Exhibit 10.3
------------
Execution Counterpart
THIRD AMENDMENT
TO
CREDIT AGREEMENT
DATED AS OF
AUGUST 5, 2005
AMONG
KINDER MORGAN ENERGY PARTNERS, L.P.,
AS THE COMPANY,
KINDER MORGAN OPERATING L.P. "B",
AS THE SUBSIDIARY BORROWER,
THE LENDERS PARTY HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS THE ADMINISTRATIVE AGENT,
CITIBANK, N.A.
AND
JPMORGAN CHASE BANK, N.A.,
AS THE CO-SYNDICATION AGENTS
AND
THE ROYAL BANK OF SCOTLAND PLC
AND
BARCLAYS BANK PLC,
AS THE CO-DOCUMENTATION AGENTS
AND
WACHOVIA CAPITAL MARKETS, LLC
AND
CITIGROUP GLOBAL MARKETS, INC.,
AS JOINT LEAD ARRANGERS
AND
WACHOVIA CAPITAL MARKETS, LLC,
CITIGROUP GLOBAL MARKETS, INC.,
AND
J.P. MORGAN SECURITIES INC.,
AS JOINT BOOK MANAGERS
THIRD AMENDMENT
TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
as of October 6, 2006, to be effective as of August 28, 2006, is among:
(a) Kinder Morgan Energy Partners, L.P., a Delaware limited
partnership (the "Company");
(b) Kinder Morgan Operating L.P. "B", a Delaware limited partnership
(the "Subsidiary Borrower");
(c) the banks and other financial institutions listed on the
signature pages hereof under the caption "Lender" (collectively, the "Lenders");
(d) Wachovia Bank, National Association, a national banking
association, individually as a Lender and as administrative agent for the
Lenders (in such latter capacity, the "Administrative Agent");
(e) Citibank, N.A., and JPMorgan Chase Bank, N.A., as Co-Syndication
Agents (the "Co-Syndication Agents"); and
(f) The Royal Bank of Scotland plc, and Barclays Bank PLC, as
Co-Documentation Agents (the "Co-Documentation Agents").
PRELIMINARY STATEMENTS
A. The Company, the Subsidiary Borrower, the Lenders, the Administrative
Agent, the Co-Syndication Agents, and the Co-Documentation Agents, have entered
into a Credit Agreement dated as of August 5, 2005, as amended pursuant to the
First Amendment to Credit
1
Agreement dated as of October 28, 2005 and the Second Amendment to Credit
Agreement dated as of April 13, 2006 (such Credit Agreement as so amended, and
as it may be further amended, modified, supplemented and/or restated from time
to time, the "Credit Agreement").
B. Pursuant to an Agreement and Plan of Merger among Kinder Morgan, Inc.
("KMI"), Knight Holdco LLC and Knight Acquisition Co., dated as of August 28,
2006 (the "Agreement and Plan of Merger") (1) Knight Acquisition Co. will be
merged with and into KMI, with KMI continuing as the surviving corporation, (2)
each outstanding share of KMI (other than shares held by Knight Holdco LLC,
Knight Acquisition Co., subsidiaries of KMI, and certain other stockholders of
KMI (including certain members of KMI's management and board of directors and
stockholders who have perfected appraisal rights)) will be converted into the
right to receive $107.50 in cash, and (3) Knight Holdco LLC will own all of the
outstanding shares of capital stock of KMI, as the surviving corporation (the
actions described above being the "Proposed Transaction").
C. All capitalized terms defined in the Credit Agreement and not otherwise
defined herein shall have the same meanings herein as in the Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Company, the Lenders, and the
Administrative Agent hereby agree as follows:
SECTION 1. Amendments to Section 1.01 of the Credit Agreement.
2
(a) The definition of "Change in Control" set forth in Section 1.01
of the Credit Agreement is hereby amended and restated to read in its entirety
as set forth immediately below:
" `Change in Control' means either (a) the acquisition through
beneficial ownership or otherwise after the date hereof by any person (as
such term is used in section 13(d) and section 14(d)(2) of the Exchange
Act as in effect on the date hereof) or related persons constituting a
group (as such term is used in Rule 13d-5 under the Exchange Act as in
effect on the date hereof) of 30% of the Voting Stock of the General
Partner; or (b) individuals who, at the beginning of any period of 12
consecutive months, constitute the General Partner's Board of Directors
cease for any reason (other than death or disability) to constitute a
majority of the General Partner's Board of Directors then in office;
provided, however, that for the avoidance of doubt,
A. no Change of Control shall consist solely of, or arise solely by
means of any event or condition specified in the following clauses (1) -
(3), if and so long as each event and condition specified in the following
clauses (1) - (3), inclusive, shall be consummated, or shall exist, on or
prior to March 30, 2007, pursuant to that certain Agreement and Plan of
Merger among Kinder Morgan, Inc. `KMI'), Knight Holdco LLC and Knight
Acquisition Co., dated as of August 28, 2006 (the `Agreement and Plan of
Merger'):
(1) the merger of Knight Acquisition Co. with and into KMI,
with KMI continuing as the surviving corporation, or
(2) the conversion of each outstanding share of KMI (other
than shares held by Knight Holdco LLC, Knight Acquisition Co.,
subsidiaries of KMI, and certain other stockholders of KMI
(including certain members of KMI's management and board of
directors and stockholders who have perfected appraisal rights))
into the right to receive $107.50 in cash, or
(3) Knight Holdco LLC's ownership of all the outstanding
shares of capital stock of KMI, as the surviving corporation,
pursuant to and as contemplated by the Agreement and Plan of
Merger; and
B. the execution of the Agreement and Plan of Merger shall not
constitute a Change in Control Event within the next succeeding
definition, and no (1) termination of the Total Commitment pursuant to
Section 2.09(d), or (2) obligation to (a) deposit cash pursuant to Section
2.06(k) in respect of Letters of Credit issued hereunder, (b) repay any
Loans or other amounts due under this Agreement pursuant to Section
2.10(b), or (c) notify the Administrative Agent or any Lender pursuant to
Section 5.01(e)(i) of the occurrence of a Change in Control Event, shall,
in any such case, arise under this Agreement solely as a result thereof.".
3
(b) The definition of "Interest Payment Date" set forth in Section
l.01 of the Credit Agreement is hereby amended by deleting the parenthetical
phrase "(including a Swingline Loan)" and substituting the phrase "and each
Swingline Loan" therefor.
(c) The definition of "Interest Period" set forth in Section 1.01 of
the Credit Agreement is hereby amended and restated to read in its entirety as
set forth immediately below:
" `Interest Period' means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending
7 days thereafter or on the numerically corresponding day in the calendar
month that is one, two, three or six months thereafter, as the Company may
elect and (b) with respect to any Fixed Rate Borrowing, the period (which
shall not be less than 7 days or more than 180 days) commencing on the
date of such Borrowing and ending on the date specified in the applicable
Competitive Bid Request; provided, that (i) if any Interest Period would
end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of any
Eurodollar Borrowing, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, (ii) any Interest Period that commences on
the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period and (iii) no Interest Period shall end after
the Stated Maturity Date. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the
case of a Committed Borrowing, thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.".
(d) The definition of "Net Worth" set forth in Section 1.01 of the
Credit Agreement is hereby amended and restated to read in its entirety as set
forth immediately below:
" `Net Worth' means, as to the Company at any date, the sum of (i)
the amount of partners' capital of the Company determined as of such date
in accordance with GAAP, and (ii) the face amount of Hybrid Securities
outstanding at such date, not in excess of 15% of Total Capitalization;
provided, there shall be excluded, without duplication, from such
determination (to the extent otherwise included therein) the amount of
accumulated other comprehensive gain or loss as of such date." .
(e) The following additional definitions are hereby added to Section
1.01 of the Credit Agreement, each in its appropriate alphabetical order:
4
" `Commercial Operation Date' means the date on which a Material
Project is substantially complete and commercially operable.".
" `Hybrid Securities' means any trust preferred securities, or
deferrable interest subordinated debt with a maturity of at least 20
years, which provides for the optional or mandatory deferral of interest
or distributions, issued by the Company, or any business trusts, limited
liability companies, limited partnerships or similar entities (i)
substantially all of the common equity, general partner or similar
interests of which are owned (either directly or indirectly through one or
more Wholly-owned Subsidiaries) at all times by the Company or any of the
Subsidiaries, (ii) that have been formed for the purpose of issuing trust
preferred securities or deferrable interest subordinated debt, and (iii)
substantially all the assets of which consist of (A) subordinated debt of
the Company or a Subsidiary, and (B) payments made from time to time on
the subordinated debt.".
" `LIBOR Market Index' means for any day:
(a) the rate per annum equal to the rate determined by the Swingline
Lender to be the offered rate that appears on the page of the Telerate
screen (or any successor thereto) that displays an average British Bankers
Association Interest Settlement Rate for deposits in dollars (for delivery
on such day) with a term equivalent to one month, determined as of
approximately 11:00 a.m. (London time) on such day; or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Swingline Lender to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in dollars (for delivery on such day) with a
term equivalent to one month, determined as of approximately 11:00 a.m.
(London time) on such day; or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Swingline Lender as
the rate of interest at which deposits in dollars of $5,000,000 and for a
one month maturity (for delivery on such day in same day funds) are
offered by Wachovia's London branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London
time) on such day.".
" `LIM Rate' shall mean, with respect to any Swingline Loan for any
day, a rate per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) determined by the Swingline Lender to be equal to the quotient of
(i) LIBOR Market Index for such Loan for such day divided by (ii) 1 minus
the Reserve Requirement for such Loan for such day.".
" `Material Project' means the construction or expansion of a
capital project of the Company or any or the Subsidiaries, the aggregate
capital cost of which exceeds $50,000,000."
" `Material Project EBITDA Adjustments' means, with respect to each
Material Project
5
(A) prior to the Commercial Operation Date of a Material Project
(but including the fiscal quarter in which such Commercial Operation Date
occurs) a percentage (based on the then-current completion percentage of
such Material Project) of an amount to be approved by the Administrative
Agent as the projected Consolidated EBITDA of the Company and the
Subsidiaries attributable to such Material Project for the first 12-month
period following the scheduled Commercial Operation Date of such Material
Project (such amount to be determined based on customer contracts relating
to such Material Project, the creditworthiness of the other parties to
such contracts, and projected revenues from such contracts, capital costs
and expenses, scheduled Commercial Operation Date, oil and gas reserve and
production estimates, commodity price assumptions and other factors deemed
appropriate by the Administrative Agent) which may, at the Company's
option, be added to actual Consolidated EBITDA for the Company and the
Subsidiaries for the fiscal quarter in which construction of such Material
Project commences and for each fiscal quarter thereafter until the
Commercial Completion Date of such Material Project (including the fiscal
quarter in which such Commercial Operation Date occurs, but without
duplication of any actual Consolidated EBITDA of the Company and the
Subsidiaries attributable to such Material Project following such
Commercial Operation Date); provided that if the actual Commercial
Operation Date does not occur by the scheduled Commercial Operation Date,
the foregoing amount shall be reduced, for quarters ending after the
scheduled Commercial Operation Date to (but excluding) the first full
quarter after the actual Commercial Operation Date, by the following
percentage amounts depending on the period of delay (based on the actual
period of delay or then-estimated delay, whichever is longer): (i) 90 days
or less, 0%, (ii) longer than 90 days, but not more than 180 days, 25%,
(iii) longer than 180 days but not more than 270 days, 50%, and (iv)
longer than 270 days, 100%; and
(B) beginning with the first full fiscal quarter following the
Commercial Operation Date of a Material Project and for the two
immediately succeeding fiscal quarters, an amount to be approved by the
Administrative Agent as the projected Consolidated EBITDA of the Company
and the Subsidiaries attributable to such Material Project (determined in
the same manner set forth in clause (A) above) for the balance of the four
full fiscal quarter period following such Commercial Operation Date, which
may, at the Company's option, be added to actual Consolidated EBITDA for
the Company and the Subsidiaries for such fiscal quarters.
Notwithstanding the foregoing:
(i) no such additions shall be allowed with respect to any
Material Project unless:
(a) not later than 20 days prior to the delivery of any
certificate required by the terms and provisions of Section 5.01(c)
to the extent Material Project EBITDA Adjustments will be made to
Consolidated EBITDA in determining compliance with Section 6.06(a),
the Company shall have delivered to the Administrative Agent written
pro forma projections of Consolidated
6
EBITDA of the Company and the Subsidiaries attributable to such
Material Project, and
(b) prior to the date the certificate required by the
terms and provisions of Section 5.02(c) is required to be delivered,
the Administrative Agent shall have approved (such approval not to
be unreasonably withheld) such projections and shall have received
such other information and documentation as the Administrative Agent
may reasonably request, all in form and substance satisfactory to
the Administrative Agent, and
(ii) the aggregate amount of all Material Project EBITDA
Adjustments during any period shall be limited to 20% of the total actual
Consolidated EBITDA of the Company and the Subsidiaries for such period
(which total actual Consolidated EBITDA shall be determined without
including any Material Project EBITDA Adjustments).".
" `Specified Acquisition' means, at the election of the Company, one
or more acquisitions of assets or entities or operating lines or divisions
in any rolling 12-month period for an aggregate purchase price of not less
than $100,000,000.".
SECTION 3. Amendments to Article II of the Credit Agreement.
(a) Section 2.01(b) of the Credit Agreement is hereby amended by
deleting the dollar amount "$1,850,000,000" and inserting in lieu thereof
"$2,100,000,000".
(b) Section 2.13(a) is hereby amended and restated to read in its
entirety as set forth immediately below:
"(a) The Loans comprising each ABR Borrowing (excluding each
Swingline Loan) shall bear interest at a rate per annum equal to the
Alternate Base Rate. Each Swingline Loan shall (i) prior to the
acquisition by any Lender of a participation therein pursuant to Section
2.05(c), bear interest on each day at the LIM Rate for such date plus an
amount equal to the Applicable Margin that would be applicable to LIBOR
Borrowings on such day, and (ii) upon and following the acquisition by any
Lender of a participation therein, be an ABR Loan.".
SECTION 4. Amendment to Section 5.01(c) of the Credit Agreement.
Section 5.01(c) of the Credit Agreement is hereby amended by deleting the phrase
",(b) and (c)" from clause (i) thereof.
SECTION 5. Amendments to Section 6.06 of the Credit Agreement.
7
(a) Section 6.06(a) of the Credit Agreement is hereby amended and
restated to read in its entirety as set forth immediately below:
"(a) Ratio of Consolidated Indebtedness to Consolidated EBITDA. The
Company will not at any time permit the ratio of Consolidated Indebtedness
to Consolidated EBITDA for the four full fiscal quarters most recently
ended in respect of which financial statements shall have been delivered
pursuant to Section 5.01(a) or (b), as the case may be, to exceed
(i) 5.50 to 1.0, in the case of any such period ended on the
last day of (A) a fiscal quarter in which the Company makes any
Specified Acquisition, or (B) the first or second fiscal quarter
next succeeding such a fiscal quarter, or
(ii) 5.00 to 1.0, in the case of any such period ended on the
last day of any other fiscal quarter.
For purposes of this Section 6.06(a), if during any period the
Company acquires any Person (or any interest in any Person) or all or
substantially all of the assets of any Person, the EBITDA attributable to
such assets or an amount equal to the percentage of ownership of the
Company in such Person times the EBITDA of such Person, for such period
determined on a pro forma basis may be included as Consolidated EBITDA for
such period, if on the date of such acquisition such Person, or the entity
acquiring such assets, as the case may be, is either a Subsidiary or the
Company. In addition, for purposes of this Section 6.06(a), Hybrid
Securities up to an aggregate amount of 15% of Total Capitalization shall
be excluded from Consolidated Indebtedness and Consolidated EBITDA may
include, at the Company's option, any Material Project EBITDA Adjustments
as provided in the definition thereof.".
(b) Section 6.06(c) of the Credit Agreement is hereby deleted in its
entirety and the phrase "Intentionally omitted" substituted therefor.
SECTION 6. Increase of Commitments of Certain Lenders. Each of
Citibank, N.A., Wachovia Bank, National Association, Merrill Lynch Bank USA,
Deutsche Bank AG New York Branch, and Williams Street Commitment Corporations
hereby agrees that its Commitment is increased by $50,000,000, as such increases
are indicated on Schedule 1.01 hereto.
SECTION 7. Amendment to Schedule 1.01. Schedule 1.01 to the Credit
Agreement is hereby amended and restated to read in its entirety as set forth on
Schedule 1.01 hereto.
8
SECTION 8. Conditions of Effectiveness. This Amendment shall become
effective when, and only when, all of the following have occurred:
(a) the Company, the Subsidiary Borrower and the Required Lenders
shall have executed a counterpart hereof and delivered the same to the
Administrative Agent or, in the case of any Lender as to which an executed
counterpart hereof shall not have been so delivered, the Administrative Agent
shall have received written confirmation by telecopy or other similar writing
from such Lender of execution of a counterpart hereof by such Lender;
(b) the Company has terminated all commitments and paid in full all
amounts outstanding under that certain $250,000,000 Credit Agreement dated as of
February 22, 2006 among the Company, the lenders party thereto and Wachovia
Bank, National Association, as administrative agent;
(c) if requested by any Lender, a new Committed Note and a
Competitive Note executed by the Company and payable to the order of such
Lender;
(d) a certificate of an officer and of the secretary or an assistant
secretary of the Delegate, certifying, inter alia (A) true and complete copies
of each of the limited liability company agreement of the Delegate, the
certificate of incorporation, as amended and in effect, of the General Partner,
the partnership agreements, each as amended and in effect, of the Borrowers, the
bylaws, as amended and in effect, of the General Partner and the resolutions
adopted by the Board of Directors of the Delegate (1) authorizing the execution,
delivery and performance by each Borrower of this Amendment and, in the case of
the Company, the Borrowings to be made and the Letters of Credit to be issued
under the Credit Agreement, as amended hereby, (2) approving the forms of this
Amendment and (3) authorizing officers of the Delegate to execute and deliver
this Amendment, (B) the incumbency and specimen signatures of the officers of
the Delegate executing this Amendment and (C) (1) that the representations and
warranties made by such Borrower in each Loan Document to which such Borrower is
a party and which will be delivered at or prior to the initial Borrowing Date
are true and correct in all material respects, (2) the absence of any
proceedings for the dissolution or liquidation of such Borrower and (3) the
absence of the occurrence and continuance of any Default or Event of Default;
(e) a favorable, signed opinion addressed to the Administrative
Agent and the Lenders from Bracewell & Giuliani LLP, counsel to the Borrowers,
given upon the express instruction of the Borrowers; and
(f) certificates of appropriate public officials as to the
existence, good standing and qualification to do business as a foreign entity of
each Borrower, the General Partner and the Delegate in the States of Texas and
Delaware.
SECTION 8. Representations and Warranties True; No Default or Event
of Default. The Company hereby represents and warrants to the Administrative
Agent and the Lenders, that after
9
giving effect to the execution and delivery of this Amendment: (a) the
representations and warranties set forth in Article IV of the Credit Agreement
and in the other Loan Documents are true and correct in all material respects as
of, and as if such representations and warranties were made on, the date hereof
(unless any such representation and warranty expressly relates to an earlier
date in which event such representation and warranty is true and correct as of
such date); and (b) no event has occurred and is continuing that constitutes
either a Default or an Event of Default.
SECTION 9. Reference to the Credit Agreement and Effect on the Notes
and Other Documents Executed Pursuant to the Credit Agreement.
(a) Upon the effectiveness of this Amendment each reference in the
Credit Agreement to "this Agreement," "hereunder," "herein," "hereof" or words
of like import shall mean and be a reference to the Credit Agreement, as amended
hereby.
(b) Upon the effectiveness of this Amendment each reference in the
Notes and the other documents and agreements delivered or to be delivered
pursuant to the Credit Agreement shall mean and be a reference to the Credit
Agreement, as amended hereby.
(c) The Credit Agreement and the Notes and other documents and
agreements delivered pursuant to the Credit Agreement, as modified by the
amendment referred to above, shall remain in full force and effect and are
hereby ratified and confirmed.
SECTION 10. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
10
SECTION 11. GOVERNING LAW; BINDING EFFECT. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
AND APPLICABLE FEDERAL LAW AND SHALL BE BINDING UPON THE COMPANY, THE
ADMINISTRATIVE AGENT, THE LENDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
SECTION 12. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
SECTION 13. ENTIRE AGREEMENT. THIS AMENDMENT, THE CREDIT AGREEMENT
(INCLUDING THE EXHIBITS AND SCHEDULES THERETO), AS AMENDED HEREBY, AND THE OTHER
LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE LENDERS RELATING TO THE SUBJECT MATTER HEREOF
AND THEREOF AND SUPERSEDE ALL PRIOR PROPOSALS, AGREEMENTS AND UNDERSTANDINGS
RELATING TO SUCH SUBJECT MATTER.
11
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed effective as of the date first stated herein, by their respective
officers thereunto duly authorized.
KINDER MORGAN ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Morgan G.P., Inc.,
its General Partner
By: Kinder Morgan Management, LLC,
its Delegate
By: /s/ David Kinder
----------------------------
Name: David Kinder
Title: Vice President
KINDER MORGAN OPERATING L.P. "B",
as the Subsidiary Borrower
By: Kinder Morgan G.P., Inc.,
its General Partner
By: Kinder Morgan Management, LLC,
its Delegate
By: /s/ David Kinder
-----------------------------
Name: David Kinder
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION, as the Administrative Agent
and as a Lender
By: /s/ Shannan Townsend
--------------------------------------
Name: Shannan Townsend
Title: Director
CITIBANK, N.A.,
as a Co-Syndication Agent and as a Lender
By: /s/ Shirley Burrow
--------------------------------------
Name: Shirley Burrow
Title: Attorney-in-Fact
JPMORGAN CHASE BANK, N.A.
as a Co-Syndication Agent and as a Lender
By: /s/ Dianne L. Russell
--------------------------------------
Name: Dianne L. Russell
Title: Vice President
THE ROYAL BANK OF SCOTLAND plc,
as a Co-Documentation Agent and as a
Lender
By: /s/ Matthew J. Main
--------------------------------------
Name: Matthew J. Main
Title: Managing Director
BARCLAYS BANK PLC,
as a Co-Documentation Agent and as a
Lender
By: /s/ Alison McGulgan
------------------------------------
Name: Alison McGulgan
Title: Associate Director
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ Kelton Glasscock
--------------------------------------
Name: Kelton Glasscock
Title: Vice President & Manager
SUNTRUST BANK
By: /s/ Peter Panos
------------------------------------
Name: Peter Panos
Title: Vice President
BMO CAPITAL MARKETS FINANCING, INC.
By: /s/ James V. Ducote
------------------------------------
Name: James V. Ducote
Title: Vice President
WILLIAM STREET COMMITMENT CORPORATION
(Recourse only to assets of William
Street Commitment Corporation)
By: /s/ Mark Walton
------------------------------------
Name: Mark Walton
Title: Assistant Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Masakazu Hasegawa
-------------------------------------
Name: Masakazu Hasegawa
Title: Joint General Manager
COMMERZBANK AG,
NEW YORK AND GRAND CAYMAN BRANCHES
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
LEHMAN BROTHERS BANK, FSB
By: /s/ Janine M. Shugan
------------------------------------
Name: Janine M. Shugan
Title: Authorized Signatory
CALYON, NEW YORK BRANCH
By: /s/ Darrell Stanley
------------------------------------
Name: Darrell Stanley
Title: Managing Director
By: /s/ Michael D. Willis
------------------------------------
Name: Michael D. Willis
Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Ming K. Chu
------------------------------------
Name: Ming K. Chu
Title: Vice President
By: /s/ Rainer Meier
------------------------------------
Name: Rainer Meier
Title: Vice President
UBS LOAN FINANCE LLC
By: /s/ Richard L. Tavrow
------------------------------------
Name: Richard L. Tavrow
Title: Director Banking Products Services, US
By: /s/ Irja R. Olsa
------------------------------------
Name: Irja R. Olsa
Title: Associate Director Banking
Products Services, US
BANK OF AMERICA, N.A.
By: /s/ Jeffrey H. Rathkamp
------------------------------------
Name: Jeffrey H. Rathkamp
Title: Principal
MERRILL LYNCH BANK USA
By: /s/ Louis Alder
------------------------------------
Name: Louis Alder
Title: Director
MERRILL LYNCH CAPITAL CORPORATION
By: /s/ Carol J.E. Feeley
------------------------------------
Name: Carol J.E. Feeley
Title: Vice President
CREDIT SUISSE, Cayman Islands Branch
By: /s/ Vanessa Gomez
------------------------------------
Name: Vanessa Gomez
Title: Vice President
By: /s/ Shaheen Malik
------------------------------------
Name: Shaheen Malik
Title: Associate
WELLS FARGO BANK TEXAS, N.A.
By: /s/ Greg Parten
------------------------------------
Name: Greg Parten
Title: Vice President
SCHEDULE 1.01
COMMITMENTS
Wachovia Bank, National Association $193,333,333.37
Citibank, N.A. $193,333,333.33
JPMorgan Chase Bank $143,333,333.33
The Royal Bank of Scotland plc $110,000,000.00
Barclays Bank PLC $110,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd, --
Houston Agency $110,000,000.00
SunTrust Bank $110,000,000.00
Harris Nesbitt Financing, Inc. $110,000,000.00
William Street Commitment Corporation $105,000,000.00
Sumitomo Mitsui Banking Corporation $ 55,000,000.00
Commerzbank AG, New York and Grand Cayman
Branches $ 63,333,333.33
Lehman Brothers Bank, FSB $ 63,333,333.33
Calyon, New York Branch $ 63,333,333.33
Deutsche Bank AG New York Branch $113,333,333.33
UBS Loan Finance LLC $ 63,333,333.33
Bank of America, N.A. $ 63,333,333.33
Merrill Lynch Bank USA $113,333,333.33
Credit Suisse First Boston $ 33,333,333.33
Wells Fargo Bank Texas, N.A. $ 33,333,333.33
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TOTAL $1,850,000,000.00
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