Attached files
file | filename |
---|---|
8-K - FORM 8-K - Gas Natural Inc. | l42620e8vk.htm |
EX-10.9 - EX-10.9 - Gas Natural Inc. | l42620exv10w9.htm |
EX-10.5 - EX-10.5 - Gas Natural Inc. | l42620exv10w5.htm |
EX-10.3 - EX-10.3 - Gas Natural Inc. | l42620exv10w3.htm |
EX-10.7 - EX-10.7 - Gas Natural Inc. | l42620exv10w7.htm |
EX-10.6 - EX-10.6 - Gas Natural Inc. | l42620exv10w6.htm |
EX-10.8 - EX-10.8 - Gas Natural Inc. | l42620exv10w8.htm |
Exhibit 10.4
Execution Copy
Great Plains Natural Gas Company
First Amendment and Joinder to Note Purchase Agreement
Dated as of May 3, 2011
Re:
Note Purchase Agreement dated as of November 1, 2010
and
Floating Rate Senior Secured Guaranteed Notes due 2013
Table of Contents
(Not a part of this First Amendment and Joinder to Note Purchase Agreement)
Section | Heading | Page | ||
Section 1.
|
Amendments To Current Note Purchase Agreement | 2 | ||
Section 2.
|
Joinder | 9 | ||
Section 3.
|
Conditions Precedent | 9 | ||
Section 4.
|
Representations and Warranties | 10 | ||
Section 5.
|
Miscellaneous | 11 | ||
Schedule 5.4
|
Subsidiaries of the Company and Ownership of Subsidiary Stock | |||
Schedule 5.15
|
Existing Indebtedness | |||
Schedule 5.19
|
Real Property | |||
Exhibit 1
|
Form of Senior Secured Guaranteed Note due 2013 |
i
Great Plains Natural Gas Company
8500 Station Street, Suite 100
Mentor, Ohio 44060
8500 Station Street, Suite 100
Mentor, Ohio 44060
First Amendment and Joinder to Note Purchase Agreement
Dated as of May 3, 2011
Re: Note Purchase Agreement dated as of November 1, 2010
and
Floating Rate Senior Secured Guaranteed Notes due 2013
and
Floating Rate Senior Secured Guaranteed Notes due 2013
To Sun Life Assurance Company of Canada
Ladies and Gentlemen:
This First Amendment and Joinder to Note Purchase Agreement (this Amendment) is made as of
May 3, 2011, by and among Great Plains Natural Gas Company, an
Ohio corporation (the Issuer),
Lightning Pipeline Company, Inc., an Ohio corporation (Lightning), Spelman Pipeline Holdings,
LLC, an Ohio limited liability company (Spelman), Kidron Pipeline, LLC, an Ohio limited liability
company (Kidron), Gas Natural Service Company, LLC, an Ohio limited liability company (Service
Company), and Gas Natural Inc., an Ohio corporation (the Parent; the Parent, Lightning, Spelman,
Kidron and Service Company are referred to herein, collectively, as the Guarantors and,
individually, as a Guarantor), and Sun Life Assurance Company of Canada (the Purchaser).
Reference is made to the Note Purchase Agreement (the Current Note Purchase Agreement) dated
as of November 1, 2010, by and among the Issuer, Lightning, the Parent and the Purchaser pursuant
to which, among other things, (i) the Issuer agreed to authorize the issue and sale of $2,300,000
aggregate principal amount of its Floating Rate Senior Secured Guaranteed Notes due 2013 (the
Notes) at a closing on the fourth Business Day following receipt by the Issuer and the Parent of
all regulatory approvals necessary for the issuance of the Notes and the guaranty by Parent of such
Notes (and which provides that the closing must occur on or prior to November 28, 2010)
and (ii) Lightning and the Parent agreed to jointly and severally guarantee the Guaranteed
Obligations (as defined therein). Capitalized terms used in this Amendment without definition
shall have the meanings given such terms in the Current Note Purchase Agreement, as hereby amended
by this Amendment (as amended, the Note Purchase Agreement). In addition, the Current Note
Purchase Agreement contemplated that Richard M. Osborne, individually, and as Trustee of the
Richard M. Osborne Trust under Restated Trust Agreement dated January 13, 1995, would guaranty the
Notes and the other Obligations under the Note Purchase Agreement.
1
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Obligors request the amendment of certain provisions of the Current Note Purchase
Agreement as hereinafter provided.
Upon your acceptance hereof in the manner hereinafter provided and upon satisfaction of all
conditions to the effectiveness hereof and receipt by the Obligors of similar acceptances from the
Purchaser, this Amendment shall be effective, but only in the respects hereinafter set forth:
Section 1. Amendments To Current Note Purchase Agreement.
Section 1.1. Release of Individual Guarantor and Individual Guarantee Agreement. As of the
Effective Date (defined below), (a) the Purchaser agrees to release Richard M. Osborne,
individually, and as Trustee of the Richard M. Osborne Trust under Restated Trust Agreement dated
January 13, 1995, from his obligation to guaranty the Notes and the other Obligations under the
Note Purchase Agreement, and (b) the parties hereto agree that each reference in the Current Note
Purchase Agreement to the Individual Guarantor and to the Individual Guarantee Agreement shall
be deleted.
Section 1.2. Increased Purchase Price; Maturity Date. As of the Effective Date, the parties
hereto agree that (a) the purchase price for the Notes shall be increased from $2,300,000 to
$3,000,000 and (b) each reference to the phrase $2,300,000 in the Current Note Purchase
Agreement (including, without limitation, on the cover page thereof and in the Schedules and
Exhibits thereto) shall be deemed to be a reference to the phrase $3,000,000.
Section 1.3. Interest Rate. (a) Section 1.2(a) of the Current Note Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
(a) The Notes shall bear interest (computed on the basis of a
360-day year and actual days elapsed) on the unpaid principal
thereof from the date of issuance at a floating rate equal to the
Adjusted LIBOR Rate from time to time, payable quarterly on the
interest payment dates set forth in the first paragraph of the
Notes, until such principal sum shall have become due and payable,
whether at maturity, upon acceleration or otherwise (each such date
being referred to herein as an Interest Payment Date) and interest
(so computed) on any overdue principal and LIBOR Breakage Amount, if
any, and to the extent permitted by applicable law, on any overdue
interest, from the due date thereof (whether at maturity, upon
acceleration or otherwise) and, during the continuance of an Event
of Default, on the unpaid balance hereof, at the Default Rate until
paid.
(b) The first sentence of Section 1.2(b) of the Current Note Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
2
The Adjusted LIBOR Rate for the Notes shall be determined by the
Issuer, and notice thereof shall be given to the holders of the
Notes, (i) with respect to the first Interest Period, on the
Business Day immediately preceding the date of Closing and (ii) with
respect to each other Interest Period, on the second Business Day
preceding the beginning of each such Interest Period, in each case,
together with a copy of the relevant screen used for the
determination of LIBOR, a calculation of the Adjusted LIBOR Rate for
such Interest Period, the number of days in such Interest Period,
the date on which interest for such Interest Period will be paid and
the amount of interest to be paid to each holder of Notes on such
date.
Section 1.4. Closing. The first sentence of Section 3 of the Current Note Purchase Agreement
is hereby amended and restated in its entirety to read as follows:
The sale and purchase of the Notes to be purchased by the Purchaser
shall occur at the offices of Chapman and Cutler LLP, 111 West
Monroe Street, Chicago, Illinois 60603 at 10:00 a.m. Chicago time,
at a closing (the Closing) on the second Business Day following
(i) receipt by the Issuer and the Parent of all regulatory approvals
necessary for the issuance of the Notes and the guaranty by the
Parent of such Notes and (ii) expiration of all applicable appeal
periods with respect thereto, provided that the date of Closing
shall occur on or prior to July 31, 2011.
Section 1.5. Opinions of Counsel. Section 4.4 of the Current Note Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
Section 4.4. Opinions of Counsel. Such Purchaser shall have
received opinions in form and substance satisfactory to such
Purchaser, dated the date of the Closing (a) from Kegler Brown Hill
& Ritter LPA and Kohrman Jackson & Krantz P.L.L., respective counsel
for the Obligors, covering the matters set forth in Exhibit 4.4(a)
and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or its counsel may reasonably
request (and the Obligors hereby instruct their respective counsel
to deliver such opinions to the Purchaser) and (b) from Chapman and
Cutler LLP, the Purchasers special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(b)
and covering such other matters incident to such transactions as
such Purchaser may reasonably request.
Section 1.6. Evidence of Title. Section 4.14 of the Current Note Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
3
Section 4.14. Evidence of Title. With respect to each parcel
of Real Property, the Obligors shall have obtained the commitment of
Lake Title Company or another title insurance company of good
standing selected by the Obligors and satisfactory to the Purchaser
and its special counsel (the Title Company), to issue a policy of
mortgage title insurance on a standard ALTA Form Mortgage Title
Insurance Policy Loan Policy-2006 Form with certain endorsements
required by the Purchaser and its special counsel including, without
limitation, an ALTA 9 Comprehensive Endorsement, an access
endorsement and a surface disturbance endorsement (the ALTA
Policy) in the aggregate amount which will provide for mortgage
title insurance in an amount not less than Two Hundred Forty One
Thousand One Hundred Thirty Dollars ($241,130), covering such Real
Property, and showing fee simple title to such Real Property to be
vested in Spelman, subject only to:
(a) the liens, charges and encumbrances, if any, permitted by
the applicable Mortgage;
(b) such exceptions as are standard under an ALTA Policy (but
such policy shall not be subject to a survey or mechanics lien
exception); and
(c) such other exceptions as shall be reasonably satisfactory
to the Purchaser and its special counsel; and
agreeing to insure the beneficiaries under such Mortgage, upon the
proper execution and recording of such Mortgage, against loss or
damage sustained by reason of such Mortgage not being a first and
paramount lien upon the title to the Real Property, subject only to
the exceptions referred to in the foregoing clauses (a) through (c).
All premiums in respect of the ALTA Policy shall have been paid in
full by the Obligors.
Section 1.7. Environmental Assessment. Section 4.15 of the Current Note Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
Section 4.15. Environmental Assessment. The Purchaser and its
special counsel shall have received a Phase I environmental site
assessment prepared by an environmental engineering firm
satisfactory to the Purchaser for each parcel of Real Property, in
scope, form and substance satisfactory to the Purchaser and its
special counsel.
4
Section 1.8. Sale of Other Notes. Section 4.19 of the Current Note Purchase Agreement is
hereby amended by replacing the phrase $17,700,000 appearing therein with the phrase
$15,334,000.
Section 1.9. Representations and Warranties. The introductory paragraph of Section 5 of the
Current Note Purchase Agreement is hereby amended by replacing the phrase Financing Documents
appearing therein with the phrase Financing Agreements.
Section 1.10. Use of Proceeds. The first sentence of Section 5.14 of the Current Note
Purchase Agreement is hereby amended and restated in its entirety to read as follows:
The Issuer will apply the proceeds of the sale of the Notes to (i)
pay out and discharge all outstanding Indebtedness of the Issuer at
Citizens Bank and (ii) fund its Debt Service Reserve Account in the
amount of approximately $123,000 in accordance with that certain
Deposit Account Control Agreement (Hard Account Agreement) of even
date herewith, by and between Issuer and PNC Bank, National
Association. The amount remaining after applying the proceeds as
described in (i) and (ii) above will be applied towards outstanding
balances on intercompany receivables owed by the Issuer and/or its
wholly owned subsidiary, Northeast Ohio Natural Gas Corp., to
Parent.
Section 1.11. Existing Indebtedness; Future Liens. Section 5.15(a) of the Current Note
Purchase Agreement is hereby amended by replacing the phrase September 30, 2010 appearing therein
with the phrase March 31, 2011.
Section 1.12. Collateral Documents. Section 5.19 of the Current Note Purchase Agreement is
hereby amended by adding the following language immediately at the end of such Section:
In the case of all Collateral consisting of the Real Property, the
security interests and mortgage Liens granted pursuant to the
Mortgages constitute valid and continuing perfected first priority
security interests (subject to Permitted Encumbrances) in favor of
the Purchaser subject only to the completion of the recordings and
other actions specified on Schedule 5.19 (which, in the case of all
recordings and other documents referred to on such Schedule, have
been recorded or delivered to the Title Company on or before the
date of Closing in completed and duly authorized form, as
applicable). All filing and recording fees and other, expenses in
connection with each such action shall be paid by the Obligors, and
the Purchaser shall be reimbursed by the Obligors, for any such
reasonable fees and expenses incurred by the Purchaser.
5
Section 1.13 Debt Service Reserve. Section 9 of the Current Note Purchase Agreement is hereby
amended by adding a new Section 9.10 at the end thereof as follows:
Section 9.10. Debt Service Reserve. (a) The Obligors will at
all times maintain a debt service reserve fund available consisting
of cash and money markets investments, if available, in an amount
equal to the interest payable on the Notes for a 12-month period,
such amount to be determined by the Purchaser on the Business Day
immediately preceding the date of Closing (the Debt Service
Amount). Such Debt Service Amount shall on the date of Closing be
deposited, and thereafter maintained, in an interest bearing blocked
account (the Debt Service Reserve Account) at Bank of America,
N.A., PNC Bank, National Association, or another banking institution
satisfactory to the Purchaser (the Depository Bank), and such Debt
Service Reserve Account shall at all times be subject to a blocked
account agreement among the Depository Bank, the Obligors and the
Purchaser, the form and substance of which shall be acceptable to
the Purchaser (the Debt Service Control Agreement). The Debt
Service Reserve Account and the Debt Service Amount on deposit
therein shall constitute part of the Collateral and be subject to
the Financing Agreements.
(b) Following the occurrence and during the continuance of an
Event of Default, the Purchaser shall have all rights and remedies
with respect to the Debt Service Reserve Account and the Debt
Service Amount on deposit therein as provided in the Financings
Agreements.
(c) The Obligors, jointly and severally, agree to maintain the
Debt Service Amount on deposit in the Debt Service Reserve Account
at the minimum amount required by paragraph (a) above. So long as
no Default or Event of Default shall have occurred and be
continuing, the Obligors shall be entitled to receive any accrued
earnings on the Debt Service Amount, subject to withdrawal pursuant
to the terms of the Debt Service Control Agreement, provided that at
no time shall the Debt Service Amount on deposit in the Debt Service
Reserve Account fall below the minimum amount required by paragraph
(a) above.
(d) Upon the indefeasible payment in full of the Notes and all
other Obligations under the Financing Agreements, the Obligors shall
be entitled to withdrawal the Debt Service Amount on deposit in the
Debt Service Reserve Account and the Purchaser agrees to release the
same.
6
Section 1.14. Indebtedness. Section 10.1(iv) of the Current Note Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
(iv) Indebtedness of the Obligors and each other member of the
Ohio Group outstanding as of March 31, 2011 and set forth in
Schedule 5.15 to the First Amendment (excluding any such
Indebtedness which is paid in full with the proceeds of the Notes);
Section 1.15. Guaranties. Section 10.2 of the Current Note Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
(iv) guarantees of Indebtedness outstanding as of March 31, 2011 and
set forth on Schedule 5.15 to the First Amendment (excluding any
such Indebtedness which is paid in full with the proceeds of the
Notes),
Section 1.16. Amendment to Defined Terms. The definition of Change of Control set forth in
Schedule B of the Current Note Purchase Agreement is hereby amended by amending and restating the
first parenthetical appearing in clause (a) thereof in its entirety to read as follows:
(other than, with the Purchasers prior written consent which
consent shall not be unreasonably withheld, Richard M. Osborne,
individually, and as Trustee of the Richard M. Osborne Trust under
Restated Trust Agreement dated January 13, 1995)
Section 1.17. Amendment to Defined Terms. The definitions of Brainard, Control Agreement,
Fixed Rate Note Purchase Agreement and Guarantors set forth in Schedule B of the Current Note
Purchase Agreement are hereby amended and restated in their entirety to read as follows:
Brainard means Brainard Gas Corp., an Ohio corporation and direct
subsidiary of Parent.
Control Agreement means (i) the Debt Service Control Agreement and
(ii) each other tri-party deposit account, securities account or
commodities account control agreement by and among the Obligors, as
applicable, the Purchaser and the depository, securities
intermediary or commodities intermediary, each in form and substance
reasonably satisfactory in all respects to the Purchaser and in any
event providing to the Purchaser control of such deposit account,
securities or commodities account within the meaning of Articles 8
and 9 of the UCC, and each as may be amended, restated, joined,
supplemented or otherwise modified from time to time in accordance
with the terms thereof.
7
Fixed Rate Note Purchase Agreement means the Note Purchase
Agreement dated as of November 1, 2010, as amended by the First
Amendment and Joinder to Note Purchase Agreement dated as of May 3,
2011 by and among the Obligors, Brainard, NEO, Orwell and the
Purchaser, pursuant to which NEO, Orwell and Brainard will issue and
sell $15,334,000 aggregate principal amount of their Senior Secured
Guaranteed Notes due June 1, 2017 to the Purchaser, as such
agreement may be further amended, restated, supplemented or
otherwise modified from time to time.
Guarantors means, collectively, the Parent, Lightning, Kidron,
Spelman, Service Company and any other Person becoming a Guarantor
pursuant to Section 9.8 and Guarantor means, individually, any one
of them.
Section 1.18. Amendment to Defined Terms. Schedule B to the Current Note Purchase Agreement
is hereby amended by adding the following new definitions thereto in proper alphabetical order:
Debt Service Amount is defined in Section 9.10(a).
Debt Service Control Agreement is defined in Section 9.10(a).
Debt Service Reserve Account is defined in Section 9.10(a).
Depository Bank is defined in Section 9.10(a).
First Amendment means the First Amendment and Joinder to Note
Purchase Agreement dated as of May 3, 2011 by and among the Issuer
and the Guarantors.
Kidron means Kidron Pipeline, LLC, an Ohio limited liability
company.
Service Company means Gas Natural Service Company, LLC, an Ohio
limited liability company.
Spelman means Spelman Pipeline Holdings, LLC, an Ohio limited
liability company.
Section 1.19 Amendment to Schedule 5.4. Schedule 5.4 (Subsidiaries of the Company and
Ownership of Subsidiary Stock) to the Current Note Purchase Agreement is hereby amended and
restated in its entirety to read as set forth in Schedule 5.4 to this Amendment.
8
Section 1.20 Amendment to Schedule 5.15. Schedule 5.15 (Existing Indebtedness) to the Current
Note Purchase Agreement is hereby amended and restated in its entirety to read as set forth in
Schedule 5.15 to this Amendment.
Section 1.21. Amendment to Schedule 5.19. Schedule 5.19 (Real Property) to the Current Note
Purchase Agreement is hereby amended and restated in its entirety to read as set forth in Schedule
5.19 to this Amendment.
Section 1.22. Amendment to Form of Note. The Form of Note attached as Exhibit 1 to the
Current Note Purchase Agreement is hereby amended and restated in its entirety to read as set forth
in Exhibit 1 to this Amendment.
Section 2. Joinder.
Spelman, Kidron and Service Company each hereby agree to become a Guarantor and an Obligor
and to be bound by all of the terms, covenants and conditions set forth in the Note Purchase
Agreement and each other Financing Agreement, as applicable, to the same extent that such Persons
would have been bound if such Persons had been a signatory to the Current Note Purchase Agreement
on the execution date of the Current Note Purchase Agreement. Spelman, Kidron and Service Company
each hereby (a) make each of the representations and warranties and agree to each of the covenants
applicable to it contained in the Current Note Purchase Agreement, this Amendment and each other
Financing Agreement, as applicable, (ii) agree to execute this Amendment and each Financing
Agreement, as applicable, and (iii) agree that each reference to a Guarantor or an Obligor set
forth in the Current Note Purchase Agreement, this Amendment and each other Financing Agreement, as
applicable, shall include Spelman, Kidron and Service Company.
Section 3. Conditions Precedent.
This Amendment shall not become effective until, and shall become effective on, the Business
Day when each of the following conditions shall have been satisfied (the Effective Date):
(a) The Purchaser shall have received this Amendment, duly executed by each Obligor.
(b) The Purchaser shall have consented to this Amendment as evidenced by its execution
hereof.
(c) The representations and warranties of the Obligors set forth in Section 4 hereof
shall be true and correct as of the date of the execution and delivery of this Amendment and
as of the Effective Date.
(d) Any consents from any holder or holders of any outstanding security or indebtedness
of the Obligors and any amendments of agreements pursuant to which any
securities or indebtedness may have been issued which shall be necessary to permit the
9
consummation of the transactions contemplated hereby shall have been obtained and all such
consents or amendments shall be reasonably satisfactory in form and substance to the
Purchaser and its special counsel.
(e) The Purchaser shall have received all reasonable and necessary final,
non-appealable regulatory and other approvals in respect of the transactions contemplated by
this Amendment and the other Financing Agreements and evidence that in respect of the
transactions contemplated by this Amendment, the Obligors are in compliance with all
applicable regulatory and statutory requirements.
(f) All corporate and other proceedings in connection with the transactions
contemplated by this Amendment and all documents and instruments incident to such
transactions shall be satisfactory to the Purchaser and its special counsel, and the
Purchaser and its special counsel shall have received all such counterpart originals or
certified or other copies of such documents as the Purchaser or its special counsel may
reasonably request.
(g) The Purchaser shall have received such certificates of officers of the Obligors as
it may reasonably request with respect to this Amendment and the transactions contemplated
hereby.
(h) The Purchaser shall have received by wire transfer to its account specified in
Schedule A to the Note Purchase Agreement (or otherwise specified to the Obligors in a
separate writing) a non-refundable amendment fee equal to $25,000.
Section 4. Representations and Warranties.
The Obligors hereby, jointly and severally, represent and warrant to the Purchaser that as of
the date of execution and delivery of this Amendment and as of the Effective Date:
(a) Each Obligor is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization.
(b) Each Obligor has the requisite power to own its property and to carry on its
business as now being conducted.
(c) Each Obligor is duly qualified and in good standing as a foreign corporation or
limited liability company, as applicable, authorized to do business in each jurisdiction in
which the failure to do so would, individually or in the aggregate, have a Material Adverse
Effect.
(d) This Amendment, the Note Purchase Agreement and the transactions contemplated
hereby are within the requisite powers of each Obligor, have been duly authorized by all
necessary corporate or limited liability company action, as applicable,
on the part of each Obligor, and this Amendment and the Note Purchase Agreement have
10
been
duly executed and delivered by each Obligor and constitute legal, valid and binding
obligations of each Obligor enforceable in accordance with their respective terms.
(e) After giving effect to this Amendment, there are no Defaults or Events of Default
under the Note Purchase Agreement.
(f) The execution, delivery and performance of this Amendment and the Note Purchase
Agreement does not and will not result in a violation of or default under (i) the
organizational documents of any Obligor, (ii) any agreement to which any Obligor is a party
or by which any Obligor is bound or to which any Obligor or any of its properties is
subject, (iii) any order, writ, injunction or decree binding on any Obligor, or (iv) any
statute, regulation, rule or other law applicable to any Obligor.
(g) Except for (i) the items described in Schedule 5.7 to the Note Purchase Agreement
(each of which will be satisfied prior to Closing, with no appeals having been filed and all
related appeal periods with respect thereto having passed) and (ii) the filing of the
Collateral Documents with the appropriate Governmental Authority (each of which will be
filed contemporaneously with the Closing), no consent, approval or authorization of, or
registration, filing or declaration with, any Governmental Authority is required in
connection with the execution, delivery or performance by the Obligors of this Amendment and
the Note Purchase Agreement.
(h) All of the representations and warranties of the Obligors set forth in Section 5 of
the Current Note Purchase Agreement, as amended by this Amendment, are true and correct in
all respects.
Section 5. Miscellaneous.
Section 5.1. Ratification of the Current Note Purchase Agreement. Except as amended herein,
all terms and provisions of the Current Note Purchase Agreement and related agreements and
instruments are hereby ratified, confirmed and approved in all respects. If and to the extent that
any of the terms or provisions of the Current Note Purchase Agreement are in conflict or
inconsistent with any of the terms or provisions of this Amendment, this Amendment shall govern.
Section 5.2. References to the Note Purchase Agreement. Each reference in the Current Note
Purchase Agreement to this Agreement, hereunder, hereof, or words of similar import in
instruments or documents provided for in the Current Note Purchase Agreement or delivered or to be
delivered thereunder or in connection therewith, shall, except where the context otherwise
requires, be deemed a reference to the Note Purchase Agreement.
Section 5.3. Fees and Expenses of Counsel. Without limiting Section 15 of the Current Note
Purchase Agreement, the Obligors jointly and severally agree to pay the additional fees and
disbursements of the Purchasers special counsel, Chapman and Cutler LLP, incurred in connection
with the negotiation, preparation, execution and delivery of this Amendment, the
Debt Service Control Agreement, the Collateral Documents and the transactions contemplated
11
hereby
and thereby which fees and disbursements shall be reflected in the statement of such special
counsel delivered to the Obligors in accordance with Section 4.6 of the Current Note Purchase
Agreement.
Section 5.4. Governing Law. This Amendment shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State of Ohio excluding
choice-of-law principles of the law of such State that would permit the application of the laws of
a jurisdiction other than such State.
Section 5.5. Survival. All warranties, representations, and covenants made by the Obligors
herein will be considered to have been relied upon by the Purchaser and will survive the execution
and delivery of this Amendment.
Section 5.6. Successors and Assigns. This Amendment will inure to the benefit of and be
binding upon the successors and assigns of each of the parties. The provisions of this Amendment
for the benefit of the Purchaser are intended in all cases, whether explicitly so stated or not, to
be for the benefit of all holders, from time to time, of the Notes, and will be enforceable by any
such holder, whether or not an express assignment to such holder of rights under this Amendment has
been made by the Purchaser or its successors or assigns.
Section 5.7. Counterparts. This Amendment may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which, taken together, shall constitute but
one and the same Amendment. Delivery of an executed counterpart of this Amendment by facsimile or
email shall be as effective as delivery of a manually executed counterpart of this Amendment.
Section 5.8 Severability. Whenever possible, each provision of this Amendment will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Amendment is held to be prohibited by or invalid under applicable law, such provision will
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Amendment unless the consummation of the transactions contemplated hereby is
materially adversely affected thereby.
Section 5.9. No Novation. This Amendment shall, in no way, be deemed as a novation of the
terms of the Current Note Purchase Agreement.
Section 5.10. Further Assurances. At Obligors expense, the parties hereto shall execute and
deliver such additional documents and take such further action as may be necessary or desirable to
effectuate the provisions and purposes of this Amendment.
[Remainder of Page Intentionally Blank]
12
The execution hereof by the Purchaser shall constitute a contract among the Obligors and the
Purchaser for the uses and purposes hereinabove set forth. This Amendment may be executed in any
number of counterparts, each executed counterpart constituting an original but all together only
one agreement.
Great Plains Natural Gas Company, as the
Issuer |
||||
By | /s/ Thomas J. Smith | |||
Name: | Thomas J. Smith | |||
Title: | Chief Financial Officer | |||
Lightning Pipeline Company, Inc., as a Guarantor |
||||
By | /s/ Thomas J. Smith | |||
Name: | Thomas J. Smith | |||
Title: | Chief Financial Officer | |||
Kidron Pipeline, LLC, as a Guarantor |
||||
By | /s/ Thomas J. Smith | |||
Name: | Thomas J. Smith | |||
Title: | Chief Financial Officer |
13
Spelman Pipeline Holdings, LLC, as a
Guarantor |
||||
By | /s/ Thomas J. Smith | |||
Name: | Thomas J. Smith | |||
Title: | Chief Financial Officer | |||
Gas Natural Service Company, LLC, as a
Guarantor |
||||
By | /s/ Thomas J. Smith | |||
Name: | Thomas J. Smith | |||
Title: | Chief Financial Officer | |||
Gas Natural Inc., as a Guarantor |
||||
By | /s/ Thomas J. Smith | |||
Name: | Thomas J. Smith | |||
Title: | Chief Financial Officer |
14
This Amendment is hereby accepted and agreed to as of the date aforesaid.
Sun Life Assurance Company of Canada |
||||
By | /s/ John Chamberlain | |||
Name: | John Chamberlain | |||
Title: | Senior Director, Private Fixed Income |
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By | /s/ Paul Sinclair | |||
Name: | Paul Sinclaim | |||
Title: | Managing Director, Head of PrivateDebt, Private Fixed Income |
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