans or any Letter of Credit Obligations remain outstanding and unpaid or
any other amount is owing to any Lender or the Administrative Agent hereunder,
the Company shall, and, except in the case of the agreements set forth in
subsections 6.1, 6.2 and 6.7, shall cause each of its Significant Subsidiaries
to:
6.1 Financial Statements. Furnish to each Lender:
(a) within 120 days after the end of each fiscal year of the
Company, a copy of the audited consolidated balance sheet of the Company and
its consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income and stockholders' equity and cash flows for
such year, setting forth in comparative form the figures for the previous year,
reported on without qualification arising out of the scope of the audit by
independent certified public accountants of nationally recognized standing
selected by the Company; and
(b) within 60 days after the end of each of the first three
quarterly periods of each fiscal year of the Company, a copy of the unaudited
consolidated balance sheets of the Company and its consolidated Subsidiaries as
at the end of each such quarter, the related unaudited consolidated statements
of income of the Company and its consolidated Subsidiaries for such quarter and
the portion of the fiscal year through such date and the related unaudited
consolidated statements of cash flows of the Company and its consolidated
Subsidiaries for the portion of the fiscal year through such date, setting
forth in each case in comparative form the figures for the corresponding prior
year-to- date period (subject to normal year-end audit adjustments).
The Company covenants and agrees that all such financial statements shall be
prepared in accordance with GAAP (subject, in the case of interim statements,
to normal year-end audit adjustments and except that such interim statements
may be prepared in accordance with
-47-
53
GAAP applicable to Reports on Form 10-Q) applied consistently throughout the
periods reflected therein (except as disclosed therein).
6.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b), a certificate of a Responsible
Officer (i) stating that such Responsible Officer has obtained no knowledge of
any Default or Event of Default, except as specified in such certificate, (ii)
stating, to the best of such Responsible Officer's knowledge, that all such
financial statements have been prepared in accordance with GAAP (subject, in
the case of interim statements, to normal year-end audit adjustments and except
that such interim statements may have been prepared in accordance with GAAP
applicable to Reports on Form 10-Q) applied consistently throughout the periods
reflected therein (except as disclosed therein) and (iii) showing in detail the
calculations supporting such statements in respect of subsection 7.1;
(b) promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent or made available
generally and all regular and periodic reports (other than on Form 11-K) and
all final registration statements (other than on Form S-8) and final
prospectuses, if any, filed by the Company with any securities exchange or with
the Securities and Exchange Commission or any Governmental Authority succeeding
to any of its functions; and
(c) promptly, such additional financial and other information as any
Lender may from time to time reasonably request through the Administrative
Agent.
6.3 Payment of Taxes. Pay and discharge, or cause the payment and
discharge of, all federal and all other material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any properties belonging to it, prior to the date on which penalties
attach thereto, and all lawful claims which, if unpaid, might become a Lien
upon any properties of the Company or any of its Significant Subsidiaries;
provided that neither the Company nor any of its Significant Subsidiaries shall
be required to pay any such tax, assessment, charge, levy or claim which is
being contested in good faith and (if necessary) by proper proceedings if it
has maintained adequate reserves (in the good faith judgment of management of
the Company or the relevant Significant Subsidiary, as the case may be) with
respect thereto in accordance with GAAP.
6.4 Maintenance of Existence. Preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all material rights, privileges and franchises necessary or desirable
in the normal conduct of its business (provided that the foregoing shall not
prevent (i) any merger or consolidation of any Subsidiary with, or any sale or
other disposition by any Subsidiary of any property or assets to, the Company
or a Wholly-Owned Subsidiary or (ii) the taking of, or failure to take, any
action which, in the opinion of the chief executive officer or chief financial
officer of the Company, will not materially adversely affect the ability of the
Company to perform its obligations hereunder); and comply with all Requirements
of Law except to the extent the same is being contested in good faith and
except to the extent that failure to comply therewith would not, in the
-48-
54
aggregate, have a material adverse effect on the business of the Company and
its Subsidiaries taken as a whole.
6.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition,
normal wear and tear excepted, to the extent customary for companies in similar
businesses; and
(b) Maintain with financially sound insurance companies insurance on
all its property in at least such amounts and with such deductibles as are
usually maintained by, and against at least such risks as are usually insured
against in the same general area by, companies engaged in the same or a similar
business.
6.6 Inspection of Property; Books and Records; Discussions. Upon
reasonable notice to the Company by the Administrative Agent or 25% of the
Lenders given through the Administrative Agent and at the expense of the
relevant Lenders, permit representatives of any Lenders to visit and inspect
such of their properties and examine and make abstracts from any of its books
and records at any reasonable time and as often as may reasonably be desired,
and to discuss the business of the Company and its Subsidiaries with officers
and employees of the Company and its Subsidiaries and with its independent
certified public accountants. Each Lender shall hold all non-public
information obtained pursuant to this subsection 6.6 confidential in accordance
with its customary procedures in respect of confidential information and in any
event subject to subsection 10.10(e) may make any disclosure to a Transferee or
as required or requested by any Governmental Authority.
6.7 Notices. Promptly give notice to the Administrative Agent and
each Lender:
(a) of the occurrence of any Default or Event of Default; and
(b) of any litigation or proceeding affecting the Company or any of
its Subsidiaries (i) in which the amount claimed is $25,000,000 or more and not
covered by insurance or (ii) in which injunctive or similar relief is sought,
which in any such case referred to in clause (i) or (ii) if obtained would have
a material adverse effect on the business of the Company and its Subsidiaries
taken as a whole.
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company or such Subsidiary proposes to take
with respect thereto.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Loans or any Letter of Credit Obligations remain outstanding and
unpaid or any other amount is owing to any Lender or the Administrative Agent,
the Company shall not, and, in the case of subsections 7.2, 7.5 and 7.6, shall
not permit any of its Subsidiaries to, directly or indirectly:
-49-
55
7.1 Maintenance of Consolidated Indebtedness to Consolidated
Capitalization Percentage Ratio of the Company. Permit the ratio (expressed as
a percentage) of (a) Consolidated Indebtedness to (b) Consolidated
Capitalization as at the end of any calendar quarter to be greater than 65%.
7.2 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except:
(a) Liens for taxes, assessments, governmental charges or levies not
yet due or which are being contested in good faith and by appropriate
proceedings if adequate reserves (in the good faith judgment of the Company)
with respect thereto are maintained on the books of the Company in accordance
with GAAP;
(b) statutory Liens of landlords and carrier's, vendor's,
warehousemen's, mechanic's, materialmen's, repairmen's, or other like Liens
arising in the ordinary course of business if the obligations secured by such
Liens are not overdue for a period of more than 60 days or which are being
contested in good faith and (if necessary) by appropriate proceedings;
(c) pledges or deposits and Liens under bonds required in connection
with worker's compensation, unemployment insurance and other social security
legislation incurred in the ordinary course of business;
(d) Liens incurred or deposits to secure the performance of tenders,
bids, contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance and return-of-money bonds and other
obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Company;
(f) Liens arising from judgments or decrees in circumstances not
constituting an Event of Default under subsection 8.1(g);
(g) purchase money Liens securing obligations arising from the
acquisition by the Company of property, provided that the principal amount of
such obligations does not exceed the purchase price of such property;
(h) (A) Liens in existence on the date of this Agreement, (B) Liens
on any property existing at the time of acquisition thereof (including Liens on
any property acquired from a Person which is merged into the Company) and (C)
any extension, renewal or refunding of any Lien referred to in clause (A) or
(B), provided that no such Lien is extended to cover any additional property
(other than replacement property) and that the amount of Indebtedness secured
thereby is not increased;
-50-
56
(i) Liens in respect of future demand charges or reservation charges
sold by the Company or any Subsidiary not exceeding $275,000,000 at any one
time;
(j) Liens in favor of the Company or any Subsidiary;
(k) Liens in favor of the Administrative Agent, any Issuing Lender
or the Lenders under this Agreement; and
(l) other Liens securing obligations such that the aggregate book
value (net of applicable reserves) of the assets securing such obligations does
not exceed at any one time an amount equal to 10% of Consolidated Tangible
Assets at such time.
7.3 Consolidation, Merger, Etc. Consolidate with, merge into or
sell, lease or otherwise dispose of its properties and assets as an entirety or
substantially as an entirety to any Person in one transaction or any series of
transactions.
7.4 Principal Subsidiaries. (a) Fail to own, directly or
indirectly, all of the outstanding shares of common stock of each of the
Principal Subsidiaries or (b) create, incur, assume or suffer to exist any Lien
upon any shares of common stock of any Principal Subsidiary owned by the
Company or any of its Subsidiaries except Liens of the nature referred to in
clauses (a), (f), (j) and (k) of subsection 7.2.
7.5 Lines of Business. Engage in any line of business which is
material to the Company and its Subsidiaries taken as a whole other than the
lines of business in which the Company and its Subsidiaries are now engaged and
other energy related lines of business.
7.6 Asset Sales. Make any Asset Sale in any fiscal year if such
Asset Sale, together with all other Asset Sales made during such fiscal year,
will result in Asset Sales of property or assets with an aggregate fair market
value (as determined in good faith by the Company) equal to or greater than 5%
of Consolidated Tangible Assets at the time of such Asset Sale.
SECTION 8. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following events:
(a) Payments. The Company shall fail to pay any principal of any
Loan when due (whether at stated maturity, by acceleration or otherwise); or
the Company shall fail to pay any interest on any Loan or any fee payable
hereunder within ten days after the same becomes due and payable in accordance
with the terms hereof; or
(b) Representations and Warranties. Any representation, warranty or
other statement made or deemed made by the Company herein or which is contained
in any certificate furnished at any time pursuant to Section 4 hereof shall
prove to have been untrue in any material respect on or as of the date made or
deemed made or furnished; or
-51-
57
(c) Certain Covenants. The Company shall default in the observance
or performance of any covenant or agreement contained in subsection 7.1, 7.3,
7.4, 7.5 or 7.6; or
(d) Other Covenants. The Company shall default in the observance or
performance of any other covenant or agreement contained in this Agreement, and
any such default referred to in this paragraph (d) shall continue unremedied
for a period of 30 days after written notice from the Administrative Agent at
the direction of the Required Lenders; or
(e) Cross-Default. The Company, any of its Significant Subsidiaries
or any Principal Subsidiary shall (i) default in any payment of principal of or
interest on any other Indebtedness for borrowed money or deferred Indebtedness
for the payment of the purchase price of property or assets purchased, in
excess of $100,000,000 in the aggregate, beyond the period of grace, if any,
provided in the agreement or instrument under which such Indebtedness was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in any
agreement or instrument evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, without the further giving of notice or the further lapse of time, if
required, such Indebtedness to become due prior to its stated maturity;
provided, however, that if either (i) such Indebtedness shall have been paid or
(ii) such default or other event shall be cured by the Company, such
Significant Subsidiary or such Principal Subsidiary, as the case may be, or
waived by the holders of such Indebtedness and any acceleration of maturity
having resulted from such default or other event or condition shall be
rescinded or annulled, in each case in accordance with the terms of such
agreement or instrument, without any modification of the terms of such
Indebtedness requiring the Company, such Significant Subsidiary or such
Principal Subsidiary, as the case may be, to furnish additional or other
security therefor or reducing the average life to maturity thereof or
increasing the principal amount thereof or any agreement by the Company, such
Significant Subsidiary or such Principal Subsidiary, as the case may be, to
furnish additional or other security therefor or to issue in lieu thereof
Indebtedness secured by additional or other collateral or with a shorter
average life to maturity or in a greater principal amount, then any default
hereunder by reason thereof shall be deemed to have been thereupon cured or
waived; or
(f) Bankruptcy or Reorganization Proceeding. (i) The Company, any
of its Significant Subsidiaries or any Principal Subsidiary shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets, or
the Company, any of its Significant Subsidiaries or any Principal Subsidiary
shall make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Company, any of its Significant Subsidiaries or
any Principal Subsidiary any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the
-52-
58
entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company, any of its Significant
Subsidiaries or any Principal Subsidiary any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in the
entry of an order for any such relief which shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) the Company, any of its Significant Subsidiaries or any
Principal Subsidiary shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) any of the Company, any of its
Significant Subsidiaries or any Principal Subsidiary shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay their
respective debts as they become due; or
(g) Judgments. One or more judgments or decrees for the payment of
money shall be entered against the Company or any of its Significant
Subsidiaries involving in the aggregate a liability (not paid or fully covered
by insurance, except for any reasonable deductible) of $25,000,000 or more and
there shall have been a period of 60 consecutive days during which a stay of
enforcement of such judgment or decree, by reason of a pending appeal or
otherwise, shall not be in effect or during which such judgment or decree shall
not have been vacated or discharged; or
(h) Change in Control of the Company. (i) Any Person or any Persons
acting together which would constitute a "group" for purposes of Section 13(d)
of the Exchange Act (a "Group"), together with any Affiliates thereof, shall
acquire direct or indirect beneficial ownership (as defined in Rule 13d-3 of
the Exchange Act) of 50% or more of the total voting power of all classes of
capital stock of the Company entitled to vote generally in the election of
directors of the Company or (ii) the election by any Person or Group, together
with any Affiliates thereof, of a sufficient number of its or their nominees to
the Board of Directors of the Company such that such nominees, when added to
any existing directors remaining on such Board of Directors after such election
who are Affiliates of such Person or Group, shall constitute a majority of such
Board of Directors; or
(i) ERISA. Any accumulated funding deficiency shall exist with
respect to any employee benefit plan established or maintained, or to which
contributions have been made, by the Company or any Commonly Controlled Entity
or the Company shall incur any material liability to the Pension Benefit
Guarantee Corporation with respect to any such plan or any such plan or trustee
or administrator thereof shall engage in a prohibited transaction, and in each
case such event or condition, together with all such other events or conditions
which have occurred and are continuing at such time, has a material adverse
effect on the ability of the Company to perform its obligations under this
Agreement or the Notes;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Company,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement (including amounts payable in respect of Letters of Credit
whether or not the beneficiaries thereof shall have presented the drafts and
other documents required thereunder) and the Notes shall immediately become due
and payable and
-53-
59
(B) if such event is any other Event of Default, any of the following actions
may be taken: (i) with the consent of the Required Lenders, the Administrative
Agent may, or upon the direction of the Required Lenders, the Administrative
Agent shall, by notice to the Company, declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
direction of the Required Lenders, the Administrative Agent shall, by notice of
default to the Company, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement (including amounts
payable in respect of Letters of Credit whether or not the beneficiaries
thereof shall have presented the drafts and other documents required
thereunder) and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable; and (iii) the Administrative Agent
may, and upon the direction of the Required Lenders shall, exercise any and all
remedies and other rights provided pursuant to this Agreement. With respect to
all Letters of Credit that shall not have expired or with respect to which
presentment for honor shall not have occurred, upon the occurrence of an Event
of Default, the Company shall deposit in a cash collateral account opened by
the Administrative Agent an amount equal to the aggregate undrawn face amount
of such Letters of Credit for application to payments of drafts drawn
thereunder, and the Administrative Agent shall use its best efforts to invest
such amounts so deposited in United States Treasury bills or other Cash
Equivalents designated by the Company; provided that the Administrative Agent
shall not be liable to the Company for failure to invest or for any losses
suffered as a result of any such investment or withdrawal. The unused portion
of such amounts, if any, shall be returned to the Company after the respective
expiry dates of the Letters of Credit and after all Obligations are paid in
full. Except as expressly provided above in this Section 8, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 9. THE ADMINISTRATIVE AGENT AND THE ISSUING LENDERS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints Chemical as the Administrative Agent of such Lender under this
Agreement, the Notes and each other agreement (if any) entered into pursuant to
this Agreement (collectively, the "Credit Documents") and Chemical and each
other Lender so designated hereunder as the Issuing Lenders under this
Agreement, and each such Lender irrevocably authorizes Chemical as the
Administrative Agent for such Lender and Chemical and each other Issuing Lender
as Issuing Lenders to take such action on its behalf under the provisions of
this Agreement and each other Credit Document and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent or
the Issuing Lenders, as the case may be, by the terms of this Agreement and
each other Credit Document, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, neither the Administrative Agent nor the Issuing Lenders shall
have any duties or responsibilities, except those expressly set forth herein
and in the other Credit Documents, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent and the Issuing Lenders.
-54-
60
9.2 Delegation of Duties. The Administrative Agent and the Issuing
Lenders may execute any of their respective duties under this Agreement or the
other Credit Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
Neither the Administrative Agent nor any Issuing Lender shall be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent nor
any Issuing Lender nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Credit Document (except for its or
such Person's own gross negligence or willful misconduct), or (b) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement or any other Credit Document or in any certificate,
report, statement or other document referred to or provided for in, or received
under or in connection with, this Agreement or any other Credit Document or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Credit Document, or for any failure of the
Company or any other Person to perform its obligations hereunder or thereunder.
Neither the Administrative Agent nor any Issuing Lender shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Credit Document or to inspect the properties, books or
records of the Company or any of its Subsidiaries. This subsection 9.3 is
intended to govern the relationship between the Administrative Agent and the
Issuing Lenders, on the one hand, and the Lenders, on the other.
9.4 Reliance by Administrative Agent and the Issuing Lenders. The
Administrative Agent and the Issuing Lenders shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by any of them to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Company), independent
accountants and other experts selected by the Administrative Agent or an
Issuing Lender. The Administrative Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent and the Issuing Lenders shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless any such Person shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent and
the Issuing Lenders shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance with a request of the Required Lenders (or, if required by this
Agreement, all of the Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
-55-
61
9.5 Notice of Default. Neither the Administrative Agent nor any
Issuing Lender shall be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the Administrative Agent or
such Issuing Lender, as the case may be, has received notice from a Lender or
the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent or an Issuing Lender receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent and the Issuing Lenders shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided that unless and until the Administrative Agent
or the Issuing Lenders shall have received such directions, the Administrative
Agent and the Issuing Lenders may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as they shall deem advisable in the best interests of the
Lenders.
9.6 Non-Reliance on Administrative Agent, Issuing Lenders and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor the Issuing Lenders nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Administrative Agent or the Issuing
Lenders hereafter taken, including any review of the affairs of the Company,
shall be deemed to constitute any representation or warranty by the
Administrative Agent or the Issuing Lenders to any Lender. Each Lender
represents to the Administrative Agent and the Issuing Lenders that it has,
independently and without reliance upon the Administrative Agent, the Issuing
Lenders or any other Lender and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent, the
Issuing Lenders or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement or under the other Credit Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Company. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent or an Issuing Lender
hereunder or under the other Credit Documents, neither the Administrative Agent
nor such Issuing Lender shall have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the
Company which may come into the possession of the Administrative Agent or the
Issuing Lenders or any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent and the Issuing Lenders in their respective capacities as
such (to the extent not reimbursed by the Company and without limiting the
obligation of the Company to do so), ratably according to the respective
amounts of their Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at
-56-
62
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Administrative Agent or the Issuing Lenders in any way
relating to or arising out of this Agreement or any other Credit Document or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent or the Issuing Lenders under or in connection with any
of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the Administrative Agent's or an Issuing Lender's gross negligence or
willful misconduct. The agreements in this subsection 9.7 shall survive the
payment of the Notes and all other amounts payable hereunder.
9.8 Administrative Agent and Issuing Lenders in Their Individual
Capacities. The Administrative Agent, each Issuing Lender and their respective
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Company as though the Administrative Agent or such
Issuing Lender were not the Administrative Agent or an Issuing Lender,
respectively, hereunder. With respect to Loans made or renewed by it and any
Note issued to it, the Administrative Agent and the Issuing Lenders shall have
the same rights and powers under this Agreement as any Lender and may exercise
the same as though it were not the Administrative Agent or an Issuing Lender,
and the terms "Lender" and "Lenders" shall include the Administrative Agent and
the Issuing Lenders in their respective individual capacities.
9.9 Successor Administrative Agent and Issuing Lenders. The
Administrative Agent or any Issuing Lender may resign as Administrative Agent
or Issuing Lender upon 30 days' notice to the Company and the Lenders. If the
Administrative Agent or any Issuing Lender shall resign as Administrative Agent
or Issuing Lender under this Agreement, then the Required Lenders during such
30-day period shall appoint from among the Lenders a successor agent or issuing
bank for the Lenders, whereupon such successor agent or issuing bank shall
succeed to the rights, powers and duties of the Administrative Agent or Issuing
Lender being replaced and the term "Administrative Agent" or "Issuing Lender"
shall mean such successor agent or issuing bank, respectively, effective upon
its appointment, and the former Administrative Agent's or Issuing Lender's
rights, powers and duties as Administrative Agent or Issuing Lender shall be
terminated, without any other or further act or deed on the part of such former
Administrative Agent or Issuing Lender or any of the parties to this Agreement
or any holders of the Notes; provided that no successor agent or issuing bank
may be appointed by the Required Lenders without the prior written consent of
the Company, which consent shall not be unreasonably withheld. After any
retiring Administrative Agent's or Issuing Lender's resignation hereunder as
the Administrative Agent or an Issuing Lender, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Administrative Agent or an Issuing Lender under this
Agreement.
-57-
63
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any Note, any
other Credit Document nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection 10.1. With the written consent of the Required Lenders, the
Administrative Agent and the Company may, from time to time, enter into written
amendments, supplements or modifications for the purpose of adding, deleting or
changing any provisions to this Agreement, the Notes or any other Credit
Document, or changing in any manner the rights of the Lenders or of the Company
hereunder or thereunder or waiving, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
this Agreement, the Notes or any other Credit Document or any Default or Event
of Default and its consequences; provided that no such waiver and no such
amendment, supplement or modification shall (a) extend the Revolving Credit
Termination Date (except in the manner expressly contemplated by this
Agreement) or Term Loan Maturity Date or extend the maturity of any Loan or any
installment thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any fee payable to the Lenders hereunder, or reduce
the principal amount thereof, or increase the amount of any Lender's Revolving
Credit Commitment, Term Loan Commitment or Commitment Percentage, or amend,
modify or waive any provision of this subsection 10.1 or reduce the percentage
specified in the definition of Required Lenders, or consent to the assignment
or transfer by the Company of any of its rights and obligations under this
Agreement, in each case without the written consent of all the Lenders or (b)
amend, modify or waive any provision of Section 9 without the written consent
of the then Administrative Agent or Issuing Lender affected by such amendment,
modification or waiver. Any such waiver and any such amendment, supplement or
modification shall apply to each of the Lenders equally and shall be binding
upon the Company, the Lenders, the Administrative Agent and all future holders
of the Notes. In the case of any waiver, the Company, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
10.2 Notices. Except as otherwise expressly provided herein, all
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by facsimile), and shall be deemed to
have been duly given or made when delivered by hand, or five days after being
deposited in the United States mail, postage prepaid, or, in the case of
facsimile notice, when sent, and telephonically confirmed, or, in the case of a
nationally recognized courier service, one Business Day after delivery to such
courier service, addressed as follows in the case of the Company and the
Administrative Agent, and as set forth on Schedule 1 in the case of the
Lenders, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Notes:
-58-
64
The Company: PanEnergy Corp
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Treasurer
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
The Administrative Agent: Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Energy Division
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsections 2.3, 2.15, 2.18, 2.19, 3.5, 3.6 and 3.10
shall not be effective until actually received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the making of the Loans and
issuance of Letters of Credit hereunder.
10.5 Payment of Expenses and Taxes. The Company agrees (a) to pay
or reimburse the Administrative Agent for all the reasonable fees and
disbursements of counsel to the Administrative Agent incurred in connection
with the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement, the Notes and any other
documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, (b) to pay or reimburse each
Lender and the Administrative Agent for all their costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the Notes and any such other documents, including, without
limitation, the fees and disbursements of counsel to the Administrative Agent,
and (c) to pay, indemnify and hold each Lender and the Administrative Agent
harmless from any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment,
-59-
65
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the Notes and any such other documents. This covenant shall
survive the termination of this Agreement and payment in full of the
Obligations.
10.6 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Company, the Lenders, the Administrative Agent,
all future holders of the Notes and their respective successors and assigns,
except that the Company may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender. No Lender may participate, assign or sell any of its Credit Exposure
(as defined in subsection 10.7) except as required by operation of law, in
connection with the merger, consolidation, dissolution or sale of any Lender or
the sale of all or substantially all of the assets of such Lender or as
provided in subsection 10.7, 10.8 or 10.9.
10.7 Participations. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time
sell to one or more commercial banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any L/C Participating Interest of such Lender, any part of the
Commitments of such Lender or any other interest of such Lender hereunder (in
respect of any such Lender, its "Credit Exposure"); provided, however, that,
except with the prior written consent of the Company and the Administrative
Agent (which in each case shall not be unreasonably withheld), after giving
effect to all of such sales by any Lender, and any other assignments permitted
under this subsection 10.7 and 10.8, such Lender shall continue to have
beneficial ownership of Credit Exposure equal to not less than 50% of its
Commitments; and provided, further, that no Participant (other than an
Affiliate of a Lender) shall be entitled under the relevant participation
agreement to require such Lender to take or omit to take any action hereunder,
except, to the extent any Participant has any interest directly affected
thereby, that extends the Revolving Credit Termination Date or the Term Loan
Maturity Date or the final maturity of any Note or any installment thereof or
reduces the rate or extends the time of payment of interest thereon, or reduces
any fee payable to the Lenders hereunder, or reduces the principal amount
thereof, or changes the amount of any Lender's Commitment Percentage, or
increases the amount of any Lender's Revolving Credit Commitment or Term Loan
Commitment. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note or
L/C Participating Interest for all purposes under this Agreement, and the
Company and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. The Company agrees that if amounts outstanding under this
Agreement and the Notes are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement, any Note and any
Letter of Credit to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement or any Note
or the Issuing Lender with respect to any Letter of Credit; provided that such
right of set-off shall be subject to the obligations of such Participant to
share with the Lenders, and the Lenders agree to share with such Participant,
as provided in subsection 10.11. The Company also agrees that each Participant
shall be entitled to the benefits of subsections 3.12,
-60-
66
3.13, 3.14 and 3.15 with respect to its participation in the Commitments, the
Loans and the Letters of Credit outstanding from time to time; provided that no
Participant shall be entitled to receive any greater amount pursuant to such
subsections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
10.8 Assignments. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time
sell to any other Lender or any Affiliate thereof, and, subject to the
limitations set forth in the proviso to this sentence and with the consent of
the Company and the Administrative Agent (which in each case shall not be
unreasonably withheld) to one or more additional commercial banks or other
financial institutions ("Purchasing Lenders") all or any part of its rights and
obligations under this Agreement and its Notes and with respect to the Letters
of Credit, pursuant to a Commitment Transfer Supplement, in the form of Exhibit
K (a "Commitment Transfer Supplement"), executed by such Purchasing Lender,
such transferor Lender (and, in the case of a Purchasing Lender that is not
then a Lender or an Affiliate thereof, by the Company and the Administrative
Agent), and delivered to the Administrative Agent for its acceptance and
recording in the Register; provided, however, that, except with the prior
written consent of the Company (which consent shall not be unreasonably
withheld) or in connection with a transfer pursuant to subsection 10.10(d), (i)
the Commitments purchased by any such Purchasing Lender that is not then a
Lender shall be equal to or greater than $15,000,000 and (ii) the transferor
Lender which has transferred part of its Commitments to any such Purchasing
Lender that is not then a Lender shall retain Commitments, after giving effect
to such sale, equal to or greater than $15,000,000 in the aggregate. Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date determined pursuant to such Commitment Transfer Supplement, (x)
the Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and
obligations of a Lender hereunder with Commitments as set forth therein to the
same extent as if it were an original party hereto with the same Commitment
Percentage set forth in such Commitment Transfer Supplement and no further
action by the Company, the Lenders or the Administrative Agent shall be
required in respect thereof except as otherwise provided herein, and (y) the
transferor Lender thereunder shall, to the extent provided in such Commitment
Transfer Supplement, be released from its obligations under this Agreement
(and, in the case of a Commitment Transfer Supplement covering all or the
remaining portion of a transferor Lender's rights and obligations under this
Agreement, such transferor Lender shall cease to be a party hereto except, in
respect of periods prior to such termination, with respect to subsections 3.8,
3.14, 3.15 and 10.5). Such Commitment Transfer Supplement shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender and the resulting adjustment of
Commitment Percentages arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
this Agreement and its Notes and with respect to the Letters of Credit. On or
prior to the Transfer Effective Date determined pursuant to such Commitment
Transfer Supplement, the Company, at the Company's expense, shall execute and
deliver to the Administrative Agent in exchange for each surrendered Note a new
Note, to the order of such Purchasing Lender, and each Issuing Lender shall
execute and deliver new Letter of Credit Participation Certificates, if
appropriate, in each case in amounts equal to its respective percentages of
Commitments or,
-61-
67
as appropriate, the outstanding Loans as adjusted assumed by it pursuant to
such Commitment Transfer Supplement and, if the transferor Lender has retained
Commitments or any Competitive Loans hereunder, a new Note or Notes to the
order of the transferor Lender in an amount or amounts equal to the Commitments
and any Competitive Loans retained by it hereunder. Such new Note or Notes
shall be dated the Effective Date in the case of a Revolving Credit Note or
Competitive Loan Note or the Revolving Credit Termination Date in the case of a
Term Note and shall otherwise be in the form of the Note replaced thereby. The
Note surrendered by the transferor Lender shall be returned by the
Administrative Agent to the Company marked "cancelled". If any Letter of
Credit Participation Certificates have been issued to the transferor Lender and
are then outstanding, appropriate adjustments by virtue of the issuance of new
certificates to the Purchasing Lender and, if appropriate, the transferor
Lender shall be made as promptly as practicable after the Transfer Effective
Date.
10.9 Transfers of Competitive Loans. (a) Any Competitive Loan
Lender, in the ordinary course of its business and in accordance with
applicable law, at any time may assign to one or more banks or other entities
(each, a "Competitive Loan Assignee") any Competitive Loan owing to such
Competitive Loan Lender and any Individual Competitive Loan Note held by such
Lender evidencing such Competitive Loan, pursuant to a Competitive Loan
Assignment executed by the assignor Competitive Loan Lender and the Competitive
Loan Assignee.
(b) Upon such execution, from and after the date of such Competitive
Loan Assignment, the Competitive Loan Assignee shall be deemed, to the extent
of the assignment provided for in such Competitive Loan Assignment, and subject
to the provisions of subsections 10.9(c) and 10.9(d), to have the same rights
and benefits of payment and enforcement with respect to such Competitive Loan
and Individual Competitive Loan Note (including, without limitation, the
applicable rights set forth in subsections 3.12, 3.13, 3.14 and 3.15) and the
same rights of setoff and obligation to share pursuant to subsection 10.11 as
it would have had if it were a Competitive Loan Lender hereunder.
(c) Unless such Competitive Loan Assignment shall otherwise specify
and a copy of such Competitive Loan Assignment shall have been delivered to the
Administrative Agent for its acceptance and recording in the Register in
accordance with subsection 10.10(a), the assignor under the Competitive Loan
Assignment shall act as collection agent for the Competitive Loan Assignee
thereunder, and the Administrative Agent shall pay all amounts received from
the Company which are allocable to the assigned Competitive Loan or Individual
Competitive Loan Note directly to such assignor without any liability to such
Competitive Loan Assignee.
(d) A Competitive Loan Assignee under a Competitive Loan Assignment
shall not, by virtue of such Competitive Loan Assignment, become a party to
this Agreement or a "Competitive Loan Lender", or have any rights to consent to
or refrain from consenting to any amendment, waiver or other modification of
any provision of this Agreement or any related document; provided that (i) the
assignor under such Competitive Loan Assignment and such Competitive Loan
Assignee may, in their discretion, agree between themselves upon the manner in
which such assignor will exercise its rights under this Agreement and any
related document, and (ii) if a copy of such Competitive Loan Assignment shall
have been delivered
-62-
68
to the Administrative Agent for its acceptance and recording in the Register in
accordance with subsection 10.10(a), no such amendment, waiver or modification
may reduce or postpone any payment of principal or interest or modify the
Competitive Loan Maturity Date in respect of any Competitive Loan or Individual
Competitive Loan Note assigned to such Competitive Loan Assignee without the
written consent of such Competitive Loan Assignee.
(e) If a Competitive Loan Assignee has caused a Competitive Loan
Assignment to be recorded in the Register in accordance with subsection
10.10(a) such Competitive Loan Assignee may thereafter, in the ordinary course
of its business and in accordance with applicable law, assign the relevant
Competitive Loans and Individual Competitive Loan Notes to any Competitive Loan
Lender, to any affiliate or subsidiary of such Competitive Loan Assignee or to
any other financial institution that has total assets in excess of
$1,000,000,000 and that in the ordinary course of its business extends credit
of the same type as the Competitive Loans, and the foregoing provisions of this
subsection 10.9 shall apply, mutatis mutandis, to any such assignment by a
Competitive Loan Assignee. Except in accordance with the preceding sentence,
Competitive Loans and Individual Competitive Loan Notes may not be further
assigned by a Competitive Loan Assignee, subject to any legal or regulatory
requirement that the Competitive Loan Assignee's assets must remain under its
control.
10.10 Register, Etc. (a) The Administrative Agent shall maintain
at its address referred to in subsection 10.2 a copy of each Commitment
Transfer Supplement and each Competitive Loan Assignment delivered to it and a
register (the "Register") for the recordation of (i) the names and addressees
of the Lenders and the Commitments of, and principal amount of the Loans owing
to and L/C Participating Interests of, each Lender from time to time and (ii)
with respect to each Competitive Loan Assignment delivered to the
Administrative Agent, the name and address of the Competitive Loan Assignee and
the principal amount of each Competitive Loan owing to such Competitive Loan
Assignee. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as the owner of the
Loans recorded therein for all purposes of this Agreement. The Register shall
be available for inspection by the Company or any Lender or Competitive Loan
Assignee at any reasonable time and from time to time upon reasonable prior
notice.
(b) Upon its receipt of a Commitment Transfer Supplement executed by
a transferor Lender and a Purchasing Lender (and, in the case of a Purchasing
Lender that is not then a Lender or an Affiliate thereof, by the Company and
the Administrative Agent) together with payment by the Purchasing Lender to the
Administrative Agent of a registration and processing fee of $2,500, the
Administrative Agent shall (i) promptly accept such Commitment Transfer
Supplement and (ii) on the Transfer Effective Date determined pursuant thereto
(and as defined therein) record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Company.
(c) Upon its receipt of a Competitive Loan Assignment executed by an
assignor Competitive Loan Lender and a Competitive Loan Assignee, together with
payment to the Administrative Agent of a registration and processing fee of
$2,500 (which shall not be payable by the Company), the Administrative Agent
promptly shall (i) accept such Competitive Loan Assignment, (ii) record the
information contained therein in the Register
-63-
69
and (iii) give notice of such acceptance and recordation to the assignor
Competitive Loan Lender, the Competitive Loan Assignee and the Company.
(d) If any Lender (or, if such Lender has participated all or any
part of its Loans or Commitments or assigned any of its Competitive Loans, any
of such Lender's Participants or Competitive Loan Assignees) does not agree
with a proposal of the Company for an amendment, waiver or consent in respect
of an issue described in clause (a) of the proviso to the second sentence of
subsection 10.1, the Company, with the consent of the Required Lenders, may
require that such Lender (and each of its Participants and Competitive Loan
Assignees, if any) transfer all of its right, title and interest under this
Agreement and such Lender's Note or Notes to a bank identified by the Company
who agrees to assume the obligations of such Lender (a "Proposed Lender") for a
consideration equal to the outstanding principal amount of such Lender's Loans,
together with interest thereon to the date of such transfer and all other
amounts payable hereunder (including but not limited to amounts payable under
subsection 3.15) to such Lender on or prior to the date of such transfer. No
Lender shall withhold its consent to such a transfer if the fee and any
consideration paid to such transferee are reasonably acceptable to such Lender.
Subject to the execution and delivery of a Commitment Transfer Supplement, such
Proposed Lender shall be a "Lender" for all purposes hereunder.
(e) The Company authorizes each Lender to disclose to any
Participant, Competitive Loan Assignee or Purchasing Lender (each, a
"Transferee") and any prospective Transferee any and all financial information
in such Lender's possession concerning the Company which has been delivered to
such Lender by or on behalf of the Company pursuant to this Agreement or which
has been delivered to such Lender by or on behalf of the Company in connection
with such Lender's credit evaluation of the Company prior to entering into this
Agreement; provided that, if non-public information is furnished, each
Transferee shall execute and deliver to such Lender a confidentiality agreement
between such Lender and the Transferee, substantially in the form previously
approved by the Administrative Agent and the Company.
(f) If, pursuant to subsection 10.7, 10.8 or 10.9, any interest in
this Agreement or any Note or Letter of Credit is transferred to any Transferee
which is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Lender shall cause such Transferee
(unless such Transferee is a Lender purchasing under subsection 10.8)
concurrently with the effectiveness of such transfer, (i) to represent to the
transferor Lender (for the benefit of the transferor Lender, the Administrative
Agent and the Company) that under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent, the Company or the
transferor Lender with respect to any payments to be made to such Transferee,
in respect of the Loans or Letters of Credit, (ii) to furnish to the transferor
Lender, the Administrative Agent and the Company either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such
Participant claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder) and (iii) to agree (for the
benefit of the transferor Lender, the Administrative Agent and the Company) to
provide the transferor Lender, the Administrative Agent and the Company a new
Form 4224 or Form 1001 upon the obsolescence of any previously delivered form
and comparable statements in accordance with applicable U.S. laws
-64-
70
and regulations and amendments duly executed and completed by such Transferee,
and to comply from time to time with all applicable U.S. laws and regulations
with regard to such withholding tax exemption.
(g) Nothing herein shall prohibit any Lender from pledging or
assigning any Notes to any Federal Reserve Bank in accordance with applicable
law.
10.11 Adjustments; Set-Off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment in respect of all or part of its
Loans or L/C Participating Interests (other than pursuant to subsections 3.8,
3.12, 3.13, 3.14, 3.15, 3.17, 10.8, 10.9 or 10.10(d)), or interest thereon, or
receive any collateral in respect thereof or any amount under any guarantee in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in clause (f) of Section 8, or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of such other Lender's Loans
or L/C Participating Interests, or interest thereon, such Benefitted Lender
shall purchase for cash from the other Lender such portion of each such other
Lender's Loans or L/C Participating Interests, or shall provide such other
Lender with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Company agrees that each Lender so
purchasing a portion of another Lender's Loans or L/C Participating Interests
may exercise all rights of payment (including, without limitation, rights of
set-off) with respect to such portion as fully as if such Lender were the
direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided
by law, upon the occurrence of an Event of Default, each Lender shall have the
right, without prior notice to the Company, any such notice being expressly
waived by the Company to the extent permitted by applicable law, to set off and
apply against any indebtedness, whether matured or unmatured, of the Company to
such Lender, any amount owing from such Lender to the Company, and the
aforesaid right of set-off may be exercised by such Lender against the Company
or against any trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver or executor, judgment or attachment creditor of
the Company or against anyone else claiming through or against the Company or
such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or executor, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each Lender
agrees promptly to notify the Company and the Administrative Agent after any
such set-off and application made by such Lender; provided that the failure to
give such notice shall not affect the validity of such set-off and application.
10.12 Existing Facilities. Each Lender which is a party to the
Existing Facilities (the "Existing Lenders") agrees that the irrevocable notice
and direction to be delivered by the
-65-
71
Company, PEPL and TETCO to each Lender and the Administrative Agent pursuant to
subsection 4.1(d) shall constitute sufficient notice of the termination of the
Commitments (as defined in each Existing Facility) and the prepayment of any
loans outstanding under the Existing Facilities, and hereby waives any express
notice requirements under each Existing Facility in connection therewith.
10.13 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Administrative Agent.
10.14 GOVERNING LAW. THIS AGREEMENT, THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
10.15 SUBMISSION TO JURISDICTION; WAIVERS. THE COMPANY HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE
NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK,
THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND THE APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS, AND WAIVES TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT, IF IT SHALL NOT HAVE A REGISTERED AGENT FOR SERVICE
OF PROCESS IN THE STATE OF NEW YORK, THEN SERVICE OF PROCESS IN ANY SUCH
ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
AS THE CASE MAY BE, AT ITS ADDRESS SET FORTH IN SUBSECTION 10.2 OR AT SUCH
OTHER ADDRESS OF WHICH THE LENDERS SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION.
-66-
72
10.16 Limitation of Interest. It is expressly stipulated and agreed
to be the intent of the Company and each Lender at all times to comply with the
law applicable to such Lender in connection with the Credit Documents governing
the maximum rate or amount of interest payable on or in connection with the
Credit Documents. If the applicable law is ever judicially interpreted so as
to render usurious any amount called for under the Credit Documents, or
contracted for, charged, taken, reserved or received with respect to the Credit
Documents, or if acceleration of the maturity of the Loans or if any prepayment
by or on behalf of the Company results in the payment of any interest in excess
of that permitted by applicable law, then it is the Company's and such Lender's
express intent that all excess amounts theretofore collected by such Lender be
credited on the principal balance of the Loans (or, if such Loans have been or
would thereby be paid in full, refunded to the Company), and the provisions of
the Credit Documents immediately be deemed reformed and the amounts thereafter
collectible thereunder reduced as to such Lender, without the necessity of the
execution of any new document, so as to comply with applicable law, but so as
to permit the recovery of the fullest amount otherwise called for hereunder and
thereunder. The right to accelerate the maturity of the Loans does not include
the right to accelerate any interest which has not otherwise accrued on the
date of such acceleration, and the Lenders do not intend to collect any
unearned interest in the event of acceleration. All sums paid or agreed to be
paid to each Lender for the use, forbearance or detention of the indebtedness
evidenced by the Credit Documents shall, to the extent permitted by applicable
law, be amortized, prorated, allocated and spread throughout the full term of
such indebtedness until payment in full so that the rate or amount of interest
on account of such indebtedness does not exceed the applicable usury ceiling.
As used herein, the term "maximum rate" as to any Lender shall mean the maximum
non-usurious rate of interest which may be lawfully contracted for, charged,
taken, reserved or received by such Lender from the Company in connection with
the Loans evidenced hereby under applicable law.
10.17 Entire Agreement. This Agreement constitutes the entire
agreement and understanding among the parties hereto as to the subject matter
hereof and supersedes any previous agreement, oral or written, as to such
subject matter.
-67-
73
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
PANHANDLE EASTERN CORPORATION,
doing business as PANENERGY CORP
By: [ILLEGIBLE]
------------------------------------------
Title:
CHEMICAL BANK, as Administrative Agent, as
an Issuing Lender and as a Lender
By: /s/ XXXXX X. XXXXXX
------------------------------------------
Title: Vice President
BANK OF AMERICA ILLINOIS
By: [ILLEGIBLE]
------------------------------------------
Title:
BANK OF MONTREAL
By: [ILLEGIBLE]
------------------------------------------
Title: Director
THE BANK OF NEW YORK
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Title: Vice President
00
XXX XXXX XX XXXX XXXXXX
By: /s/ F.C.H. XXXXX
------------------------------------------
Title: Senior Manager Loan Operations
BARCLAYS BANK PLC
By: [ILLEGIBLE]
------------------------------------------
Title: Director
CIBC, INC.
By: [ILLEGIBLE]
------------------------------------------
Title: Authorized Signatory
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ XXXXX X. XXXXXX
------------------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: [ILLEGIBLE]
------------------------------------------
Title: Attorney in Fact
MELLON BANK, N.A.
By: E. XXXX XXXXXX, XX.
------------------------------------------
Title: First Vice President
75
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: [ILLEGIBLE]
------------------------------------------
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: [ILLEGIBLE]
------------------------------------------
Title: Senior Vice President
NATIONAL WESTMINSTER BANK PLC NEW YORK BRANCH
By: /s/ XXXXX X. XXXXX
------------------------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC NASSAU BRANCH
By: /s/ XXXXX X. XXXXX
------------------------------------------
Title: Vice President
BANK OF TOKYO LIMITED, DALLAS AGENCY
By: /s/ X. XxXXXXXX
------------------------------------------
Title: Vice President
76
THE FUJI BANK, LIMITED (HOUSTON AGENCY)
By: [ILLEGIBLE]
------------------------------------------
Title: Vice President & Senior Manager
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: [ILLEGIBLE]
------------------------------------------
Title: Joint General Manager
THE ROYAL BANK OF CANADA
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Title: Manager
THE SANWA BANK, LIMITED, DALLAS AGENCY
By: [ILLEGIBLE]
------------------------------------------
Title: Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ XXXXXXX X. XXXXX
------------------------------------------
Title: Vice President
00
XXX XXXXXXX-XXXXXXXX XXXX, XXXXXXX AGENCY
By: /s/ XXXXXX XXXXXX
------------------------------------------
Title: Manager Credit
UNION BANK OF SWITZERLAND, HOUSTON AGENCY
By: /s/ XXX X. XXXXX
------------------------------------------
Title: Managing Director
By: /s/ XXXXXX XXXXXXXXXXX
------------------------------------------
Title: Assistant Treasurer
ARAB BANKING CORPORATION
By: XXXXXXX X. XXXXXXX'
------------------------------------------
Title: Vice President
BANK OF SCOTLAND
By: /s/ XXXXXXXXX X. XXXXXXXX
------------------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.
By: /s/ XXXXXXXX X. XXXXXX
------------------------------------------
Title: Vice President
78
CHRISTIANIA BANK
By: [ILLEGIBLE]
------------------------------------------
Title: Vice President
By: /s/ XXXX-XXXXXX XXXXXXXX
------------------------------------------
Title: First Vice President
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: /s/ COLLIE X. XXXXXXXX
------------------------------------------
Title: Vice President
THE BANK OF YOKOHAMA, LOS ANGELES AGENCY
By: [ILLEGIBLE]
------------------------------------------
Title: Deputy General Manager
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY
By: [ILLEGIBLE]
------------------------------------------
Title: Senior Vice President
THE MITSUBISHI BANK, LIMITED, HOUSTON AGENCY
By: /s/ SHOJI HONDA
------------------------------------------
Title: General Manager
79
THE NORTHERN TRUST COMPANY
By: [ILLEGIBLE]
------------------------------------------
Title: [ILLEGIBLE]
THE SUMITOMO BANK, LIMITED, HOUSTON AGENCY
By: /s/ XXXXXXXXX XXXX
------------------------------------------
Title: General Manager
80
Schedule 1
Schedules to
Credit Agreement
dated as of January 31, 1996
LENDING OFFICES
Chemical Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telex: 166350
Answerback: TCBHOU
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
Bank of America Illinois
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Telecopy: (000) 000-0000
and
Bank of Montreal
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn:
Telex:
Answerback:
Telecopy:
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
00
Xxxx xx Xxxxxxxx, Xxxxxxx Agency
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Telex: 775640
Answerback: BMOHOU
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telex: MCI 62763
Answerback: BONY UW
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
The Bank of Nova Scotia-Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Telex: 00000000
Answerback: SCOTIABANK ATL
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
-2-
82
With a copy to:
Bank of Nova Scotia, Houston Rep. Xxxxxx
0000 Xxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: X.X. Xxxxx
Barclays Bank PLC
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Customer Service Unit
Telex: 126195
Answerback: BARCLADOM NYK
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
CIBC, Inc.
2 Paces West
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxx
Telex: 54-2413
Answerback: CANBANK ATL
Telecopy: (000) 000-0000
(000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
The First National Bank of Boston
000 Xxxxxxx Xxxxxx, 00-00-0
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxx
Telex:
Answerback:
Telecopy: (000) 000-0000
-3-
83
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Bank of Boston
000 Xxxxxxx Xx., 00-0X-00
Xxxxxx, XX 00000
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Petroleum & Mining Division
Telex:
Answerback:
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
Mellon Bank, N.A.
Three Mellon Bank Center
Xxxxxxxxxx, XX 00000
Attn: Loan Administration
Telex: 812367
Answerback: MELBNK
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
Xxxxxx Guaranty Trust Company of
New York
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Telex: ITT 420230
Answerback: MGT UI
Telecopy: (000) 000-0000
-4-
84
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
NationsBank of Texas, N.A.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Loan Services
Telex: 6829317
Answerback: NATIONSBK-DAL
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
National Westminster Bank PLC
000 Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Telex: 233 222
Answerback: NWBUR
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
Bank of Tokyo, Ltd., Dallas Agency
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telex:
Answerback:
Telecopy: (000) 000-0000
-5-
85
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
The Fuji Bank, Limited (Houston Agency)
0 Xxxxxxx Xxxxxx, Xxxxx 0000
0000 XxXxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxx/Xxxx XxXxxxxxx
Credit Contact: Xxxxxxx xxx Xxxxxxxxxx
Telex: 790-026
Answerback: FUJIBANK HOU
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
The Long-Term Credit Bank of Japan, Ltd.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Chikara Mano
Telex: 425722
Answerback: LTCB-UI
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
-6-
86
The Royal Bank of Canada
0 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxxxxxx, Loans Administration
Telex: MCI 62519
Answerback: ROYBAN
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
The Sanwa Bank, Limited, Dallas Agency
4100W Texas Commerce Tower
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telex: 735282
Answerback: SANWABK DAL
Telecopy: (0000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
Societe Generale, Southwest Agency
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telex:
Answerback:
Telecopy: (000) 000-0000
Domestic Lending Office:
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxx
Telecopy: (000) 000-0000
Eurodollar Lending Office:
Same as above
-7-
00
Xxx Xxxxxxx-Xxxxxxxx Xxxx, Xxxxxxx Agency
000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Telex:
Answerback:
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
Union Bank of Switzerland, Houston Agency
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxx
Telex: 762 597
Answerback: UBSHOU
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
Arab Banking Corporation (B.S.C.)
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Loan Manager
Telex: 661978 WU
Answerback: ABC NY
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
-8-
88
Bank of Scotland
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Telex: 6801012
Answerback: UBIFORN
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
Christiania Bank
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Telex: 824277
Answerback: CHRBK
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
First Interstate Bank of Texas, N.A.
0000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Telex: 166488
Answerback: FITXINTHOU
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
-9-
89
The Bank of Yokohama, Ltd., Los Angeles Agency
000 Xx. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telex: TWX9103213395
Answerback: HAMAGIN
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
The Chase Manhattan Bank, N.A.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telex: 62910 CMBUW
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Cayman Islands, B.W.I.
c/o The Chase Manhattan Bank, N.A.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
The Industrial Bank of Japan Trust Company
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx
Telex: 425754
Answerback: IBTC UI
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
-10-
90
The Mitsubishi Bank, Limited, Houston Agency
0 Xxxxxxx Xxxxxx, Xxxxx 0000
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Telex: 791211
Answerback: BISHIHOV
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Short
Telex: WUD 254419
Answerback: NORTRUST CGO
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
The Sumitomo Bank, Limited, Houston Agency
NCNB Center
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Akihiko Yuasa
Telex: 774417
Answerback: SUMITBANK XXXX
Telecopy: (000) 000-0000
Domestic Lending Office:
Same as above
Eurodollar Lending Office:
Same as above
-11-
91
Schedule 2
REVOLVING CREDIT COMMITMENTS
Percentage
Commitment of
Lender (in millions) Commitments
------ ------------- -----------
Chemical Bank $ 17.0 4.25%
Bank of America Illinois 18.5 4.625
Bank of Montreal 18.5 4.625
The Bank of New York 18.5 4.625
The Bank of Nova Scotia 18.5 4.625
Barclays Bank PLC 18.5 4.625
CIBC, Inc. 18.5 4.625
The First National Bank of Boston 18.5 4.625
The First National Bank of Chicago 18.5 4.625
Mellon Bank, N.A. 18.5 4.625
Xxxxxx Guaranty Trust Company of New York 18.5 4.625
NationsBank of Texas, N.A. 18.5 4.625
National Westminster Bank PLC 18.5 4.625
Bank of Tokyo, Ltd., Dallas Agency 12.0 3.0
The Fuji Bank, Limited (Houston Agency) 12.0 3.0
The Long-Term Credit Bank of Japan, Ltd. 12.0 3.0
The Royal Bank of Canada 12.0 3.0
The Sanwa Bank, Limited, Dallas Agency 12.0 3.0
Societe Generale, Southwest Agency 12.0 3.0
The Toronto-Dominion Bank, Houston Agency 12.0 3.0
Union Bank of Switzerland, Houston Agency 12.0 3.0
Arab Banking Corporation (B.S.C.) 6.5 1.625
Bank of Scotland 6.5 1.625
Christiania Bank 6.5 1.625
First Interstate Bank of Texas, N.A. 6.5 1.625
The Bank of Yokohama, Ltd., Los Angeles Agency 6.5 1.625
The Chase Manhattan Bank, N.A. 6.5 1.625
The Industrial Bank of Japan Trust Company 6.5 1.625
The Mitsubishi Bank, Limited, Houston Agency 6.5 1.625
The Northern Trust Company 6.5 1.625
The Sumitomo Bank, Limited, Houston Agency 6.5 1.625
------ -----
Total $400.0 100.0%
====== =====
92
Schedule 3
EXCLUDED SALES OF ASSETS
PEPL's transmission and gathering system west of Haven, Kansas known as the
"West End System."
The two liquefied natural gas tankers owned by Lachmar, a Delaware partnership,
and related parts and equipment.
PEPL's headquarters building and related assets located at 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxx.
Transportation equipment and related facilities of the Company and its
Subsidiaries.
Any investment in any entity (other than the Principal Subsidiaries) in which
the Company and/or its Subsidiaries owns less than 100% of the equity interest.
93
EXHIBIT A TO
CREDIT AGREEMENT
FORM OF COMPETITIVE LOAN CONFIRMATION
____________, 199__
Chemical Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Reference is made to the Credit Agreement, dated as of January 31,
1996, among the undersigned, the Lenders named therein, and Chemical Bank, as
Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
In accordance with subsection 2.15(d) of the Credit Agreement, the
undersigned accepts and confirms the offers by Competitive Loan Lender(s) to
make Competitive Loans to the undersigned on ________________, 199__
[Competitive Loan Borrowing Date] under subsection 2.15(b) [index rate] or
2.15(c) [fixed rate] in the (respective) amount(s) set forth on the attached
list of Competitive Loans offered.
Very truly yours,
PANHANDLE EASTERN CORPORATION,
doing business as PANENERGY CORP
By:
------------------------------------
Title:
[The Company must attach Competitive Loan Offer list prepared by Administrative
Agent with accepted amount entered by the Company to right of each Competitive
Loan Offer.]
A-1
94
EXHIBIT B TO
CREDIT AGREEMENT
FORM OF COMPETITIVE LOAN OFFER
Chemical Bank, as Administrative Agent ____________, 199__
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Reference is made to the Credit Agreement, dated as of January 31,
1996, among Panhandle Eastern Corporation, a Delaware corporation, doing
business as PanEnergy Corp, the Lenders named therein, and Chemical Bank, as
Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement. In accordance with subsection 2.15(b) [index rate] or
2.15(c) [fixed rate] of the Credit Agreement, the undersigned Competitive Loan
Lender offers to make Competitive Loans thereunder in the following amounts
with the following maturity dates:
----------------------------------------------------------------------------------------
Competitive Loan Borrowing
Date: _______________, 199__ Aggregate Maximum Amount $__________
----------------------------------------------------------------------------------------
Maturity Date 1: Maximum Amount: $_________________
_______________, 199__ $____________ offered at __________*
$____________ offered at __________*
----------------------------------------------------------------------------------------
Maturity Date 2: Maximum Amount: $_________________
_______________, 199__ $____________ offered at __________*
$____________ offered at __________*
----------------------------------------------------------------------------------------
Maturity Date 3: Maximum Amount: $_________________
_______________, 199__ $____________ offered at __________*
$____________ offered at __________*
----------------------------------------------------------------------------------------
Very truly yours,
[NAME OF COMPETITIVE LOAN LENDER]
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Telephone No.
--------------------------
Fax No.
--------------------------------
--------------------
* Insert the interest rate offered for the specified loan amount. In the
case of Index Rate Competitive Loans, insert a margin bid. In the case of
Fixed Rate Competitive Loans, insert a fixed rate bid.
B-1
95
EXHIBIT C TO
CREDIT AGREEMENT
FORM OF COMPETITIVE LOAN REQUEST
_______________, 199__
Chemical Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Reference is made to the Credit Agreement, dated as of January 31,
1996, among the undersigned, the Lenders named therein, and Chemical Bank, as
Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
This is [an Index Rate] [a Fixed Rate] Competitive Loan Reques(1)
pursuant to subsection 2.14(a) of the Credit Agreement requesting quotes for
the following Competitive Loans:
===========================================================================================
Loan 1 Loan 2 Loan 3
Aggregate Principal Amount $__________ $__________ $__________
-------------------------------------------------------------------------------------------
Borrowing Date
-------------------------------------------------------------------------------------------
Competitive Loan Maturity Date
-------------------------------------------------------------------------------------------
Interest Payment Dates
===========================================================================================
Very truly yours,
PANHANDLE EASTERN CORPORATION,
doing business as PANENERGY CORP
By:
------------------------------------
Title:
-------------------------
(1) Pursuant to the Credit Agreement, a Competitive Loan Request may be
transmitted in writing (including by facsimile transmission), or by
telephone, immediately confirmed by facsimile transmission. In any case, a
Competitive Loan Request shall contain the information specified in the
second paragraph of this form.
C-1
96
EXHIBIT D TO
CREDIT AGREEMENT
FORM OF LETTER OF CREDIT PARTICIPATION CERTIFICATE
__________, 19__
Name of Lender
Dear Sirs:
Pursuant to subsection 2.7 of the Credit Agreement dated as of January
31, 1996 (the "Credit Agreement"; terms defined in the Credit Agreement being
used herein with their respective defined meanings) among Panhandle Eastern
Corporation, a Delaware corporation, doing business as PanEnergy Corp, the
financial institutions parties thereto (the "Lenders") and Chemical Bank, as
Administrative Agent for the Lenders, the undersigned hereby acknowledges
receipt from you on the date hereof of an L/C Participating Interest in the
amount of ____________________ DOLLARS ($_________) in the following [Standby
L/C] [Commercial L/C] and the Letter of Credit Application relating thereto.
Very truly yours,
[ISSUING LENDER]
By:
------------------------------------
Title:
D-1
97
EXHIBIT E TO
CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
REVOLVING CREDIT NOTE
New York, New York
January 31, 1996
FOR VALUE RECEIVED, the undersigned, PANHANDLE EASTERN CORPORATION, a
Delaware corporation, doing business as PanEnergy Corp (the "Company"), hereby
unconditionally promises to pay on the Revolving Credit Termination Date to the
order of [NAME OF LENDER] (the "Lender") at the office of Chemical Bank located
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United
States of America and in immediately available funds, the principal amount of
the lesser of (a) _________________________ DOLLARS ($________) and (b) the
aggregate unpaid principal amount of all Revolving Credit Loans made by the
Lender to the undersigned pursuant to subsection 2.1 of the Credit Agreement
referred to below.
The undersigned further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time from the date
hereof at the applicable rate per annum set forth in subsection 3.1 of the
Credit Agreement referred to below until any such amount shall become due and
payable (whether at the stated maturity, by acceleration or otherwise), and
thereafter on such overdue amount at the rate per annum set forth in subsection
3.1(e) of said Credit Agreement until paid in full (both before and after
judgment). Interest shall be payable in arrears on each Interest Payment Date,
commencing on the first such date to occur after the date hereof and upon
payment (including prepayment) in full of the unpaid principal amount hereof.
The holder of this Note is authorized to record the date, Type and
amount of each Loan made by the Lender pursuant to subsection 2.1 of said
Credit Agreement, the date and amount of each payment or prepayment of
principal with respect thereto, the length of each Interest Period with respect
to each Loan made and/or maintained as a Eurodollar Loan or CD Rate Loan and
the Eurodollar Rate or Adjusted CD Rate and each conversion made pursuant to
subsection 3.10 of said Credit Agreement on the schedules annexed hereto and
made a part hereof, or on a continuation thereof which shall be attached hereto
and made a part hereof, which recordation shall constitute prima facie evidence
of the accuracy of the information recorded; provided that failure by the
Lender to make any such recordation on this Note shall not affect the
obligations of the Company under this Note or said Credit Agreement.
This Note is one of the Revolving Credit Notes referred to in the
Credit Agreement dated as of January 31, 1996 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") among Panhandle
Eastern Corporation, doing business as PanEnergy Corp, the Lender, the other
financial institutions parties thereto, and Chemical Bank, as Administrative
Agent, is entitled to the benefits thereof and is subject to prepayment
E-1
98
in whole or in part as provided therein. Terms used herein which are defined
in the Credit Agreement shall have such defined meanings unless otherwise
defined herein or unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of Default
specified in said Credit Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all
as provided therein.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
PANHANDLE EASTERN CORPORATION,
doing business as PANENERGY CORP
By:
------------------------------------
Title:
E-2
99
SCHEDULE A
to
Revolving Credit Note
LOANS, CONVERSIONS AND PAYMENTS
WITH RESPECT TO ABR LOANS
Amount of ABR Loans Amount of ABR Loans
Made or Converted Paid or Converted into
from Eurodollar Loans Eurodollar Loans or CD Unpaid Principal Notation Made
Date or CD Rate Loans Rate Loans Balance of ABR Loans by
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
--------------- --------------------- ---------------------- -------------------- -------------
X-0
000
XXXXXXXX X
to
Revolving Credit Note
LOANS, CONVERSIONS AND PAYMENTS
WITH RESPECT TO EURODOLLAR LOANS
Amount of Amount of Unpaid
Eurodollar Loans Interest Period Eurodollar Loans Principal
Made or Converted and Eurodollar Paid or Converted Balance of
from ABR Loans or Rate with Respect into ABR Loans or Eurodollar Notation
Date CD Rate Loans Thereto CD Rate Loans Loans Made By
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
------------------ ----------------- ----------------- ----------------- ---------- --------
X-0
000
XXXXXXXX X
to
Revolving Credit Note
LOANS, CONVERSIONS AND PAYMENTS
WITH RESPECT TO CD RATE LOANS
Amount of CD Rate
Amount of CD Rate Loans Paid or Unpaid
Loans Made or Converted into ABR Principal
Converted from Interest Period Loans or Balance of
ABR Loans or and CD Rate with Eurodollar Rate CD Rate Notation
Date Eurodollar Loans Respect Thereto Loans Loans Made By
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
------------------ ----------------- ----------------- ------------------ ---------- --------
E-5
102
EXHIBIT F-1 TO
CREDIT AGREEMENT
FORM OF GRID COMPETITIVE LOAN NOTE
COMPETITIVE LOAN NOTE
$400,000,000 New York, New York
January 31, 1996
FOR VALUE RECEIVED, the undersigned, PANHANDLE EASTERN CORPORATION, a
Delaware corporation, doing business as PanEnergy Corp (the "Company"), hereby
unconditionally promises to pay to the order of [NAME OF LENDER] (the
"Competitive Loan Lender") at the office of Chemical Bank located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, the principal amount of the lesser
of (a) FOUR HUNDRED MILLION DOLLARS ($400,000,000) and (b) the aggregate unpaid
principal amount of all Competitive Loans made by the Competitive Loan Lender
to the Borrower pursuant to subsection 2.13 of the Credit Agreement referred to
below. The principal amount of each Competitive Loan evidenced hereby shall be
payable on the Competitive Loan Maturity Date therefor set forth on the
schedule annexed hereto and made a part hereof or on a continuation of such
schedule which shall be attached hereto and made a part hereof (the "Grid").
The Company further agrees to pay interest in like money at such office on the
unpaid principal amount of each Competitive Loan evidenced hereby, at the rate
per annum set forth in respect of such Competitive Loan on the Grid, calculated
on the basis of a year of 360 days and actual days elapsed from the date of
such Competitive Loan until the due date thereof (whether at the stated
maturity, by acceleration or otherwise), and thereafter on such overdue amount
at the rate per annum set forth in subsection 3.1(e) of said Credit Agreement
until paid in full (both before and after judgment). Interest on each
Competitive Loan evidenced hereby shall be payable on the date or dates set
forth in respect of such Competitive Loan on the Grid. Competitive Loans
evidenced by this Note may not be prepaid.
The holder of this Note is authorized to record on the Grid the date,
amount, interest rate, Interest Payment Dates and Competitive Loan Maturity
Date in respect of each Competitive Loan made pursuant to subsection 2.13 of
said Credit Agreement, and amount of each payment of principal with respect
thereto. Each such recordation shall constitute prima facie evidence of the
accuracy of the information recorded; provided, that failure by the Competitive
Loan Lender to make any such recordation shall not affect the obligations of
the Company under this Note or said Credit Agreement.
This Note is one of the Competitive Loan Notes referred to in the
Credit Agreement dated as of January 31, 1996 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") among Panhandle
Eastern Corporation, a Delaware corporation, doing business as PanEnergy Corp,
the Competitive Loan Lender, the other banks and financial institutions parties
thereto, and Chemical Bank, as Administrative Agent and is entitled to the
benefits thereof. Terms used herein which are defined in the Credit Agreement
shall have such defined meanings unless otherwise defined herein or unless the
context otherwise requires.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all
as provided therein.
F-1-1
103
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
PANHANDLE EASTERN CORPORATION,
doing business as PANENERGY CORP
By:
------------------------------------
Title:
F-1-2
104
SCHEDULE OF COMPETITIVE LOANS
Amount of Interest Payment Maturity Payment Notation
Date Loan Interest Rate Dates Date Date Made by
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
------------- --------- ------------- ---------------- -------- ------- --------
F-1-3
105
EXHIBIT F-2 TO
CREDIT AGREEMENT
FORM OF INDIVIDUAL COMPETITIVE LOAN NOTE
INDIVIDUAL COMPETITIVE LOAN NOTE
$_______________ New York, New York
__________ ___, 199_
FOR VALUE RECEIVED, the undersigned, PANHANDLE EASTERN CORPORATION, a
Delaware corporation, doing business as PanEnergy Corp (the "Company"), hereby
unconditionally promises to pay on ___________, 199_ to the order of [NAME OF
LENDER] (the "Competitive Loan Lender") at the office of Chemical Bank located
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United
States of America and in immediately available funds, the principal sum of
________________ DOLLARS ($___________). The undersigned further agrees to pay
interest in like money at such office on the unpaid principal amount hereof
from time to time from the date hereof at the rate of __% per annum (calculated
on the basis of a year of 360 days and actual days elapsed) until the due date
hereof (whether at the stated maturity, by acceleration or otherwise), and
thereafter on such overdue amount at the rate per annum set forth in subsection
3.1(e) of the Credit Agreement dated as of January 31, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement")
among Panhandle Eastern Corporation, doing business as PanEnergy Corp, the
Competitive Loan Lender, the other financial institutions parties thereto, and
Chemical Bank, as Administrative Agent, until paid in full (both before and
after judgment). Interest shall be payable on the Interest Payment Date or
Dates determined as provided in subsections 3.1(d) and 3.1(f) of the Credit
Agreement.
This Note is one of the Individual Competitive Loan Notes referred to
in, is subject to and is entitled to the benefits of, the Credit Agreement,
which Credit Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events. Terms used herein which are defined in the Credit Agreement shall have
such defined meanings unless otherwise defined herein or unless the context
otherwise requires. This Note may not be prepaid.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
PANHANDLE EASTERN CORPORATION,
doing business as PANENERGY CORP
By:
------------------------------------
Title
F-2-1
106
EXHIBIT G TO
CREDIT AGREEMENT
FORM OF TERM NOTE
$__________ New York, New York
_____________, 199_
FOR VALUE RECEIVED, the undersigned, PANHANDLE EASTERN CORPORATION, a
Delaware corporation, doing business as PanEnergy Corp (the "Company"), hereby
unconditionally promises to pay to the order of [NAME OF LENDER] (the "Lender")
at the office of Chemical Bank located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, in lawful money of the United States of America and in immediately
available funds, the principal amount of (a) ________________________ DOLLARS
($________), or, if less (b) the aggregate unpaid principal amount of the Term
Loan which is made by the Lender to the Company pursuant to subsection 2.16 of
the Credit Agreement referred to below. The principal amount of the Term Loan
evidenced hereby shall be payable on __________, 199_.
The undersigned further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time from the date
hereof at the applicable rate per annum set forth in subsection 3.1 of the
Credit Agreement referred to below until any such amount shall become due and
payable (whether at the stated maturity, by acceleration or otherwise), and
thereafter on such overdue amount at the rate per annum set forth in subsection
3.1(e) of said Credit Agreement until paid in full (both before and after
judgment). Interest shall be payable in arrears on each Interest Payment Date,
commencing on the first such date to occur after the date hereof and upon
payment (including prepayment) in full of the unpaid principal amount hereof.
The holder of this Note is authorized to record the date and amount of
the Term Loan made by the Lender pursuant to subsection 2.16 of said Credit
Agreement, its character as an ABR Loan, CD Rate Loan or Eurodollar Loan, the
date and amount of each payment or prepayment of principal with respect
thereto, and, if such Term Loan is maintained as a Eurodollar Loan or CD Rate
Loan, the length of each Interest Period and the Eurodollar Rate or Adjusted CD
Rate applicable thereto and each conversion made pursuant to subsection 3.10 of
said Credit Agreement on the schedules annexed hereto and made a part hereof,
or on a continuation thereof which shall be attached hereto and made a part
hereof, which recordation shall constitute prima facie evidence of the accuracy
of the information recorded; provided that failure by the Lender to make any
such recordation on this Note shall not affect the obligations of the Company
under this Note or said Credit Agreement.
This Note is one of the Term Notes referred to in the Credit Agreement
dated as of January 31, 1996 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") among Panhandle Eastern Corporation,
doing business as PanEnergy Corp, the Lender, the other financial institutions
parties thereto, and Chemical Bank, as Administrative Agent, is entitled to the
benefits thereof, is secured as provided therein and is subject to prepayment
in whole or in part as provided therein. Terms used herein which are defined
in the Credit Agreement shall have such defined meanings unless otherwise
defined herein or unless the context otherwise requires.
G-1
107
Upon the occurrence of any one or more of the Events of Default
specified in said Credit Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable all as
provided therein.
All parties now and hereafter liable with respect to this Term Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
THIS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
PANHANDLE EASTERN CORPORATION,
doing business as PANENERGY CORP
By:
------------------------------------
Title:
G-2
108
SCHEDULE A
to
Term Note
LOANS, CONVERSIONS AND PAYMENTS
WITH RESPECT TO ABR LOAN
Amount of ABR Loan Amount of ABR Loan
Made or Converted Paid or Converted into
from Eurodollar Loan Eurodollar Loan or CD Unpaid Principal Notation Made
Date or CD Rate Loan Rate Loan Balance of ABR Loan by
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
----------------- -------------------- ---------------------- ------------------- -------------
G-3
109
SCHEDULE B
to
Term Note
LOANS, CONVERSIONS AND PAYMENTS
WITH RESPECT TO EURODOLLAR LOAN
Amount of Amount of Unpaid
Eurodollar Loan Interest Period Eurodollar Loan Principal
Made or Converted and Eurodollar Paid or Converted Balance of
from ABR Loan or Rate with Respect into ABR Loan or Eurodollar Notation
Date CD Rate Loan Thereto CD Rate Loan Loan Made By
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
------------------- ----------------- ----------------- ----------------- ---------- --------
G-4
110
SCHEDULE C
to
Term Note
LOANS, CONVERSIONS AND PAYMENTS
WITH RESPECT TO CD RATE LOAN
Amount of CD Rate Amount of CD Rate
Loan Made or Loan Paid or Unpaid
Converted from Interest Period Converted into ABR Principal
ABR Loan or and CD Rate with Loan or Eurodollar Balance of Notation
Date Eurodollar Loan Respect Thereto Rate Loan CD Rate Loan Made By
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
------------------- ----------------- ---------------- ------------------ ------------ --------
G-5
111
EXHIBIT H TO
CREDIT AGREEMENT
FORM OF EXTENSION REQUEST
________________, 199__
Chemical Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Reference is made to the Credit Agreement, dated as of January 31,
1996, among the undersigned (the "Company"), the Lenders named therein, and
Chemical Bank, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
The Company hereby requests, pursuant to subsection 2.19 of the Credit
Agreement, that the Revolving Credit Termination Date be extended on such date
for 364 days, to _________, 199_.
Very truly yours,
PANHANDLE EASTERN CORPORATION,
doing business as PANENERGY CORP
By:
------------------------------------
Title
H-1
112
EXHIBIT I TO
CREDIT AGREEMENT
FORM OF OPINION OF XXXXXXXX & XXXXXXXX
January 31, 1996
To the Lenders and the Administrative Agent
Referred to Below
Dear Sirs:
We have acted as special counsel to Panhandle Eastern
Corporation, a Delaware corporation, doing business as PanEnergy Corp (the
"Company"), in connection with the Credit Agreement, dated as of January 31,
1996 (the "Credit Agreement"), among the Company, the several financial
institutions party thereto (the "Lenders") and Chemical Bank, as administrative
agent for the Lenders (in such capacity, the "Administrative Agent"). All
capitalized terms used herein which are not otherwise defined are used herein
with the meanings assigned to such terms in the Credit Agreement.
We have examined executed copies of the Credit Agreement, the
Revolving Credit Notes and the Competitive Loan Notes delivered on the date
hereof, as well as such records, certificates and other documents and such
questions of law as we have considered necessary or appropriate for the
purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware. The
Company has the corporate power and authority to own and operate its
properties, to lease the properties it operates as lessee and to conduct the
businesses in which it is currently engaged.
2. The Company has the corporate power and authority to
execute, deliver and perform the Credit Agreement and the Notes and has taken
all corporate action to authorize the execution, delivery and performance of
the Credit Agreement and the Notes.
3. No regulatory consent, authorization, approval or filing
is required to be obtained or made by the Company under the Federal laws of the
United States, the laws of the State of New York or the General Corporation Law
of the State of Delaware for the execution, delivery and performance of the
Credit Agreement and the Notes.
4. The Credit Agreement, the Revolving Credit Notes and the
Competitive Loan Notes delivered on the date hereof have been duly executed and
delivered by the Company and constitute valid and legally binding obligations
of the Company enforceable in accordance with their respective terms, subject
to bankruptcy, insolvency, fraudulent transfer,
I-1
113
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
5. The execution, delivery and performance by the Company of
the Credit Agreement and the Notes will not (a) violate the Certificate of
Incorporation or By-Laws of the Company, (b) result in a default under or
breach of any indenture, loan agreement or other similar agreement or
instrument known to us to be binding upon the Company, (c) violate any Federal
law of the United States, any law of the State of New York or Delaware (in the
case of the State of Delaware, solely in respect of its General Corporation
Law), or any rule or regulation adopted by a Governmental Authority thereof, or
(d) result in, or require the creation or imposition of, any Lien on any
properties or revenues of the Company pursuant to any of the foregoing;
provided, however, that for purposes of this paragraph 5, we express no opinion
with respect to Federal or state securities laws, other anti-fraud laws and
fraudulent transfer laws; and provided, further, that insofar as performance by
the Company of its obligations under the Credit Agreement and the Notes is
concerned, we express no opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights.
6. Assuming the proceeds of the Loans are used solely for the
purposes set forth in the Credit Agreement, such Loans will not violate the
provisions of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System.
7. The Company is not an "investment company" as that term is
defined in the Investment Company Act of 1940.
The foregoing opinion is limited to the Federal laws of the
United States, the laws of the State of New York and the General Corporation
Law of the State of Delaware, and we are expressing no opinion as to the effect
of the laws of any other jurisdiction.
We express no opinion as to the validity, binding effect or
enforceability of any provision in the Credit Agreement which purports to (i)
provide indemnification of any person for any claims, damages, liabilities or
expenses resulting from violation by such person of applicable securities laws,
(ii) grant any Lender rights of setoff other than as provided in Section 151 of
the Debtor & Creditor Law of the State of New York or (iii) preserve or
maintain the enforceability of the Credit Agreement where one or more
provisions contained therein is determined to be invalid, illegal or
unenforceable.
With your approval, we have also relied as to certain matters
on information obtained from public officials, officers of the Company or other
sources believed by us to be responsible and we have assumed that the Credit
Agreement has been duly authorized, executed and delivered by the parties
thereto other than the Company and that the signatures on all documents
examined by us are genuine, assumptions which we have not independently
verified.
Very truly yours,
XXXXXXXX & XXXXXXXX
I-2
114
EXHIBIT J TO
CREDIT AGREEMENT
FORM OF GENERAL COUNSEL'S OPINION
January 31, 1996
To the Lenders and the
Administrative Agent
Referred to Below
Dear Sirs:
I am General Counsel of Panhandle Eastern Corporation, a
Delaware corporation, doing business as PanEnergy Corp (the "Company"), and am
familiar with the Credit Agreement, dated as of January 31, 1996 (the "Credit
Agreement"), among the Company, the several financial institutions party
thereto (the "Lenders") and Chemical Bank, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"). All capitalized terms
used herein which are not otherwise defined are used herein with the meanings
assigned to such terms in the opinion of Xxxxxxxx & Xxxxxxxx delivered to you
on the date hereof in connection with the Credit Agreement.
As General Counsel of the Company, I am generally familiar
with the organization and affairs of the Company. Lawyers in the Legal
Department of the Company have been asked, by me or others, to review legal
matters arising in connection with the Credit Agreement. Accordingly some of
the matters referred to herein have not been handled personally by me, but I
have been made familiar with the facts and circumstances and the applicable
law, and the opinions herein expressed are my own or the opinions of other
lawyers in which I concur. In rendering the opinions expressed herein, I or
lawyers in the Legal Department of the Company have examined such corporate
records, certificates and other documents and such questions of law as were
considered necessary or appropriate for the purposes hereof.
Based upon the foregoing, I am of the opinion that:
1. The Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where it is required to be so
qualified, except where any failure to be so qualified and in good standing
would not have a material adverse effect on the business of the Company and its
Subsidiaries taken as a whole.
2. Except as set forth in the SEC Reports, no litigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best of my knowledge, threatened by or against the Company or any of its
Subsidiaries or against any of their respective properties or revenues which
would have a material adverse effect on the business of the Company and its
Subsidiaries taken as a whole.
J-1
115
3. The execution, delivery and performance by the Company of
the Credit Agreement and the Notes will not violate any contract known to me to
be binding upon the Company, except for such violations which would not have a
material adverse effect on the business of the Company and its Subsidiaries
taken as a whole and will not result in or require the creation or imposition
of any Lien on any of its properties or revenues pursuant to any such contract.
With your approval, I have relied as to certain matters on
information obtained from public officials, officers of the Company, opinions
of local counsel or other sources believed by me to be responsible and I have
assumed that the signatures on all documents examined by me are genuine,
assumptions which I have not independently verified.
This opinion is solely for your benefit and the benefit of
your respective assignees and transferees permitted under the Credit Agreement
and the benefit of special counsel to the Administrative Agent and the benefit
of the Company's special counsel and may not be relied upon in any matter by
any other person without my written consent.
Very truly yours,
J-2
116
EXHIBIT K TO
CREDIT AGREEMENT
FORM OF COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of the date set forth in Item
1 of Schedule I hereto, among the Transferor Lender set forth in Item 2 of
Schedule I hereto (the "Transferor Lender"), each Purchasing Lender set forth
in Item 3 of Schedule I hereto (each, a "Purchasing Lender"), and CHEMICAL
BANK, as administrative agent for the Lenders under the Credit Agreement
described below (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, this Commitment Transfer Supplement is being executed and
delivered in accordance with subsection 10.8 of the Credit Agreement, dated as
of January 31, 1996, among Panhandle Eastern Corporation, a Delaware
corporation, doing business as PanEnergy Corp (the "Borrower"), the Transferor
Lender, the other Lenders parties thereto and the Administrative Agent (as from
time to time amended, supplemented or otherwise modified in accordance with the
terms thereof, the "Credit Agreement"; terms defined therein being used herein
as therein defined);
WHEREAS, each Purchasing Lender (if it is not already a Lender party
to the Credit Agreement) wishes to become a Lender party to the Credit
Agreement; and
WHEREAS, the Transferor Lender is selling and assigning to each
Purchasing Lender, rights, obligations and commitments under the Credit
Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon receipt by the Administrative Agent of five counterparts of
this Commitment Transfer Supplement, to each of which is attached a fully
completed Schedule I and Schedule II, and each of which has been executed by
the Transferor Lender, each Purchasing Lender (and any other person required by
the Credit Agreement to execute this Commitment Transfer Supplement), the
Administrative Agent will transmit to the Borrower, the Transferor Lender and
each Purchasing Lender a Transfer Effective Notice, substantially in the form
of Schedule III to this Commitment Transfer Supplement (a "Transfer Effective
Notice"). Such Transfer Effective Notice shall set forth, inter alia, the date
on which the transfer effected by this Commitment Transfer Supplement shall
become effective (the "Transfer Effective Date"), which date shall be the fifth
Business Day following the date of such Transfer Effective Notice. From and
after the Transfer Effective Date each Purchasing Lender shall be a Lender
party to the Credit Agreement for all purposes thereof.
2. At or before 12:00 Noon, local time of the Transferor Lender, on
the Transfer Effective Date, each Purchasing Lender shall pay to the Transferor
Lender, in immediately available funds, an amount equal to the purchase price,
as agreed between the Transferor Lender and such Purchasing Lender (the
"Purchase Price"), of the portion being purchased by
K-1
117
such Purchasing Lender (such Purchasing Lender's "Purchased Percentage") of the
outstanding principal amount of the Loans, the Letter of Credit Obligations,
the L/C Participating Interests and other amounts owing to the Transferor
Lender under the Credit Agreement and its Notes. Effective upon receipt by the
Transferor Lender of the Purchase Price from a Purchasing Lender, without
recourse, representation or warranty, each Purchasing Lender hereby irrevocably
purchases, takes and assumes from the Transferor Lender, such Purchasing
Lender's Purchased Percentage of the Commitments, the L/C Participating
Interests, the obligation to purchase L/C Participating Interests and the
presently outstanding Loans and other amounts owing to the Transferor Lender
under the Credit Agreement and its Notes together with all instruments,
documents and collateral security pertaining thereto; provided that such
Participating Lender's interest in any Letter of Credit outstanding on the
Transfer Effective Date shall be as set forth in subsection 2.7 of the Credit
Agreement.
3. The Transferor Lender has made arrangements with each Purchasing
Lender with respect to (i) the portion, if any, to be paid, and the date or
dates for payment, by the Transferor Lender to such Purchasing Lender of any
fees heretofore received by the Transferor Lender pursuant to the Credit
Agreement prior to the Transfer Effective Date and (ii) the portion, if any, to
be paid and the date or dates for payment, by such Purchasing Lender to the
Transferor Lender of fees or interest received by such Purchasing Lender
pursuant to the Credit Agreement and from and after the Transfer Effective
Date.
4. (a) All principal payments that would otherwise be payable from
and after the Transfer Effective Date to or for the account of the Transferor
Lender pursuant to the Credit Agreement and its Notes shall, instead, be
payable to or for the account of the Transferor Lender or the Purchasing
Lender, as the case may be, in accordance with their respective interest as
reflected in this Commitment Transfer Supplement.
(b) All interest, fees and other amounts that would otherwise
accrue for the account of the Transferor Lender from and after the Transfer
Effective Date pursuant to the Credit Agreement and its Notes shall, instead,
accrue for the account of, and be payable to, the Transferor Lender and the
Purchasing Lenders, as the case may be, in accordance with their respective
interests as reflected in this Commitment Transfer Supplement. In the event
that any amount of interest, fees or other amounts accruing prior to the
Transfer Effective Date was included in the Purchase Price paid by the
Purchasing Lender, the Transferor Lender and each Purchasing Lender will make
appropriate arrangements for payment by the Transferor Lender to such
Purchasing Lender of such amount upon receipt thereof from the Borrower.
5. On or prior to the Transfer Effective Date, the Transferor Lender
will deliver to the Administrative Agent its Notes. On or prior to the
Transfer Effective Date, the Borrower will deliver to the Administrative Agent
new Notes for each Purchasing Lender and the Transferor Lender, in each case in
principal amounts reflecting, in accordance with the Credit Agreement, the
principal amount of any Competitive Loans being transferred and their
respective Commitments (as adjusted pursuant to this Commitment Transfer
Supplement). As provided in subsection 10.8 of the Credit Agreement, each such
new Note shall be dated the Effective Date in the case of a Revolving Credit
Note or Competitive Loan Note or the
K-2
118
Revolving Credit Termination Date in the case of a Term Note. In addition, on
or prior to the Transfer Effective Date, the Transferor Lender will deliver to
the Administrative Agent any Letter of Credit Participation Certificates issued
by an Issuing Lender to the Transferor Lender. On or prior to the Transfer
Effective Date, if applicable, each Issuing Lender shall deliver to the
Administrative Agent for each Purchasing Lender and the Transferor Lender new
Letter of Credit Participation Certificates, in each case in amounts
reflecting, in accordance with the Credit Agreement, their respective
Commitments (as adjusted pursuant to this Commitment Transfer Supplement).
Promptly after the Transfer Effective Date, the Administrative Agent will send
to each of the Transferor Lender and the Purchasing Lenders its new Notes and
new Letter of Credit Participation Certificates and will send to the Borrower
the superseded Notes of the Transferor Lender, marked "Cancelled".
6. Concurrently with the execution and delivery hereof, the
Transferor Lender will provide to each Purchasing Lender (if it is not already
a Lender party to the Credit Agreement) copies of all documents delivered to
such Transferor Lender on the Effective Date in satisfaction of the conditions
precedent set forth in the Credit Agreement.
7. Each of the parties to this Commitment Transfer Supplement agrees
that at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer Supplement,
the Transferor Lender and each Purchasing Lender confirm to and agree with each
other and the Administrative Agent and the Lenders as follows: (i) other than
the representation and warranty that it is the legal and beneficial owner of
the interest being assigned hereby free and clear of any adverse claim, the
Transferor Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, the Notes, the Letters of
Credit or any other instrument or document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, the Notes, the Letters of Credit or any other
instrument or document furnished pursuant thereto; (ii) the Transferor Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of their respective obligations under the Credit Agreement,
the Notes, the Letters of Credit or any other instrument or document furnished
pursuant thereto; (iii) each Purchasing Lender confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
referred to in subsection 5.1 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Commitment Transfer Supplement; (iv) each Purchasing Lender will,
independently and without reliance upon the Administrative Agent, the
Transferor Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (v)
each Purchasing Lender appoints and authorizes the Administrative Agent and any
Issuing Lender to take such action as agent and issuing lender on its behalf
and to exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent and Issuing Lenders by the terms thereof, together with
such powers as are reasonably
K-3
119
incidental thereto, all in accordance with Section 9 of the Credit Agreement;
and (vi) each Purchasing Lender agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Lender.
9. Each party hereto represents and warrants to and agrees with the
Administrative Agent that it is aware of and will comply with the provisions of
subsections 10.10(e) and (f) of the Credit Agreement.
10. Schedule II hereto sets forth the revised Commitments and
Commitment Percentages of the Transferor Lender and each Purchasing Lender as
well as administrative information with respect to each Purchasing Lender.
11. THIS COMMITMENT TRANSFER SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Commitment
Transfer Supplement to be executed by their respective duly authorized officers
on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
K-4
120
SCHEDULE I
to
Commitment Transfer Supplement
COMPLETION OF INFORMATION AND SIGNATURES
FOR COMMITMENT TRANSFER SUPPLEMENT
Re: Credit Agreement, dated as of January 31, 1996, with
Panhandle Eastern Corporation, doing business as
PanEnergy Corp, as Borrower
Item 1 (Date of Commitment Transfer [Insert date of Commitment Transfer
Supplement): Supplement]
Item 2 (Transferor Lender): [Insert name of Transferor Lender]
Item 3 (Purchasing Lender[s]): [Insert name[s] of Purchasing Lender[s]]
Item 4 (Signatures of Parties to Commitment
Transfer Supplement):
, as
Transferor Lender
By:
------------------------------------
Title
, as a
Purchasing Lender
By:
------------------------------------
Title
, as a
Purchasing Lender
By:
------------------------------------
Title
K-5
121
Consented to and Acknowledged:
PANHANDLE EASTERN CORPORATION,
doing business as PANENERGY CORP
By
-------------------------------------------
Title:
CHEMICAL BANK, As Administrative Agent
By
-------------------------------------------
Title:
[Consents Required only when
Purchasing Lender is not already
a Lender or Affiliate thereof]
Accepted for Recordation
in Register:
CHEMICAL BANK, as Administrative Agent
By
-------------------------------------------
Title:
Acknowledged:
[Acknowledgement from Issuing Lender (other
than Chemical Bank) required if such
Issuing Lender has outstanding Letter of
Credit Participation Certificates]
By
-------------------------------------------
Title:
K-6
122
SCHEDULE II
to
Commitment Transfer Supplement
LIST OF LENDING OFFICES, ADDRESS
FOR NOTICES AND COMMITMENT AMOUNTS
[Name of Transferor Lender] Revised Commitment Amount: $___________
Revised Commitment Percentage: ___________
[Name of Purchasing Lender] New Commitment Amount: $___________
New Commitment Percentage: ___________
Address for Notices:
[Address]
Attention:
Telex:
Answerback:
Telephone:
Telecopier:
Confirmation:
Eurodollar Lending Office:
----------------------------------
----------------------------------
----------------------------------
Domestic Lending Office:
----------------------------------
----------------------------------
----------------------------------
K-7
123
SCHEDULE III
to
Commitment Transfer Supplement
Form of Transfer Effective Notice
To: Panhandle Eastern Corporation,
doing business as PanEnergy Corp
Insert Name of Transferor Lender and
each Purchasing Lender
The undersigned, as Administrative Agent [delegate of the
Administrative Agent performing administrative functions of the Administrative
Agent] under the Credit Agreement, dated as of January 31, 1996, among
Panhandle Eastern Corporation, a Delaware corporation, doing business as
PanEnergy Corp, the Lenders parties thereto and Chemical Bank, as
Administrative Agent, acknowledges receipt of five executed counterparts of a
completed Commitment Transfer Supplement, as described in Schedule I hereto.
[Note: attach copy of Schedule I from Commitment Transfer Supplement.] Terms
defined in such Commitment Transfer Supplement are used herein as therein
defined.
1. Pursuant to such Commitment Transfer Supplement, you are advised
that the Transfer Effective Date will be ________________ [insert fifth
Business Day following date of Transfer Effective Notice].
2. Pursuant to such Commitment Transfer Supplement, the Transferor
Lender is required to deliver to the Administrative Agent on or before the
Transfer Effective Date its Notes and to each Issuing Lender any applicable
Letter of Credit Participation Certificates.
3. Pursuant to such Commitment Transfer Supplement, the Company is
required to deliver to the Administrative Agent on or before the Transfer
Effective Date the following Notes dated ____________________.
[Describe each new Note for Transferor Lender and Purchasing Lender as
to principal amount and payee]
4. Pursuant to such Commitment Transfer Supplement, each Issuing
Lender listed below is required to deliver to the Administrative Agent on or
before the Transfer Effective Date the following Letter of Credit Participation
Certificates:
5. Pursuant to such Commitment Transfer Supplement, each Purchasing
Lender is required to pay its Purchase Price to the Transferor Lender at or
before 12:00 noon on the Transfer Effective Date in immediately available
funds.
Very truly yours,
CHEMICAL BANK
By:
------------------------------------
Title:
K-8
