EX-10
Exhibit 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") is entered into as of September 1, 1999
(EFFECTIVE DATE") by and between KeySpan Energy and its successors, with its
principal office at One MetroTech Center, Brooklyn, New York 11201 ("COMPANY"),
and Craig G. Matthews, 17 Wynwood Road, Chatham, NJ 07928 ("EMPLOYEE").
ARTICLE I
WHEREAS, the Company wishes to provide for the employment by the Company of the
Executive, and the Executive wishes to serve the Company, in the capacities and
on the term and conditions set for in this Agreement;
NOW, THEREFORE, it is hereby agreed as follows:
EMPLOYMENT PERIOD; POSITIONS AND DUTIES; ETC.
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1.1 EMPLOYMENT PERIOD
The Company shall employ the Executive, and the Executive shall
serve the Company, on the terms and conditions set forth in this Agreement, for
the period (the "Employment Period") beginning on September 1, 1999 and ending
on August 31, 2003.
1.2 POSITIONS AND DUTIES
(A) While employed hereunder, CRAIG G. MATTHEWS shall serve as President & Chief
Operating Officer, or any other such title that is equivalent or higher in
responsibility and status, reporting directly to R.B. Catell, Chairman and CEO,
KeySpan Energy, having such duties and responsibilities commensurate with the
position of President & Chief Operating Officer. The Executive will also serve
as a member of the Brooklyn Union Board of Directors.
(B) While employed herunder, CRAIG G. MATTHEWS shall serve on key senior
strategy committees, such as the Strategic Directions Committee (Holding
Company, as member & Utility, as Chairman), the Executive Committee of the SDC,
the Investment Review Committee, etc.
(C) While employed hereunder, Employee shall (i) devote all of his business
time, attention, skill and efforts to the faithful and efficient performance of
his duties hereunder; Employee may engage in the following activities so long as
they do not interfere in any material respect with the performance of Employee's
duties and responsibilities hereunder: (i) serve on corporate, civic, religious,
educational and/or charitable boards or committees and (ii)
1
manage his personal investments.
1.3 PLACE OF EMPLOYMENT
Employee's place of employment hereunder shall be at the Company's principal
executive offices (or other offices as appropriate) in the greater New York
Metropolitan area.
ARTICLE II
COMPENSATION AND BENEFITS
2.1 BASE SALARY
For services rendered by Employee under this Agreement, the Company shall pay to
Employee an annual base salary ("BASE SALARY") no less than $450,000, payable
monthly.
2.2 INCENTIVE COMPENSATION & RESTRICTED STOCK
A. During the Employment Period, the Executive shall participate in
short-term incentive compensation plans ("Annual Incentive Compensation &
Gainsharing Plan") and/or long-term incentive compensation plans ("Long-Term
Performance Incentive Compensation Plan") providing him with the opportunity to
earn, on a year-by-year basis, short-term and long-term incentive compensation
at least equal to the amounts that he had the opportunity to earn under the
comparable plans of KeySpan Energy as in effect as of August 31, 1999.
Upon execution of this Agreement CRAIG G. MATTHEWS shall be granted 10,000
shares of restricted stock with a restriction period that expires August 31,
2003.
2.3 PERQUISTES
During the Employment Period, the Executive shall be entitled to receive
perquisites as provided for under the KeySpan Energy Perquisites Program.
2.4 OTHER BENEFITS
During the Employment Period, the Executive shall be entitled to participate in
all applicable benefit plans, saving and retirement plans, practices, policies
and programs of the Company to the same extent as other senior executives.
2.5 DEATH OR DISABILITY
The Company shall be entitled to terminate the Executive's employment because of
the
Executive's Disability during the Employment Period. "Disability" means that (i)
the Executive has been unable, for a period of one hundred eighty (180)
consecutive business days, to perform the Executive's duties under this
Agreement, as a result of physical or mental illness or injury, and (ii) a
physician selected by the Company or its insurers, and acceptable to the
Executive or the Executive's legal representative, has determined that the
Executive's incapacity is total and permanent. A termination of the Executive's
employment by the Company for Disability shall be communicated to the Executive
by written notice, and shall be effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), unless the Executive
returns to full-time performance of the Executive's duties before the Disability
Effective Date.
2.5 CHANGE OF CONTROL
IN THE EVENT THAT EXECUTIVE'S EMPLOYMENT IS TERMINATED WITHIN THE TIME PERIOD
AND UNDER CONDITIONS GIVING RISE TO THE PAYMENT OF SEVERANCE BENEFITS UNDER THE
KEYSPAN ENERGY SENIOR EXECUTIVE CHANGE OF CONTROL SEVERANCE PLAN ("SEVERANCE
PLAN"), AS WELL AS THE PAYMENT OF SEVERANCE BENEFITS UNDER SECTIONS 3.3 AND 4.4
OF THIS AGREEMENT, THE EXECUTIVE SHALL BE ENTITLED TO SEVERANCE BENEFITS UNDER
THE SEVERANCE PLAN OR UNDER SEVERANCE BENEFITS IN THIS AGREEMENT, WHICHEVER
BENEFITS ARE GREATER.
ARTICLE III
TERMINATION OF EMPLOYMENT
3.1 TERMINATION BY EMPLOYEE
Employee may, at any time prior to the end of the Employment Period, terminate
employment hereunder for any reason by delivering a Notice of Termination to the
KeySpan Energy Board of Directors ("Board"). The Employee is required to give 30
calendar days notice.
3.2 TERMINATION BY THE COMPANY
This agreement shall terminate and the Employees employment shall cease upon any
of the following: (a) mutual agreement of the Employee and the Company; (b)
death or disability (at the expiration of the 180 day period as defined under
"Disability") of the Employee; or (c) in the discretion of the Board, Good Cause
for termination.
Good Cause for termination ("Good Cause") shall mean Employee's: (i) breach of
the terms in paragraphs 1.2, or Article IV of this agreement, (ii) conduct that
constitutes dishonesty or knowing and willful breach of fiduciary duty; (iii)
insubordination or refusal to perform assigned duties or comply with directions
of the Board; (iv) conviction by a court of competent jurisdiction or entry of a
plea of no contest for a crime involving any act of moral turpitude or unlawful,
dishonest, or unethical conduct that a reasonable person would consider damaging
to the reputation of the Company or improper and unacceptable conduct by an
Employee thereof; or. (v) continued material failure or inability to achieve
required performance results or perform in a competent manner following written
notice and *PAGE REVISED 11/8/99 FOR CLARIFICATION OF PROVISION 2.5. (SEE
REVISION IN ITLALICS)
INITIALS: C.G.M. _____ R.B.C. ______
opportunity to improve performance.
If the Executive's employment is terminated by the Company for Good Cause during
the Employment Period, the Company shall pay the Executive the Annual Base
Salary through the Date of Termination and the amount of any compensation
previously deferred by the Executive (together with any accrued interest or
earnings thereon), in each case to the extent not yet paid, and the Company
shall have no further obligations under this Agreement, except as specified in
Section 3.3 below. If the Executive voluntarily terminates employment during the
Employment Period, other than for Good Reason, the Company shall pay the Accrued
Obligations, as defined below, to the Executive in a lump sum in cash within
(30) days of the Date of Termination, and the Company shall have no further
obligations under this Agreement, except as specified in Section 2.4 and Section
4.3 below.
3.3 SEVERANCE BENEFITS
The following provisions shall apply if the Employee terminates employment for
Good Reason or if the Company terminates Employee's employment for any reason
other than the parties mutual agreement, Good Cause, death or disability of the
Employee.
"Good Reason" shall mean any of the following:
without Employee's express written consent, any action, or failure to take
action, by the Company, the Board or the shareholders of the Company by the
Company that results in a diminution in the Executive's position, authority,
titles, duties or responsibilities, other than an isolated, insubstantial and
inadvertent action that is not taken in bad faith and is remedied by the Company
promptly after receipt of notice thereof from the Executive; a material breach
by the Company of any material provision of this Agreement which, if capable of
being remedied, remains unremedied for more than 15 days after written notice
thereof is given by Employee to the company; without Employee's written consent,
the relocation of the principal executive offices of the Company to a location
outside the greater New York area; any purported termination by the Company of
Employee's employment not in accordance with the provisions of this agreement;
For purposes of this agreement, any good faith determination of "Good Reason"
made by the Employee shall be conclusive.
1. If, during the Employment Period, the Company terminates the Executive's
employment, other than for Good Cause, Death or Disability, or the Executive
terminates employment for Good Reason, the Company (A) shall pay the Executive,
in a single lump sum, the Accrued Obligations (as defined in Section 3.3 (2)
below), except that the following provisions will be substituted for subsection
A & B thereof; and the aggregate amount of the salary and Annual Incentive
Compensation that he would have received if he had remained employed for the
Severance Period (assuming that the Annual Incentive Compensation for such
period would have equaled the target amounts of such Incentive Compensation as
in effect immediately before the Date of Termination); (B) shall cause the
Executive to continue to accrue benefits under Senior Executive Retirement Plan
(SERP) during the Severance Period; and (C) shall continue to provide the
Executive with the Life Insurance Coverage and benefits as if he had remained
employed by the Company pursuant to this Agreement during the Severance Period
and then retired (at which time he will be treated as eligible for all retiree
welfare benefits and other benefits, provided to retired senior executives, to
the extent such benefits can be provided pursuant to the plan or program
maintained by the Company for its executives. In addition to the foregoing, any
restricted stock outstanding on the Date of Termination shall be fully vested as
of the Date of Termination and all options outstanding on the Date of
Termination shall be fully vested and exercisable and shall remain in effect and
exercisable through the end of their respective terms, without regard to the
termination of the Executive's Employment (but in the case of options that were
not vested immediately before the Date of Termination, not longer than three
years). Severance Period used here shall mean the period from the Date of
Termination through the end of the Employment Period.
(2) If the Executive's employment is terminated by reason of the Executive's
death or Disability during the Employment Period, the Company shall pay to the
Executive or, in the case of the Executive's death, to the Executive's
designated beneficiaries(or if there is not such beneficiary, to the Executive's
estate or legal representative), in a lump sum in cash within thirty (30) days
after the Date of Termination, the sum of the following amounts (the "Accrued
Obligations"): (a) any portion or the Executive's Annual Base Salary through the
Date of Termination that has not yet been paid; (b) an amount representing the
Annual Incentive Compensation and cash Long-Term Incentive Compensation for the
period that includes the Date of Termination, computed by assuming that the
amount of all such Incentive Compensation would be equal to the target amount of
such Incentive Compensation as in effect immediately before the Date of
Termination, and multiplying that amount by a fraction, the numerator of which
is the number of days in such period through the Date of Termination, and the
denominator of which is the total number of days in the relevant performance
period; (c) any compensation previously deferred by the Executive that has not
been paid ; and (d) any accrued but unpaid vacation pay, and the Company shall
have no further obligations under this agreement except as specified in Section
2.4.
3.4 NOTICE OF TERMINATION.
If such termination is by Employee for Good Reason or by the Company for
Disability or Good Cause, such notice shall set forth in reasonable detail the
reason for such termination and the facts and circumstances claimed to provide a
basis therefor. Any notice purporting to terminate Employee's employment which
is not in compliance with the requirements of this definition shall be
ineffective. The Date of Termination shall mean ("Date of Termination") the
termination date specified in a Notice of Termination delivered in accordance
with this Agreement.
ARTICLE IV
4.1 CONFIDENTIAL INFORMATION.
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The Executive shall hold in a fiduciary capacity for the benefit of the Company
all secret or confidential information, knowledge or data relating to the
Company or any of its affiliated companies and their respective business that
the Executive obtains during the Executive's employment by the Company or any of
its affiliated companies and that is not public knowledge. The Executive shall
not communicate, divulge or disseminate Confidential Information at any time
during or after the Executive's employment with the Company, except in the
course of performing his duties hereunder or with the prior written consent of
the Company or as otherwise required by law or legal process. In no event shall
any asserted violation of the provisions of this Section 4.1 constitute a basis
for deferring or withholding any amounts otherwise payable to the Executive
under this agreement.
4.2 SUCCESSORS.
This Agreement is personal to the Executive and, without the prior written
consent of the Company, shall not be assignable by the Executive otherwise than
by will or the laws of descent and distribution. This Agreement shall inure to
the benefit of and be enforceable by the Executive's legal representatives.
This Agreement shall inure to the benefit of and be binding upon the Company and
its successors and assigns, provided that the Company may not assign this
Agreement except in connection with the assignment or disposition of all or
substantially all of the assets or stock of the Company, or by law as a result
of a merger or consolidation. In the event of such assignment, a failure by the
successor to specifically assume in writing, delivered to the Executive, the
obligations and liabilities of the Company hereunder shall be deemed a material
breach of this Agreement.
4.3 NON EXCLUSIVITY OF RIGHTS.
Nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any plan, program, policy or practice provided by the
Company or any of its affiliated companies for which the Executive may qualify.
Vested benefits and other amounts that the Executive is otherwise entitled to
receive under the Incentive Compensation, the SERP, the Life Insurance Coverage,
or any other plan, policy, practice or program of, or any contract or agreement
with, the Company or any of its affiliated companies on or after the Date of
Termination shall be payable in accordance with the terms of each such plan,
policy, practice, program, contract or agreement, as the case may be, except as
explicitly modified by this Agreement.
4.4. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
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(a) Any thing in this Agreement to the contrary notwithstanding, in the event it
shall be determined that any payment or distribution by the Company to, or for
the benefit of, the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
4.4) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986 (the "Code"), as amended or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive and additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up payment equal to the Excise Tax imposed upon the
Payments.
(b) Subject to the provisions of paragraph (c) of this Section 4.4, all
determinations required to be made under this Section 4.4, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by a certified public accounting firm designated by the Executive (the
"Accounting Firm"), which shall provide detailed supporting calculations both to
the Company and the Executive with 15 business days of the receipt of notice
from the Executive that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the change
of control, the Executive shall appoint another nationally recognized accounting
firm to make the determinations required hereunder (which accounting firm shall
then be referred to as the Accounting Firm hereunder). All fees and expenses of
the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment,
as determined pursuant to this Section 4.4, shall be paid by the Company to the
Executive within five (5) days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Executive. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to paragraph (c) of this Section 4.4 and
the Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but not later than ten (10) business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the thirty (30)
day period following the date on which it gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notices the Executive in writing prior to the
expiration of such period that is desires to contest such claim, the Executive
shall:
(I) give the Company any information reasonably requested by the Company
relating to such claim,
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively to
contest such claim, and,
(iv) permit the Company to participate in any proceedings relating to such
claim; PROVIDED, however, that the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
inters and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this paragraph (c) of Section 4.4, the Company shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim and
may, at its sole option, either direct the Executive to pay the tax claimed and
sue for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; PROVIDED, however, that if the
Company directs the Executive harmless, on an after-tax basis, from any Excise
Tax or income tax) including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance; and PROVIDED, further, that any extension of the stature of
limitations relating to payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the Company
pursuant to paragraph (c) of this Section 4.4, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of paragraph (c) of this Section
4.4, promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the Company pursuant to
paragraph (c) of this Section 4.4, a determination is made that the Executive
shall not be entitled to any refund with respect such claim and the Company does
not notify the Executive in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and the amount
of such advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
4.5 ATTORNEYS' FEES.
The Company agrees to pay, as incurred, to the fullest extent permitted by law,
all legal fees and expenses that the Executive may reasonably incur as a result
of any contest (regardless of the outcome) by the Company, the Executive or
others of the validity or enforceability of or liability under, or otherwise
involving, any provision of the Agreement, together with interest on any delayed
payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of
the Code.
4.6. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York, without reference to principles of conflict of laws.
The captions of this Agreement are not part of the provisions here of and shall
have no force or effect. This Agreement may not be amended or modified except by
a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications under this Agreement shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Craig G. Matthews
17 Wynwood Road
Chatham, NJ 07928
If to the Company: KeySpan Energy
One MetroTech Center
Brooklyn, NY 11201
Attention: Deputy General Counsel
or such other address as either party furnishes to the other in
writing in accordance with this paragraph (b) of Section 4.6. Notice and
communications shall be effective when actually received by the addressee.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization of its Board of Directors, the Company
has caused this Agreement to be executed in its name and on its behalf, all as
of the day and year first above written
__________________
Craig G. Matthews
Keyspan Energy
___________________
Name:
Title:
Exhibit 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") is entered into as of July 29, 1999
(EFFECTIVE DATE") by and between KeySpan Energy) with its principal office at
One MetroTech Center, Brooklyn, New York 11201 ("COMPANY"), and Gerald Luterman,
65 Old Hill Road, Westport, Connecticut 06880 ("EMPLOYEE").
ARTICLE I
Whereas, the Company desires to employ employee as an officer of the Company
with the title of Senior Vice President, and Chief Financial Officer, and
Whereas, the Employee desires to accept such employment, on the terms and
conditions
herein set forth
Now, therefore for good and valid consideration, and intending to be legally
bound, the Employee and the Company agree as follows:
DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS
For purposes of this Agreement, except as otherwise expressly provided or unless
the context otherwise requires, the following terms shall have the following
respective meanings:
"BASE SALARY" shall have the meaning specified in Section 3.1
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"BOARD" shall mean the Board of Directors of KeySpan Energy
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"CONFIDENTIAL INFORMATIOn" shall have the meaning specified in Section
5.1(A).
"COMPANY" shall mean KeySpan Energy and their successor(s).
"DISABILITY"shall mean a mental or physical incapacity, which prevents the
Employee from satisfactorily performing the duties of his position for a
period of 90 days.
"EXPIRATION DATE" shall have the meaning specified in Section 2.2.
"GOOD CAUSE" shall have the meaning specified in Section 4.2.
"GOOD REASON" shall mean any of the following:
(1) without Employee's express written consent, a material adverse
alteration in the nature or status of Employee's position,
functions, duties or responsibilities with the Company;
(2) a material breach by the Company of any material provision of this
Agreement which, if capable of being remedied, remains unremedied
for more than 15 days after written notice thereof is given by
Employee to the Company;
(3) without Employee's express written consent, the relocation of the
Employees executive office outside his place of employment set forth
in section 2.4;
(4) any purported termination by the Company of Employee's employment
not in accordance with the provisions of this Agreement;
"NOTICE OF TERMINATION" shall mean a notice purporting to terminate
Employee's employment in accordance with Section 4.1 or 4.2. If such
termination is by Employee for Good Reason or by the Company for
Disability or Good Cause, such notice shall set forth in reasonable detail
the reason for such termination and the facts and circumstances claimed to
provide a basis therefor. Any notice purporting to terminate Employee's
employment which is not in compliance with the requirements of this
definition shall be ineffective.
"PERSON" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust and an unincorporated organization.
"TERM" shall have the meaning specified in Section 2.2.
"TERMINATION DATE" shall mean the termination date specified in a Notice
of Termination delivered in accordance with this Agreement.
1.2 INTERPRETATIONS
(A) In this Agreement, unless a clear contrary intention appears, (i) the words
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision, (ii) reference to any Article or Section, means such Article or
Section hereof, (iii) the word "including" (and with correlative meaning
"include") means including, without limiting the generality of any description
preceding such term, and (iv) where any provision of this Agreement refers to
action to be taken by either party, or which such party is prohibited from
taking,
such provision shall be applicable whether such action is taken directly or
indirectly by such party.
(B) The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
ARTICLE II
EMPLOYMENT; TERM; POSITIONS AND DUTIES; ETC.
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2.1 EMPLOYMENT
The Company agrees to employ Gerald Luterman who agrees to accept employment and
remain in such employment, on a full-time basis with the Company, in each case
on the terms and conditions set forth in this Agreement.
2.2 TERM OF EMPLOYMENT
Unless sooner terminated pursuant to Article IV, the term of Employee's
employment under this Agreement (the "TERM") shall commence on the Effective
Date and shall continue until July 31, 2002, (the "EXPIRATION DATE"); PROVIDED,
HOWEVER, that no later than (6) six months prior to the Expiration Date the
Employee shall be notified in writing of the Company's intent to continue his
employment after the initial three-year term. If the Employee does not receive
such notice, his employment shall terminate on the Expiration Date. If he does
receive such notice and elects to continue in the Company's employ, his
employment shall continue after the Expiration Date subject to termination by
the Employee upon thirty (30) days notice to the Company at any time after the
Expiration Date and subject to termination by the Company upon 180 days notice
to the Employee at any time after the Expiration Date.
2.3 POSITIONS AND DUTIES
(A) While employed hereunder, GERALD LUTERMAN shall serve as Senior Vice
President and Chief Financial Officer, reporting directly to R.B. Catell,
Chairman and CEO, KeySpan Energy, having such duties and responsibilities
commensurate with the position of Senior Vice President and Chief Financial
Officer as the Chairman and/or Board or Directors shall from time to time
specify.
(B) While employed hereunder, Employee shall (i) devote all of his business
time, attention, skill and efforts to the faithful and efficient performance of
his duties hereunder and (ii) not accept employment with any Person other than
with the Company unless explicitly approved
in writing by the Board prior to the engagement or outside activity.
Notwithstanding the foregoing, Employee may engage in the following activities
so long as they do not interfere in any material respect with the performance of
Employee's duties and responsibilities hereunder: (i) serve on corporate, civic,
religious, educational and/or charitable boards or committees and (ii) manage
his personal investments.
(C) While employed hereunder, Employee shall conduct himself in such a manner as
not to prejudice, in any material respect, the reputation of the Company in the
fields of business, in which it is engaged or with the investment community or
the public at large.
2.4 PLACE OF EMPLOYMENT
The Employee's primary place of employment hereunder shall be at, or within the
immediate vicinity of, the Company's MetroTech headquarters in Brooklyn, N.Y.
Employee understands that he may need to establish a secondary office at
another Company facility on Long Island.
ARTICLE III
COMPENSATION AND BENEFITS
3.1 BASE SALARY
For services rendered by Employee under this Agreement, the Company shall pay to
Employee an annual base salary ("BASE SALARY") no less than $300,000, payable
monthly.
3.2 ANNUAL INCENTIVE COMPENSATION & GAINSHARING PLAN
The Company shall maintain an annual incentive bonus plan, which will provide
for an annual bonus as determined by the Board of Directors after review of
performance, progress, and the profits of the Company with respect to goals and
expectations established by the Board from time to time and the contribution and
performance of the Employee. Such bonus shall be payable in accordance with the
plan provisions included in the annual incentive plan. Employee shall be
eligible to participate in the annual incentive plan, as may be amended from
time to time by the Board, at all times during the Term.
All terms set forth in Exhibit A hereto are incorporated by reference and
are an integral part of this Employment Agreement
3.3 LONG-TERM PERFORMANCE INCENTIVE COMPENSATION PLAN
The Company shall maintain a long-term incentive compensation plan which
provides an
incentive compensation opportunity based upon the long term performance results
of the Company. The Employee shall be eligible to participate in the long-term
compensation incentive plan in accordance with its terms as may be amended from
time to time by the Board.
3.4 VACATION
The Employee shall be entitled to 5 weeks vacation/year, effective January 1,
2000. During 1999, 2 weeks will be granted. Vacation not used in one calendar
year, shall not carry over to the next year. No payments shall be due for unused
vacation at the end of a calendar year.
3.5 BUSINESS EXPENSES
The Company shall, in accordance with the rules and policies that it may
establish from time to time, promptly reimburse Employee for business expenses
reasonably incurred in the performance of Employee's duties. Requests for
reimbursement for such expenses must be accompanied by appropriate documentation
and be approved according to corporate procedure.
3.6 COMPENSATION, BENEFITS AND PERKS
The Employee shall be eligible to participate in any and all compensation and
benefit plans (including but not limited to the medical, dental and life
insurance) provided to comparably situated officers and Employees of the
Company, subject to the rules and requirements of such plans as they may be
amended from time to time. In addition, Employee shall be eligible for a Company
paid annual physical exam, health club membership, financial planning, personal
computer loaned for home use and a Company leased automobile pursuant to the
Compensation and Capital Accumulation Program provided to you attached as
Exhibit A.
3.7 DISABILITY BENEFITS
If Employee becomes disabled, as determined by a physician selected by the
Employee and approved by the Company, Employee shall continue to be paid his
base salary for 90 days of sick pay and accrue any annual incentive compensation
for the first 90 days of such disability.
The Company shall make available an optional Long Term Disability Plan which
Employee shall be eligible to participate subject to the terms and condition of
such plan as may be amended from time to time. Eligibility for coverage shall
commence on the first day of employment.
ARTICLE IV
TERMINATION OF EMPLOYMENT
4.1 TERMINATION BY EMPLOYEE
Employee may, at any time prior to the Expiration Date, terminate employment
hereunder for any reason by delivering a Notice of Termination to the Board. The
Employee is required to give 30 calendar days notice.
4.2 TERMINATION BY THE COMPANY
This agreement shall terminate and the Employee's employment shall cease upon
any of the following: (a) mutual agreement of the Employee and the Company; (b)
death or disability (at the expiration of the 90 day period as defined under
"Disability") of the Employee; or (c) upon the occurrence of Good Cause for
termination.
Good Cause for termination means Employee's: (i) breach of the terms in
paragraphs 2.3, or Article V of this agreement and continuation of the breach
for more than fifteen days after written notice by the Company to the Employee
specifying in reasonable detail the nature of the alleged breach; (ii) conduct
that constitutes knowing and willful breach of fiduciary duty as addressed in
the KeySpan Corporate Policy Statement: Ethical Business Conduct attached as
Exhibit B hereto; (iii) refusal to perform assigned duties or comply with
directions of the Board of Directors relating to his position and functions as
Chief Financial Officer and a Company Officer; or (iv) conviction by a court of
competent jurisdiction or entry of a plea of no contest for a crime involving
any act of moral turpitude or unlawful, dishonest, or unethical conduct that a
reasonable person would consider damaging to the reputation of the Company or
improper and unacceptable conduct by an Employee thereof.
4.3 PAYMENT OF ACCRUED BASE SALARY, VACATION PAY, ETC.
Upon the termination of Employee's employment for any reason (including death or
disability), the Company shall pay to Employee (or estate) a lump sum for (i)
any unpaid Base Salary earned hereunder prior to the Termination Date, (ii) all
unused vacation time accrued by Employee as of the Termination Date in
accordance with Section 3.4, and (iii) any amounts in respect of which Employee
has requested, and is entitled to, reimbursement in accordance with Section 3.5,
and (iv) any other amounts payable in accordance with the provisions of the
applicable compensation or benefits plans for KeySpan Energy Employees.
4.4 SEVERANCE BENEFITS
(1) The following provisions shall apply if the Employee terminates employment
for Good Reason or if the Company terminates Employee's employment for any
reason other than the parties mutual agreement, Good Cause, death or disability
of the Employee.
(A) Lump Sum Payment. The Company shall pay to Employee within thirty business
days after the Termination Date, without offset of any kind except as described
below, (i) a lump sum payment equal to the aggregate amount of the Employees's
Base Salary for the remainder of the Term and (ii) a lump sum representing the
aggregate of the annual incentive amount for each year (measured at the target
level) for the remainder of the Term. Employee will also vest in one hundred
percent of the stock options set forth in Exhibit A. Additionally, for purposes
of pension benefit accruals, Employee shall vest in service for the remainder of
the Term, so that Employee shall receive a single life annuity pension benefit
of $16,053.74 per year, payable monthly. If Employee desires to select a joint
and surviving spousal annuity, this amount will be reduced based on actuarial
factors set forth in the Company's plan.
The salary and incentive amounts payable to Employee under this paragraph
(A) is to be offset from, and not in addition to, any severance payment due or
to become due to Employee under any separate agreement or contract between
Employee and the Company or pursuant to any severance payment plan, program or
policy of the Company.
(B) Insurance Benefits, etc. The Company will continue to provide medical and
dental coverage in which the Employee was enrolled in at the Termination Date
under same Terms with same Employee contributions for the remainder of the term
of the contract however, in the event the Employee becomes covered during the
period in which the Company is providing benefits by another employer's group
plan which provides comparable coverage to the Employee and his dependents,
provided the plan does not contain any exclusion or limitation regarding
pre-existing conditions, then the Company's similar plans and programs shall no
longer be liable for any benefits under this paragraph. COBRA coverage shall
begin at the end of the Employee's coverage under the Company's group health
plan as provided in this paragraph. Employee is obligated to notify company
immediately if he receives comparable coverage.
Employee will be eligible to participate in the Company's life insurance
plan and long term disability plan for the remaining term of this Agreement if
permitted by the company providing such insurance. Employee acknowledges that
under the terms of the current plans, he will not be able to participate if his
employment should cease.
C ) The Employee shall participate in the KeySpan Energy Senior Executive Change
of Control Severance Plan as adopted by the Board of Directors on October 30,
1998. In the event of termination upon Change of Control, Employee shall be
considered to be vested in his actual service accrued to date of termination,
plus three years of credited service as provided in the Plan.
D) In the event of any termination by the Company of the Employee's employment
under this Agreement, other than for Good Cause, the Employee shall not have any
obligation to seek other employment or to otherwise mitigate his damages and the
amount payable
to him and the other benefits to be provided to him under this Agreement shall
not be reduced by the amount of any other compensation that he may earn
following termination of employment.
(2) Release. Notwithstanding anything in this Section 4.4 to the contrary, as a
condition to the receipt of any severance payment or benefit under this Section
4.4, Employee must first execute and deliver to the Company a release and
agreement in a form acceptable to the Company, releasing the Company, affiliated
and subsidiary companies, their officers, managers, Employees and agents from
any and all claims and from any and all causes of action of any kind or
character that Employee may have arising out of Employee's employment with the
Company or the termination of such employment or anything else. The Company
acknowledges that such release will be conditioned upon the Company's
fulfillment of its obligations under this Agreement.
It being understood that the Employee will not agree to release any
indemnification to which he is entitled as an Officer and Employee of the
Company.
(3) Notwithstanding anything in this Section 4.4 to the contrary, the Employee
shall not be eligible for any severance payment or benefits hereunder, if
Employee is offered a comparable position with the Company, subsidiary or
affiliated companies and the Employee accepts such offer.
ARTICLE V
CONFIDENTIAL INFORMATION AND NON-COMPETITION
5.1CONFIDENTIAL INFORMATION
(A) Employee recognizes that the services to be performed hereunder are special,
unique, and extraordinary and that, by reason of employment with the Company,
Employee may acquire Confidential Information concerning the operation of the
Company, the use or disclosure of which would cause the Company substantial loss
and damages which could not be readily calculated and for which no remedy at law
would be adequate. Accordingly, Employee agrees that he will not (directly or
indirectly) at any time, whether during or after employment hereunder, (i)
knowingly use for an improper personal benefit any Confidential Information that
may be learned or has learned by reason of employment with the Company or (ii)
disclose any such Confidential Information to any Person except (a) in the
performance of the obligations to the Company hereunder, (b) as required by
applicable law, (c) in connection with the enforcement of rights under this
Agreement, (d) in connection with any disagreement, dispute or litigation
(pending or threatened) between Employee and the Company or (e) with the prior
written consent of the Board. As used herein "CONFIDENTIAL INFORMATION" includes
information that the Company treats as confidential, with respect to the
Company's products, facilities and methods, research and development, trade
secrets and
other intellectual property, systems, patents and patent applications,
procedures, manuals, confidential reports, product price lists, customer lists,
financial information, business plans, prospects or opportunities; PROVIDED,
HOWEVER, that such term shall not include any information that (x) is or becomes
generally known or available other than as a result of a disclosure by Employee
or (y) is or becomes known or available to Employee on a nonconfidential basis
from a source (other than the Company) which, to Employee's knowledge, is not
prohibited from disclosing such information to Employee by a legal, contractual,
fiduciary or other obligation to the Company.
(B) Employee confirms that all Confidential Information is the exclusive
property of the Company. All business records, papers and documents kept or made
by Employee while employed by the Company relating to the business of the
Company shall be and remain the property of the Company at all times. Upon the
request of the Company at any time, Employee shall promptly deliver to the
Company and shall retain no copies of any written materials, records and
documents made by Employee or coming into his possession while employed by the
Company concerning the business or affairs of the Company other than personal
materials, records and documents (including notes and correspondence) of
Employee not containing proprietary information relating to such business or
affairs.
5.2 NON-COMPETITION
(A) While employed hereunder and for a period of six months from the Expiration
Date (the "RESTRICTED PERIOD"), neither Employee nor any corporation,
partnership or other entity controlled by Employee will (a) in the Northeast
United States, travel, canvas or advertise for, or otherwise assist, render
services to, become employed by, be a consultant to, or invest in any business
entity or with any individual engaged in, or engaged directly in, any business
which is a direct competitor of the Company, (b) solicit business in direct
competition with the Company from any customers or persons who were Employees of
customers of the Company at any time, (c) directly divert or attempt to divert
from the Company, any business in which it has been engaged during the term of
Employee's employment with the Company, or in which it might reasonably be
expected to become engaged, (d) directly interfere or attempt to interfere with
the relationships between the Company, its customers, Employees of customers or
vendors, (e) directly interfere or attempt to interfere with the relationship of
employer-Employee or principal and agent of any person bearing such relationship
to the Company, nor directly divert or attempt to divert any such person from
employment or representation of the Company; provided, however, that Employee
shall not be prohibited by the terms of Section 5.2 from investing in and owning
not more than one percent (1%) of the outstanding share of common stock of any
corporation, the shares of which are publicly traded pursuant to the Securities
Exchange Act of 1934, and/or passively invest as a limited partner in any
non-publicly traded security For purposes of this provision, the "direct
competitors" of the Company are those individuals, Persons or entities that
engage in any business enterprises involving telecommunication and/or energy
including, but not limited to those related to gas and electric utilities.
(B) Employee has carefully read and considered the provisions of this Section
5.2 and, having done so, agrees that the restrictions set forth in this Section
5.2 are fair and reasonable and are reasonably required for the protection of
the interests of the Company, its officers, directors, Employees, creditors and
shareholders. Employee understands that the restrictions contained in this
Section 5.2 may limit their ability to engage in a business in direct
competition with the Company's business, but acknowledges that he will receive
sufficiently high remuneration and other benefits from the Company hereunder to
justify such restrictions.
(C) In the event that any provision of this Section 5.2 relating to the
Restricted Period and/or the areas of restriction shall be declared by a court
of competent jurisdiction to exceed the maximum time period or areas such court
deems reasonable and enforceable, the Restricted Period and/or areas of
restriction deemed reasonable and enforceable by the court shall become and
thereafter be the maximum time period and/or areas.
5.3 INJUNCTIVE RELIEF
Employee acknowledges that a breach of any of the covenants contained in this
Article V may result in material irreparable injury to the Company for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of such breach, the
Company shall be entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction restraining Employee from engaging in
activities prohibited by this Article V or such other relief as may required to
specifically enforce any of the covenants contained in this Article V. Employee
agrees to and hereby does submit to IN PERSONAM jurisdiction before each and
every New York State and Federal courts in New York for that purpose. Employee
agrees that the rights of the Company to obtain an injunction granted by this
paragraph of the Agreement shall not be considered a waiver of its rights to
assert any other remedies it may have at law or in equity.
ARTICLE VI
MISCELLANEOUS
6.1 NOTICES
All notices and all other communications provided for in the Agreement shall be
in writing and addressed (i) to the Company, at its principal office address or
such other address as it may have designated by written notice to Employee for
purposes hereof, directed to the attention of the Board with a copy to the
Secretary of the Company and (ii) if to Employee, in person or at the residence
address on the records of the Company or to such other address as she may have
designated to the Company in writing for purposes hereof. Each such notice or
other communication shall be deemed to have been duly given when delivered
personally or mailed by United States registered mail, return receipt
requested, postage prepaid, except that any notice of change of address shall be
effective only upon receipt.
6.2 SEVERABILITY
The invalidity or non enforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
6.3 TAX WITHHOLDINGS
The Company shall withhold from all payments hereunder all applicable taxes
(federal, state or other) which it is required to withhold therefrom unless
Employee has otherwise paid (or made other arrangements satisfactory to the
Company) the amount of such taxes.
6.4 AMENDMENTS AND WAIVERS
No provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by Employee
and such member of the Board or other individuals as may be specifically
authorized by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or in compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
6.5 ENTIRE AGREEMENT; TERMINATION OF OTHER AGREEMENTS
This Agreement and the attached Exhibit A and Exhibit B, constitute the entire
agreement of the parties and no previous agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
6.6 GOVERNING LAW
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of New York without regard to its
conflict of laws provision.
6.7 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which together will constitute one and
the same instrument.
6.8 SUCCESSORS: BINDING AGREEMENT
The Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all the business
and/or assets of the Company, by agreement in form and substance reasonably
acceptable to Employee, to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this Agreement,
Company shall include any successor to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Section 6.8 or
which otherwise becomes bound by all terms and provisions of this Agreement by
operation of law.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
WITNESS: KeySpan Corporation:
______________________ By: _______________________________
Title: _______________________________
WITNESS EMPLOYEE:
- --------------------- ------------------------------------
Exhibit 10.14
FIRST AMENDMENT TO
SUBORDINATED LOAN AGREEMENT
AND PROMISSORY NOTE
THIS FIRST AMENDMENT TO SUBORDINATED LOAN AGREEMENT AND
PROMISSORY NOTE (this "First Amendment") dated effective as of October 27, 1999
is entered into by and between HOUSTON EXPLORATION COMPANY, a Delaware
corporation (the "Company"), and KEYSPAN CORPORATION d/b/a KeySpan Energy (as
successor to MarketSpan Corporation d/b/a KeySpan Energy) (the "Lender").
PRELIMINARY STATEMENT
The Lender and the Company are parties to that certain
Subordinated Loan Agreement dated as of November 30, 1998 (as same may be
further amended, restated and extended herein, the "Credit Agreement") under and
subject to the terms of which the Lender has committed to make Advances through
January 1, 2000, not to exceed $150,000,000.00 in aggregate amount outstanding,
and that certain Promissory Note dated November 30, 1998 executed by the Company
to the order of Lender (the "Note").
The Company and the Lender desire to amend the Credit
Agreement for the sole purpose of extending the maturity date.
NOW THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth and for other good
and valuable consideration, the Company and the Lender hereby agree as follows:
SECTION 1. Definitions. Unless otherwise defined in this First
Amendment, each capitalized term used in this First Amendment has the meaning
assigned to such term in the Credit Agreement.
SECTION 2. Amendments to the Credit Agreement. (a) The Credit
Agreement and the Note are hereby amended such that all references to "Maturity
Date" or "Termination Date," and all references to "January 1, 2000" within the
definitions of Maturity Date and Termination Date, whether in the Credit
Agreement, the schedules thereto or in the Note, shall mean and be a reference
to the date of March 31, 2000.
(b) Specifically, the section of the Credit Agreement on page
one thereof entitled "Maturity Date" and the identical provision under the same
title on page one of Schedule I to the Credit agreement are hereby amended by
deleting same in their entirety and replacing same with the following:
Maturity Date: All outstanding principal, unpaid accrued interest and fees will
be repaid at Maturity, March 31, 2000. Any principal amount that remains
outstanding subsequent to the Maturity Date will be converted into equity (the
number of shares to be issued to the Lender will be determined based upon the
average of the closing prices of Houston Exploration's common stock, rounded to
three decimal places, as reported under "NYSE Composite Transaction Reports" in
the Wall Street Journal during the 20 consecutive trading days ending three
trading days prior to March 31, 2000. Because the market value represents an
average of the Company's common stock over twenty consecutive trading days
ending three trading days prior to Maturity, the market price may be higher or
lower than the price of the common stock on the conversion date. The total
amount converted to equity shall not exceed the Total Commitment Amount. Any
unpaid accrued interest or fees that remain outstanding subsequent to the
Maturity Date will be paid in cash. Notwithstanding the foregoing, upon any
sale, transfer or other disposition of the stock or substantially all of the
assets of the Company prior to March 31, 2000, all outstanding principal and
unpaid accrued interest and fees will be paid in cash on the consummation of
such sale, transfer or other disposition.
(c) The Credit Agreement is hereby amended to reflect the fact
that, as consideration for the extension of the Maturity Date as evidenced by,
and as a condition to the effectiveness of, this First Amendment, the Company
shall pay to the Lender an up-front fee of Twelve Thousand and No/100 Dollars
($12,000.00).
SECTION 3. Ratification. The agreements and obligations of the
Company under the Credit Agreement, the Note and any and all other Loan
Documents, are hereby brought forward, renewed and extended until the
indebtedness evidenced by the Credit Agreement and the Note shall have been
fully paid and discharged. The Credit Agreement and the Note, and all terms
thereof shall remain in full force and effect. The Lender hereby preserves all
of its rights against the Company, and the Company hereby agrees that all such
rights are ratified and brought forward for the benefit of the Lender.
SECTION 4. Representations True; No Default. The Company and
the Lender represent and warrant that this First Amendment has been duly
authorized, executed and delivered on behalf of the Company and the Lender,
respectively, and the Credit Agreement, as amended hereby, constitutes the valid
and legally binding agreement of the Company and the Lender, enforceable in
accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or moratorium or other similar law
relating to creditors' rights and by general equitable principles which may
limit the right to obtain equitable remedies (regardless of whether such
enforceability is considered in a proceeding, in equity or at law);
SECTION 5. No Obligation. This First Amendment shall not
create a course of dealing among or between the parties hereto, and no further
obligation of any kind in excess of those expressly set forth herein shall be
inferred from this First Amendment.
SECTION 6. Conditions of Effectiveness. This First Amendment
shall become effective on the date upon which this First Amendment shall have
been duly executed and delivered by the Company and the Lender, together with a
certificate of the Company certifying as to (i) the incumbency of the officer
executing this First Amendment, (ii) the truth of the representations and
warranties in the Credit Agreement, and (iii) the absence of any defaults under
the Credit Agreement.
SECTION 7. Reference to the Agreement. (a) Upon the
effectiveness of this First Amendment, each reference in the Credit Agreement to
"hereunder," "herein," "hereof" or words of like import shall mean and be a
reference to the Agreement, as affected and amended hereby.
(b) Upon effectiveness of this First Amendment, each reference
in the Credit Agreement shall mean and be a reference to the Credit Agreement,
as affected and amended hereby.
SECTION 8. Miscellaneous Provisions. (a) This First Amendment
may be signed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(b) The headings herein shall be accorded no significance in interpreting
this First Amendment.
SECTION 9. Governing Law. This First Amendment shall be
governed by and construed in accordance with the laws of the State of New York
and applicable federal law.
SECTION 10. FINAL AGREEMENT OF THE PARTIES. THIS FIRST
AMENDMENT, THE CREDIT AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS
CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE TEXAS
BUSINESS AND COMMERCE CODE AND REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
AGREEMENTS OF THE PARTIES.
THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties have caused this First
Amendment to be executed by their respective duly authorized officers to be
effective as of the date first written above.
KEYSPAN CORPORATION,
d/b/a KeySpan Energy
By: /s/ Robert R. Wieczorek
Name: Robert R. Wieczorek
Title: VP, Secretary and Treasurer
Address: One MetroTech Center
Brooklyn, NY 11201
THE HOUSTON EXPLORATION COMPANY
By: /s/ Thomas W. Powers
Thomas W. Powers
Senior Vice President
1100 Louisiana, Suite 2000
Houston, Texas 77002
Exhibit 10.16>
FIRST AMENDMENT TO EXPLORATION AGREEMENT
This First Amendment to Exploration Agreement ("Amendment") is made and
entered into this the third day of November 1999, between THE HOUSTON
EXPLORATION COMPANY, a Delaware corporation, of 1100 Louisiana Street, Suite
2000, Houston, Texas 77002 ("THEC") and KEYSPAN EXPLORATION AND PRODUCTION,
L.L.C., a Delaware limited liability company, of One Metro Tech Centre, 18th
Floor, Brooklyn, New York 11201 ("KE&P").
W I T N E S S E T H:
A. THEC and KE&P have entered into that certain Exploration Agreement dated
the 15th day of March 1999 between The Houston Exploration Company and KeySpan
Exploration and Production, L.L.C. ("Exploration Agreement"); and
B. THEC and KE&P desire to amend the Exploration Agreement as set forth in
this Amendment. NOW, THEREFORE, for valuable consideration, THEC and KE&P agree
as follows: I. Section 1.15 of the Exploration Agreement is amended so that the
existing language becomes Section 1.15(a) and the following is inserted as
Section 1.15(b): 1.15(b) KE&P's Quarterly Commitment. The sum of (a) 25 million
dollars per calendar quarter during the Primary Term plus (b) that portion of
prior quarters' Quarterly Commitments that have not been expended or committed
for expenditure
under this Agreement which sum shall be used to pay all costs attributable to
KE&P under this Agreement, including G and A Costs, during the relevant quarter.
II.
Section 1.28 of the Agreement is deleted and the following new Section
1.28 is substituted therefor:
1.28 Program Year. Each calendar year (or portion of a calendar year if
the Primary Term ends at the end of any calendar quarter during such year other
than December 31 of such year) during the Primary Term of this Agreement. A cost
under this Agreement for purposes of Payout shall be attributable to the Program
Year in which the first Exploratory Well is spudded on the Lease to which such
cost relates. If an Exploratory Well is not spudded on a Lease during the
Primary Term of this Agreement, the costs relating to such Lease shall be used
in the calculation of Payout for the Program Year in which they were incurred.
Net Proceeds shall be attributable to the Program Year in which the first
Exploratory Well is spudded on the Lease to which such proceeds relate.
III.
Section 2.1 of the Agreement is deleted and the following new Section
2.1 is substituted therefor:
2.1 Primary Term. This Agreement shall be for a primary term (the "Primary
Term") commencing on January 1, 1999 ("Commencement Date") and ending on the
earliest to occur of the following:
(a) December 31, 2001;
2
(b) the end of any calendar quarter if either party notifies
the other party in writing on or before thirty (30) days before the end of such
quarter of its election to terminate the Primary Term at the end of such
quarter; or
(c) the mutual agreement of the parties.
IV.
Section 5.1 of the Agreement is deleted and the following new Section
5.1 is substituted therefor:
5.1 Allocation of IDCs. Subject to Section 5.4, during each year of the
Primary Term, KE&P shall pay one hundred percent (100%) of all Intangible Costs
attributable to THEC's Original Working Interests in the Leases until KE&P has
paid Intangible Costs for such year totaling 20.725 million dollars and,
thereafter during such year KE&P shall pay fifty one and seventy five one
hundredths percent (51.75%) of all Intangible Costs attributable to THEC's
Original Working Interests in the Leases and THEC shall pay forty eight and
twenty five one hundredths percent (48.25%) of all Intangible Costs attributable
to THEC's Original Working Interest in the Leases. If during any of such years,
one hundred percent (100%) of the Intangible Costs attributable to THEC's
Original Working Interests in the Leases are less than 20.725 million dollars,
the shortage shall be added to the following year and KE&P shall pay during such
following year one hundred percent (100%) of all Intangible Costs attributable
to THEC's Original Working Interests in the Leases until KE&P has paid
Intangible Costs for such year totaling 20.725 million dollars plus the shortage
from the preceding year(s); provided that, during the first calendar quarter of
the 2000
3
Program Year, KE&P's obligation to pay one hundred percent (100%) of such
Intangible Costs shall be limited to 5.18 million dollars and, further provided,
if the Primary Term ends on March 31, 2000 KE&P's obligation to pay one hundred
percent (100%) of Intangible Costs shall terminate. Subject to the preceding
sentence, during the Secondary Term, KE&P shall pay all Intangible Costs
attributable to THEC's Original Working Interest in the Leases until such
shortage from the Primary Term, if any, is expended and thereafter shall pay
fifty one and seventy five one hundredths percent (51.75%) of all Intangible
Costs attributable to THEC's Original Working Interest in the Leases and THEC
shall pay forty eight and twenty five one hundredths percent (48.25%) of all
Intangible Costs attributable to THEC's Original Working Interest in the Leases;
provided that, KE&P shall have no obligation to pay Intangible Costs to the
extent such costs relate to a Lease reassigned to THEC under Section 6.5 and
such costs accrue after such reassignment.
V.
Section 5.3 of the Agreement is deleted and the following new Section
5.3 is substituted therefor:
5.3 Allocation of Remaining Costs. Subject to Section 5.4 and 5.8,
during the Primary Term and the Secondary Term, KE&P shall pay forty five
percent (45%) of all Drilling Costs, Development Costs, Seismic Costs, Leasehold
Costs, Abandonment Costs and Operating Costs attributable to THEC's Original
Working Interest in the Leases and THEC shall pay fifty five percent (55%) of
all Drilling Costs,
4
Development Costs, Seismic Costs, Leasehold Costs, Abandonment Costs and
Operating Costs attributable to THEC's Original Working Interest in the Leases;
provided that, KE&P shall have no obligation to pay any of such costs to the
extent such costs relate to a Lease reassigned to THEC under Section 6.5 and
such costs accrue after such reassignment.
VI.
Section 5.4 of the Agreement is amended so that the existing language
becomes Section 5.4A and the following is inserted as 5.4B:
5.4B Primary Term Commitment. Notwithstanding the foregoing Section
5.4A, for the period commencing January 1, 2000, this Section 5.4B shall apply
prospectively in lieu of Section 5.4A. KE&P's obligation to pay the costs
specified in Sections 5.1 to 5.3 incurred during any quarter of the Primary Term
is limited to KE&P's Quarterly Commitment subject to the following:
(a) If THEC determines that the allocation to KE&P of its share of the
Drilling Costs and Intangible Costs of the first Exploratory Well on a Lease
will result in KE&P's Quarterly Commitment being exceeded, THEC shall notify
KE&P in writing of such fact prior to commencing such Well. Within fifteen (15)
days (or such lesser period specified in the notice if the proposed spud date of
such Well is less than thirty (30) days from the date of such notice) after
receiving such notice, KE&P shall notify THEC in writing whether or not it
approves such Well. If KE&P approves such Well, KE&P's share of the Drilling
Costs and Intangible Costs of such Well shall be deemed "Excess
5
Costs" and, to the extent the Excess Costs result in KE&P's Quarterly Commitment
being exceeded, such commitment shall be increased accordingly for such quarter.
If KE&P does not approve such Well or fails to notify THEC of its decision, KE&P
shall forfeit its interests in such Well and the Lease on which it is located.
(b) Except as provided in Section 5.4(a), if KE&P is not obligated to
pay a portion of its share of the costs specified in Sections 5.1 to 5.3 during
any quarter of the Primary Term, because its share exceeds in whole or in part
KE&P's Quarterly Commitment, and THEC pays such costs, KE&P shall reimburse THEC
for such costs out of KE&P's Quarterly Commitment for the following quarter on
or before thirty days after the end of the quarter in which THEC paid such costs
or, if the Primary Term has ended, THEC shall receive KE&P's share of Net
Proceeds from all Wells drilled under this Agreement until such time as THEC has
received a sum of money (exclusive of all Burdens, Marketing Costs and Taxes)
out of such share equal to KE&P's share of costs which were paid by THEC,
provided, however, that the amount to be paid by KE&P as contemplated above
shall not exceed twenty percent (20%) of KE&P's Quarterly Commitment without its
written consent.
(c) KE&P's Quarterly Commitment shall first be applied to G and A
Costs, Seismic Costs, Leasehold Costs and Operating Costs and the remainder to
the Intangible Costs, Drilling Costs, Development Costs and Abandonment Costs.
(d) All Drilling Costs, Intangible Costs and Development Costs for purposes
of applying the limitations of KE&P's Quarterly Commitment shall, at the
election of
6
THEC, be deemed to have been incurred entirely on the date THEC submits to KE&P
the information set forth in Section 7.3 relating to the applicable operation or
the date of the AFE relating to the expenditure of such costs, rather than on
the dates such costs are actually incurred.
(e) Such portion of KE&P's Yearly Commitment for the year 1999 not
expended or committed for expenditure by December 31, 1999 shall be available
for use during the Primary Term only for Development Costs and Intangible Costs
related to Development Operations on Leases on which the first Exploratory Well
was spudded during the 1999 Program Year.
(f) Such portion of KE&P's Quarterly Commitment, for any calendar
quarter, not expended or committed for expenditure by the last day of such
quarter shall be available for use in subsequent quarters during the Primary
Term only for Development Costs and Intangible Costs related to Development
Operations on Leases on which the first Exploratory Well was spudded during the
quarter to which the unused portion of the quarterly Commitment relates, or any
previous quarter, including the 1999 Program Year.
VII.
Section 10.4 of the Exploration Agreement is amended so that the
existing language becomes Section 10.4(a) and the following is inserted as
Section 10.4(b):
10.4(b) Budgets. Notwithstanding the foregoing Section 10.4(a), for the
period commencing January 1, 2000, this Section 10.4(b) shall apply
prospectively in lieu of Section 10.4(a). THEC shall submit quarterly to the
Management Committee THEC's Program Budget and a quarterly budget setting forth
the anticipated financial
7
requirements of KE&P under this Agreement. Such budgets for the first quarter of
the year 2000 shall be submitted on or before January 1, 2000 and the budgets
for the following quarters during the terms on or before the first day of such
quarters.
Except as herein amended, the parties do hereby ratify and confirm the
Exploration Agreement.
Executed on the day set forth above, but to be effective as of January
1, 2000.
THE HOUSTON EXPLORATION COMPANY
By:/s/ James Westmoreland
James Westmoreland, Vice President
KEYSPAN EXPLORATION AND
PRODUCTION, L.L.C.
By:/s/ Zain Mirza
Zain Mirza, Vice President
8
Exhibit 10.20
[
THIRD AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT AND SUPPLEMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "Third Amendment") executed effective as of December 31, 1999
(the "Effective Date"), is by and among THE HOUSTON EXPLORATION COMPANY, a
Delaware corporation ("Company"); CHASE BANK OF TEXAS, NATIONAL ASSOCIATION (in
its individual capacity, "Chase"), as agent (in such capacity, "Agent") for each
of the lenders that is a signatory hereto or which becomes a signatory hereto
and to the hereinafter described Credit Agreement as provided in Section 12.06
of the Credit Agreement (individually, together with its successors and assigns,
"Lender" and collectively, "Lenders").
R E C I T A L S
A. The Company, the Agent and the Lenders (other than the hereinafter
defined "Additional Lenders") are parties to that certain Amended and Restated
Credit Agreement dated as of March 30, 1999 (said Amended and Restated Credit
Agreement, as amended and supplemented by First Amendment to Amended and
Restated Credit Agreement dated as of May 4, 1999, and as further amended by
Second Amendment to Amended and Restated Credit Agreement dated as of October 6,
1999, "Credit Agreement"), pursuant to which the Lenders agreed to make loans
and issue Letters of Credit to and for the account of the Company.
B. The Company, the Lenders and the Agent mutually desire to amend certain
aspects of the Credit Agreement relating to,
among other things, the Borrowing Base and Threshold Amount.
C. In view of the foregoing, the Company, the Agent and the Lenders hereby
agree to amend the Credit Agreement in the particulars hereinafter provided.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration and the mutual benefits, covenants and agreements herein
expressed, the parties hereto now agree as follows:
1. Section Certain Terms. All capitalized terms used in this Third
Amendment and not otherwise defined herein shall have the meanings ascribed to
such terms in the Credit Agreement.
2. Section Amendments and Supplements to Credit Agreement. The Credit
Agreement is hereby amended and supplemented
as follows:
2.1 Definitions.
-----------
(a) The following terms defined in Section 1.02 of the Credit
Agreement are hereby amended as follows:
(i) The term "Agreement" is hereby amended in its entirety to
read as follows:
"Agreement" shall mean this Credit Agreement, as
amended by the First Amendment, as further amended by the
Second Amendment, as further amended by the Third Amendment,
and as the same may be further amended or supplemented from
time to time.
(ii) The term "Applicable Margin" is hereby amended
in its entirety to read as follows:
"Applicable Margin" shall mean at the time of calculation, with respect
to any Loan, calculated as a function of the type of such Loan, the following
rate per annum as applicable:
- ---------------------------------------- ------------------------------------- -------------------------------------
Threshold Amount Fixed Rate Loan Applicable Base Rate Loan Applicable
Utilization Margin Percentage Margin Percentage
- ---------------------------------------- ------------------------------------- -------------------------------------
Less than 33% 0.875% 0%
- ---------------------------------------- ------------------------------------- -------------------------------------
Greater than or equal to 33% but less
than 66% 1.125% 0%
- ---------------------------------------- ------------------------------------- -------------------------------------
Greater than or equal to 66% but less
than 100% 1.375% 0%
- ---------------------------------------- ------------------------------------- -------------------------------------
Greater than or equal to 100% 1.625% 0%
- ---------------------------------------- ------------------------------------- -------------------------------------
(iii) The Term "Threshold Amount" is hereby amended
in its entirety to read as follows:
"Threshold Amount" shall mean (i) during the
period from and including the Effective Date of the
Third Amendment to and including the date of the
redetermination by the Agent and the Lenders of the
Threshold Amount scheduled to occur March 1, 2000, an
amount equal to $175,000,000, (ii) during the period
from and including March 2, 2000 to and including
September 1, 2000, an amount equal to the amount of
the March 1, 2000 redetermined Threshold Amount, and
(iii) thereafter, the amount equal to the Borrowing
Base in effect from time to time. The redetermination
of the Threshold Amount on March 1, 2000, shall be
made using the same criteria used by the Agent and
the Lenders prior to the Closing Date to determine
the Threshold Amount.
(b) Section 1.02 of the Credit Agreement is hereby
supplemented, where alphabetically appropriate, with the addition of
the following definition:
"Third Amendment" shall mean that certain Third
Amendment to Amended and Restated Credit Agreement dated
effective as of December 31, 1999, between the Company, the
Agent and the Lenders.
2.2 Fees. Section 2.04 of the Credit Agreement is hereby amended as
follows:
(a) The table found in Section 2.04(a)(i) is hereby amended in its entirety to
read as follows:
-------------------------------------------------------------- -------------------------------------------
Threshold Amount
Utilization Commitment Fee
-------------------------------------------------------------- -------------------------------------------
Less than 33% 0.25%
-------------------------------------------------------------- -------------------------------------------
Greater than or equal to 33% but less than 66% 0.30%
-------------------------------------------------------------- -------------------------------------------
Greater than or equal to 66% but less than 100% 0.30%
-------------------------------------------------------------- -------------------------------------------
Greater than or equal to 100% 0.375%
-------------------------------------------------------------- -------------------------------------------
(b) The table found in Section 2.04(b) is hereby amended in its entirety to read
as follows:
---------------------------------------------------- -----------------------------------------------------
Threshold Amount
Utilization Issuance Fee
---------------------------------------------------- -----------------------------------------------------
Less than 33% 0.875%
---------------------------------------------------- -----------------------------------------------------
Greater than or equal to 33% but less than 66% 1.125%
---------------------------------------------------- -----------------------------------------------------
Greater than or equal to 66% but less than 100% 1.375%
---------------------------------------------------- -----------------------------------------------------
Greater than or equal to 100% 1.625%
---------------------------------------------------- -----------------------------------------------------
2.3 Prepayments. Section 2.08(b) of the Credit Agreement is
hereby amended and modified to provide that, if on March 29, 2000, the
sum of the outstanding aggregate principal amount of the Loans and the
LC Exposure exceeds the lesser of the then effective Borrowing Base or
the aggregate amount of the Commitments, then the Company shall
immediately pay or prepay the amount of such excess amount for
application first, towards the reduction of all amounts previously
drawn under Letters of Credit, but not yet funded as a Revolving Credit
Loan pursuant to Section 4.07(b) or reimbursed, second, if necessary,
towards reduction of the outstanding principal balance of the Notes by
prepaying Base Rate Loans, if any, then outstanding, and third, if
necessary, at the election of the Company, either toward a reduction of
the outstanding principal balance of the Notes by prepaying Fixed Rate
Loans, if any, then outstanding or by paying such amount to the Agent
as cash collateral for outstanding Letters of Credit, which amount
shall be held by the Agent as cash collateral to secure the Company's
obligation to reimburse the Agent and the Lenders for drawing under the
Letters of Credit.
2.4 MarketSpan Credit Facility. Section 8.07 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Section 8.07 MarketSpan Credit Facility. The Company
shall maintain an unused and available commitment under the
MarketSpan Credit Facility equal to or greater than the amount
by which the Borrowing Base exceeds the Threshold Amount until
(i) such time as the Borrowing Base is equal to the Threshold
Amount, (ii) such time as any and all prepayments required
under Section 2.08(b) have been made in full, and (iii) such
time as no Default exists hereunder."
Section 3. Borrowing Base; Threshold Amount. Notwithstanding anything to
the contrary contained in the Credit Agreement including, without limitation,
the provisions of Section 2.09:
(a) The amount of the Borrowing Base shall be (i) $240,000,000
for the period from and including the Effective Date of this Third
Amendment to but not including March 29, 2000, and (ii) an amount equal
to the Threshold Amount in effect on March 29, 2000, for the period
from and including March 29, 2000 to and including September 1, 2000,
at which time and from time to time thereafter the Borrowing Base shall
be redetermined in accordance with Section 2.09 of the Credit
Agreement.
(b) Any unscheduled redetermination of the Borrowing Base or the
Threshold Amount which occurs on or before March 29, 2000, must be approved
by all of the Lenders. Section 4. Conditions. In addition to any and all
other applicable conditions precedent contained in Article VI of the
Credit Agreement, this Third Amendment shall become binding upon receipt by the
Agent of the following documents, each of which shall be satisfactory to the
Agent in form and substance:
(a) Counterparts of this Third Amendment duly executed by the
Company.
(b) Photocopies of all duly completed and executed
documentation evidencing the extension of the final maturity of the
MarketSpan Credit Facility from January 1, 2000 to March 31, 2000.
(c) Such other documents as the Agent or its counsel may
reasonably request.
Section 5. Extent of Amendments. The parties hereto hereby acknowledge
and agree that, except as specifically supplemented and amended, changed or
modified hereby, the Credit Agreement shall remain in full force and effect in
accordance with its terms.
Section 6. Reaffirmation. The Company hereby reaffirms that as of the
date of this Third Amendment, the representations and warranties made by the
Company in Article VII of the Credit Agreement are true and correct on the date
hereof as though made on and as of the date of this Third Amendment.
Section 7. Governing Law. This Third Amendment shall be governed by, and
construed in accordance with, the laws of the State of Texas.
Section 8. Counterparts. This Third Amendment may be executed in two or
more counterparts, and it shall not be necessary that the signatures of all
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 9. Final Agreement. THE CREDIT AGREEMENT, AS AMENDED HEREBY,
THIS THIRD AMENDMENT, THE NOTES AND THE SECURITY INSTRUMENTS REPRESENT 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 OR ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURE PAGES BEGIN ON NEXT PAGE]
[Third Amendment to Amended and
Restated Credit Agreement
Signature Page 1]
Houston:52429.2
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed effective as of the date first above written.
COMPANY:
-------
THE HOUSTON
EXPLORATION
COMPANY
By:/s/ Thomas W. Powers
Name: Thomas W. Powers
Title: Senior Vice President
Business Development
Finance and Treasurer
Address: 1100 Louisiana
Suite 2000
Houston, Texas 77002
Telecopier No.: 713/830-6885
Telephone No.: 713/830-6853
LENDERS AND AGENTS:
------------------
CHASE BANK OF
TEXAS, NATIONAL ASSOCIATION, individually as a Lender and as
Administrative Agent
By: /s/ Russell Johnson
Name: Russell Johnson
Title: Vice President
Applicable Lending
Office for Base Rate Loans:
Address: 712 Main Street
Houston, Texas 77002
Applicable Lending Office for Fixed Rate Loans:
Address: 712 Main Street
Houston, Texas 77002
Telecopier: 713/216-8870
Telephone: 713/216-5617
Address for Notices:
Loan and Agency Services
The Chase Manhattan Bank
1 Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Telecopier No.: 212/552-7490
Telephone No.: 212/552-7943
Attention: Muniram Appanna
THE BANK OF NOVA SCOTIA,
individually as a Lender and as Syndication Agent
By: /s/F.C.H. Ashby
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
Applicable Lending
Office for Base Rate Loans:
Address: 600 Peachtree Street N.E.
Suite 2700
Atlanta GA 30308
Applicable Lending Office for Fixed Rate Loans:
Address: 600 Peachtree Street N.E.
Suite 2700
Atlanta GA 30308
Address for Notices:
1100 Louisiana, Suite 3000
Houston, Texas 77002
Telecopier No.: 713/752-2425
Telephone No.: 713/759-3441
Attention: Mark Ammerman
with a copy to:
Address: 600 Peachtree Street N.E.
Suite 2700
Atlanta GA 30308
Telecopier: 404/888-8998
Telephone: 404/877-1552
Attention: Phyllis Walker
FIRST UNION NATIONAL BANK,
Individually as a Lender and as Documentation Agent
By: /s/ Robert R. Wetteroff
Name: Robert R. Wetteroff
Title: Senior Vice President
Applicable Lending Office for Base Rate Loans:
Address: 301 South College Street
Charlotte, North Carolina 28288
Applicable Lending Office for Fixed Rate Loans:
Address: 301 South College Street
Charlotte, North Carolina 28288
Address for Notices:
1001 Fannin Street
Houston, Texas 77002
Telecopier: 713/650-6354
Telephone No. 713/346-2727
Attention: Jay Chernosky
with a copy to:
1001 Fannin Street
Houston, Texas 77002
Telecopier: 713/650-6354
Telephone No. 713/346-2727
Attention: Debbie Blank
PNC BANK NATIONAL ASSOCIATION,
Individually as a Lender and as Managing Agent
By: /s/ Thomas A. Maleski
Name: Thomas a. Maleski
Title: Vice President
Applicable Lending Office for Base Rate Loans:
Address: 249 Fifth Avenue, 3rd Floor
Mail Stop P1-POPP-03-1
Pittsburgh, Pennsylvania 15222
Applicable Lending Office for Fixed Rate Loans:
Address: 249 Fifth Avenue, 3rd Floor
Mail Stop P1-POPP-03-1
Pittsburgh, Pennsylvania 15222
Address for Notices:
249 Fifth Avenue, 3rd Floor
Mail Stop P1-POPP-03-1
Pittsburgh, Pennsylvania 15222
Telecopier: 412/762-2571
Telephone No. 412/762-3025
Attention: Thomas A. Majeski
with a copy to:
620 Liberty Avenue
Mail Stop P2-PTPP-03-1
Pittsburgh, Pennsylvania 15222
Telecopier: 412/762-5271
Telephone No. 412/762-3025
Attention: Stephanie Angelini
COMERICA BANK - TEXAS
By: /s/ Martin W. Wilson
Name: Martin W. Wilson
Title: Vice President
Applicable Lending Office for Base Rate Loans:
Address: 1601 Elm Street, 2nd Floor
Dallas, Texas 75201
Applicable Lending Office for Fixed Rate Loans:
Address: 1601 Elm Street, 2nd Floor
Dallas, Texas 75201
Address for Notices:
1601 Elm Street, 2nd Floor
Dallas, Texas 75201
Telecopier: 214/969-6561
Telephone No. 214/969-6563
Attention: Martin W. Wilson
with a copy to:
Livonia Operations Center
39200 Six Mile Road, 4th Floor
Livonia, Michigan 48152
Telecopier: 734/632-7050
Telephone No. 734/632-3063
Attention: Nancy Lee
THE BANK OF NEW YORK
By: /s/ Peter Keller
Name: Peter Keller
Title: Vice President
Applicable Lending
Office for Base Rate Loans:
Address: One Wall Street
Energy Division, 19th Floor
New York, New York 10286
Telecopier No.:212/635-7924
Telephone No.:212/635-7550
Attention: Kathy D'Elena
Applicable Lending Office for Fixed Rate Loans:
Address: One Wall Street
Energy Division, 19th Floor
New York, New York 10286
Telecopier No.:212/635-7924
Telephone No.:212/635-7550
Attention: Kathy D'Elena
Address for Notices:
The Bank of New York
One Wall Street
Energy Division, 19th Floor
New York, NY 10286
Telecopier No.: 212/635-7924
Telephone No.: 212/635-7550
Attention: Kathy D'Elena
with a copy to:
Address:
The Bank of New York
One Wall Street
Energy Division, 19th Floor
New York, NY 10286
Telecopier No.: 212/635-7924
Telephone No.: 212/635-7861
Attention: Peter Keller
NATEXIS BANQUE
By: /s/ N. Eric Ditges
Name: N. Eric Ditges
Title: Vice President
By: /s/ Louis P. Laville, III
--------------------------
Name: Louis P. Laville, III
----------------------
Title: Vice President and Group Manager
---------------------------------
Applicable Lending
Office for Base Rate Loans:
Address: 645 5th Avenue, 20th Floor
New York, New York
Telecopier No.:212/872-5045
Applicable Lending Office for Fixed Rate Loans:
Address: 645 5th Avenue, 20th Floor
New York, New York
Telecopier No.:212/872-5045
Address for Notices:
Natexis Banque, Southwest
Representative Office
333 Clay Street, Suite 4340
Houston, Texas 77002
Telecopier No.: 713/759-9908
Telephone No.: 713/759-9401
Attention: Tanya McAllister
with a copy to:
Address:
Natexis Banque, New York Branch
645 5th Avenue, 20th Floor
New York, New York
Telecopier No.: 212/872-5045
Attention: Joan Rankine
and
Natexis Banque, Southwest
Representative Office
333 Clay Street, Suite 4340
Houston, Texas 77002
Telecopier No.: 713/759-9908
Telephone No.: 713/759-9401
Attention: Eric Ditges
<P
BANK ONE, TEXAS, N.A.
By: /s/ Christine M. Macan
Name: Christine M. Macan
Title: Vice President
Applicable Lending
Office for Base Rate Loans:
Address: 910 Travis, TX2_4330
Houston, Texas 77002
Applicable Lending Office for Fixed Rate Loans:
Address: 910 Travis, TX2_4330
Houston, Texas 77002
Address for Notices:
Bank One Center
910 Travis, TX2_4330
Houston, Texas 77002
Telecopier No.: 713/751-3544
Telephone No.: 713/751-3484
Attention: Christine Macan
with a copy to:
Address: Bank One Center
910 Travis, TX2_4375
Houston, Texas 77002
Telecopier No.: 713/751-3982
Telephone No.: 713/751-6174
Attention: Jeanie Harman
and
Address: 500 Throckmorton
West Complex PG6
Fort Worth, Texas 76102
Telecopier No.: 817/884-4651
Telephone No.: 817/884-4399
Attention: Carol Peacock
<P
HIBERNIA NATIONAL BANK
By: /s/ David R. Reid
Name: David R. Reid
Title: Senior Vice President
Applicable Lending
Office for Base Rate Loans:
Address: 313 Carondelet Street
New Orleans, Louisiana 70130
Applicable Lending Office for Fixed Rate Loans:
Address: 313 Carondelet Street
New Orleans, Louisiana 70130
Address for Notices:
213 W. Vermilion
Lafayette, Louisiana 70501
Telecopier No.: 318/268-4566
Telephone No.: 318/268-4582
Attention: David Reid
with a copy to:
Address: 313 Carondelet Street
New Orleans, Louisiana 70130
Telecopier No.: 504/533-5434
Telephone No.: 504/533-5717
Attention: Spencer Gagnet
and
Address: 313 Carondelet Street
New Orleans, Louisiana 70130
Telecopier No.: 504/533-5434
Telephone No.: 504/533-5352
Attention: Virginia Bell Cowart