EXHIBIT 10.19
SECOND AMENDMENT TO CREDIT AGREEMENT among
PACIFIC GAS TRANSMISSION COMPANY, as the Company,
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS, as the Banks, and
THE BANK OF NOVA SCOTIA, BARCLAYS BANK PLC, and
THE FIRST NATIONAL BANK OF CHICAGO, as Co-Agents for the Banks,
and
CANADIAN IMPERIAL BANK OF COMMERCE, as Agent for the Banks
Dated as of December 24, 1996
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of December 24,
1996 (this "Amendment"), is entered into by and among PACIFIC GAS
TRANSMISSION COMPANY, a corporation duly organized and validly existing
under the laws of the State of California (the "Company"), the various
financial institutions as are or may become parties hereto (collectively, the
"Banks"), THE BANK OF NOVA SCOTIA, BARCLAYS BANK PLC and THE FIRST NATIONAL
BANK OF CHICAGO, as co-agents for the Banks (the "Co-Agents"), and CANADIAN
IMPERIAL BANK OF COMMERCE ("CIBC"), acting through certain of its U.S.
branches or agencies, as Agent (the "Agent") for the Banks.
W I T N E S S E T H:
WHEREAS, the Company, the Banks, the Co-Agents and the Agent have
heretofore entered into a certain Credit Agreement, dated as of May 31, 1995,
as previously amended (the "Credit Agreement"); and
WHEREAS, the Company, the Banks, the Co-Agents and the Agent now intend to
amend the Credit Agreement (i) to add a letter of credit subfacility and (ii)
to address various other issues in connection therewith,
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, each of the Company, the Banks, the Co-Agents
and the Agent agree as follows:
SECTION 1. Amendments to Credit Agreement.
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A. Section 1.1 of the Credit Agreement is amended by adding the
following definitions in the appropriate alphabetical order:
"Agreed Currency" is defined in Section 6.1.1.
"Approved Account Party" shall mean, at any time, any Person listed
on Schedule A attached hereto or designated in writing by the
Company to the Agent.
"Cash Collateral" is defined in Section 2.10.7.
"Cash Equivalent Investments" shall mean, at any time:
(a) any evidence of Indebtedness, maturing not more than one year after such
time, issued or guaranteed by the United States Government;
(b) commercial paper, maturing not more than nine months from the date of
issue, which is issued by (i) a corporation (other Than an Affiliate of the
Company) organized under the laws of any state of the United States or of
the District of Columbia and rated A-l by Standard & Poor's Corporation or
P-l by Moody's Investors Service, Inc., or (ii) any Bank (or its holding
company);
(c) any certificate of deposit or bankers acceptance, maturing not
more than one year after such time, which is issued by either
(i) a commercial banking institution that is a member of the Federal
Reserve System and has a combined capital and surplus and undivided
profits of not less than $500,000,000, or (ii) any Bank; or
(d) any repurchase agreement entered into with any Bank (or
other commercial banking institution of the stature referred to in
clause (c)(i)) which (i) is secured by a fully perfected security
interest in any obligation of the type described in any of clauses
(a) through (c); and (ii) has a market value at the time
such repurchase agreement is entered into of not less than 100% of
the repurchase obligation of such Bank (or other commercial
banking institution) thereunder.
"Dollar Equivalent" shall mean, (i) with respect to Dollars or an
amount denominated in Dollars, such amount, and (ii) with respect to any
monetary amount in a currency other than Dollars, at any time for the
determination thereof, the amount of Dollars obtained by converting such
foreign currency involved in such computation into Dollars at the spot
rate for the purchase of Dollars with the applicable foreign
currency as quoted by the Issuer at approximately 11:00 a.m. on the
date of determination thereof specified herein.
"Issuance Request" shall mean an application for a Letter of Credit
duly executed by an Authorized Signatory of the Company, substantially in
the form of Exhibit L hereto or in such other form satisfactory to the
Issuer, in its sole discretion.
"Issuer" shall mean CIBC in its capacity as issuer of the Letters of
Credit and each other Person as shall have been subsequently appointed as
the successor Issuer pursuant to Section 13.8.
"Judgment Currency" is defined in Section 6.1.2.
"Letter of Credit" is defined in Section 2.10.
"Letter of Credit Cash Collateral Account" is defined in Section
2.10.7.
"Letter of Credit Commitment" shall mean the Issuer's obligation to issue
Letters of Credit for the account of the Company pursuant to Section 2.10 and,
with respect to each of the other Banks, the obligation of each such Bank to
participate in such Letter of Credit pursuant to Section 2.10.1.
"Letter of Credit Commitment Amount" shall mean, on any date, a maximum
Dollar Equivalent amount equal to the lesser of (i) $70,000,000 or (ii)
the Loan Commitment, as such amount may be reduced from time to time
pursuant to Section 2.5.
"Letter of Credit Outstandings" shall mean, on any date, an amount equal to
the sum of (a) the then aggregate Dollar Equivalent amount which is undrawn
and available under all issued and outstanding Letters of Credit, plus (b) the
then aggregate amount of all Reimbursement Obligations then outstanding with
respect to the amount of any drawing made under any Letters of Credit.
"Loan Commitment" shall mean, as to each Bank, the obligation of such Bank
to make Committed Advances in an aggregate amount at any one time outstanding
equal to the amount set opposite such Bank's name on the signature pages
hereof under the caption "Commitment" (as the same may be reduced pursuant to
Section 2.5 hereof).
"Other Currency" is defined in Section 6.1.1.
"Permitted Currency" shall mean Dollars and Canadian Dollars, and such
other currencies of major industrialized nations as shall be designated by
the Company and acceptable to the Agent and the Issuer, each in their sole
and absolute discretion.
"Reimbursement Obligations" shall mean the obligation of the
Company to reimburse the Issuer and the Banks, as applicable, for the
Dollar Equivalent of the drawings made under the Letters of Credit, or any
of the Letters of Credit.
"Stated Amount" shall mean, with respect to any Letter of Credit, the
Dollar equivalent amount available to be drawn under such Letter of
Credit upon the issuance thereof.
"Stated Expiry Date" of each Letter of Credit is defined in Section 2.10.
B The subsection (b) of the definition of "Indebtedness" in Section 1.1 of the
Credit Agreement is amended in its entirety as follows:
" (b) all obligations relative to the Dollar Equivalent of the
face amount of all letters of credit, including, without limitation,
the Letters of Credit, and banker's acceptances issued for the
account of such Person or other Approved Account Party;"
C. The definition of "Applicable Margin" in Section 1.1 of
the Credit Agreement is amended by inserting after the words "LIBOR Advance" in
the first line thereof the phrase "or in connection with the issuance of a
Letter of Credit".
D. The definitions of "Adjusted Available Facility Amount", "Advance",
"Advance Request", "Available Facility Amount", "Commitment", "Commitment
Proportion", "Drawdown Date", "Facility", "Loan Document", "Majority Banks",
"Obligations" and "Total Commitments" in Section 1.1 of the Credit Agreement
are respectively amended in their entirety as follows:
"Adjusted Available Facility Amount" shall mean, at any time and in respect of
any proposed Advance, the Available Facility Amount at such time:
(i) increased to take account of any Advances which shall become repayable on
or before the Drawdown Date of the proposed Advance in question and to take
into account any decrease in Letter of Credit Outstandings which shall become
effective
on or before such Drawdown Date; and (ii) reduced to take account of any
Advance which is to be made on or before such Drawdown Date (but
excluding the proposed Advance in question) and to take into
account any increase in Letter of Credit Outstandings which
shall become effective on or before such Drawdown Date and to take
account of any reduction in the Total Commitments which shall become
effective on or before such Drawdown Date.
"Advance" shall mean, except as otherwise provided herein, any LIBOR
Advance, Reference Rate Advance, Competitive Bid Advance and/or issuance of
any Letter of Credit or the extension of the Stated Expiry Date of any Letter
of Credit.
"Advance Request" shall mean any LIBOR Advance Request, Reference Rate
Advance Request, Competitive Bid Advance Request or Issuance Request.
"Available Facility Amount" shall mean at any time the Total Commitments
less the sum of (i) the Advance Outstandings at such time and (ii) the Letter
of Credit Outstandings at such time.
"Commitment" means, as the context may require, a Bank's or Issuer's
Letter of Credit Commitment or Loan Commitment.
"Commitment Proportion" shall mean, in relation to a Bank, at any time
the proportion which its Loan Commitment bears to the Total Commitments at such
time.
"Drawdown Date" shall mean: (i) in relation to any LIBOR Advance, the
Business Day for the making thereof as specified in the LIBOR Advance Request
relating thereto; (ii) in relation to any Reference Rate Advance, the
Business Day for the making thereof as specified in the Reference Rate Advance
Request relating thereto; (iii) in relation to any Competitive Bid Advance, the
Business Day for the making thereof as specified in the Competitive Bid Advance
Request relating thereof or as agreed to between the Company and a Bank pursuant
to Article 5, and(iv)in relation to any issuance of a Letter of Credit, the
Business Day for the issuance thereof as specified in the Issuance Request
relating thereto.
"Facility" shall mean the committed advance facility which may be utilized
subject to the other terms and provisions hereof for LIBOR Advances, Reference
Rate Advances and the issuance of Letters of Credit which is evidenced by the
Revolving Notes and Competitive Bid Advances which is evidenced by the
Competitive Bid Notes.
"Loan Document" means this Agreement, the Notes, each Advance Request,
each Letter of Credit and any other agreement, document or instrument from time
to time executed and delivered pursuant to and in connection with any of the
foregoing.
"Majority Banks" shall mean, at any time while Commitments are in
effect, Banks having at least 51% of the aggregate amount of the Commitments
and, at any time while no Commitments are in effect, Banks holding at least
51% of the outstanding aggregate principal amount of the Advances and the
Letter of Credit Outstandings.
"Obligations" means all obligations (monetary or otherwise) of the
Company arising under or in connection with this Agreement, the Notes, any
Letters of Credit and each other Loan Document.
"Total Commitments" shall mean the aggregate from time to time of the
Banks' Loan Commitments.
E . Section 1.2 (i) of the Credit Agreement is amended in its entirety to
read as follows:
" (i) any of the "Company," the "Agent", the
"Issuer" or the "Banks" shall be construed so
as to include their respective successors, permitted assigns
and, in the case of the Banks, transferees;".
F. Section 2.1 of the Credit Agreement is amended by (x)
deleting the "and" at the end of clause (ii), (y) replacing the period at the
end of clause (iii) with "; and"; and (z) by inserting the following clause (iv)
following clause (iii) thereof:
" (iv) the Issuer agrees that it will issue Letters of Credit
denominated in a Permitted Currency in accordance with Section 2.10, and each
Bank severally agrees that it will purchase participation interests in
such Letters of Credit in accordance with Section 2.10.4."
G Section 2.2 of the Credit Agreement is amended in its
entirety to read as follows:
" Section 2.2 Maximum Outstandings. Subject to
cancellation and reduction in accordance with the terms hereof, the maximum
aggregate principal amount of the Facility which may be utilized at any
time for Advances and the issuance of Letters of Credit is $200,000,000.
In no event, however, shall (a) the sum of (i)aggregate Advance
Outstandings at any time and (ii) aggregate Letter of Credit Outstandings
at any time exceed the principal amount
of $200,000,000 or such lesser amount as from time to time may result from
any reduction pursuant to Section 2.5 hereof, or (b) the aggregate Letter
of Credit Outstandings at any time exceed the Letter of Credit Commitment
Amount."
H . Section 2.5 of the Credit Agreement is amended in its entirety to
read as follows:
Section 2.5 Changes in Commitments Section 2.5 Changes in
Commitments. The Company shall have the right in accordance with
Section 7.1 hereof to terminate or reduce the amount of the Commitments
at any time or from time to time to an amount not less than the sum of (i)
Advance Outstandings, if any, and (ii) Letter of Credit Outstandings, if
any, at the effective date of such termination or reduction, upon not less
than three (3) Business Days' prior notice to the Agent (which shall
promptly notify the Banks) of each such termination or reduction, which
shall specify the effective date thereof and the amount of any such
reduction (which shall not be less than $5,000,000 and, if more than
$5,000,000, in integral multiples of $1,000,000) and shall be irrevocable
and effective only upon receipt by the Agent. The Commitments once
terminated or reduced may not be reinstated."
I. Section 2.6 of the Credit Agreement is hereby amended by inserting
the following subsection (c) following subsection (b):
" (c) Letter of Credit Fees. The Company agrees to pay:
(i) to the Agent for the account of each Bank a nonrefundable
issuance fee equal to the rate per annum equal to the Applicable
Margin on the Stated Amount of each such Letter of Credit,
in each case multiplied by such Bank's Commitment Proportion,
such fees being payable quarterly in arrears on each Quarterly
Date and on the Final Repayment Date; and
(ii) to the Agent for its own account a non refundable fronting fee
equal to 0.0625% of the Stated Amount of each such Letter of
Credit, such fee being payable quarterly in arrears on each
Quarterly Date and on the Final Repayment Date, together with
customary administrative, issuance, amendment, payment and
negotiation charges incurred by the Issuer in connection with
such Letter of Credit."
J. . Subsection 2.8(b) of the Credit Agreement is hereby amended in its
entirety to read as follows:
" (b) If, at any time, the sum of (i) the outstanding aggregate
principal amount of the Advances and (ii) the Letter of Credit Outstandings
exceeds the aggregate amount of the Commitments as then in effect, the
Company shall (i) pay or prepay the Advances and (ii) deposit Cash
Collateral with the Agent in accordance with the provisions of Section
2.10.7 on such date in an aggregate principal amount equal to the excess,
together with interest thereon accrued to the date of such payment or
prepayment and any amounts payable pursuant to Section 8.11 hereof in
connection therewith. If, at any time, the Letter of Credit Outstandings
exceeds the Letter of Credit Commitment Amount as then in effect, the
Company shall deposit Cash Collateral with the Agent in accordance with
the provisions of Section 2.10.7 on such date in an aggregate principal
amount equal to such excess."
K. Article 2 of the Credit Agreement is hereby amended by inserting the
following Section 2.10 following Section 2.9:
"Section 2.10 Letters of Credit. The Issuer agrees to issue under the
several obligations of the Banks in accordance with their respective
Letter of Credit Commitments, or extend the Stated Expiry Date of, from
time to time on any Business Day occurring prior to the Final Repayment
Date, one or more standby letters of credit (herein individually referred
to as a "Letter of Credit" and collectively referred to as "Letters of
Credit") denominated in a Permitted Currency at the request of the
Company and for the account and for the general purposes of the Company or
an Approved Account Party. Each Letter of Credit shall be substantially
upon such terms as the Company may specify in an Issuance Request therefor
duly executed by an Authorized Signatory of the Company and delivered to
the Issuer and the Agent on or before 11:00 a.m., New York time, on a
Business Day, at least three (3) Business Days before the requested
issuance of such proposed Letter of Credit. Each Letter of Credit must be
in form and substance satisfactory to the Issuer, in its sole discretion,
and shall have a fixed expiration date (with respect to each Letter of
Credit, its "Stated Expiry Date") occurring not later than one year after
the date of the issuance thereof (and in no event later than the Final
Repayment Date, as in effect from time to time). Each Bank (other than
the Issuer) severally agrees that it will hold participation interests in
each Letter of Credit as provided to Section 2.10.1. The Issuer will make
available to the beneficiary thereof the original of each Letter of Credit
which it issues hereunder and will notify the beneficiary under any Letter
of Credit of any extensions of the Stated Expiry Date thereof. In the
event that any Letters of Credit remain outstanding after the Final
Repayment Date, upon such Final Repayment Date, the Company (if it has not
already done so) shall deposit with the Agent an amount in cash equal to
the aggregate amount of Letter of Credit Outstandings attributable to
such Letters of Credit, which cash amount shall be held as Cash Collateral
in accordance with the provisions of Section 2.10.7.
Section 2.10.1 Other Banks' Participation. Upon the issuance of each
Letter of Credit, and without further action, each Bank (other than the
Issuer) shall be deemed to have irrevocably and unconditionally
purchased, to the extent of its Commitment Proportion, a participation
interest in such Letter of Credit. Each Bank shall, to
the extent of its Commitment Proportion, be responsible for
reimbursing promptly (and in any event within one (1) Business Day),
without setoff, deduction or counterclaim, the Issuer for
Reimbursement Obligations which have not been reimbursed by the
Company in accordance with Section 2.10.2. Without limiting the
foregoing, the Issuer will promptly notify the Banks of the issuance of
each Letter of Credit.
Section 2.10.2 Company's Agreement to Repay Letter of Credit Drawings. The
Company hereby irrevocably and unconditionally agrees to reimburse the
Issuer, forthwith, for each payment or disbursement made by the Issuer to
settle its obligations under any draft drawn under any Letter of Credit,
with interest on the amount so paid or disbursed by the Issuer from and
including the date of payment or disbursement to but not including
the date the Issuer is reimbursed therefor, at a fluctuating rate per
annum equal to (i) for each day in the period commencing on and including
the day such payment or disbursement is made to and including the date
three (3) Business Days after the Issuer gives notice of such payment or
disbursement to the Company, the Reference Rate from time to time in effect
or such other higher interest rate, if any, then applicable to Reference
Rate Advances, and (ii) for any day thereafter to but not including the
day of payment in full, the sum of the Reference Rate from time to time
in effect plus two percent (2%). The Issuer shall promptly give
notice to the Company by telephone, confirmed by telecopy to the
Company's treasury
department, of each receipt by the Issuer of a drawing under a Letter of
Credit that appears on its face to conform to the requirements of such
Letter of Credit. No later than 11:00 a.m., New York time, on the day
which is three (3) Business Days after the date on which a payment to
a beneficiary of a Letter of Credit occurs pursuant to a draw thereunder,
the Company shall pay to the Issuer in immediately available funds for
its account at the Payment Office the amount of such draw plus accrued
interest at the rate set forth above. The foregoing notwithstanding, the
obligation of the Company to reimburse the Issuer is not subject to
demand thereof by the Issuer (or any Bank) and any failure by the
Issuer (or any Bank)to notify the Company pursuant to the provisions
of this Section shall in no way affect or impair the Reimbursement
Obligations of the Company under the Letter of Credit, this Agreement, the
Issuance Requests or any other Loan Document.
Section 2.10.3 Absolute Duty to Reimburse for Letter of Credit
Liabilities2.10.3 Absolute Duty to Reimburse for Letter of Credit
Liabilities. Any provision in this Agreement or in any other Loan
Document to the contrary notwithstanding, the Company's obligation to
reimburse the Issuer and the Banks, as applicable,
for any payment or disbursement under or in connection with a Letter of Credit
shall be absolute and unconditional under any and all circumstances
without and irrespective of any setoff, counterclaim or other defense to payment
which the Company may have or have had against the Issuer or any Bank or any
other Person. Without limiting the generality of the foregoing, the Company
assumes all risks of the acts or omissions of any beneficiary or transferee
of any Letter of Credit with respect to its use of the Letter of Credit and
none of the Issuer, any Bank or any of their respective officers or directors
shall be liable or responsible for (i) the use which may be made of any Letter
of Credit or any acts or omissions of any beneficiary or transferee in
connection therewith, (ii) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged
(and each of the Issuer, any Bank, and any corresponding bank may accept
documents that appear on their face to be in order, without responsibility
for further investigation, regardless of any notice or information to the
contrary), (iii) the enforceability of any instrument or document which is
supported by a Letter of Credit, or (iv) any other circumstances whatsoever
in making or failing to make payment under any Letter of Credit other than
as a result of the willful misconduct or gross negligence by the Issuer or
such Bank. None of the foregoing shall affect, impair, or prevent the
vesting of any of the rights or powers granted the Issuer or any Bank
hereunder. In furtherance and extension, and not in limitation or
derogation, of any of the foregoing, any action taken or omitted to be taken
by the Issuer in good faith (and not constituting gross negligence or wilful
misconduct) shall be binding upon the Company and each Bank and shall not
put such Issuer under any resulting liability to the Company or any Bank, as the
case may be.
Section 2.10.4 Reimbursement Obligations of the Banks
under the Letters of Credit. If the Company shall fail pursuant to the
terms of Section 2.10.2 forthwith to reimburse the Issuer for each payment
of disbursement made by the Issuer to settle its obligations under
any draft drawn under
any Letter of Credit, then upon demand by the Issuer each Bank shall forthwith
make available to the Issuer at the Payment Office (or other office or
branch of a financial institution which Issuer may designate from time to
time by written notice to the Banks) immediately available funds in an
amount equal to such Bank's pro rata share (according to its respective
Commitment Proportion) of the amount so paid or disbursed by the Issuer.
Each Bank shall indemnify and hold harmless the Issuer from and against
any and all losses, liabilities (including, without limitation, liabilities
for penalties, actions, suits, judgments, demands and damages) costs and
expenses (including, without limitation, attorneys' fees and expenses)
resulting from any failure on the part of such Bank to provide, or from any
delay in providing, the Issuer with such Bank's share of the
amount of any payment or disbursement made by the Issuer to settle
its obligations under any draft drawn under any Letter of Credit in
accordance with the provisions of the preceding sentence.
The obligations of each Bank to provide the Issuer with such Bank's pro
rata share of the amount of any payment or disbursement made by the Issuer
to settle its obligations under any draft drawn under any Letter of Credit in
accordance with the provisions of the preceding paragraph shall be absolute
and unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which such Bank may have or have
had against the Issuer, including, without limitation, any defense based on
the failure of the demand for payment under such Letter of Credit to conform to
the terms of such Letter of Credit or the legality, validity, regularity or
enforceability of such Letter of Credit AND INCLUDING BUT NOT LIMITED TO THOSE
RESULTING FROM THE ISSUER'S OWN SIMPLE OR CONTRIBUTORY NEGLIGENCE; provided,
however, that no Bank shall be obligated to reimburse the Issuer pursuant
to the preceding provisions of this Section 2.10.4 for any wrongful payment or
disbursement made by the Issuer under any Letter of Credit as a result of
acts or omissions constituting gross negligence or willful misconduct on the
part of the Issuer or any of its officers, employees or agents.
Section 2.10.5 Letter of Credit Operations. The Issuer
shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment by a beneficiary under a Letter of Credit to
ascertain that the same appear on their face to be in conformity with the
terms and conditions of such Letter of Credit. If, after examination, the
Issuer shall have determined that a demand for payment under such Letter of
Credit does not conform to the terms and conditions of such Letter of Credit,
then the Issuer shall, as soon as reasonably practicable, give notice to such
beneficiary to the effect that such demand for payment was not in accordance
with the terms and conditions of such Letter of Credit, stating the
reasons therefor. Thereupon, such beneficiary may attempt to correct any
such non-conforming demand for payment under such Letter of Credit if, and
to the extent that, such beneficiary is entitled (without regard to the
provisions of this sentence) and able to do so. The Issuer hereby further
agrees to notify the Company of any demand for payment by a beneficiary under
a Letter of Credit which in the Issuer's determination does not conform
to the terms and conditions of the relevant Letter of Credit; provided,
however, that failure to give any such notification to the Company shall not
affect or otherwise impair the Company's obligations hereunder or under the
Issuance Request or any other Loan Documents nor subject the Issuer to any
claim or liability. After determining that a demand for payment under such
Letter of Credit conforms to the terms and conditions thereof, the Issuer
shall make available to such beneficiary, in immediately available funds, the
amount so demanded in accordance with the terms of such Letter of Credit.
Section 2.10.6 Action With Respect to Letters of Credit Upon Occurrence
of Default. Upon the occurrence of a Default under Sections (e) or (f) of
Article 12, an amount equal to the amount of the then contingent liability
of the Issuer (and the other Banks) under each outstanding Letter of Credit
shall be, without demand upon or notice to the Banks, and, upon the
occurrence of any other Event of Default, an amount equal to the amount of
the then contingent liability of the Issuer (and the other Banks) under each
outstanding Letter of Credit shall be, at the option of the Agent and without
demand upon or notice to the Banks, deemed (as between the Company and the
Issuer) to have been paid or disbursed by the Issuer under such Letters of
Credit (notwithstanding that such amount may not in fact have been so paid
or disbursed), and the Company shall be obligated (i) forthwith to
reimburse the Issuer for the amount deemed to have been so paid or disbursed
by the Issuer, and (ii) if the Issuer, in its discretion, so demands, to pay to
the Issuer, forthwith on demand, such additional amounts as may be required so
that the aggregate of all amounts previously paid by the Company to the Issuer
under this Section 2.10.6, and not theretofore applied to the payment of
amounts payable by the Company to the Issuer with respect to such Letter of
Credit shall equal the amount of the then contingent liability of the Issuer
(and the other Banks) under such Letter of Credit. Such amount shall be paid
by depositing Cash Collateral with the Agent in accordance with the provisions
of Section 2.10.7.
Section 2.10.7 Procedures for Depositing, Investing and Returning
of Cash Collateral. Any cash collateral amounts received by the Agent
pursuant to the provisions of Section 2.8(b), Section 2.10 or Section
2.10.6 (such cash collateral amounts, the "Cash Collateral") shall be deposited
in a cash collateral account (the "Letter of Credit Cash Collateral
Account") maintained at the offices of the Agent or such other Bank or
other Person acting as bailee for the Agent as the Agent shall designate but
under the sole dominion and control of the Agent and shall be retained by
the Agent for the pro rata benefit of the Issuer and the Banks in accordance
with the Letter of Credit Outstandings owing to them as collateral
security for, and the Company hereby grants to the Agent and its bailees or
agents for the benefit of the Issuer, the Agent and the Banks a security
interest in such Cash Collateral including all interest accruing thereon and
the proceeds thereof. The Company further agrees that the Agent shall have all
of the rights and remedies of a secured party under the Uniform
Commercial Code as adopted in the State of New York with respect to such
security interest and that an Event of Default under this Agreement shall
constitute a default for purposes of such security interest. Any amounts so
received by the Agent pursuant to the provisions of the preceding sentence
shall be held as collateral security for, first, the repayment of the
Company's Obligations in connection with the Letters of Credit and then the
other Obligations of the Company under or in connection with this Agreement
and any other Loan Documents. If and to the extent that (a) all
Obligations of the Company in connection with the Letters of Credit have been
fully paid and satisfied, and (b) the commitments and obligations of the Issuer
(and the other Banks) under the Letters of Credit and related documents have
terminated, the Agent shall pay to the Company, upon the Company's request
therefor, all amounts previously paid to the Agent by the Company pursuant to
this Section 2.10.7 and accrued interest thereon to the extent but only to
the extent such amounts or accrued interest were not theretofore applied by
the Agent to reduce amounts payable by the Company to the Issuer or the Banks
under such Letters of Credit or include any other Obligation; provided,
however, that if any Advances are outstanding as of such date, the Bank may
continue to hold such amounts and accrued interest as security for the Loans
and may thereafter apply such amounts and accrued interest to the payment of
the Loans and/or any other Indebtedness secured thereby. All amounts on deposit
in the Letter of Credit Cash Collateral Account may, until their
application to any Obligation or their return to the Company, as the case
may be, at the Company's written request, be invested in Cash Equivalent
Investments designated by the Company, which Cash Equivalent Investments
shall be held by the Agent as additional collateral security for the repayment
of the Company's Obligations under and in connection with the Letters of Credit
and all other Obligations. Any losses, net of earnings, and reasonable fees
and expenses of such Cash Equivalent Investments shall be charged against the
principal amount invested. The Agent, the Issuer and the Banks shall not be
liable for any loss resulting from any Cash Equivalent Investment made at the
Company's request. The Agent is not obligated hereby, or by any other Loan
Document, to make or maintain any Cash Equivalent Investment, except upon
written request by the Company."
L. Section 6.1 of the Credit Agreement is amended in its entirety to
read as follows:
" Section 6.1 Currency Conversion and Currency Indemnity.
Section 6.1.1 Payments in Agreed Currency
The Company shall make payment relative to each Advance or
Reimbursement Obligation in Dollars (the "Agreed Currency"). If any payment is
received on account of any Advance in any currency (the "Other Currency")
other than the Agreed Currency (whether voluntarily or pursuant to an order or
judgment or the enforcement thereof or the realization of any security or
the liquidation of the Company or otherwise howsoever), such payment shall
constitute a discharge of the liability of the Company hereunder and under the
other Loan Documents in respect of such obligation only to the extent of the
amount of the Agreed Currency which the relevant Bank, the Issuer or the Agent,
as the case may be, is able to purchase with the amount of the Other Currency
received by it before noon on the date of such receipt, or, if the amount
of the Other Currency is received after noon, the Business Day next
following such receipt, in accordance with its normal procedures and after
deducting any premium and costs of exchange.
Section 6.1.2 Conversion of Agreed Currency into Judgment Currency. If,
for the purpose of obtaining or enforcing a judgment in any court in any
jurisdiction, it becomes necessary to convert into a particular currency
(the "Judgment Currency") any amount due in the Agreed Currency then the
conversion shall be made on the basis of the rate of exchange prevailing on
the day on which judgment is given (unless such day is not a Business Day in
which case the conversion shall be made on the basis of the rate of exchange
prevailing on the Business Day next preceding the day of which judgment
is given) and in any event the Company shall be obligated to pay the Agent, the
Issuer and the Banks any deficiency in accordance with Section 6.1.1. For the
foregoing purposes "rate of exchange" means the rate at which the relevant
Bank, the Issuer or the Agent, as applicable, in accordance with its
normal banking procedures is able on the relevant date to purchase the
Agreed Currency with the Judgment Currency after deducting any premium and costs
of exchange.
Section 6.1.3 Circumstances Giving Rise to Indemnity. If (i) any
Bank, the Issuer or the Agent receives any payment or payments on account
of the liability of the Company hereunder pursuant to any judgment or
order in any Other Currency, and (ii) the amount of the Agreed Currency which
the relevant Bank, the Issuer or the Agent, as applicable, is able to
purchase on the Business Day next following such receipt with the
proceeds of such payment or payments in accordance with its normal procedures
and after deducting any premiums and costs of exchange is less than the
amount of the Agreed Currency due in respect of such obligations immediately
prior to such judgment or order, then the Company on demand shall, and the
Company hereby agrees to, indemnify and save the Banks, the Issuer and the
Agent harmless from and against any loss, cost or expense arising out of or in
connection with such deficiency.
SECTION 6.1.4 Indemnity Separate Obligation. The agreement of indemnity
provided for in Section 6.1 shall constitute an obligation separate and
independent from all other obligations contained in this Agreement, shall give
rise to a separate and independent cause of action, shall apply irrespective
of any indulgence granted by the Banks, the Issuer or the Agent or any of them
from time to time, and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due hereunder or under any judgment or order."
M. Subsection 6.4(i)(b) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(b) second, in or toward payment to the Banks of such amount as is
required to repay the Advances and the Reimbursement Obligations, including
accrued interest thereon, which
have fallen due, and if insufficient to pay all principal and interest then due
thereon shall be applied first to payment of interest and then to principal;
and"
N. Sections 8.4, 8.5, 8.6 and the first and second sentence of
Section 8.7 of the Credit Agreement are amended by (i) inserting after each use
of the word "Bank" the phrase "or the Issuer" and (ii) inserting after each
use of the word "Bank's" the phrase "or the Issuer's".
O . The Preamble to Article 11 of the Credit Agreement is hereby amended
in its entirety to read as follows:
" The Company agrees with the Agent, the Issuer and each Bank that so
long as any of the Commitments are in effect and until payment in full of
all Advances hereunder (other than pursuant to any continuing
indemnification obligations under this Agreement), all interest thereon and
all other amounts payable by the Company hereunder remains outstanding,
and until all Letters of Credit shall have expired or been terminated and
the Issuer and the Banks shall have no further obligation or liability
under any Letter of Credit, the Company will perform the obligations set
forth in this Article 11:".
Article 12 of the Credit Agreement is hereby amended by (i) amending clause
(a) in its entirety to read as follows:
" (a) The Company shall default in the payment when due (i) of
any principal of any Advance or any Reimbursement Obligation (and such
default shall continue unremedied for a period of two (2) Business Days),
or (ii) of any interest on any Advance, any Reimbursement Obligation or
any fees payable by the Company hereunder or in connection herewith, or
of any other monetary Obligation (and such default shall continue
unremedied for five (5) Business Days); or "
; (ii) amending clause (i) thereof by inserting after the word "Advance" the
phrase ", all Letter of Credit Obligations"; and (iii) amending clause (ii)
thereof by inserting after the word "Advance" the phrase ", all Letter of
Credit Obligations".
Q. Section 13.1 of the Credit Agreement is hereby amended by (i)
amending the first sentence thereof in its entirety to read as follows:
"Each Bank hereby irrevocably appoints and authorizes the Agent to act as
its agent and CIBC to act as the Issuer under and for purposes of this
Agreement, the Notes and the other Loan Documents with such powers as are
specifically delegated to the Agent or the Issuer by the terms of this
Agreement, the Notes and the other Loan Documents, together with such other
powers as are reasonably incidental thereto."
and (ii) amending the second and third sentence thereof by inserting
after each use of the word "Agent" the phrase "or the Issuer".
R. The first sentence of Section 13.2 and Section 13.3 of
the Credit Agreement are hereby amended by inserting after each use of the word
"Agent" the phrase "or the Issuer".
S. Section 13.4 of the Credit Agreement is hereby amended by (i)
amending the first sentence thereof by inserting (a) after the first use of the
word "Agent" the phrase "or the Issuer" and (b) after the second use of the word
"Agent" the phrase "and the Issuer"; and (ii) amending the second sentence
thereof by inserting (a) after the first use of the word "Agent" the phrase ",
the Issuer", (b) after the second use of the word "Agent" the phrase "or the
Issuer", and (c) after the third use of the word "Agent" the phrase "and the
Issuer".
T. Section 13.5 of the Credit Agreement is hereby amended by (i)
amending the first sentence thereof by (a) replacing the phrase "the Agent and
its officers" with the phrase "the Agent and the Issuer and their officers",
and (b) inserting after the second use of the word "Agent" the phrase "or the
Issuer"; and (ii) amending the second sentence thereof in its entirety to read
as follows:
"The obligation of the Banks in this Section shall survive the
payment of the Advances, the Letter of Credit Outstandings and of any other
sums due from Company hereunder and the termination of the Commitments."
U. Section 13.6 of the Credit Agreement is hereby amended by (i)
amending the first sentence thereof by inserting after each use of the
word "Agent" the phrase ", the Issuer"; and (ii) amending the second sentence
thereof by inserting after the word "Agent" the phrase " and the Issuer";
(iii) amending the third sentence thereof by (a) inserting after the first
use of the word "Agent" the phrase "or the Issuer", (b) inserting after the
second use of the word "Agent" the phrase "and the Issuer", and (c) after the
third use of the word "Agent" the phrase ", the Issuer"; and (iv) amending
the fourth sentence thereof by inserting after the word "Agent" the phrase
"or the Issuer".
V. Section 13.7 of the Credit Agreement is hereby amended by (i)
inserting after the first use of the word "Agent" the phrase "or the
Issuer"; and (ii) inserting after the second use of the word "Agent" the phrase
"and the Issuer".
W. Section 13.8 of the Credit Agreement is hereby amended by (i)
amending the first sentence thereof by inserting after the word "Agent" the
phrase ", the Issuer"; (ii) amending the second sentence thereof by inserting
after each use of word "Agent" the phrase "or the Issuer"; (iii) amending the
third sentence thereof by (a) inserting after the word "agent" the phrase "or
issuer", and (b) inserting after the word "Agent" the phrase "or Issuer"; (iv)
amending the fourth sentence thereof by inserting after the word "Agent" the
phrase "or the Issuer"; and (v) amending the fifth sentence thereof by (a)
inserting after the word "Agent's" the phrase ", Issuer's", and (b) inserting
after each use of the word "Agent" the phrase ", the Issuer".
X. Section 14.1 of the Credit Agreement is hereby amended by inserting
after the word "Agent" the phrase ", the Issuer".
Y. Section 14.4 of the Credit Agreement is hereby amended by (i)
amending the second sentence thereof by inserting after each use of the word
"Agent" the phrase " and the Issuer"; and (ii) amending the third sentence
thereof by inserting after each use of word "Agent" the phrase ", the Issuer".
Z. Section 14.5 of the Credit Agreement is hereby amended by inserting
after each use of the word "Co-Agents" the phrase ", the Issuer".
AA. Subsection 14.7(a) of the Credit Agreement is hereby amended by
inserting after the word "Agent" the phrase "and the Issuer".
BB. Subsection 14.7(e) of the Credit Agreement is hereby
amended by inserting after each use of the word "Co-Agents" the phrase ", the
Issuer".
CC. Section 14.8 of the Credit Agreement is hereby amended by inserting
after the word "Agent" the phrase ", the Issuer".
DD. Subsection 14.9(ii) of the Credit Agreement is hereby amended by
inserting after the word "Advances" the phrase ", Letter of Credit
Outstandings".
EE. Sections 14.11, 14.19 and 14.20 of the Credit Agreement are hereby
amended by inserting after the word "Agent" the phrase ", the Issuer".
FF. Section 14.21 of the Credit Agreement is hereby amended by (i)
inserting after the first use of the word "Banks" the phrase ", the Issuer"
and (ii) inserting after the second use of the word "Agent" the phrase ", the
Issuer".
GG. Exhibit I to the Credit Agreement is amended in its entirety to read
as provided in Exhibit I hereto. All references in the Credit Agreement to
Exhibit I shall be deemed to refer to Exhibit I hereto.
HH. The Credit Agreement is amended by adding Exhibit L hereto as
Exhibit L to the Credit Agreement. All references in the Credit Agreement to
Exhibit L shall be deemed to refer to Exhibit L hereto.
II. The Credit Agreement is amended by adding Schedule A hereto as
Schedule A to the Credit Agreement. All references in the Credit
Agreement to Schedule A shall be deemed to refer to Schedule A hereto.
SECTION 2. Conditions to Effectiveness. The effectiveness of
this Amendment is conditioned upon receipt by the Agent of all of the
following, each in form and substance satisfactory to the Agent, and in
sufficient number of signed counterparts to provide one for each Co-Agent and
each Bank, (i) counterparts of this Amendment, executed by the Company,
the Banks, the Co-Agents and the Agent and (ii) such other documents as the
Agent may reasonably request.
SECTION 3. Representations and Warranties. To induce the Banks,
the Co-Agents and the Agent to enter into this Amendment, the Company
hereby reaffirms, as of the date hereof, its representations and warranties
contained in Article X of the Credit Agreement and in each other Loan Document
to which it is a party (except to the extent such representations and
warranties relate solely to an earlier date) and additionally represents and
warrants as follows:
A. Authorization; No Conflict. The execution and delivery of this
Amendment and the performance by the Company of its Obligations under this
Amendment, the Credit Agreement as amended by this Amendment, and the other
Loan Documents, are within the Company's powers, have been duly authorized
by all necessary action, have received all necessary governmental approval (if
any shall be required), and do not and will not contravene or conflict
with any provision of law or of the articles of incorporation or bylaws
of the Company, or of any material agreement binding upon the Company.
B. Validity and Binding Nature. This Amendment and the Credit
Agreement as amended by this Amendment are legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms subject as to enforcement only to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and general principles of
equity.
C. Consents. No action, consent or approval of, or registration or
filing
with, or any other action by any governmental authority is required in
connection with the execution, delivery and performance by the Company of
this Amendment, the Credit Agreement as amended by this Amendment, or any other
Loan Document or the legality, validity, binding effect or enforceability of
this Amendment, the Credit Agreement as amended by this Amendment, or the
other Loan Documents.
SECTION 4. Reaffirmation of Credit Agreement. This Amendment
shall be deemed to be an amendment to the Credit Agreement, and the Credit
Agreement, as amended hereby, is hereby ratified, approved and confirmed in each
and every respect. All references to the Credit Agreement in any other
document, instrument, agreement or writing shall hereafter be deemed to
refer to the Credit Agreement as amended hereby.
SECTION 5. Defined Terms. Except as amended hereby or otherwise
indicated, terms defined in the Credit Agreement are used in this Amendment
with the same meaning.
SECTION 6. Section Captions. Section captions used in this
Amendment are for convenience of reference only, and shall not affect the
construction of this Amendment.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID
STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. All obligations of
the Company and rights of the Agent, the Co-Agents, the Banks and any other
holders of the Notes expressed herein or in the Notes shall be in addition to
and not in limitation of those provided by applicable law.
SECTION 8. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by the different parties on
separate counterparts, and each such counterpart shall be deemed to be an
original, but all such counterparts shall together constitute but one and
the same Amendment.
SECTION 9. Successors and Assigns. This Amendment shall be binding
upon the Company, the Banks, the Co-Agents and the Agent and their
respective successors and assigns, and shall inure to the benefit of the
Company, the Banks, the Co-Agents and the Agent and the respective successors
and assigns of the Banks, the Co-Agent and the Agent; provided, however, that
the Company may not assign or transfer its rights or obligations hereunder
without the prior written consent of all Banks.
SECTION 10. Severability. In case any provision in or obligation
under this Amendment, the Credit Agreement as amended by this Amendment or
any other Loan Document shall be invalid, illegal or unenforceable in any
jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations,
or of such provision or obligation in any other jurisdiction, shall not
in any way be affected or impaired thereby.
SECTION 11. No Oral Agreements. THIS WRITTEN AMENDMENT TOGETHER WITH
THE OTHER LOAN DOCUMENTS REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. [SIGNATURES
BEGIN ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written and shall be effective as of such date.
PACIFIC GAS TRANSMISSION COMPANY
By: /s/ STANLEY C. KARCZEWSKI
-----------------------------
Name: Stanley C. Karczewski
Title: Vice President of Finance, Controller and
Chief Financial Officer
CANADIAN IMPERIAL BANK OF COMMERCE, as Agent for
the Banks
By:/s/ MARYBETH ROSS
--------------------
Name: Marybeth Ross
Title: Authorized Signator
THE BANK OF NOVA SCOTIA, as Co-Agent for the Banks
By: /s/ M. BROWN
--------------------
Name: M. Brown
Title: Officer
BARCLAYS BANK PLC, as Co-Agent for the
Banks
By: /s/ HELEN L. CALVELLI
--------------------------
Name: Helen Calvelli
Title: Director
THE FIRST NATIONAL BANK OF CHICAGO, as Co-Agent for
the Banks
By: /s/ RICHARD WALDMAN
--------------------------------------
AUTHORIZED AGENT
CIBC INC., as a Bank
By: /s/ MARYBETH ROSS
-----------------
Name: Marybeth Ross
Title: Authorized Signatory
THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ M. BROWN
-----------------
Name: M. Brown
Title: Officer
BARCLAYS BANK PLC, as a Bank
By: /s/ HELEN L. CALVELLI
--------------------------
Name: Helen Calvelli
Title: Director
THE FIRST NATIONAL BANK OF CHICAGO, as a Bank
By: /s/ STEVEN P. CAPOUCH
--------------------------
Name: Steven P. Capouch
Title: First Vice President
BANK OF AMERICA NT & SA, as a Bank
By: /s/ GARY M. TSUYUKI
-----------------------
Name: Gary M. Tsuyuki
Title: Managing Director
CITIBANK, N.A., as a Bank
By: /s/ SANDIP SEN
----------------
Name: Sandip Sen
Title: Vice President
Attorney-in-Fact
THE FUJI BANK, LIMITED, San Francisco
Agency, as a Bank
By: /s/ KEIICHI OZAWA
---------------------
Name: Keiichi Ozawa
Title: Joint General Manager
SOCIETE GENERALE, a French bank, as a Bank
By: /s/ J. BLAINE SHAUM
------------------------
Name: J. Blaine Shaum
Title: Regional Manager
SWISS BANK CORPORATION, New York Branch,
as a Bank
By: /s/ KAREN MAYROSE
----------------------
Name: Karen Mayrose
Title: Associate Director
Banking Finance Support, N.A.
By: /s/ SABINA WU
-------------------
Name: Sabina Wu
Title: Director
Credit Risk Management, N.A.
UNITED STATES NATIONAL BANK OF OREGON, as a Bank
By: /s/ DEREK RIDGLEY
----------------------
Name: Derek Ridgley
Title: Vice President
EXHIBIT I Form of Transfer Certificate
To: [Name and address of Transferee]
and
Canadian Imperial Bank of Commerce, as Agent
From: [Name of Transferor Bank and Facility Office]
Date: ___________________, 199____
Re: Transfer Certificate - Credit Agreement, dated as of May 31,
1995 (together with all amendments, if any, from time to time
made thereto, the "Credit Agreement") among Pacific Gas
Transmission Company (the "Company"), the various
financial institutions as are and may become parties thereto (the
"Banks"), The Bank of Nova Scotia, Barclays Bank PLC and The
First National Bank of Chicago, as (the "Co-Agents"), and
Canadian Imperial Bank of Commerce ("CIBC"), as Agent for the
Banks (the "Agent")
Ladies and Gentlemen:
1. [Name of Transferor Bank] (the "Transferor") confirms the accuracy of
the summary of its participation in the Credit Agreement set out in
the schedule attached hereto (the "Schedule") before and after giving
effect to the assignment and transfer herein made. Transferor hereby
assigns and transfers, without recourse, to [Name of Transferee Bank]
(the "Transferee") the rights and obligations of Transferor under the
Credit Agreement specified in the Schedule. Transferee accepts such
assignment and transfer by countersigning and delivering this Transfer
Certificate to Transferor. This assignment is effective as of the date
set forth in the Schedule (the "Transfer Effective Date"). The principal
amount of any outstanding Advances under the Credit Agreement as of
the Transfer Effective Date shall be apportioned between Transferor and
Transferee in accordance with the Schedule and Transferee shall pay
Transferor in immediately available funds on the Transfer Effective Date
or such other date as is agreed to between the Transferor and the
Transferee an amount equal to the principal amount of any outstanding
Advance being assigned and transferred hereunder. All interest and fees
payable under the Credit Agreement shall be apportioned between
Transferor and Transferee proportionately to the periods before and after
the Transfer Effective Date as to which payable.
2. Transferee is also delivering signed counterpart copies hereof to
the Agent at its address for the service of notices specified in the
Credit Agreement. The Agent is requested to make appropriate entries on
its records to reflect the assignment and transfer effected hereby.
3. The Transferee hereby undertakes with the Transferor and each of the
other parties to the Credit Agreement that it will perform in
accordance with their terms all those obligations which by the terms
of the Credit Agreement it will assume upon delivery of this Transfer
Certificate by it. Transferee agrees promptly to deliver to the Company,
the Agent and any other withholding agent specified by the Company, two
copies of a valid Form 1001, a valid Form 4224 or a certificate
substantially in the form of Exhibit I to the Credit Agreement (in
accordance with Sections 8.2 and 14.7(e) of the Credit Agreement).
Transferee agrees promptly to pay to the Agent a transfer registration
fee in the amount of $2,500. By its consent hereto the Company consents
to the transfer herein provided, agrees that Transferee shall be a Bank
under the Credit Agreement and releases the Transferor pro tanto as to the
obligations of Transferor transferred to Transferee hereunder.
4. The Transferee confirms that it has received a copy of the Credit
Agreement together with such other documents and information as it has
required in connection with this transaction. Transferee hereby confirms
that it has entered into this assignment and transfer on the basis of its
own independent commercial relationship with the Company and its own
independent investigation and that it has not relied and will not hereafter
rely on the Transferor, the other Banks, the Agent, the Issuer or the Co-
Agents with respect to the due execution, legality, validity,
effectiveness, adequacy, accuracy or enforceability of the Credit
Agreement or any other documents and information or with respect to the
collectibility of any Advance or other amount due under the Credit
Agreement. Transferee further agrees that it has not relied and will not
rely on the Transferor, the other Banks, the Agent, the Issuer or the Co-
Agents to assess or keep under review on its behalf or provide
Transferee, except as expressly required under the terms of the Credit
Agreement, with any information as to the financial condition,
creditworthiness, condition, affairs, status or nature of the Company or
the subsidiaries or of any other party to the Credit Agreement or the
observance by the Company of any of its obligations under the Credit
Agreement or any document relating thereto.
5. The Transferor makes no representation or warranty and
assumes no responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the Credit Agreement or any
document relating thereto or the collectibility of any Advance or other
amount due under the Credit Agreement and assumes no responsibility
for the financial condition of the Company or any other party to the
Credit Agreement or for the performance and observance by the Company
or any other party of any of its obligations under the Credit Agreement
or any document relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby
excluded.
6. The Transferee confirms the appointment of the Agent and the
Issuer in accordance with the terms of Article 13 of the Credit
Agreement.
7. This Transfer Certificate 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 Transfer
Certificate to be duly executed and delivered as of the date first above
written.
[TRANSFEROR]
By
Name:
Title:
"Transferor" [TRANSFEREE]
By
Name:
Title:
"Transferee"
Consented to as of the above date by:
PACIFIC GAS TRANSMISSION COMPANY
By
Name:
Title:
Receipt acknowledged and Consented to as of the above date:
CANADIAN IMPERIAL BANK OF COMMERCE, as
Agent
By
Name:
Title:
THE SCHEDULE TO THE TRANSFER CERTIFICATE Details of Transfer
1. Details of Commitments
a. Transferor's Commitment before this Transfer:
b. Amount of Commitment Transferred:
c. Transferor's remaining Commitment:
d. Transferee's Commitment:
e. Transfer Effective Date:
2. Details of Advances
a. Outstanding Advance(s) and Letter of Credit Outstandings of Transferor
to Company prior to Transfer Effective Date:
Type of Principal Drawdown Repayment Interest
Advance Amount Date Date Rate
- -------- ------- ----------- -------------- -----------
b. Principal Amount of Outstanding Advance(s) and Letter of Credit
Outstandings Transferred to Transferee:
Type of Principal Drawdown Repayment Interest
Advance Amount Date Date Rate
----------- ------------- --------- ----------- ------------
Administrative Details Respecting Transferee
Facility Office for Advances:
Attn:
Address for Notices:
Attn:
Account for Payments:
Telephone:
Telefacsimile:
Telex:
Issuance Request
Canadian Imperial Bank of Commerce as Agent and as Issuer
425 Lexington Avenue
New York, New York 10017
Attention: [Name]
[Title]
Re: PACIFIC GAS TRANSMISSION COMPANY
Gentlemen and Ladies:
This Issuance Request is delivered to you pursuant to Section 2.8 of
that certain Credit Agreement, dated as of May 31, 1995 (together with all
amendments, if any, from time to time made thereto, the "Credit Agreement"),
among Pacific Gas Transmission Company, a California corporation (the
"Company"), certain financial institutions and Canadian Imperial Bank of
Commerce, as agent the "Agent"). Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Credit Agreement.
The Company hereby requests that the Issuer issue a Letter of Credit for
the account of -------------- on [date] in the initial face amount of $-----
- ------- [and in the form attached hereto].(1)
The beneficiary of the requested Letter of Credit will be------------
, and such Letter of Credit will be in support of the [provide description] and
will have a Stated Expiry Date of [date]. The following
documents will be required upon presentation: [provide description].
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed issuance of the
Letter of Credit, before and after giving effect thereto and to the application
of the proceeds therefrom:
(i) the face amount of the proposed Letter of Credit is not more than the
Adjusted Available Facility Amount;
(ii) no Default has occurred and is continuing;
(iii) the representations and warranties contained in Sections 10.1,
10.4, 10.5, 10.6, 10.7 and 10.9 of the Credit Agreement are true and
correct as of the date of such issuance except for changes reflecting
transactions permitted by the Credit Agreement;
(iv) no authorizations, approvals or consents of, and no filings or
renegotiations with, any governmental or regulatory authority or
agency are necessary for the incurring of obligations in
connection with such Advance, other than approvals which have
been duly obtained and are of full force and effect; and
(v) the incurring of obligations in connection with such Advance does
not conflict with or result in a breach of any applicable law or
regulation, or any other, writ, injunction or decree of any court
or regulatory authority.
The Company agrees that if prior to the time of the issuance of the Letter of
Credit requested hereby any matter certified to herein by it will not be true
and correct at such time as if then made, it will immediately so notify the
Agent. Except to the extent, if any, that prior to the time of the Letter
of Credit requested hereby the Agent shall receive written notice to the
contrary from the Company, each matter certified to herein shall be deemed
once again to be certified as true and correct at the date of such Borrowing as
if then made.
IN WITNESS WHEREOF, the Company has caused this Issuance Request to be
executed and delivered, and the certification and warranties contained
herein, by its duly Authorized Signatory this ------ day of------------ , 19
PACIFIC GAS TRANSMISSION COMPANY
By:
Name:
Title:
[Issuance Request to be accompanied by such additional information/documentation
as is mutually acceptable to the Issuer and the Company, consistent with the
terms of the Credit Agreement]
- -----------------------
[FN]
(1) Include where the Borrower is providing the form of Letter of Credit
requested to be issued.