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EXHIBIT 4(d)
U.S. $1,400,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of JANUARY 24, 2000
Among
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
as Borrower
THE BANKS NAMED HEREIN
as Banks
CANADIAN IMPERIAL BANK OF COMMERCE
and
COMMERZBANK AG
as Co-Syndication Agents
and
CREDIT LYONNAIS NEW YORK BRANCH
as Documentation Agent
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY
as Arranger
and
CITIBANK, N.A.
as Agent
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TABLE OF CONTENTS
PAGE
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PRELIMINARY STATEMENTS..................................................................................... 1
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS....................................................... 2
Section I.1 Certain Defined Terms........................................................... 2
Section I.2 Computation of Time Periods..................................................... 14
Section I.3 Accounting Terms................................................................ 14
Section I.4 Miscellaneous................................................................... 15
Section I.5 Ratings......................................................................... 15
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES...................................................... 16
Section II.1 The A Advances.................................................................. 16
Section II.2 Making the A Advances........................................................... 16
Section II.3 Fees............................................................................ 18
Section II.4 Reduction of the Commitments.................................................... 19
Section II.5 Repayment of A Advances......................................................... 19
Section II.6 Interest on A Advances.......................................................... 19
Section II.7 Additional Interest on Eurodollar Rate Advances................................. 20
Section II.8 Interest Rate Determination..................................................... 20
Section II.9 Evidence of Debt................................................................ 20
Section II.10 Prepayments..................................................................... 20
Section II.11 Increased Costs................................................................. 21
Section II.12 Illegality...................................................................... 22
Section II.13 Payments and Computations....................................................... 22
Section II.14 Taxes........................................................................... 24
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Section II.15 Sharing of Payments, Etc......................................................... 25
Section II.16 The B Advances................................................................... 25
Section II.17 Optional Termination............................................................. 28
Section II.18 Extension of Termination Date.................................................... 29
Section II.19 Voluntary Conversion of Advances................................................. 29
Section II.20 Automatic Provisions............................................................. 29
ARTICLE III CONDITIONS............................................................................... 30
Section III.1 Conditions Precedent to Initial Advances........................................ 30
Section III.2 Additional Conditions Precedent to Each A Borrowing............................. 31
Section III.3 Conditions Precedent to Each B Borrowing........................................ 31
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................... 32
Section IV.1 Representations and Warranties of the Borrower................................... 32
ARTICLE V COVENANTS OF THE BORROWER................................................................ 35
Section V.1 Affirmative Covenants............................................................. 35
Section V.2 Negative Covenants................................................................ 38
ARTICLE VI EVENTS OF DEFAULT........................................................................ 41
Section VI.1 Events of Default................................................................ 41
ARTICLE VII THE AGENT, CO-SYNDICATION AGENTS AND DOCUMENTATION AGENT................................. 44
Section VII.1 Authorization and Action........................................................ 44
Section VII.2 Agent's Reliance, Etc........................................................... 44
Section VII.3 Citibank, CIBC, Commerzbank, Credit Lyonnais and Affiliates..................... 45
Section VII.4 Bank Credit Decision............................................................ 45
Section VII.5 Indemnification................................................................. 45
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Section VII.6 Successor Agent................................................................. 46
Section VII.7 Co-Syndication Agents; Documentation Agent...................................... 46
ARTICLE VIII MISCELLANEOUS.......................................................................... 46
Section VIII.1 Amendments, Etc................................................................. 46
Section VIII.2 Notices, Etc.................................................................... 47
Section VIII.3 No Waiver; Remedies............................................................. 47
Section VIII.4 Costs, Expenses and Taxes....................................................... 47
Section VIII.5 Right of Set-off................................................................ 48
Section VIII.6 Binding Effect; Transfers....................................................... 49
Section VIII.7 Governing Law................................................................... 51
Section VIII.8 Interest........................................................................ 51
Section VIII.9 Execution in Counterparts....................................................... 52
Section VIII.10 Survival of Agreements, Representations and Warranties, Etc..................... 52
Section VIII.11 Borrower's Right to Apply Deposits.............................................. 52
Section VIII.12 Confidentiality................................................................. 53
Section VIII.13 WAIVER OF JURY TRIAL............................................................ 53
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Schedules and Exhibits
Schedule I - Bank Information
Schedule II - Borrower Information
Schedule III - Permitted Liens
Schedule IV - Commitments
Schedule V - Rating Categories
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-2 - Notice of B Borrowing
Exhibit C - Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
Exhibit D - Opinion of Special Counsel to Agent
Exhibit E - Existing Transfer Restrictions
Exhibit F - Form of Transfer Agreement
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement, dated as of January
24, 2000 (as may be amended, modified, supplemented, renewed, extended or
restated from time to time, this "Agreement"), is by and among THE ▇▇▇▇▇▇▇▇
COMPANIES, INC., a Delaware corporation (the "Borrower"); the various banks as
are or may become parties hereto (collectively, the "Banks"); CANADIAN IMPERIAL
BANK OF COMMERCE and COMMERZBANK AG ("Commerzbank"), as Co-Syndication Agents,
(in such capacity, together with any successors in such capacity, the
"Co-Syndication Agents"); CREDIT LYONNAIS NEW YORK BRANCH ("Credit Lyonnais"),
as Documentation Agent (in such capacity, together with any successors in such
capacity, the Documentation Agent); and CITIBANK, N.A., as Agent (in such
capacity, together with any successors in such capacity, the "Agent"). In
consideration of the mutual covenants and agreements contained herein, the
Borrower, the Agent and the Banks hereby agree as set forth herein.
PRELIMINARY STATEMENTS
1. The Borrower, the Agent, and certain of the Banks are parties to an
Amended and Restated Credit Agreement dated as of January 26, 1999 which has
been amended by letter agreements dated May 20, 1999 and September 27, 1999 (as
so amended, the "1999 Credit Agreement"). The Banks party to the 1999 Credit
Agreement (each Bank party to such agreement an "Original Bank" and
collectively, the "Original Banks") have made certain advances pursuant to such
agreement (the "Original Advances") and the Banks, the Borrower and the Agent
intend that all Original Advances comprising A Advances, which have not
heretofore been repaid, shall, on the date of this Agreement, be continued,
amended, renewed, restated and converted into A Advances of the same Type under
this Agreement (but shall not be deemed to be repaid).
2. The Borrower has requested that the 1999 Credit Agreement be
amended, and, as so amended, be restated in its entirety.
3. The Borrower, the Banks and the Agent have agreed that, as part of
the restructuring of the outstanding Original Advances (if any) and a
restructuring of the Commitments of the Original Banks under the 1999 Credit
Agreement, the Original Banks shall assign, and the Original Banks do hereby
assign, portions of their Commitments and Original Advances, as necessary, such
that each Bank party hereto shall have, as of the date of this Agreement,
Commitments as shown on Schedule IV hereto.
4. The parties hereto have agreed to restate the 1999 Credit Agreement
in its entirety and this Second Amended and Restated Credit Agreement
constitutes for all purposes an amendment to the 1999 Credit Agreement, and each
reference to an Advance or Borrowing herein shall include each Original Advance
or borrowing made heretofore under the 1999 Credit Agreement as well as each
Advance or Borrowing made hereafter under this Agreement.
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section I.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"1999 Credit Agreement" is defined in the first recital.
"A Advance" means an advance by a Bank to the Borrower as part of
an A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate
Advance, each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A
Advances of the same Type to the Borrower made by each of the Banks
pursuant to Section 2.1.
"A Note" means a promissory note of the Borrower payable to the
order of any Bank, in substantially the form of Exhibit A-1 hereto,
(as such note may be amended, endorsed or otherwise modified from time
to time) evidencing the aggregate indebtedness of the Borrower to such
Bank resulting from the A Advances to the Borrower owed to such Bank
together with any other note accepted from time to time in
substitution or replacement therefor.
"Advance" means an A Advance or a B Advance.
Agent" means Citibank, N.A. in its capacity as agent pursuant to
Article VII hereof and any successor Agent pursuant to Section 7.6.
"Agreement" has the meaning specified in the Preamble.
"Applicable Commitment Fee Rate" means the rate per annum set
forth on Schedule V under the heading "Applicable Commitment Fee Rate"
for the relevant Rating Category applicable to the Borrower from time
to time. The Applicable Commitment Fee Rate shall change when and as
the relevant Rating Category applicable to the Borrower changes.
"Applicable Lending Office" means, with respect to each Bank,
such Bank's Domestic Lending Office in the case of a Base Rate Advance
and such Bank's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance and, in the case of a B Advance, the office of such Bank
notified by such Bank to the Agent as its Applicable Lending Office
with respect to such B Advance.
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"Applicable Margin" means the rate per annum set forth in
Schedule V under the heading "Applicable Margin" for the relevant
Rating Category applicable to the Borrower from time to time. The
Applicable Margin for any Eurodollar Rate Advance shall change
when and as the relevant applicable Rating Category changes.
"Arranger" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
"Attributable Obligation" of any Person means, with respect
to any Sale and Lease-Back Transaction of such Person as of any
particular time, the present value at such time discounted at the
rate of interest implicit in the terms of the lease of the
obligations of the lessee under such lease for net rental
payments during the remaining term of the lease (including any
period for which such lease has been extended or may, at the
option of such Person, be extended).
"B Advance" means an advance by a Bank to the Borrower as
part of a B Borrowing resulting from the auction bidding
procedure described in Section 2.16.
"B Borrowing" means a borrowing consisting of simultaneous B
Advances to the Borrower from each of the Banks whose offer to
make one or more B Advances as part of such borrowing has been
accepted by the Borrower under the auction bidding procedure
described in Section 2.16.
"B Note" means a promissory note of the Borrower payable to
the order of any Bank, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Bank
resulting from a B Advance made to the Borrower by such Bank.
"B Reduction" has the meaning specified in Section 2.1.
"Banks" means the lenders listed on the signature pages
hereof and each other Person that becomes a Bank pursuant to the
last sentence of Section 8.6(a).
"Base Rate" means a fluctuating interest rate per annum as
shall be in effect from time to time which rate per annum shall
at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base
rate; or
(b) 1/2 of one percent per annum above the latest three-week
moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of
major United States money market banks, such three-week
moving average being determined weekly on each Monday (or,
if any such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on
the previous Friday by Citibank on the basis of such rates
reported by
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certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such
rates received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by Citibank, in
either case adjusted to the nearest 1/4 of one percent or, if
there is no nearest 1/4 of one percent. to the next higher 1/4 of
one percent; or
(c) 1/2 of one percent per annum above the Federal Funds Rate in
effect from time to time.
"Base Rate Advance" means an A Advance which bears interest as
provided in Section 2.6(a).
"Borrower" means The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware
corporation.
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances or
relates to any B Advance as to which the related Notice of B Borrowing
is delivered pursuant to clause (B) of Section 2.16(a)(i), on which
dealings are carried on in the London interbank market.
"Cash Holdings" of any Person means the total investment of such
Person at the time of determination in:
(a) demand deposits and time deposits maturing within one
year with a Bank (or other commercial banking institution of the
stature referred to in clause (d)(i));
(b) any note or other evidence of indebtedness, maturing not
more than one year after such time, issued or guaranteed by the
United States Government or by a government of another country
which carries a long-term rating of Aaa by ▇▇▇▇▇'▇ or AAA by S&P;
(c) commercial paper, maturing not more than nine months
from the date of issue, which is issued by
(i) a corporation (other than the affiliate of the
Borrower) and rated (x) A-1 by S&P, P-1 by ▇▇▇▇▇'▇, F-1 by
Fitch or A by Duff and ▇▇▇▇▇▇ or (y) lower than set forth in
clause (x) above, provided that the value of all such
commercial paper shall not exceed 10% of the total value of
all commercial paper comprising "Cash Holdings," or
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(ii) any Bank (or its holding company) with a rating on
its unsecured long term debt of at least AA by S&P or Aa by
▇▇▇▇▇'▇;
(d) any certificate of deposit or bankers acceptance,
maturing not more than three years after such time, which is
issued by either
(i) a commercial banking institution that is a member
of the Federal Reserve System and has a combined capital and
surplus and undivided profits of not less than
$1,000,000,000 or
(ii) any Bank with a rating on its unsecured long term
debt of at least AA by S&P or Aa by ▇▇▇▇▇'▇;
(e) notes or other evidences of indebtedness maturing not
more than three years after such time, issued by
(i) a corporation (other than an affiliate of a
Borrower) rated AA by S&P or Aa by ▇▇▇▇▇'▇; or
(ii) any Bank (or its holding company) with a rating on
its unsecured long term debt of at least AA by S&P or Aa by
▇▇▇▇▇'▇; or
(f) any repurchase agreement entered into with any Bank (or
other commercial banking institution of the stature referred to
in clause (d)(i)) which
(i) is secured by a fully perfected security interest
in any obligation of the type described in any of clauses
(a) through (d); and
(ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the
repurchase obligation of such Bank (or other commercial
banking institution) thereunder;
(g) money market preferred instruments by participation in a
Dutch auction (or the equivalent) where the investment is rated
no lower than Aa by ▇▇▇▇▇'▇ or AA by S&P.
"ChoiceSeat" means ChoiceSeat, L.L.C., a Delaware limited
liability company.
"CIBC" means Canadian Imperial Bank of Commerce.
"Citibank" means Citibank, N.A.
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"Code" means, as appropriate, the Internal Revenue Code of
1986, as amended, or any successor federal tax code, and any
reference to any statutory provision shall be deemed to be a
reference to any successor provision or provisions.
"Commerzbank" is defined in the preface.
"Commitment" of any Bank means at any time the amount set
opposite or deemed (pursuant to clause (vii) of the last sentence
of Section 8.6(a) and as reflected in the relevant Transfer
Agreement referred to in such sentence) to be set opposite such
Bank's name on Schedule IV as such amount may be terminated,
reduced or increased after the date hereof, pursuant to Section
2.4, Section 2.17, Section 6.1 or Section 8.6(a).
"Consolidated" refers to the consolidation of the accounts
of any Person and its subsidiaries in accordance with generally
accepted accounting principles.
"Consolidated Net Worth" of any Person means the Net Worth
of such Person and its Subsidiaries on a Consolidated basis plus,
in the case of the Borrower, the Designated Minority Interests to
the extent not otherwise included; provided that, in no event
shall the value ascribed to Designated Minority Interests exceed
$511,700,000 in the aggregate.
"Consolidated Tangible Net Worth" of any Person means the
Tangible Net Worth of such Person and its Subsidiaries on a
Consolidated basis.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other
Type pursuant to Section 2.2, Section 2.19 or Section 2.20.
"Co-Syndication Agent" means either of CIBC or Commerzbank
AG, together with the successor and assigns of each in such
capacity.
"Credit Lyonnais" is defined in the preface.
"Debt" means, in the case of any Person, (i) indebtedness of
such Person for borrowed money, (ii) obligations of such Person
evidenced by bonds, debentures or notes, (iii) obligations of
such Person to pay the deferred purchase price of property or
services, (iv) monetary obligations of such Person as lessee
under leases that are, in accordance with generally accepted
accounting principles, recorded as capital leases, (v)
obligations of such Person under guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (iv) or clause (vii) of this
definition, (vi) indebtedness or obligations of others of the
kinds referred to in clauses (i) through (v) or clause (vii) of
this definition secured by any Lien on or in respect of any
property of such Person, and (vii) all liabilities of such Person
in respect of unfunded vested benefits under any Plan; provided,
however, that Debt shall not include any obligation under
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or resulting from any agreement referred to in paragraph (y) of
Schedule III or under or resulting from any sale and Lease-Back
referred to in paragraph (aa) of Schedule III.
"Designated Minority Interests" of the Borrower means, as of
any date of determination, the total of the minority interests in
the following Subsidiaries: (i) El Furrial, (ii) PIGAP II, (iii)
Nebraska Energy, (iv) Seminole, (v) WCG, (vi) WCS, (vii)
ChoiceSeat, (viii) PowerTel, and (ix) other Consolidated
Subsidiaries, as presented in the Consolidated balance sheet of
the Borrower, in an amount not to exceed in the aggregate
$9,000,000 for such other Consolidated Subsidiaries not referred
to in items (i) through (viii); provided that minority interests
which provide for a stated preferred cumulative return shall not
be included in "Designated Minority Interests."
"Documentation Agent" means Credit Lyonnais, together with
its successors and assigns in such capacity.
"Domestic Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or pursuant to
Section 8.6(a), or such other office of such Bank as such Bank
may from time to time specify to the Borrower and the Agent.
"El Furrial" means WilPro Energy Services (El Furrial)
Limited, a Cayman Islands corporation.
"Environment" shall have the meaning set forth in 42 U.S.C.
9601(8) as defined on the date of this Agreement and
"Environmental" shall mean pertaining or relating to the
Environment.
"Environmental Protection Statute" shall mean any United
States local, state or federal, or any foreign, law, statute,
regulation, order, consent decree or other agreement or
Governmental Requirement arising from or in connection with or
relating to the protection or regulation of the Environment,
including, without limitation, those laws, statutes, regulations,
orders, decrees, agreements and other Governmental Requirements
relating to the disposal, cleanup, production, storing, refining,
handling, transferring, processing or transporting of Hazardous
Waste, Hazardous Substances or any pollutant or contaminant,
wherever located.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder from time to time.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) which is a member of a group of which the
Borrower is a member and which is under common control within the
meaning of the regulations under Section 414 of the Code.
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"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or pursuant to
Section 8.6(a) (or, if no such office is specified, its Domestic
Lending Office) or such other office of such Bank as such Bank
may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing,
an interest rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such rate is not such a
multiple) equal to the rate per annum at which deposits in U.S.
dollars are offered by the principal office of Citibank in
London, England, to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day
of such Interest Period in an amount substantially equal to the
amount of the Eurodollar Rate Advance of Citibank comprising part
of such A Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period.
"Eurodollar Rate Advance" means an A Advance that bears
interest as provided in Section 2.6(b).
"Eurodollar Rate Reserve Percentage" of any Bank for any
Interest Period for any Eurodollar Rate Advance means the reserve
percentage applicable during such Interest Period (or if more
than one such percentage shall be so applicable, the daily
average of such percentages for those days in such Interest
Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period.
"Events of Default" has the meaning specified in Section
6.1.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the
Agent from three federal funds brokers of recognized standing
selected by it.
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"Governmental Requirements" means all judgments, orders,
writs, injunctions, decrees, awards, laws, ordinances, statutes,
regulations, rules, franchises, permits, certificates, licenses,
authorizations and the like and any other requirements of any
government or any commission, board, court, agency,
instrumentality or political subdivision thereof.
"Hazardous Substance" shall have the meaning set forth in 42
U.S.C. 9601(14) and shall also include each other substance
considered to be a hazardous substance under any Environmental
Protection Statute.
"Hazardous Waste" shall have the meaning set forth in 42
U.S.C. 6903(5) and shall also include each other substance
considered to be a hazardous waste under any Environmental
Protection Statute (including, without limitation 40 C.F.R.
261.3).
"Insufficiency" means, with respect to any Plan, the amount,
if any, by which the present value of the vested benefits under
such Plan exceeds the fair market value of the assets of such
Plan allocable to such benefits.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same A Borrowing, the period commencing on
the date of such A Advance or the date of the Conversion of any
Base Rate Advance into a Eurodollar Rate Advance and ending on
the last day of the period selected by the Borrower pursuant to
the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each
Interest Period shall be one, two, three or six months, in each
case as the Borrower may, upon notice received by the Agent not
later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select (it
being agreed that selection of a subsequent Interest Period for
an outstanding Eurodollar Rate Advance does not require that a
Notice of A Borrowing be given, inasmuch as no Advance is being
requested or made as a result of such selection); provided,
however, that:
(i) Interest Periods commencing on the same date for A
Advances comprising part of the same A Borrowing shall be of
the same duration;
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last
day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided that if such
extension would cause the last day of such Interest Period
to occur in the next following calendar month, the last day
of such Interest Period shall occur on the next preceding
Business Day;
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(iii) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month in
which it would have ended if there were a numerically corresponding
day in such calendar month; and
(iv) the Borrower may not select any Interest Period that ends after
the Termination Date, and the Borrower may not select any Interest
Period if any Event of Default exists.
"Lien" means any mortgage, lien, pledge, charge, deed of trust,
security interest, encumbrance or other type of preferential arrangement to
secure or provide for the payment of any obligation of any Person, whether
arising by contract, operation of law or otherwise (including, without
limitation, the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement).
"Majority Banks" means at any time Banks holding at least 66-2/3% of
the then aggregate unpaid principal amount of the A Notes held by Banks,
or, if no such principal amount is then outstanding, Banks having at least
66-2/3% of the Commitments or, if no such principal amount is then
outstanding and all Commitments have terminated, Banks holding at least
66-2/3% of the then aggregate unpaid principal amount of the B Notes held
by Banks (provided that for purposes of this definition and Sections 2.17,
6.1 and 7.1 neither the Borrower nor any Subsidiary or Related Party of the
Borrower, if a Bank, shall be included in (i) the Banks holding the A Notes
or B Notes or (ii) determining the aggregate unpaid principal amount of the
A Notes or the B Notes or the amount of the Commitments).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means an employee benefit plan, other than a
Multiemployer Plan, subject to Title IV of ERISA to which the Borrower or
any ERISA Affiliate, and one or more employers other than the Borrower or
an ERISA Affiliate, is making or accruing an obligation to make
contributions or, in the event that any such plan has been terminated, to
which the Borrower or any ERISA Affiliate made or accrued an obligation to
make contributions during any of the five plan years preceding the date of
termination of such plan.
"Multiyear ▇▇▇▇▇▇▇▇ Credit Agreement" is defined in Section 5.2(i).
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"Nebraska Energy" means Nebraska Energy, L.L.C., a Kansas limited
liability company.
"Net Debt" means for any Person, as of any date of determination, the
excess of (x) the aggregate amount of all Debt of such Person and its
Subsidiaries on a Consolidated basis over (y) the sum of the Cash Holdings
of such Person and its Subsidiaries on a Consolidated basis.
"Net Worth" of any Person means, as of any date of determination the
excess of total assets of such Person over total liabilities of such
Person, total assets and total liabilities each to be determined in
accordance with generally accepted accounting principles.
"Non-Recourse Debt" means Debt incurred by any non-material Subsidiary
to finance the acquisition (other than any acquisition from the Borrower or
any Subsidiary) or construction of a project, which Debt does not permit or
provide for recourse against the Borrower or any Subsidiary of the Borrower
(other than the Subsidiary that is to acquire or construct such project) or
any property or asset of the Borrower of any Subsidiary of the Borrower
(other than the property or assets of the Subsidiary that is to acquire or
construct such project).
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section 2.2(a).
"Notice of B Borrowing" has the meaning specified in Section 2.16(a).
"NWP" means Northwest Pipeline Corporation, a Delaware corporation.
"Original Advance" is defined in the first recital.
"Original Bank" is defined in the first recital.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Liens" means Liens specifically described on Schedule III.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PIGAP II" means WilPro Energy Services (PIGAP II) Limited, a Cayman
Islands corporation.
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"Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) as defined in Section 3(2) of ERISA currently
maintained by, or to which contributions have been made at any time
after December 31, 1984, by, the Borrower or any ERISA Affiliate for
employees of the Borrower or any ERISA Affiliate and covered by Title
IV of ERISA or subject to the minimum funding standards under Section
412 of the Code.
"PowerTel" means PowerTel Limited, an Australian corporation.
"Public Filings" means the Borrower's annual report on Form 10-K for
the year ended December 31, 1998.
"Rating Category" means, as to the Borrower, the relevant
category applicable to the Borrower from time to time as set forth on
Schedule V, which is based on the ratings (or lack thereof) of the
Borrower's senior unsecured long-term debt by S&P or Moody's. In the
event there is a split between the ratings of the Borrower's senior
unsecured long-term debt by S&P and ▇▇▇▇▇, "Rating Category" shall
mean, as to the Borrower, the relevant category applicable to the
Borrower from time to time as set forth on Schedule V, which is based
on the higher of the ratings of the Borrower's senior unsecured
long-term debt by S&P and ▇▇▇▇▇.
"Related Party" of any Person means any corporation, partnership,
joint venture or other entity of which more than 10% of the
outstanding capital stock or other equity interests having ordinary
voting power to elect a majority of the board of directors of such
corporation, partnership, joint venture or other entity or others
performing similar functions (irrespective of whether or not at the
time capital stock or other equity interests of any other class or
classes of such corporation, partnership, joint venture or other
entity shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such
Person or which owns at the time directly or indirectly more than 10%
of the outstanding capital stock or other equity interests having
ordinary voting power to elect a majority of the board of directors of
such Person or others performing similar functions (irrespective of
whether or not at the time capital stock or other equity interests of
any other class or classes of such corporation, partnership, joint
venture or other entity shall or might have voting power upon the
occurrence of any contingency); provided, however, that neither the
Borrower nor any Subsidiary of the Borrower shall be considered to be
a Related Party of the Borrower or any Subsidiary of the Borrower.
"S&P" means Standard & Poor's Ratings Services, a division of the
McGraw Hill Companies on the date hereof.
"Sale and Lease-Back Transaction" of any Person means any
arrangement entered into by such Person or any Subsidiary of such
Person, directly or indirectly, whereby such Person or any Subsidiary
of such Person shall sell or transfer any property, whether now owned
or hereafter acquired, and whereby such Person or any Subsidiary of
such Person shall
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then or thereafter rent or lease as lessee such property or any part
thereof or other property which such Person or any Subsidiary of such
Person intends to use for substantially the same purpose or purposes
as the property sold or transferred.
"Seminole" means Seminole Pipeline Company, a Delaware
corporation.
"Stated Termination Date" means January 22, 2001, or such later
date, if any as may be agreed to by the Borrower and the Banks
pursuant to Section 2.18.
"Subordinated Debt" means any Debt of the Borrower which is
effectively subordinated to the obligations of the Borrower hereunder
and under the Notes.
"Subsidiary" of any Person means any corporation, partnership,
joint venture or other entity of which more than 50% of the
outstanding capital stock or other equity interests having ordinary
voting power to elect a majority of the board of directors of such
corporation, partnership, joint venture or other entity or others
performing similar functions (irrespective of whether or not at the
time capital stock or other equity interests of any other class or
classes of such corporation, partnership, joint venture or other
entity shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such
Person.
"Tangible Net Worth" of any Person means, as of any date of
determination, the excess of total assets of such Person over total
liabilities of such Person, total assets and total liabilities each to
be determined in accordance with generally accepted accounting
principles, excluding, however, from the determination of total assets
(i) patents, patent applications, trademarks, copyrights and trade
names, (ii) goodwill, organizational, experimental, research and
development expense and other like intangibles, (iii) treasury stock,
(iv) monies set apart and held in a sinking or other analogous fund
established for the purchase, redemption or other retirement of
capital stock or Subordinated Debt, and (v) unamortized debt discount
and expense.
"Termination Date" means the earlier of (i) the Stated
Termination Date or (ii) the date of termination in whole of the
Commitments pursuant to Section 2.4, 2.17 or 6.1.
"Termination Event" means (i) a "reportable event", as such term
is described in Section 4043 of ERISA (other than a "reportable event"
not subject to the provision for 30-day notice to the PBGC or an event
described in Section 4062(f) of ERISA, or (ii) the withdrawal of the
Borrower or any ERISA Affiliate from a Multiple Employer Plan during a
plan year in which it was a "substantial employer," as such term is
defined in Section 4001(a)(2) of ERISA, or the incurrence of liability
by the Borrower or any ERISA Affiliate under Section 4064 of ERISA
upon the termination of a Plan or Multiple Employer Plan, or (iii) the
distribution of a notice of intent to terminate a Plan pursuant to
Section 4041(a)(2) of ERISA or the treatment of a Plan amendment as a
termination under Section 4041 of
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ERISA, or (iv) the institution of proceedings to terminate a Plan by
the PBGC under Section 4042 of ERISA, or (v) any other event or
condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer,
any Plan.
"TGPL" means Transcontinental Gas Pipe Line Corporation, a
Delaware corporation.
"TGT" means Texas Gas Transmission Corporation, a Delaware
corporation.
"Transfer Agreement" has the meaning specified in Section 8.6.
"Type" has the meaning set forth in the definition herein of A
Advance.
"Unrated" means that no senior unsecured long-term debt of the
Borrower is rated by S&P and no senior unsecured long-term debt of the
Borrower is rated by Moody's.
"WCG" means ▇▇▇▇▇▇▇▇ Communications Group, Inc., a Delaware
corporation.
"WCS" means ▇▇▇▇▇▇▇▇ Communications Solutions, LLC, a Delaware
limited liability company.
"▇▇▇" means ▇▇▇▇▇▇▇▇ Energy Services, a Delaware corporation.
"WFS" means ▇▇▇▇▇▇▇▇ Field Services Group, Inc., a Delaware
corporation.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary of
such Person all of the capital stock and other equity interests of
which is owned by such Person or any Wholly-Owned Subsidiary of such
Person.
"Withdrawal Liability" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
"WPC" means ▇▇▇▇▇▇▇▇ Pipelines Central, Inc., a Delaware
corporation, formerly ▇▇▇▇▇▇▇▇ Natural Gas Company.
"WPL" means ▇▇▇▇▇▇▇▇ Pipe Line Company, a Delaware corporation.
Section I.2 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding."
Section I.3 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles, and each reference herein to "generally accepted
accounting principles" shall mean generally accepted accounting principles
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consistent with those applied in the preparation of the financial statements
referred to in Section 4.1(e).
Section I.4 Miscellaneous. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Article, Section, Schedule and Exhibit references are to Articles and Sections
of and Schedules and Exhibits to this Agreement, unless otherwise specified.
Section I.5 Ratings. A rating, whether public or private, by S&P or
Moody's shall be deemed to be in effect on the date of announcement or
publication by S&P or Moody's, as the case may be, of such rating or, in the
absence of such announcement or publication, on the effective date of such
rating and will remain in effect until the announcement or publication of, or in
the absence of such announcement or publication, the effective date of, any
change in, or withdrawal or termination of, such rating. In the event the
standards for any rating by Moody's or S&P are revised, or any such rating is
designated differently (such as by changing letter designations to different
letter designations or to numerical designations), the references herein to such
rating shall be deemed to refer to the revised or redesignated rating for which
the standards are closest to, but not lower than, the standards at the date
hereof for the rating which has been revised or redesignated, all as determined
by the Majority Banks in good faith. Long-term debt supported by a letter of
credit, guaranty, insurance or other similar credit enhancement mechanism shall
not be considered as senior unsecured long-term debt. If either Moody's or S&P
has at any time more than one rating applicable to senior unsecured long-term
debt of the Borrower, the lowest such rating shall be applicable for purposes
hereof. For example, if Moody's rates some senior unsecured long-term debt of
the Borrower Ba1 and other such debt of the Borrower Ba2, the senior unsecured
long-term debt of the Borrower shall be deemed to be rated Ba2 by Moody's.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section II.1 The A Advances. Each Bank severally agrees, on the terms
and conditions hereinafter set forth, to make A Advances to the Borrower from
time to time on any Business Day during the period from the date hereof until
the Termination Date in an aggregate amount outstanding not to exceed at any
time such Bank's Commitment; provided that the aggregate amount of the
Commitments of the Banks shall, except for purposes of Section 2.3(a), be deemed
used from time to time to the extent of the aggregate amount of the B Advances
then outstanding to the Borrower and such deemed use of the aggregate amount of
such Commitments shall be applied to the Banks ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "B Reduction"). Each A Borrowing shall be in an aggregate
amount not less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, and shall consist of A Advances of the same Type made to the Borrower
on the same day by the Banks ratably according to their respective Commitments.
Within the limits of each Bank's Commitment, the Borrower may borrow, prepay
pursuant to Section 2.10 and reborrow under this Section 2.1.
Section II.2 Making the A Advances. (a) Each A Borrowing shall be made
on notice, given not later than (1) in the case of a proposed Borrowing
comprised of Eurodollar Rate Advances, 11:00 A.M. (New York City time) at least
three Business Days prior to the date of the proposed Borrowing, and (2) in the
case of a proposed Borrowing comprised of Base Rate Advances, 10:00 A.M. (New
York City time) on the date of the proposed Borrowing, by the Borrower to the
Agent, which shall give to each Bank prompt notice thereof by telecopy, telex or
cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be
by telecopy, telex or cable, confirmed immediately in writing, in substantially
the form of Exhibit B-1 hereto, executed by the Borrower and specifying therein
the requested (i) date of such A Borrowing (which shall be a Business Day), (ii)
initial Type of A Advances comprising such A Borrowing, (iii) aggregate amount
of such A Borrowing, and (iv) in the case of an A Borrowing comprised of
Eurodollar Rate Advances, initial Interest Period for each such A Advance. Each
Bank shall, before 11:00 A.M. (New York City time) on the date of such A
Borrowing, make available for the account of its Applicable Lending Office to
the Agent at its New York address referred to in Section 8.2, in same day funds,
such Bank's ratable portion of such A Borrowing. After the Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Agent will make such funds available to the Borrower at the
Agent's aforesaid address.
(b) Anything herein to the contrary notwithstanding:
(i) at no time shall there be outstanding to the Borrower more
than six A Borrowings comprised of Eurodollar Rate Advances;
(ii) the Borrower may not select Eurodollar Rate Advances for any
Borrowing if the aggregate amount of such Borrowing is less than
$20,000,000;
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(iii) if the Majority Banks shall notify the Agent that either
(A) the Eurodollar Rate for any Interest Period for any Eurodollar
Rate Advances will not adequately reflect the cost to such Banks of
making or funding their respective Eurodollar Rate Advances for such
Interest Period, or (B) that U.S. dollar deposits for the relevant
amounts and Interest Period for their respective Advances are not
available to them in the London interbank market, or it is otherwise
impossible to have Eurodollar Rate Advances, the Agent shall forthwith
so notify the Borrower and the Banks, whereupon (I) each Eurodollar
Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance, and (II)
the obligations of the Banks to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Agent, at the
request of the Majority Banks, shall notify the Borrower and the Banks
that the circumstances causing such suspension no longer exist, and,
except as provided in Section 2.2(b)(v), each Advance comprising any
requested A Borrowing shall be a Base Rate Advance;
(iv) if the Agent is unable to determine the Eurodollar Rate for
Eurodollar Rate Advances, the obligation of the Banks to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Banks that the
circumstances causing such suspension no longer exist, and, except as
provided in Section 2.2(b)(v), each Advance comprising any requested A
Borrowing shall be a Base Rate Advance; and
(v) if the Borrower has requested a proposed A Borrowing
consisting of Eurodollar Rate Advances and as a result of
circumstances referred to in Section 2.2(b)(iii) or (iv) such A
Borrowing would not consist of Eurodollar Rate Advances, the Borrower
may, by notice given not later than 3:00 P.M. (New York City time) at
least one Business Day prior to the date such proposed A Borrowing
would otherwise be made, cancel such A Borrowing, in which case such A
Borrowing shall be canceled and no Advances shall be made as a result
of such requested A Borrowing, but the Borrower shall indemnify the
Banks in connection with such cancellation as contemplated by Section
2.2(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the
Borrower, except as set forth in Section 2.2(b)(v). In the case of any A
Borrowing which the related Notice of A Borrowing specifies is to be comprised
of Eurodollar Rate Advances, the Borrower shall indemnify each Bank against any
loss, cost or expense incurred by such Bank as a result of any failure to
fulfill on or before the date specified in such Notice of A Borrowing for such A
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of reasonably anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund the A Advance to be made by such Bank
as part of such A Borrowing when such A Advance, as a result of such failure, is
not made on such date. A certificate in reasonable detail as to the basis for
and the amount of such loss, cost or expense submitted to the Borrower and the
Agent by such Bank shall be prima facie evidence of the amount of such loss,
cost or expense. If an A Borrowing which the related Notice of A
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Borrowing specifies is to be comprised of Eurodollar Rate Advances is not made
as an A Borrowing comprised of Eurodollar Rate Advances as a result of Section
2.2(b), the Borrower shall indemnify each Bank against any loss (excluding loss
of profits), cost or expense incurred by such Bank by reason of the liquidation
or reemployment of deposits or other funds acquired by such Bank prior to the
time such Bank is actually aware that such A Borrowing will not be so made to
fund the A Advance to be made by such Bank as part of such A Borrowing. A
certificate in reasonable detail as to the basis for and the amount of such
loss, cost or expense submitted to the Borrower and the Agent by such Bank shall
be prima facie evidence of the amount of such loss, cost or expense.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any A Borrowing that such Bank will not make available to the Agent
such Bank's ratable portion of such A Borrowing, the Agent may assume that such
Bank has made such portion available to the Agent on the date of such A
Borrowing in accordance with subsection (a) of this Section 2.2 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Bank shall not have
so made such ratable portion available to the Agent, such Bank and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to A Advances comprising such A Borrowing and (ii) in the case of such
Bank, the Federal Funds Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Bank's A
Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Bank to make the A Advance to be made by it as
part of any A Borrowing shall not relieve any other Bank of its obligation, if
any, hereunder to make its A Advance on the date of such A Borrowing, but no
Bank shall be responsible for the failure of any other Bank to make the A
Advance to be made by such other Bank on the date of any A Borrowing.
Section II.3 Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Agent for the
account of each Bank a commitment fee on the average daily unused (for the
purposes of this Section 2.3(a), B Advances shall not, for purposes of this
Section 2.3(a), be considered to be usage of any Commitment) portion of such
Bank's Commitment to the Borrower from the date hereof until the Termination
Date at a rate per annum from time to time equal to the Applicable Commitment
Fee Rate from time to time, payable in arrears on the last day of each March,
June, September and December during the term such Bank has any Commitment and on
the Termination Date; and Borrower agrees that it shall also pay to the Agent on
the effective date hereof for the account of the Original Banks all commitment
fees which are accrued and unpaid as of the date hereof pursuant to Section
2.3(a) of the 1999 Credit Agreement.
(b) Agent's Fees. The Borrower agrees to pay to the Agent, for its sole
account, such fees as may be separately agreed to in writing by the Borrower and
the Agent.
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(c) Participation and Amendment Fees. The Borrower agrees to pay on the
date of this Agreement to the Agent for the account of each Bank the
participation and amendment fee due such Bank pursuant to that certain updated
information memorandum delivered to the Banks in December, 1999.
Section II.4 Reduction of the Commitments. The Borrower shall have the
right, upon at least five Business Days notice to the Agent, to terminate in
whole or reduce ratably in part the unused portions of the respective
Commitments of the Banks; provided that each partial reduction shall be in the
aggregate amount of at least $20,000,000; and provided further, that the
aggregate amount of the Commitments of the Banks shall not be reduced to an
amount which is less than the aggregate principal amount of the Advances then
outstanding to the Borrower.
Section II.5 Repayment of A Advances. The Borrower shall repay, on the
Stated Termination Date or such earlier date as the Notes may be declared due
pursuant to Article VI, the unpaid principal amount of each A Advance made by
each Bank to the Borrower.
Section II.6 Interest on A Advances. The Borrower shall pay interest on
the unpaid principal amount of each A Advance made by each Bank to the Borrower
from the date of such A Advance until such principal amount shall be paid in
full, at the following rates per annum:
(a) Base Rate Advances. At such times as such A Advance is a Base Rate
Advance, a rate per annum equal at all times to the Base Rate in effect from
time to time, payable quarterly in arrears on the last day of each March, June,
September and December and on the date such Advance shall be Converted or paid
in full; provided that any amount of principal of any Base Rate Advance,
interest, fees and other amounts payable hereunder (other than principal of any
Eurodollar Rate Advance) which is not paid when due (whether at stated maturity,
by acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to the sum of the Base Rate in effect from time to
time plus 2% per annum. Notwithstanding the above, the Borrower shall pay on the
effective date hereof all accrued, unpaid interest on any Base Rate Advance made
pursuant to the 1999 Credit Agreement and outstanding as of the date hereof, if
any.
(b) Eurodollar Rate Advances. At such times as such A Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such A Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Margin in effect from time to time for such
A Advance, payable on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day which occurs during
such Interest Period every three months from the first day of such Interest
Period; provided that any amount of principal of any Eurodollar Rate Advance
which is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest, from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate per annum equal at all
times to the greater of (x) the sum of the Base Rate in effect from time to time
plus 2% per annum and (y) the sum of the rate per annum required to be paid on
such A Advance immediately prior to the date on which
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such amount became due plus 2% per annum. Notwithstanding the above, the
Borrower shall pay on the effective date hereof any unpaid accrued interest on
any Eurodollar Rate Advance made pursuant to the 1999 Credit Agreement and
outstanding as of the date hereof, if any.
Section II.7 Additional Interest on Eurodollar Rate Advances. The
Borrower shall pay to each Bank, so long as such Bank shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid principal amount of
each Eurodollar Rate Advance of such Bank, from the date of such Advance until
such principal amount is paid in full, at an interest rate per annum equal at
all times to the remainder obtained by subtracting (i) the Eurodollar Rate for
the Interest Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage of such Bank for such Interest Period, payable on each date
on which interest is payable on such Advance. Such additional interest shall be
determined by such Bank and notified to the Borrower through the Agent. A
certificate as to the amount of such additional interest submitted to the
Borrower and the Agent by such Bank shall be conclusive and binding for all
purposes, absent manifest error. No Bank shall have the right to recover any
additional interest pursuant to this Section 2.7 for any period more than 90
days prior to the date such Bank notifies the Borrower that additional interest
may be charged pursuant to this Section 2.7.
Section II.8 Interest Rate Determination. The Agent shall give prompt
notice to the Borrower and the Banks of the applicable interest rate for each
Eurodollar Rate Advance determined by the Agent for purposes of Section 2.6(b).
Section II.9 Evidence of Debt. The indebtedness of the Borrower
resulting from the A Advances owed to each Bank by the Borrower shall be
evidenced by an A Note of the Borrower payable to the order of such Bank.
Section II.10 Prepayments.
(a) The Borrower shall not have any right to prepay any principal
amount of any A Advance, except as provided in this Section 2.10.
(b) The Borrower shall (i) in respect of Base Rate Advances, upon
notice to the Agent before 10:00 A.M. (New York City time) on the date of
prepayment and (ii) in respect of Eurodollar Rate Advances, upon at least three
Business Days' notice to the Agent, in each case stating the proposed date
(which shall be a Business Day) and aggregate principal amount of the
prepayment, prepay the outstanding principal amounts of the A Advances
comprising part of the same A Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount
prepaid and amounts, if any, required to be paid pursuant to Section 8.4(b) as a
result of such prepayment; provided, however, that each partial prepayment
pursuant to this Section 2.10(b) shall be in an aggregate principal amount not
less than $5,000,000 and in an aggregate principal amount such that after giving
effect thereto (1) no A Borrowing comprised of
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Base Rate Advances shall have a principal amount outstanding of less than
$5,000,000 and (2) no A Borrowing comprised of Eurodollar Rate Advances shall
have a principal amount outstanding of less than $20,000,000.
(c) The Borrower will give notice to the Agent, at or before the time
of each prepayment by the Borrower of Advances, pursuant to this Section 2.10
specifying the Advances which are to be prepaid and the amount of such
prepayment to be applied to such Advances. Each payment of any Advance pursuant
to this Section 2.10 or any other provision of this Agreement shall be made in a
manner such that all Advances comprising part of the same Borrowing are paid in
whole or ratably in part.
Section II.11 Increased Costs.
(a) If, due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements included in
the Eurodollar Rate Reserve Percentage) in or in the interpretation, application
or applicability of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Bank of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances to the Borrower, then the Borrower shall from time to
time, upon demand by such Bank (with a copy of such demand to the Agent), pay to
the Agent for the account of such Bank additional amounts sufficient to
compensate such Bank for such increased cost. A certificate as to the amount of
such increased cost, submitted to the Borrower and the Agent by such Bank, shall
be prima facie evidence of the amount of such increased cost. No Bank shall have
the right to recover any such increased costs for any period more than 90 days
prior to the date such Bank notifies the Borrower of any such introduction,
change, compliance or proposed compliance.
(b) If any Bank determines that compliance with any law or regulation
or any guideline or request from any central bank or other governmental
authority (whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank and that the amount of such capital is
increased by or based upon the existence of such Bank's commitment to lend to
the Borrower hereunder and other commitments of this type, then, upon demand by
such Bank (with a copy of such demand to the Agent), the Borrower shall
immediately pay to the Agent for the account of such Bank, from time to time as
specified by such Bank, additional amounts sufficient to compensate such Bank or
such corporation in the light of such circumstances, to the extent that such
Bank reasonably determines such increase in capital to be allocable to the
existence of such Bank's commitment to lend hereunder. A certificate as to the
amount of such additional amounts, submitted to the Borrower and the Agent by
such Bank, shall be prima facie evidence of the amount of such additional
amounts. No Bank shall have any right to recover any additional amounts under
this Section 2.11(b) for any period more than 90 days prior to the date such
Bank notifies the Borrower of any such compliance.
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(c) In the event that any Bank makes a demand for payment under Section
2.7 or this Section 2.11, the Borrower may within ninety (90) days of such
demand, if no Event of Default or event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default then exists, replace
such Bank with another commercial bank in accordance with all of the provisions
of the last sentence of Section 8.6(a) (including execution of an appropriate
Transfer Agreement); provided that (i) all obligations of such Bank to lend
hereunder shall be terminated and the Notes payable to such Bank and all other
obligations owed to such Bank hereunder shall be purchased in full without
recourse at par plus accrued interest at or prior to such replacement, (ii) such
replacement bank shall be reasonably satisfactory to the Agent and the Majority
Banks, (iii) such replacement bank shall, from and after such replacement, be
deemed for all purposes to be a "Bank" hereunder with a Commitment in the amount
of the Commitment of such Bank immediately prior to such replacement (plus, if
such replacement bank is already a Bank prior to such replacement the respective
Commitment of such Bank to the Borrower prior to such replacement), as such
amount may be changed from time to time pursuant hereto, and shall have all of
the rights, duties and obligations hereunder of the Bank being replaced, and
(iv) such other actions shall be taken by the Borrower, such Bank and such
replacement bank as may be appropriate to effect the replacement of such Bank
with such replacement bank on terms such that such replacement bank has all of
the rights, duties and obligations hereunder as such Bank (including, without
limitation, execution and delivery of new Notes to such replacement bank,
redelivery to the Borrower in due course of the Notes of the Borrower payable to
such Bank and specification of the information contemplated by Schedule I as to
such replacement bank).
Section II.12 Illegality. Notwithstanding any other provision of this
Agreement, if any Bank shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation shall make it
unlawful, or that any central bank or other governmental authority shall assert
that it is unlawful, for any Bank or its Eurodollar Lending Office to perform
its obligations hereunder to make, or Convert a Base Rate Advance into, a
Eurodollar Rate Advance or to continue to fund or maintain any Eurodollar Rate
Advance, then, on notice thereof to the Borrower by the Agent, (i) the
obligation of each of the Banks to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Agent, at the request of the Majority
Banks, shall notify the Borrower and the Banks that the circumstances causing
such suspension no longer exist, and (ii) the Borrower shall forthwith prepay in
full all Eurodollar Rate Advances of all Banks then outstanding together with
all accrued interest thereon and all amounts payable pursuant to Section 8.4(b),
unless each Bank shall determine in good faith in its sole opinion that it is
lawful to maintain the Eurodollar Rate Advances made by such Bank to the end of
the respective Interest Periods then applicable thereto or unless the Borrower,
within five Business Days of notice from the Agent, Convert all Eurodollar Rate
Advances of all Banks then outstanding into Base Rate Advances in accordance
with Section 2.19.
Section II.13 Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the Notes
to be made by it not later than 11:00 A.M. (New York City time) on the day when
due in U.S. dollars to the
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Agent at its New York address referred to in Section 8.2 in same day funds,
without deduction, counterclaim or offset of any kind. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal, interest or commitment fees ratably (other than amounts payable
pursuant to Section 2.7, 2.11, 2.14, 2.16 or 8.4(b)) to the Banks for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Bank to such Bank for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. In no event shall any Bank be
entitled to share any fee paid to the Agent pursuant to Section 2.3(b), any
auction fee paid to the Agent pursuant to Section 2.16(a)(i) or any other fee
paid to the Agent, as such.
(b) The Borrower hereby authorizes each Bank, if and to the extent
payment owed to such Bank by the Borrower is not made when due hereunder or
under any Note held by such Bank, to charge from time to time against any or all
of the Borrower's accounts with such Bank any amount so due.
(c) (i) All computations of interest based on clause (a) or clause (b)
of the definition herein of Base Rate and of commitment fees shall be made by
the Agent on the basis of a year of 365 or 366 days, as the case may be, and
(ii) all computations of interest based on the Eurodollar Rate, the Federal
Funds Rate or clause (c) of the definition herein of Base Rate shall be made by
the Agent, and all computations of interest pursuant to Section 2.7 shall be
made by a Bank, on the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last day) occurring in
the period for which such interest or commitment fees are payable. Each
determination by the Agent (or, in the case of Section 2.7, by a Bank) of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due by the Borrower to any Bank hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank
hereunder. If and to the extent the Borrower shall not have so made such payment
in full to the Agent, each Bank shall repay to the Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Agent, at the Federal Funds Rate.
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Section II.14 Taxes.
(a) Any and all payments by the Borrower hereunder or under the Notes
shall be made, in accordance with Section 2.13, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings with respect thereto, and all liabilities with respect
thereto, excluding in the case of each Bank and the Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Bank or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Bank or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Bank or the
Agent, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made by the Borrower hereunder or under the
Notes executed by it or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or such Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrower will indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.14) owed and paid by such Bank or the Agent, as the case may be, and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Bank or the Agent, as the case may be, makes written demand therefore.
(d) Within 30 days after the date of the payment of Taxes by or at the
direction of the Borrower, the Borrower will furnish to the Agent, at its
address referred to in Section 8.2, the original or a certified copy of a
receipt evidencing payment thereof. Should any Bank or the Agent ever receive
any refund, credit or deduction from any taxing authority to which such Bank or
the Agent would not be entitled but for the payment by the Borrower of Taxes as
required by this Section 2.14 (it being understood that the decision as to
whether or not to claim, and if claimed, as to the amount of any such refund,
credit or deduction shall be made by such Bank or the Agent, as the case may be,
in its sole discretion), such Bank or the Agent, as the case may be, thereupon
shall repay to the Borrower an amount with respect to such refund, credit or
deduction equal to any net reduction in taxes actually obtained by such Bank or
the Agent, as the case may be, and determined by such Bank or the Agent, as the
case may be, to be attributable to such refund, credit or deduction.
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(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.14 shall survive the payment in full of principal and interest
hereunder and under the Notes.
Section II.15 Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary or involuntary, or through the exercise of any right
of set-off or otherwise) on account of the A Advances made by it (other than
pursuant to Section 2.7, 2.11, 2.14 or 8.4(b)) in excess of its ratable share of
payments on account of the A Advances obtained by all the Banks, such Bank shall
forthwith purchase from the other Banks such participations in the A Advances
owed to them as shall be necessary to cause such purchasing Bank to share the
excess payment ratably with each of them, provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Bank, such purchase from each Bank shall be rescinded and such Bank shall repay
to the purchasing Bank the purchase price to the extent of such Bank's ratable
share (according to the proportion of (i) the amount of the participation
purchased from such Bank as a result of such excess payment to (ii) the total
amount of such excess payment) of such recovery together with an amount equal to
such Bank's ratable share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 2.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation.
Section II.16 The B Advances.
(a) Each Bank severally agrees that the Borrower may make B Borrowings
under this Section 2.16 from time to time on any Business Day during the period
from the date hereof until the earlier of (1) the Termination Date or (2) the
date occurring thirty (30) days prior to the Stated Termination Date in the
manner set forth below; provided that, following the making of each B Borrowing,
the aggregate amount of the Advances then outstanding to the Borrower shall not
exceed the aggregate amount of the Commitments of the Banks (computed without
regard to any B Reduction).
(i) The Borrower may request a B Borrowing under this Section
2.16 by delivering to the Agent, by telecopier, telex or cable,
confirmed immediately in writing, a notice of a B Borrowing (a "Notice
of B Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying the date and aggregate amount of the proposed B Borrowing,
the maturity date for repayment of each B Advance to be made as part
of such B Borrowing (which maturity date may not be earlier than the
date occurring 14 days after the date of such B Borrowing or later
than the earlier of (x) 6 months after the date of such B Borrowing or
(y) the Stated Termination Date), the interest payment date or dates
relating thereto, and any other terms to be applicable to such B
Borrowing (including, without limitation, the basis to be used by the
Banks in determining the rate or rates of interest to be offered by
them as
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provided in paragraph (ii) below and prepayment terms, if any, but
excluding any waiver or other modification to any of the conditions
set forth in Article III), not later than 10:00 A.M. (New York City
time) (A) at least one (1) Business Day prior to the date of the
proposed B Borrowing, if the Borrower shall specify in the Notice of B
Borrowing that the rates of interest to be offered by the Banks shall
be fixed rates per annum and (B) at least five (5) Business Days prior
to the date of the proposed B Borrowing, if the Borrower shall instead
specify in the Notice of B Borrowing the basis to be used by the Banks
in determining the rates of interest to be offered by them. The Agent
shall in turn promptly notify each Bank of each request for a B
Borrowing received by it from the Borrower by sending such Bank a copy
of the related Notice of B Borrowing. Each time that the Borrower
gives a Notice of B Borrowing, the Borrower shall pay to the Agent an
auction fee equal to $2000.
(ii) Each Bank may, if in its sole discretion it elects to do so,
irrevocably offer to make one or more B Advances to the Borrower as
part of such proposed B Borrowing at a rate or rates of interest
specified by such Bank in its sole discretion, by notifying the Agent
(which shall give prompt notice thereof to the Borrower), before 10:00
A.M. (New York City time) (x) on the date of such proposed B
Borrowing, in the case of a Notice of B Borrowing delivered pursuant
to clause (A) of paragraph (i) above, and (y) three Business Days
before the date of such proposed B Borrowing in the case of a Notice
of B Borrowing delivered pursuant to clause (B) of paragraph (i)
above, of the minimum amount and maximum amount of each B Advance
which such Bank would be willing to make as part of such proposed B
Borrowing (which amounts may, subject to the proviso to the first
sentence of this Section 2.16(a), exceed such Bank's Commitment to the
Borrower), the rate or rates of interest therefor and such Bank's
Applicable Lending Office with respect to such B Advance; provided
that if the Agent in its capacity as a Bank shall, in its sole
discretion, elect to make any such offer, it shall notify the Borrower
of such offer before 9:45 A.M. (New York City time) on the date on
which notice of such election is to be given to the Agent by the other
Banks. If any Bank shall elect not to make such an offer, such Bank
shall so notify the Agent, before 10:00 A.M. (New York City time) on
the date on which notice of such election is to be given to the Agent
by the other Banks, and such Bank shall not be obligated to, and shall
not, make any B Advance as part of such B Borrowing; provided that the
failure by any Bank to give such notice shall not cause such Bank to
be obligated to make any B Advance as part of such proposed B
Borrowing.
(iii) The Borrower shall, in turn, before 11:00 A.M. (New York
City time) (x) on the date of such proposed B Borrowing in the case of
a Notice of B Borrowing delivered pursuant to clause (A) of paragraph
(i) above and (y) three Business Days before the date of such proposed
B Borrowing in the case of a Notice of B Borrowing delivered pursuant
to clause (B) of paragraph (i) above, either
(A) cancel such B Borrowing by giving the Agent notice to that
effect, or
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(B) accept one or more of the offers made by any Bank or Banks
pursuant to paragraph (ii) above, in order of the lowest to highest
rates of interest or margins (or, if two or more Banks bid at the same
rates of interest, and the amount of accepted offers is less than the
aggregate amount of such offers, the amount to be borrowed from such
Banks as part of such B Borrowing shall be allocated among such Banks
pro rata on the basis of the maximum amount offered by such Banks at
such rates or margin in connection with such B Borrowing), in any
aggregate amount up to the aggregate amount initially requested by the
Borrower in the relevant Notice of B Borrowing, by giving notice to
the Agent of the amount of each B Advance (which amount shall be equal
to or greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Agent on behalf of
such Bank for such B Advance pursuant to paragraph ii above) to be
made by each Bank as part of such B Borrowing, and reject any
remaining offers made by Banks pursuant to paragraph (ii) above by
giving the Agent notice to that effect.
(iv) If the Borrower notifies the Agent that such B Borrowing is
canceled pursuant to paragraph (iii)(A) above, the Agent shall give
prompt notice thereof to the Banks and such B Borrowing shall not be
made.
(v) If the Borrower accepts one or more of the offers made by any
Bank or Banks pursuant to paragraph (iii)(B) above, the Agent shall in
turn promptly notify (A) each Bank that has made an offer as described
in paragraph (ii) above, of the date and aggregate amount of such B
Borrowing and whether or not any offer or offers made by such Bank
pursuant to paragraph (ii) above have been accepted by the Borrower,
(B) each Bank that is to make a B Advance as part of such B Borrowing,
of the amount of each B Advance to be made by such Bank as part of
such B Borrowing, and (C) each Bank that is to make a B Advance as
part of such B Borrowing, upon receipt, that the Agent has received
forms of documents appearing to fulfill the applicable conditions set
forth in Article III. Each Bank that is to make a B Advance as part of
such B Borrowing shall, before 12:00 noon (New York City time) on the
date of such B Borrowing specified in the notice received from the
Agent pursuant to clause (A) of the preceding sentence or any later
time when such Bank shall have received notice from the Agent pursuant
to clause (C) of the preceding sentence, make available for the
account of its Applicable Lending Office to the Agent at its New York
address referred to in Section 8.2 such Bank's portion of such B
Borrowing, in same day funds. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Agent of
such funds, the Agent will make such funds available to the Borrower
at the Agents aforesaid address. Promptly after each B Borrowing the
Agent will notify each Bank of the amount of the B Borrowing, the
consequent B Reduction and the dates upon which such B Reduction
commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount of not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof. The Borrower
agrees that it will not request a B Borrowing unless, upon the making of such B
Borrowing, the limitations set forth in the proviso to the first sentence of
Section 2.16(a) are complied with.
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(c) Within the limits and on the conditions set forth in this Section
2.16, the Borrower may from time to time borrow under this Section 2.16, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.16; provided that a B Borrowing shall not be made by the Borrower within three
Business Days of the date of another B Borrowing.
(d) The Borrower shall repay to the Agent for the account of each Bank
which has made a B Advance to the Borrower, or each other holder of a B Note of
the Borrower, on the maturity date of each B Advance made to the Borrower (such
maturity date being that specified by the Borrower for repayment of such B
Advance in the related Notice of B Borrowing delivered pursuant to subsection
(a)(i) above and provided in the B Note evidencing such B Advance) the then
unpaid principal amount of such B Advance. The Borrower shall not have any right
to prepay any principal amount of any B Advance unless, and then only on the
terms specified by the Borrower for such B Advance in the related Notice of B
Borrowing delivered pursuant to subsection (a)(i) above and set forth in the B
Note evidencing such B Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of
each B Advance made to the Borrower from the date of such B Advance to the date
the principal amount of such B Advance is repaid in full, at the rate of
interest for such B Advance specified by the Bank making such B Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by the Borrower for such
B Advance in the related Notice of B Borrowing delivered pursuant to subsection
(a)(i) above, as provided in the B Note evidencing such B Advance.
(f) The indebtedness of the Borrower resulting from each B Advance made
to the Borrower as part of a B Borrowing shall be evidenced by a separate B Note
of the Borrower payable to the order of the Bank making such B Advance.
(g) The failure of any Bank to make the B Advance to be made by it as
part of any B Borrowing shall not relieve any other Bank of its obligation, if
any, hereunder to make its B Advance on the date of such B Borrowing, but no
Bank shall be responsible for the failure of any other Bank to make the B
Advance to be made by such other Bank on the date of any B Borrowing.
Section II.17 Optional Termination. Notwithstanding anything to the
contrary in this Agreement, if (i) any Person (other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Borrower or
of any Subsidiary of the Borrower) or two or more Persons acting in concert
(other than any group of employees of the Borrower or of any of its
Subsidiaries) shall have acquired beneficial ownership (within the meaning of
Rule l3d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of securities of the Borrower (or
other securities convertible into such securities) representing 20% or more of
the combined voting power of all securities of the Borrower entitled to vote in
the election of directors, other than securities having such power only by
reason of the happening of a contingency, or (ii) during any period of up to 24
consecutive months, commencing before or after
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the date of this Agreement, individuals who at the beginning of such 24-month
period were directors of the Borrower or who were elected by individuals who at
the beginning of such period were such directors or by individuals elected in
accordance with this clause (ii) shall cease for any reason to constitute a
majority of the board of directors of the Borrower, or (iii) any Person (other
than the Borrower or a Wholly-Owned Subsidiary of the Borrower) or two or more
Persons acting in concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement which upon consummation will result
in its or their acquisition of, the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower; then the
Agent shall at the request, or may with the consent, of the holders of at least
66-2/3% in principal amount of the A Notes then outstanding or, if no A Notes
are then outstanding, Banks having at least 66-2/3% of the Commitments, by
notice to the Borrower, declare all of the Commitments and the obligation of
each Bank to make Advances to be terminated, whereupon all of the Commitments
and each such obligation shall forthwith terminate, and the Borrower shall not
have any further right to borrow hereunder.
Section II.18 Extension of Termination Date. By notice given to the
Agent and the Banks, at least thirty days but not more than forty-five days
before January 1 of any year after 2000, the Borrower may request the Banks to
extend the Stated Termination Date for an additional period to a date which is
364 days after the then current Stated Termination Date. Within thirty days
after receipt of such request, each Bank that agrees, in its sole and absolute
discretion, to so extend the Stated Termination Date shall notify the Borrower
and the Agent that it so agrees, and if all Banks so agree the Stated
Termination Date shall be so extended.
Section II.19 Voluntary Conversion of Advances. The Borrower may on any
Business Day, if no Event of Default then exists, upon notice (which shall be
irrevocable) given to the Agent not later than 11:00 A.M. (x) in the case of a
proposed Conversion into Eurodollar Rate Advances, on the third Business Day
prior to the date of the proposed conversion, and (y) in the case of a proposed
Conversion into Base Rate Advances, on the date of the proposed Conversion, and
subject to the provisions of Sections 2.2 and 2.12, Convert all Advances of one
Type comprising the same A Borrowing into Advances of the other Type; provided
that (i) no Conversion of any Eurodollar Rate Advances shall occur on a day
other than the last day of an Interest Period for such Eurodollar Rate Advances,
except as contemplated by Section 2.12, and (ii) Advances may not be Converted
into Eurodollar Rate Advances if the aggregate unpaid principal amount of the
Advances is less than $20,000,000. Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the A Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the Interest Period for each such
Advance.
Section II.20 Automatic Provisions.
(a If the Borrower shall fail to select the duration of any Interest
Period for Eurodollar Rate Advances in accordance with the provisions contained
in the definition of "Interest Period" in Section 1.1, the Agent will forthwith
so notify the Borrower and the Banks, and such Advances will automatically, on
the last day of the then existing Interest Period therefor, Convert into Base
Rate Advances.
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(b On the date on which the aggregate unpaid principal amount of the
Eurodollar Rate Advances of the Borrower shall be reduced to less than
$20,000,000, all of such Eurodollar Rate Advances shall automatically Convert
into Base Rate Advances.
ARTICLE III
CONDITIONS
Section III.1 Conditions Precedent to Initial Advances. The obligation
of each Bank to make its initial Advance on or after the date hereof is subject
to the condition precedent that the Agent shall have received on or before the
date hereof, each dated on or before such date, in form and substance
satisfactory to the Agent and (except for the Notes) in sufficient copies for
each Bank:
(a The A Notes executed by the Borrower to the order of each of the
respective Banks and this Agreement executed by the Borrower.
(b Certified copies of the resolutions of the Board of Directors, or
the Executive Committee thereof, of the Borrower authorizing the execution of
this Agreement and the Notes.
(c A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying (i) that attached thereto are true and correct copies of the
Certificate of Incorporation and Bylaws of the Borrower and (ii) the names and
true signatures of the officers of the Borrower authorized to sign this
Agreement, Notices of A Borrowing, Notices of B Borrowing and the Notes to be
executed by the Borrower and any other documents to be delivered hereunder by
the Borrower.
(d An opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, General Counsel of the Borrower,
substantially in the form of Exhibit C hereto and as to such other matters as
any Bank through the Agent may reasonably request.
(e An opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the Agent,
substantially in the form of Exhibit D hereto.
(f A certificate of an officer of the Borrower stating the respective
ratings by each of S&P and ▇▇▇▇▇'▇ of the senior unsecured long-term debt of the
Borrower as in effect on the date of this Agreement.
(g Payment for the account of the Banks of those participation fees and
amendment fees as set forth in Section 2.3(c) hereof and for the account of the
Original Banks payment of accrued, unpaid interest through the date of this
Agreement on Advances, if any, made pursuant to the 1999 Credit Agreement and
outstanding as of the date hereof, to the extent payable pursuant to Section
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2.6 and all accrued and unpaid commitment fees due and payable to the Original
Banks on or prior to such date pursuant to Section 2.3(a).
Section III.2 Additional Conditions Precedent to Each A Borrowing. The
obligation of each Bank to make an A Advance on the occasion of any A Borrowing
(including the initial A Borrowing) shall be subject to the further conditions
precedent that on the date of such A Borrowing (a the following statements shall
be true (and each of the giving of the applicable Notice of A Borrowing and the
acceptance by the Borrower of the proceeds of such A Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such A
Borrowing such statements are true):
(i The representations and warranties contained in Section 4.1
pertaining to the Borrower and its Subsidiaries are correct on and as
of the date of such A Borrowing, before and after giving effect to
such A Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date,
(ii No event has occurred and is, continuing, or would result
from such A Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both, and
(iii After giving effect to such A Borrowing and all other
Borrowings which have been requested on or prior to such date but
which have not been made prior to such date, the aggregate principal
amount of all Advances will not exceed the aggregate of the
Commitments (computed without regard to any B Reduction);
and (b) the Agent shall have received such other approvals, opinions or
documents as any Bank through the Agent may reasonably request.
Section III.3 Conditions Precedent to Each B Borrowing. The obligation
of each Bank which is to make a B Advance to the Borrower on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance as part of
such B Borrowing is subject to the further conditions precedent that (i) at or
before the time required by paragraph (iii) of Section 2.16(a), the Agent shall
have received the written confirmatory notice of such B Borrowing contemplated
by such paragraph, (ii) on or before the date of such B Borrowing, but prior to
such B Borrowing, the Agent shall have received a B Note executed by the
Borrower payable to the order of such Bank for each of the one or more B
Advances to be made by such Bank as part of such B Borrowing, in a principal
amount equal to the principal amount of the B Advance to be evidenced thereby
and otherwise on such terms as were agreed to for such B Advance in accordance
with Section 2.16, and (iii) on the date of such B Borrowing (a) the following
statements shall be true (and each of the giving of the applicable Notice of B
Borrowing and the acceptance by the Borrower of the proceeds of such B Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such B Borrowing such statements are true):
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(10 The representations and warranties contained in Section 4.1
are correct on and as of the date of such B Borrowing, before and
after giving effect to such B Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
(20 No event has occurred and is continuing, or would result from
such B Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default or which would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both,
(30 Following the making of such B Borrowing and all other
Borrowings to be made on the same day to the Borrower under this
Agreement, the aggregate principal amount of all Advances to the
Borrower then outstanding will not exceed the aggregate amount of the
Commitments (computed without regard to any B Reduction), and
(40 After giving effect to such B Borrowing and all other
Borrowings which have been requested on or prior to such date but
which have not been made prior to such date, the aggregate principal
amount of all Advances will not exceed the aggregate of the
Commitments of the Banks (computed without regard to any B Reduction);
and (b) the Agent shall have received such other approvals, opinions or
documents as any Bank through the Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section IV.1 Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all corporate
powers and all governmental licenses, authorizations, certificates, consents and
approvals required to carry on its business as now conducted in all material
respects, except for those licenses, authorizations, certificates, consents and
approvals the failure to have which could not reasonably be expected to have a
material adverse effect on the business, assets, condition or operation of the
Borrower and its Subsidiaries taken as a whole. Each Subsidiary of the Borrower
is duly organized or validly formed, validly existing and (if applicable) in
good standing under the laws of its jurisdiction of incorporation or formation,
except where the failure to be so organized, existing and in good standing could
not reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of the Borrower and its Subsidiaries taken as a
whole. Each Subsidiary of the Borrower has all corporate powers and all
governmental licenses, authorizations, certificates, consents and approvals
required
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to carry on its business as now conducted in all material respects, except for
those licenses, authorizations, certificates, consents and approvals the failure
to have which could not reasonably be expected to have a material adverse effect
on the business, assets, condition or operation of the Borrower and its
Subsidiaries taken as a whole.
(b The execution, delivery and performance by the Borrower of this
Agreement and the Notes and the consummation of the transactions contemplated by
this Agreement are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, do not contravene (i) the
Borrower's charter or by-laws or (ii) law or any contractual restriction binding
on or affecting the Borrower and will not result in or require the creation or
imposition of any Lien prohibited by this Agreement. At the time of each
borrowing of any Advance by the Borrower, such borrowing and the use of the
proceeds of such Advance will be within the Borrower's corporate ▇▇▇▇▇▇, ▇▇▇▇
have been duly authorized by all necessary corporate action, will not contravene
(i) the Borrower's charter or by-laws or (ii) law or any contractual restriction
binding on or affecting the Borrower and will not result in or require the
creation or imposition of any Lien prohibited by this Agreement.
(c No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of this Agreement or the
Notes or the consummation of the transactions contemplated by this Agreement. At
the time of each borrowing of any Advance by the Borrower, no authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body will be required for such borrowing or the use of
the proceeds of such Advance.
(d This Agreement has been duly executed and delivered by the Borrower.
This Agreement is the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as such
enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally
and by general principles of equity. The A Notes are, and when executed the B
Notes will be, the legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms,
except as such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors'
rights generally and by general principles of equity.
(e The Consolidated balance sheet of the Borrower and its Subsidiaries
as at December 31, 1998, and the related Consolidated statement of income and
cash flows of the Borrower and its Subsidiaries for the fiscal year then ended,
copies of which have been furnished to each Bank, and the Consolidated balance
sheet of the Borrower and its Subsidiaries as at September 30, 1999, and the
related Consolidated statement of income and cash flows of the Borrower and its
Subsidiaries for the three months then ended, duly certified by an authorized
financial officer of the Borrower, copies of which have been furnished to each
Bank, fairly present, subject, in the case of such balance sheet as at September
30, 1999, and such statement of income
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and cash flows for the three months then ended, to year-end audit adjustments,
the Consolidated financial condition of the Borrower and its Subsidiaries as at
such dates and the Consolidated results of operations of the Borrower and its
Subsidiaries for the year and three month period, respectively, ended on such
dates, all in accordance with generally accepted accounting principles
consistently applied. Since September 30, 1999, there has been no material
adverse change in the condition or operations of the Borrower or its
Subsidiaries.
(f Except as set forth in the Public Filings or as otherwise disclosed
in writing by the Borrower to the Banks and the Agent after the date hereof and
approved by the Majority Banks, there is no pending or, to the knowledge of the
Borrower, threatened action or proceeding affecting the Borrower or any material
Subsidiary of the Borrower before any court, governmental agency or arbitrator,
which could reasonably be expected to materially and adversely affect the
financial condition or operations of the Borrower and its Subsidiaries taken as
a whole or which purports to affect the legality, validity, binding effect or
enforceability of this Agreement or any Note.
(g No proceeds of any Advance has been or will be used for any purpose
or in any manner not permitted by Section 5.2(k).
(h The Borrower is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Advance will be used to purchase or carry any such margin
stock (other than purchases of common stock expressly permitted by Section
5.2(k)) or to extend credit to others for the purpose of purchasing or carrying
any such margin stock. Following the application of the proceeds of each
Advance, not more than 25% of the value of the assets of the Borrower will be
represented by such margin stock and not more than 25% of the value of the
assets of the Borrower and its Subsidiaries will be represented by such margin
stock.
(i The Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(j No Termination Event has occurred or is reasonably expected to occur
with respect to any Plan for which an Insufficiency exists. Neither the Borrower
nor any ERISA Affiliate has received any notification that any Multiemployer
Plan is in reorganization or has been terminated, within the meaning of Title IV
of ERISA, and the Borrower is not aware of any reason to expect that any
Multiemployer Plan is to be in reorganization or to be terminated within the
meaning of Title IV of ERISA.
(k The Borrower and the Subsidiaries of the Borrower have filed all
United States Federal income tax returns and all other material domestic tax
returns which are required to be filed by them and have paid, or provided for
the payment before the same become delinquent of, all taxes due pursuant to such
returns or pursuant to any assessment received by the Borrower or any such
Subsidiary, other than those taxes contested in good faith by appropriate
proceedings. The charges,
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accruals and reserves on the books of the Borrower and the material Subsidiaries
of the Borrower in respect of taxes are adequate.
(l The Borrower is not a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," or a "public utility" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(m Except as set forth in the Public Filings or as otherwise disclosed
in writing by the Borrower to the Banks and the Agent after the date hereof and
approved by the Majority Banks, the Borrower and its material Subsidiaries are
in compliance in all material respects with all Environmental Protection
Statutes to the extent material to their respective operations or financial
condition. Except as set forth in the Public Filings or as otherwise disclosed
in writing by the Borrower to the Banks and the Agent after the date hereof and
approved by the Majority Banks, the aggregate contingent and non-contingent
liabilities of the Borrower and its Subsidiaries (other than those reserved for
in accordance with generally accepted accounting principles and set forth in the
financial statements regarding the Borrower referred to in Section 4.1(e) and
delivered to each Bank) which are reasonably expected to arise in connection
with (i) the requirements of Environmental Protection Statutes or (ii) any
obligation or liability to any Person in connection with any Environmental
matters (including, without limitation, any release or threatened release (as
such terms are defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980) of any Hazardous Waste, Hazardous Substance, other
waste, petroleum or petroleum products into the Environment) does not exceed 10%
of the Consolidated Tangible Net Worth of the Borrower (excluding liabilities to
the extent covered by insurance if the insurer has confirmed that such insurance
covers such liabilities or which the Borrower reasonably expects to recover from
ratepayers).
ARTICLE V
COVENANTS OF THE BORROWER
Section V.1 Affirmative Covenants. So long as any Note shall remain
unpaid or any Bank shall have any Commitment hereunder, the Borrower will,
unless the Majority Banks shall otherwise consent in writing:
(a Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders (except where failure to comply could not
reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of the Borrower and its Subsidiaries taken as a
whole), such compliance to include, without limitation, the payment and
discharge before the same become delinquent of all taxes, assessments and
governmental charges or levies imposed upon it or any of its Subsidiaries or
upon any of its property or any property of any of its Subsidiaries, and all
lawful claims which, if
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unpaid, might become a Lien upon any property of it or any of its Subsidiaries;
provided that neither the Borrower nor any Subsidiary of the Borrower shall be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings and with respect to which
reserves in conformity with generally accepted accounting principles, if
required by such principles, have been provided on the books of the Borrower or
such Subsidiary, as the case may be.
(b Reporting Requirements. Furnish to each of the Banks:
(i as soon as possible and in any event within five days after
the occurrence of each Event of Default or each event which, with the
giving of notice or lapse of time or both, would constitute an Event
of Default, continuing on the date of such statement, a statement of
an authorized financial officer of the Borrower setting forth the
details of such Event of Default or event and the actions, if any,
which the Borrower has taken and proposes to take with respect
thereto;
(ii as soon as available and in any event not later than 60 days
after the end of each of the first three quarters of each fiscal year
of the Borrower, the Consolidated balance sheets of the Borrower and
its Subsidiaries as of the end of such quarter and the Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous year
and ending with the end of such quarter, all in reasonable detail and
duly certified (subject to year-end audit adjustments) by an
authorized financial officer of the Borrower as having been prepared
in accordance with generally accepted accounting principles, together
with a certificate of said officer (a) stating that he has no
knowledge that an Event of Default, or an event which, with notice or
lapse of time or both, would constitute an Event of Default has
occurred and is continuing or, if an Event of Default or such an event
has occurred and is continuing, a statement as to the nature thereof
and the action, if any, which the Borrower proposes to take with
respect thereto, and (b) showing in detail the calculation supporting
such statement in respect of Section 5.2(b);
(iii as soon as available and in any event not later than 105
days after the end of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the Borrower and its
Subsidiaries, including therein Consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for such fiscal year, in each case prepared in
accordance with generally accepted accounting principles and certified
by Ernst & Young, LLP or other independent certified public
accountants of recognized standing acceptable to the Majority Banks,
together with a certificate of such accounting firm to the Banks (a)
stating that, in the course of the regular audit of the business of
the Borrower and its Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that an
Event of Default or an event which, with notice or lapse of time or
both, would constitute an Event of Default, has occurred and is
continuing, or if, in the opinion of such accounting
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firm, an Event of Default or such an event has occurred and is
continuing, a statement as to the nature thereof, and (b) showing in
detail the calculations supporting such statement in respect of
Section 5.2(b);
(iv such other information respecting the business or properties,
or the condition or operations, financial or otherwise, of the
Borrower or any of its material Subsidiaries as any Bank through the
Agent may from time to time reasonably request;
(v promptly after the sending or filing thereof, copies of all
proxy material, reports and other information which the Borrower sends
to any of its security holders, and copies of all final reports and
final registration statements which the Borrower or any material
Subsidiary of the Borrower files with the Securities and Exchange
Commission or any national securities exchange;
(vi as soon as possible and in any event (A) within 30 Business
Days after the Borrower or any ERISA Affiliate knows or has reason to
know that any Termination Event described in clause (i) of the
definition of Termination Event with respect to any Plan has occurred
and (B) within 30 Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that any other Termination Event
with respect to any Plan has occurred or is reasonably expected to
occur, a statement of the chief financial officer or chief accounting
officer of the Borrower describing such Termination Event and the
action, if any, which the Borrower or such ERISA Affiliate proposes to
take with respect thereto;
(vii promptly and in any event within 25 Business Days after
receipt thereof by the Borrower or any ERISA Affiliate, copies of each
notice received by the Borrower or any ERISA Affiliate from the PBGC
stating its intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
(viii within 30 days following request therefor by any Bank,
copies of each Schedule B (Actuarial Information) to each annual
report (Form 5500 Series) of the Borrower or any ERISA Affiliate with
respect to each Plan;
(ix promptly and in any event within 25 Business Days after
receipt thereof by the Borrower or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, a copy of each notice received by the
Borrower or any ERISA Affiliate concerning (A) the imposition of a
Withdrawal Liability by a Multiemployer Plan, (B) the determination
that a Multiemployer Plan is, or is expected to be, in reorganization
within the meaning of Title IV of ERISA, (C) the termination of a
Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the
amount of liability incurred, or expected to be incurred, by the
Borrower or any ERISA Affiliate in connection with any event described
in clause (A), (B) or (C) above;
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(x not more than 60 days (or 105 days in the case of the last
fiscal quarter of a fiscal year of the Borrower) after the end of each
fiscal quarter of the Borrower, a certificate of an authorized
financial officer of the Borrower stating the respective ratings, if
any, by each of S&P and ▇▇▇▇▇'▇ of the senior unsecured long-term debt
of the Borrower as of the last day of such quarter; and
(xi promptly after any withdrawal or termination of any letter of
credit, guaranty, insurance or other credit enhancement referred to in
the second to last sentence of Section 1.5 or any change in the
indicated rating set forth therein or any change in, or issuance,
withdrawal or termination of, the rating of any senior unsecured
long-term debt of the Borrower by S&P or ▇▇▇▇▇'▇, notice thereof.
(c Maintenance of Insurance. Maintain, and cause each of its material
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or its Subsidiaries operate,
provided that the Borrower or any of its Subsidiaries may self-insure to the
extent and in the manner normal for companies of like size, type and financial
condition.
(d Preservation of Corporate Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights, franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified, and cause each Subsidiary to
qualify and remain qualified, as a foreign corporation in each jurisdiction in
which qualification is necessary or desirable in view of its business and
operations or the ownership of its properties, except (1) in the case of any
Subsidiary of the Borrower, where the failure of such Subsidiary to so preserve,
maintain, qualify and remain qualified could not reasonably be expected to have
a material adverse effect on the business, assets, condition or operations of
the Borrower and its Subsidiaries taken as a whole and (2) in the case of the
Borrower, where the failure of the Borrower to preserve and maintain such
rights, franchises and privileges and to so qualify and remain qualified could
not reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of the Borrower and its Subsidiaries taken as a
whole.
Section V.2 Negative Covenants. So long as any Note shall remain unpaid
or any Bank shall have any Commitment hereunder, the Borrower will not, without
the written consent of the Majority Banks:
(a Liens, Etc. Create, assume, incur or suffer to exist, or permit any
of its Subsidiaries to create, assume, incur or suffer to exist, any Lien on or
in respect of any of its property, whether now owned or hereafter acquired, or
assign or otherwise convey, or permit any such Subsidiary to assign or otherwise
convey, any right to receive income, in each case to secure or provide for the
payment of any Debt of any Person, except, that the Borrower may create, incur,
assume or suffer to exist Permitted Liens.
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(b Debt. Permit the ratio of (A) the aggregate amount of all Net Debt
of the Borrower to (B) the sum of the Consolidated Net Worth of the Borrower
plus the Net Debt of the Borrower to exceed (1) 0.7 to 1.0 at any time during
the period beginning on the date hereof through December 31, 2000, (2) 0.675 to
1.0 at any time during the period beginning January 1, 2001 through December 31,
2001 or (3) 0.65 to 1.0 at any time on or after January 1, 2002 through the term
of this Agreement.
(c Merger and Sale of Assets. Merge or consolidate with or into any
other Person, or sell, lease or otherwise transfer all or substantially all of
its assets, or permit any of its material Subsidiaries to merge or consolidate
with or into any other Person, or sell, lease or otherwise transfer all or
substantially all of its assets, except that this Section 5.2(c) shall not
prohibit:
(i the Borrower and its Subsidiaries from selling, leasing or
otherwise transferring their respective assets in the ordinary course
of business;
(ii any merger, consolidation or sale, lease or other transfer of
assets involving only the Borrower and its Subsidiaries; provided,
however, that transactions under this paragraph (ii) shall be
permitted if, and only if, (x) there shall not exist or result an
Event of Default or an event which with notice or lapse of time or
both would constitute an Event of Default and (y) in the case of each
transaction referred to in this paragraph (ii) involving the Borrower
or any of its Subsidiaries, such transaction could not reasonably be
expected to impair materially the ability of the Borrower to perform
its obligations hereunder and under the Notes and the Borrower shall
continue to exist;
(iii the Borrower and its Subsidiaries from selling, leasing or
otherwise transferring their respective gathering assets and other
production area facilities, or the stock of any Person substantially
all of the assets of which are gathering assets and other production
area facilities, to the Borrower or any Subsidiary of the Borrower for
consideration that is not materially less than the net book value of
such assets and facilities; provided, however, that transactions under
this paragraph (iii) shall be permitted if, and only if, there shall
not exist or such transaction shall not result in an Event of Default
or an event which with notice or lapse of time or both would
constitute an Event of Default; or
(iv sales of receivables of any kind.
(d Agreements to Restrict Dividends and Certain Transfers. Enter into
or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to
exist, any consensual encumbrance or restriction on the ability of any
Subsidiary of the Borrower (i) to pay, directly or indirectly, dividends or make
any other distributions in respect of its capital stock or pay any Debt or other
obligation owed to the Borrower or to any Subsidiary of the Borrower; or (ii) to
make loans or advances to the Borrower or any Subsidiary of the Borrower, except
(1) encumbrances and restrictions on any immaterial Subsidiary of the Borrower
(other than WPC and WFS), (2) those encumbrances and restrictions existing on
the date hereof and described in Exhibit E, and (3) other encumbrances and
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restrictions now or hereafter existing of the Borrower or any of its
Subsidiaries that are not more restrictive in any material respect than the
encumbrances and restrictions with respect to the Borrower or its Subsidiaries
described in Exhibit E.
(e Loans and Advances. Make or permit to remain outstanding any loan or
advance from the Borrower, or own, purchase or acquire any obligations or debt
securities of any Subsidiary of the Borrower, except that the Borrower may make
and permit to remain outstanding loans and advances to its Subsidiaries (and
such Subsidiaries may borrow or otherwise receive such loans and advances), if
each such loan or advance (excluding loans and advances to a Subsidiary of the
Borrower if the aggregate principal amount of all such excluded loans and
advances to such Subsidiary does not exceed $100,000) is evidenced by a written
instrument duly executed by the Subsidiary of the Borrower to which such loan or
advance is made, bears interest at the Borrower's or such Subsidiary's market
rate of interest and matures on or before the Termination Date.
(f Maintenance of Ownership of Certain Subsidiaries. Sell, issue or
otherwise dispose of, or create, assume, incur or suffer to exist any Lien on or
in respect of, or permit any of its Subsidiaries to sell, issue or otherwise
dispose of or create, assume, incur or suffer to exist any Lien on or in respect
of, any shares of or any interest in any shares of the capital stock of or
interest in (1) WPC, WFS, WPL, TGPL, TGT, NWP, or any of their respective
material Subsidiaries or (2) any Subsidiary of the Borrower at the time it owns
any shares of or any interest in any shares of the capital stock of WFS, WPL,
TGPL, TGT or NWP or any of their respective material Subsidiaries; provided,
however, that this Section 5.2(f) shall not prohibit the sale or other
disposition of the stock of any Subsidiary of the Borrower to the Borrower or
any Wholly-Owned Subsidiary of the Borrower if, but only if, (x) there shall not
exist or result an Event of Default or an event which with notice or lapse of
time or both would constitute an Event of Default and (y) in the case of each
sale or other disposition referred to in this proviso involving the Borrower or
any of its Subsidiaries, such sale or other disposition could not reasonably be
expected to impair materially the ability of the Borrower to perform its
obligations hereunder and under the Notes and the Borrower shall continue to
exist.
(g Compliance with ERISA. (i) Terminate, or permit any ERISA Affiliate
to terminate, any Plan so as to result in any liability of the Borrower or any
ERISA Affiliate to the PBGC in excess of $5,000,000, or (ii) permit to exist any
occurrence of any Termination Event with respect to a Plan for which there is an
Insufficiency in excess of $5,000,000.
(h Transactions with Related Parties. Make any sale to, make any
purchase from, extend credit to, make payment for services rendered by, or enter
into any other transaction with, or permit any material Subsidiary of the
Borrower to make any sale to, make any purchase from, extend credit to, make
payment for services rendered by, or enter into any other transaction with, any
Related Party of the Borrower or of such Subsidiary unless as a whole such
sales, purchases, extensions of credit, rendition of services and other
transactions are (at the time such sale, purchase, extension of credit,
rendition of services or other transaction is entered into) on terms and
conditions reasonably fair in all material respects to the Borrower or such
Subsidiary in the good faith judgment of the Borrower.
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(i Guarantees. Guarantee or otherwise become contingently liable for,
or permit any of its Subsidiaries to guarantee or otherwise become contingently
liable for, Debt of any Subsidiary of the Borrower (other than guaranties of
obligations of ▇▇▇ and any Subsidiary of ▇▇▇ that is not a Borrower as defined
in and pursuant to that certain Second Amended and Restated Credit Agreement
dated July 23, 1997 among the Borrowers as named therein, certain financial
institutions party thereto (the "Banks"), certain Co-Agents identified therein,
and Citibank, N.A., as Agent for the Banks, as amended by amendments dated
January 26, 1999 and as of the date hereof, (as the same may be further amended,
supplemented, restated or modified, the "Multiyear ▇▇▇▇▇▇▇▇ Credit Agreement"))
while an Event of Default is continuing.
(j Sale and Lease-Back Transactions. Enter into, or permit any of its
Subsidiaries to enter into, any Sale and Lease-Back Transaction, if after giving
effect thereto the Borrower would not be permitted to incur at least $1.00 of
additional Debt secured by a Lien permitted by paragraph (z) of Schedule III.
(k Use of Proceeds. Use any proceeds of any Advance for any purpose
other than general corporate purposes (including, without limitation, working
capital and capital expenditures) or use any such proceeds in any manner which
violates or results in a violation of law; provided, however, that no proceeds
of any Advance will be used to acquire any equity security of a class which is
registered pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended, (other than any purchase of common stock of any corporation, if such
purchase is not subject to Sections 13 and 14 of the Securities Exchange Act of
1934 and is not opposed, resisted or recommended against by such corporation or
its management or directors, provided that the aggregate amount of common stock
of any corporation (other than Apco Argentina Inc., a Cayman Islands
corporation) purchased during any calendar year shall not exceed 1% of the
common stock of such corporation issued and outstanding at the time of such
purchase) or in any manner which contravenes law, and no proceeds of any Advance
will be used to purchase or carry any margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System).
ARTICLE VI
EVENTS OF DEFAULT
Section VI.1 Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a The Borrower shall fail to pay any principal of any Note executed by
it when the same becomes due and payable, or shall fail to pay any interest on
any such Note or any fee or other amount to be paid by it hereunder within ten
days after the same becomes due and payable; or
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(b Any certification, representation or warranty made by the Borrower
herein or by the Borrower (or any officer of the Borrower) in writing under or
in connection with any Note or this Agreement (including, without limitation,
representations and warranties deemed made pursuant to Section 3.2 or 3.3) shall
prove to have been incorrect in any material respect when made or deemed made;
or
(c The Borrower shall fail to perform or observe (i) any term, covenant
or agreement contained in Section 5. 1 (b) on its part to be performed or
observed and such failure shall continue for five Business Days after the
earlier of the date notice thereof shall have been given to the Borrower by the
Agent or any Bank or the date the Borrower shall have knowledge of such failure,
or (ii) any term, covenant or agreement contained in this Agreement (other than
a term, covenant or agreement contained in Section 5. 1 (b)) or any Note on its
part to be performed or observed; or
(d The Borrower or any Subsidiary of the Borrower shall fail to pay any
principal of or premium or interest on any Debt which is outstanding in a
principal amount of at least $60,000,000 in the aggregate (excluding Debt
evidenced by the Notes) of the Borrower or such Subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment or as required pursuant
to an illegality event of the type set forth in Section 2.12), prior to the
stated maturity thereof; provided, however, that the provisions of this Section
6.1(d) shall not apply to any Non-Recourse Debt of any Subsidiary of the
Borrower which is not a Borrower as defined in and pursuant to the Multiyear
▇▇▇▇▇▇▇▇ Credit Agreement; or
(e The Borrower or any material Subsidiary of the Borrower shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any material Subsidiary of the Borrower seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it), shall remain undismissed or unstayed for a period of
30 days; or the Borrower or any material Subsidiary of the Borrower shall take
any action to authorize any of the actions set forth above in this subsection
(e); or
(f Any judgment or order for the payment of money in excess of
$60,000,000 shall be rendered against the Borrower or any material Subsidiary of
the Borrower and remain unsatisfied and
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either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g Any Termination Event with respect to a Plan shall have occurred
and, 30 days after notice thereof shall have been given to the Borrower by the
Agent, (i) such Termination Event shall still exist and (ii) the sum (determined
as of the date of occurrence of such Termination Event) of the Insufficiency of
such Plan and the Insufficiency of any and all other Plans with respect to which
a Termination Event shall have occurred and then exist (or in the case of a Plan
with respect to which a Termination Event described in clause (ii) of the
definition of Termination Event shall have occurred and then exist, the
liability related thereto) is equal to or greater than $5,000,000; or
(h The Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount which, when aggregated with all other
amounts required to be paid to Multiemployer Plans in connection with Withdrawal
Liabilities (determined as of the date of such notification), exceeds
$15,000,000 in the aggregate or requires payments exceeding $10,000,000 per
annum; or
(i The Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the aggregate annual
contributions of the Borrower and the ERISA Affiliates to all Multiemployer
Plans which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years which include the date hereof by an amount exceeding
$5,000,000;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the holders of at least 66-2/3% in principal amount of the A Notes
then outstanding or, if no A Notes are then outstanding, Banks having at least
66-2/3% of the Commitments, by notice to the Borrower, declare all of the
Commitments and the obligation of each Bank to make Advances to be terminated,
whereupon all of the Commitments and each such obligation shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
holders of at least 66-2/3% in principal amount of the A Notes then outstanding
or if no A Notes are then outstanding, Banks having at least 66-2/3% of the
Commitments, or, if no A Notes are then outstanding and all Commitments have
terminated, the holders of at least 66-2/3% in principal amount of the B Notes
then outstanding, by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable by the Borrower under this Agreement to be
forthwith due and payable, whereupon such Notes, such interest and all such
amounts shall become and be forthwith due and payable, without requirement of
any presentment, demand, protest, notice of intent to accelerate, further notice
of acceleration or other further notice of any kind (other than the notice
expressly provided for above), all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of any Event of Default described
in Section 6.1(e), (A) the obligation of each Bank to make Advances shall
automatically be terminated and (B) the Notes, all such interest and all such
amounts shall
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automatically become and be due and payable, without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration or any other
notice of any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT, CO-SYNDICATION AGENTS AND DOCUMENTATION AGENT
Section VII.1 Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of holders of at least 66-2/3% in
principal amount of the A Notes then outstanding or, if no A Notes are then
outstanding, Banks having at least 66-2/3% of the Commitments (or, if no A Notes
are then outstanding and all Commitments have terminated, upon the instructions
of holders of at least 66-2/3% in principal amount of the B Notes then
outstanding), and such instructions shall be binding upon all Banks and all
holders of Notes; provided, however, that the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to any Note, this Agreement or applicable law. The Agent agrees to give
to each Bank prompt notice of each notice given to it by the Borrower pursuant
to the terms of this Agreement.
Section VII.2 Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with any Note or this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
a Transfer Agreement executed by the Borrower, the Bank which is the payee of
such Note, as assignor, and the assignee in accordance with the last sentence of
Section 8.6(a); (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Bank and shall not be responsible to
any Bank for any statements, warranties or representations (whether written or
oral) made in or in connection with any Note or this Agreement; (iv) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Note or this
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Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Bank for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of any Note or this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of any, Note or this Agreement by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
Section VII.3 Citibank, CIBC, Commerzbank, Credit Lyonnais and
Affiliates. With respect to its Commitments, the Advances made by it and the
Notes issued to it, Citibank shall have the same rights and powers under any
Note and this Agreement as any other Bank and may exercise the same as though it
was not the Agent; with respect to its Commitments, the Advances made by it and
the Notes issued to it, each of CIBC, Commerzbank and Credit Lyonnais shall have
the rights and powers under any Note and this Agreement as any other Bank and
may exercise the same as though it was not a Co-Syndication Agent or
Documentation Agent, as the case may be. The term "Bank" or "Banks" shall,
unless otherwise expressly indicated, include each of Citibank, CIBC,
Commerzbank and Credit Lyonnais in its individual capacity. Citibank, CIBC,
Commerzbank, Credit Lyonnais and the respective affiliates of each may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any Subsidiary of the
Borrower, any Person who may do business with or own, directly or indirectly,
securities of the Borrower or any such Subsidiary and any other Person, all as
if Citibank were not the Agent and CIBC, Commerzbank and Credit Lyonnais were
not the Co-Syndication Agents and Credit Lyonnais were not the Documentation
Agent without any duty to account therefor to the Banks.
Section VII.4 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent, any Co-Syndication Agent, the
Documentation Agent, the Arranger or any other Bank and based on the financial
statements referred to in Section 4.1(e) and such other documents and
information as it has deemed appropriate. made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent, any Co-Syndication Agent, the
Documentation Agent, the Arranger or any other Bank and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under any Note or this
Agreement.
Section VII.5 Indemnification. The Banks agree to indemnify the Agent
(to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the A Notes then held by each of them (or if no
A Notes are at the time outstanding or if any A Notes are held by Persons which
are not Banks, ratably according to either (i) the respective amounts of their
Commitments, or (ii) if all Commitments have terminated, the respective amounts
of the Commitments immediately prior to the time the Commitments terminated),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of any Note or this
Agreement or any action taken or omitted by the Agent under any Note or this
Agreement, provided that no Bank shall be liable to the Agent for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agents gross
negligence or
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willful misconduct. Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, any Note or this Agreement to the extent that the Agent
is not reimbursed for such expenses by the Borrower.
Section VII.6 Successor Agent. The Agent may resign at any time as
Agent under this Agreement by giving written notice thereof to the Banks and the
Borrower and may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks shall have the
right to appoint, with the consent the Borrower (which consent shall not be
unreasonably withheld), a successor Agent from among the Banks. If no successor
Agent shall have been so appointed by the Majority Banks with such consent, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Majority Banks' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Banks, appoint a successor
Agent, which shall be a Bank which is a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent under this Agreement by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and shall function as the Agent
under this Agreement, and the retiring Agent shall be discharged from its duties
and obligations as Agent under this Agreement. After any retiring Agents
resignation or removal hereunder as Agent, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
Section VII.7 Co-Syndication Agents; Documentation Agent. The
Co-Syndication Agents and the Documentation Agent have no duties or obligations
under this Agreement. None of the Co-Syndication Agents or the Documentation
Agent shall have, by reason of this Agreement or the Notes, a fiduciary
relationship in respect of any Bank or the holder of any Note, and nothing in
this Agreement or the Notes, express or implied, is intended or shall be so
construed to impose on any of the Co-Syndication Agents or the Documentation
Agent any obligation in respect of this Agreement or the Notes.
ARTICLE VIII
MISCELLANEOUS
Section VIII.1 Amendments, Etc. No amendment or waiver of any provision
of any Note or this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the following: (a) waive any of
the conditions specified in Article III, (b)
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increase the Commitments of the Banks or subject the Banks to any additional
obligations, (c) reduce the principal of, or interest on, the Notes or any fees
or other amounts payable hereunder, (d) postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, (e) take any action which requires the signing of all the Banks
pursuant to the terms of this Agreement, (f) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the A Notes or B
Notes, or the number of Banks, which shall be required for the Banks or any of
them to take any action under this Agreement, or (g) amend this Section 8.1; and
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Banks required above to take such
action, affect the rights or duties of the Agent under any Note or this
Agreement.
Section VIII.2 Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopy, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to any Bank, as specified opposite its name on Schedule
I hereto or specified pursuant to Section 8.6(a); if to the Borrower, as
specified opposite its name on Schedule II hereto; and if to Citibank, as Agent,
to its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (telecopier number:
(▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇ ▇▇▇▇, with a copy to Citicorp North America,
Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (telecopier number:
(▇▇▇) ▇▇▇-▇▇▇▇; telex number 127001 (Attn: Route Code HOUAA)), Attention: The
▇▇▇▇▇▇▇▇ Companies, Inc. Account Officer, or, as to the Borrower or the Agent,
at such other address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Borrower and the Agent.
All such notices and communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective when received in the mail, sent by telecopier to
any party to the telecopier number as set forth herein or on Schedule I or
Schedule 11 or specified pursuant to Section 8.6(a) (or other telecopy number
specified by such party in a written notice to the other parties hereto),
delivered to the telegraph company, telexed to any party to the telex number set
forth herein or on Schedule I or Schedule II or specified pursuant to Section
8.6(a) (or other telex number designated by such party in a written notice to
the other parties hereto), confirmed by telex answerback, or delivered to the
cable company, respectively, except that notices and communications to the Agent
shall not be effective until received by the Agent.
Section VIII.3 No Waiver; Remedies. No failure on the part of any Bank
or the Agent to exercise, and no delay in exercising, any right under any Note
or this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies provided in any Note
and this Agreement are cumulative and not exclusive of any remedies provided by
law.
Section VIII.4 Costs, Expenses and Taxes. (a)(i) The Borrower agrees to
pay on demand all reasonable out-of-pocket costs and expenses of the Arranger
and the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered under this Agreement, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect
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thereto and with respect to advising the Agent as to its rights and
responsibilities under any Note and this Agreement, and (ii) the Borrower agrees
to pay on demand all costs and expenses, if any (including, without limitation,
reasonable counsel fees and expenses, which may include allocated costs of
in-house counsel), of the Agent and each Bank in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) against the
Borrower of any Note of the Borrower or this Agreement and the other documents
to be delivered by the Borrower under this Agreement.
(b) If any payment (or purchase pursuant to Section 2.11(c) or Section
8.6(b)) of principal of, or Conversion of, any Eurodollar Rate Advance or B
Advance made to the Borrower is made other than on the last day of an Interest
Period relating to such Advance (or in the case of a B Advance, other than on
the original scheduled maturity date thereof), as a result of a payment pursuant
to Section 2.10 or 2.12 or acceleration of the maturity of the Notes pursuant to
Section 6.1 or for any other reason or as a result of any such purchase or any
Conversion, the Borrower shall, upon demand by any Bank (with a copy of such
demand to the Agent), pay to the Agent for the account of such Bank any amounts
required to compensate such Bank for any additional losses, costs or expenses
which it may reasonably incur as a result of any such payment, purchase or
Conversion, including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Bank to fund or maintain such Advance.
(c) The Borrower agrees, to the fullest extent permitted by law, to
indemnify and hold harmless the Agent, the Co-Syndication Agents, the
Documentation Agent, the Arranger and each Bank and each of their respective
directors, officers, employees and agents from and against any and all claims,
damages, liabilities and out-of-pocket expenses (including, without limitation,
reasonable fees and disbursements of counsel) for which any of them may become
liable or which may be incurred by or asserted against the Agent, the
Co-Syndication Agents, the Documentation Agent, the Arranger or such Bank or any
such director, officer, employee or agent (other than by another Bank or any
successor or assign of another Bank), in each case in connection with or arising
out of or by reason of any investigation, litigation, or proceeding, whether or
not any of the Agent, the Co-Syndication Agents, the Documentation Agent, the
Arranger, such Bank or any such director, officer, employee or agent is a party
thereto, arising out of, related to or in connection with this Agreement or the
Notes or any transaction in which any proceeds of all or any part of the
Advances are applied (other than any such claim, damage, liability or expense to
the extent attributable to the gross negligence or willful misconduct of, or
violation of any law or regulation by, either the party seeking indemnity under
this Section 8.4(c) or any of its directors, officers, employees or agents).
Section VIII.5 Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.1 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.1,
each Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter
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existing under this Agreement and the Notes held by such Bank, irrespective of
whether or not such Bank shall have made any demand under this Agreement or such
Notes and although such obligations may be unmatured. Each Bank agrees promptly
to notify the Borrower after such set-off and application made by such Bank,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Bank may have.
Section VIII.6 Binding Effect; Transfers. (a) This Agreement shall
become effective when it shall have been executed by the Borrower, the
Co-Syndication Agents, the Documentation Agent and the Agent and when each Bank,
listed on the signature pages hereof has delivered an executed counterpart
hereof to the Agent, has sent to the Agent a facsimile copy of its signature
hereon or has notified the Agent that such Bank has executed this Agreement and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Bank and their respective successors and assigns; provided that
the Borrower shall not have the right to assign any of its rights hereunder or
any interest herein without the prior written consent of all of the Banks. Each
Bank may assign to one or more banks, financial institutions or government
entities all or any part of, or may grant participations to one or more banks,
financial institutions or government entities in or to all or any part of, any
Advance or Advances owing to such Bank, any Note or Notes held by such Bank and
all or any portion of such Bank's Commitments, and to the extent of any such
assignment or participation (unless otherwise stated therein), the assignee or
purchaser of such assignment or participation shall, to the fullest extent
permitted by law, have the same rights and benefits hereunder and under such
Note or Notes as it would have if it were such Bank hereunder; provided that,
except in the case of an assignment meeting the requirements of the next
sentence hereof, (1) (i) such Bank's obligations under this Agreement,
including, without limitation, its Commitment hereunder, shall remain unchanged,
(ii) such Bank shall remain responsible for the performance thereof, (iii) such
Bank shall remain the holder of any such Note or Notes for all purposes under
this Agreement, and (iv) the Borrower, the other Banks and the Agent shall
continue to deal solely with and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement; and (2) no Bank shall assign
or grant a participation that conveys to the assignee or participant the right
to vote or consent under this Agreement, other than the right to vote upon or
consent to (i) any increase in the amount of any Commitment of such Bank; (ii)
any reduction of the principal amount of, or interest to be paid on, such Bank's
Advance or Advances or Note or Notes; (iii) any reduction of any fee or other
amount payable hereunder to such Bank; or (iv) any postponement of any date
fixed for any payment of principal of, or interest on, such Bank's Advance or
Advances or Note or Notes or any fee or other amount payable hereunder to such
Bank.
If (I) the assignee of any Bank either (1) is another Bank or is an
affiliate of a Bank or (2) is approved in writing by the Agent and the Borrower
or (3) is approved in writing by the Agent and either an Event of Default exists
or the Borrower has relinquished the right to approve the assignment pursuant to
Section 8.6(b) and (II) such assignee assumes all or any portion (which portion
shall be a constant, and not a varying, percentage, and the amount of the
Commitment assigned, whether all or a portion, shall be in a minimum amount of
$5,000,000 or such lesser
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amount as may be approved in writing by the Agent and the Borrower for such
assignment) of the Commitment of such assigning Bank by executing a document in
the form of Exhibit F (or with such changes thereto as have been approved in
writing by the Agent in its sole discretion as evidenced by its execution
thereof) duly executed by the Agent, the Borrower (unless an Event of Default
exists or the Borrower has relinquished the right to approve the assignment
pursuant to Section 8.6(b)), such assigning Bank and such assignee and delivered
to the Agent ("Transfer Agreement"), then upon such delivery, (i) such assigning
Bank shall be released from its obligations under this Agreement with respect to
all or such portion, as the case may be, of its Commitments; (ii) such assignee
shall become obligated for all or such portion, as the case may be, of such
Commitments and all other obligations of such assigning Bank hereunder with
respect to or arising as a result of all or such portion, as the case may be, of
such Commitments; (iii) such assignee shall be assigned the right to vote or
consent under this Agreement, to the extent of all or such portion, as the case
may be, of such Commitments; (iv) the Borrower shall deliver, in replacement of
the A Note of the Borrower to such assigning Bank then outstanding (a) to such
assignee, a new A Note of the Borrower in the amount of the Commitment of such
assigning Bank which is being so assumed by such assignee plus, in the case of
any assignee which is already a Bank hereunder, the amount of such assignee's
Commitment immediately prior to such assignment (any such assignee which is
already a Bank hereunder agrees to cancel and return to the Borrower, with
reasonable promptness following the delivery of such new A Note, the A Note
being replaced thereby), (b) to such assigning Bank, a new A Note in the amount
of the balance, if any, of the Commitment of such assigning Bank to the Borrower
(without giving effect to any B Reduction) retained by such assigning Bank (and
such assigning Bank agrees to cancel and return to the Borrower, with reasonable
promptness following delivery of such new A Notes, the A Note being replaced
thereby), and (c) to the Agent, photocopies of such new A Notes; (v) if such
assignment is of all of such assigning Bank's Commitment, all of the outstanding
A Advances made by such assigning Bank shall be transferred to such assignee;
(vi) if such assignment is not of all of such Commitments, a part of each A
Advance to the Borrower equal to the amount of such Advance multiplied by a
fraction, the numerator of which is the amount of such portion of such assigning
Bank's Commitment so assumed and the denominator of which is the amount of the
Commitment of such assigning Bank (without giving effect to any B Reduction)
immediately prior to such assumption, shall be transferred to such assignee and
evidenced by such assignee's A Note from the Borrower, and the balance of such A
Advance shall be evidenced by such assigning Bank's new A Note from the Borrower
delivered pursuant to clause (iv)(b) of this sentence; (vii) if such assignee is
not a "Bank" hereunder prior to such assignment, such assignee shall become a
party to this Agreement as a Bank and shall be deemed to be a "Bank" hereunder
and the amount of all or such portion, as the case may be, of the Commitment so
assumed shall be deemed to be the amount set opposite such assigning Bank's name
on Schedule IV for purposes of this Agreement and (viii) if such assignee is not
a Bank hereunder prior to such assignment, such assignee shall be deemed to have
specified the offices of such assignee named in the respective Transfer
Agreement as its "Domestic Lending Office" and "Eurodollar Lending Office" for
all purposes of this Agreement and to have specified for purposes of Section 8.2
the notice information set forth in such Transfer Agreement; and the Agent shall
promptly after execution of any Transfer Agreement by the Agent and the other
parties thereto notify
50
56
the Banks of the parties to such Transfer Agreement and the amounts of the
assigning Bank's Commitment assumed thereby.
(b) If the Borrower does not consent to a proposed assignment by a Bank
pursuant to the last sentence of Section 8.6(a), the Borrower may, within 15
days of its receipt of a request that it consent to such assignment, nominate by
notice to the Agent and such Bank a bank which, if it is not a Bank, is
acceptable to the Agent, and which unconditionally offers in writing (with a
copy to the Agent) to purchase and assume, to the extent of the amount of such
proposed assignment, in accordance with all of the provisions of the last
sentence of Section 8.6(a) (including execution of an appropriate Transfer
Agreement), all of such Bank's rights and obligations (including, without
limitation, its Commitment) hereunder and interest in the Advances owing to such
Bank and the Notes held by such Bank without recourse at par plus interest
accrued thereon to the date of such purchase on a date therein specified (not
less than three nor greater than five Business Days after such nomination). Such
Bank at its option may elect to accept or not accept such purchase offer. If a
Bank accepts such an offer and the bank first nominated by the Borrower pursuant
to this Section 8.6(b) fails to purchase such rights and interest on such
specified date in accordance with the terms of such offer, the Borrower may,
within 15 days of such failure, repeat the process contemplated by the first
sentence of this Section 8.6(b) by nominating another bank for purposes of this
Section 8.6(b) by notice to the Agent and such Bank. If (i) the Borrower does
not so nominate such a bank, within 15 days of its receipt of such request that
it consent to such assignment, or (ii) the Borrower fails to nominate another
bank following such a failure to purchase or (iii) such second nominated bank
fails to purchase in accordance with the terms of an offer complying with the
first sentence of this Section 8.6(b), the Borrower shall be deemed to have
relinquished its right to consent to such assignment. If such Bank elects to not
accept such a purchase offer under this Section 8.6(b) as to a particular
proposed assignment, the Borrower shall not be deemed to have relinquished its
right to consent to such assignment.
(c) The Borrower agrees to promptly execute the Transfer Agreement
pertaining to any assignment as to which approval by the Borrower of the
assignee is not required by clause (I) of the last paragraph of Section 8.6(a).
(d) Any Bank may assign, as collateral or otherwise, any of its rights
(including, without limitation, rights to payments of principal of and/or
interest on the Notes) under this Agreement or any of the Notes to any Federal
Reserve Bank without notice to or consent of the Borrower or the Agent.
Section VIII.7 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section VIII.8 Interest. It is the intention of the parties hereto that
the Agent and each Bank shall conform strictly to usury laws applicable to it,
if any. Accordingly, if the transactions with the Agent or any Bank contemplated
hereby would be usurious under applicable law, then, in that event,
notwithstanding anything to the contrary in the Notes, this Agreement or any
other agreement entered
51
57
into in connection with or as security for this Agreement or the Notes, it is
agreed as follows: (i) the aggregate of all consideration which constitutes
interest under applicable law that is contracted for, taken, reserved, charged
or received by the Agent or such Bank, as the case may be, under the Notes, this
Agreement or under any other agreement entered into in connection with or as
security for this Agreement or the Notes shall under no circumstances exceed the
maximum amount allowed by such applicable law and any excess shall be canceled
automatically and, if theretofore paid, shall at the option of the Agent or such
Bank, as the case may be, be credited by the Agent or such Bank, as the case may
be, on the principal amount of the obligations owed to the Agent or such Bank,
as the case may be, by the Borrower or refunded by the Agent or such Bank, as
the case may be, to the Borrower, and (ii) in the event that the maturity of any
Note or other obligation payable to the Agent or such Bank, as the case may be,
is accelerated or in the event of any required or permitted prepayment, then
such consideration that constitutes interest under law applicable to the Agent
or such Bank, as the case may be, may never include more than the maximum amount
allowed by such applicable law and excess interest, if any, to the Agent or such
Bank, as the case may be, provided for in this Agreement or otherwise shall be
canceled automatically as of the date of such acceleration or prepayment and, if
theretofore paid, shall, at the option of the Agent or such Bank, as the case
may be, be credited by the Agent or such Bank, as the case may be, on the
principal amount of the obligations owed to the Agent or such Bank, as the case
may be, by the Borrower or refunded by the Agent or such Bank, as the case may
be, to the Borrower.
Section VIII.9 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
Section VIII.10 Survival of Agreements, Representations and Warranties,
Etc. All warranties, representations and covenants made by the Borrower or any
officer of the Borrower herein or in any certificate or other document delivered
in connection with this Agreement shall be considered to have been relied upon
by the Banks and shall survive the issuance and delivery of the Notes and the
making of the Advances regardless of any investigation. The indemnities and
other payment obligations of the Borrower contained in this Agreement, and the
indemnities by the Banks in favor of the Agent and its officers, directors,
employees and agents, will survive the repayment of the Advances and the
termination of this Agreement.
Section VIII.11 Borrower's Right to Apply Deposits. In the event that
any Bank is placed in receivership or enters a similar proceeding, the Borrower
may, to the full extent permitted by law, make any payment due to such Bank
hereunder, to the extent of finally collected unrestricted deposits of the
Borrower in U.S. dollars held by such Bank, by giving notice to the Agent and
such Bank directing such Bank to apply such deposits to such indebtedness. If
the amount of such deposits is insufficient to pay such indebtedness then due
and owing in full, the Borrower shall pay the balance of such insufficiency in
accordance with this Agreement.
52
58
Section VIII.12 Confidentiality. Each Bank agrees that it will use best
efforts, to the extent not inconsistent with practical business requirements,
not to disclose without the prior consent of the Borrower (other than to
employees, auditors, accountants, counsel or other professional advisors of the
Agent or any Bank) any information with respect to the Borrower or its
Subsidiaries which is furnished pursuant to this Agreement and which (i) the
Borrower in good faith considers to be confidential and (ii) is either clearly
marked confidential or is designated by the Borrower to the Agent or the Banks
in writing as confidential, provided that any Bank may disclose any such
information (a) as has become generally available to the public, (b) as may be
required or appropriate in any report, statement or testimony submitted to or
required by any municipal, state or Federal regulatory body having or claiming
to have jurisdiction over such Bank or submitted to or required by the Board of
Governors of the Federal Reserve System or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or elsewhere)
or their successors, (c) as may be required or appropriate in response to any
summons or subpoena in connection with any litigation, (d) in order to comply
with any law, order, regulation or ruling applicable to such Bank, (e) to the
prospective transferee in connection with any contemplated transfer of any of
the Notes or any interest therein by such Bank, provided that such prospective
transferee executes an agreement with or for the benefit of the Borrower
containing provisions substantially identical to those contained in this Section
8.12, and provided further that if the contemplated transfer is a grant of a
participation in a Note (and not an assignment), no such information shall be
authorized to be delivered to such participant pursuant to this clause (e)
except (i) such information delivered pursuant to Section 4.1(e) or Section
5.1(b) (other than paragraph (iv) thereof), and (ii) if prior notice of the
delivery thereof is given to the Borrower, such information as may be required
by law or regulation to be delivered, (f) in connection with the exercise of any
remedy by such Bank pertaining to this Agreement, any of the Notes or any other
document delivered in connection herewith, (g) in connection with any litigation
involving such Bank pertaining to this Agreement, any of the Notes or any other
document delivered in connection herewith, (h) to any Bank or the Agent, or (i)
to any affiliate of any Bank, provided that such affiliate executes an agreement
with or for the benefit of the Borrower containing provisions substantially
identical to those contained in this Section 8.12.
Section VIII.13 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE
CO-SYNDICATION AGENTS, THE DOCUMENTATION AGENT AND THE BANKS HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY NOTE OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY.
53
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By:
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
60
[Signature page to Second Amended and Restated Credit Agreement]
AGENT:
CITIBANK, N.A., as Agent
By:
--------------------------------
Authorized Officer
CO-SYNDICATION AGENTS:
CANADIAN IMPERIAL BANK OF
COMMERCE, as Co-Syndication Agent
By:
--------------------------------
Authorized Officer
COMMERZBANK AG,
as Co-Syndication Agent
By:
--------------------------------
Authorized Officer
DOCUMENTATION AGENT:
CREDIT LYONNAIS NEW YORK BRANCH, as
Documentation Agent
By:
--------------------------------
Authorized Officer
61
[Signature page to Second Amended and Restated Credit Agreement]
BANKS:
CITIBANK, N.A.
By:
--------------------------------
Authorized Officer
62
[Signature page to Second Amended and Restated Credit Agreement]
THE CHASE MANHATTAN BANK
By:
--------------------------------
Authorized Officer
63
[Signature page to Second Amended and Restated Credit Agreement]
CIBC INC.
By:
--------------------------------
Authorized Officer
64
[Signature page to Second Amended and Restated Credit Agreement]
THE FUJI BANK, LIMITED
By:
--------------------------------
Authorized Officer
65
[Signature page to Second Amended and Restated Credit Agreement]
BANK OF AMERICA, N.A., FORMERLY KNOWN AS
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By:
---------------------------------------
Authorized Officer
66
[Signature page to Second Amended and Restated Credit Agreement]
BANK OF MONTREAL
By:
--------------------------------
Authorized Officer
67
[Signature page to Second Amended and Restated Credit Agreement]
CREDIT LYONNAIS NEW YORK BRANCH
By:
--------------------------------
Authorized Officer
68
[Signature page to Second Amended and Restated Credit Agreement]
BANK ONE, NA (f/k/a THE FIRST NATIONAL BANK OF
CHICAGO)
By:
-------------------------------------------
Authorized Officer
69
[Signature page to Second Amended and Restated Credit Agreement]
ABN AMRO BANK N.V.
By:
--------------------------------
Authorized Officer
By:
--------------------------------
Authorized Officer
70
[Signature page to Second Amended and Restated Credit Agreement]
THE BANK OF NEW YORK
By:
--------------------------------
Authorized Officer
71
[Signature page to Second Amended and Restated Credit Agreement]
THE BANK OF NOVA SCOTIA
By:
--------------------------------
Authorized Officer
72
[Signature page to Second Amended and Restated Credit Agreement]
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By:
--------------------------------
Authorized Officer
73
[Signature page to Second Amended and Restated Credit Agreement]
BARCLAYS BANK PLC
By:
--------------------------------
Authorized Officer
74
[Signature page to Second Amended and Restated Credit Agreement]
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By:
--------------------------------
Authorized Officer
75
[Signature page to Second Amended and Restated Credit Agreement]
UBS AG, STAMFORD BRANCH
By:
--------------------------------
Authorized Officer
By:
--------------------------------
Authorized Officer
76
[Signature page to Second Amended and Restated Credit Agreement]
ROYAL BANK OF CANADA
By:
--------------------------------
Authorized Officer
77
[Signature page to Second Amended and Restated Credit Agreement]
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
--------------------------------
Authorized Officer
78
[Signature page to Second Amended and Restated Credit Agreement]
THE SUMITOMO BANK, LIMITED
By:
--------------------------------
Authorized Officer
79
[Signature page to Second Amended and Restated Credit Agreement]
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN
BRANCHES
By:
--------------------------------
Authorized Officer
By:
--------------------------------
Authorized Officer
80
[Signature page to Second Amended and Restated Credit Agreement]
AMSOUTH BANK OPERATING AS FIRST AMERICAN
BANK
By:
-------------------------------------
Authorized Officer
By:
------------------------------------
Authorized Officer
81
[Signature page to Second Amended and Restated Credit Agreement]
BANQUE NATIONALE DE PARIS, HOUSTON
AGENCY
By:
--------------------------------
Authorized Officer
82
[Signature page to Second Amended and Restated Credit Agreement]
ARAB BANKING CORPORATION (B.S.C.)
By:
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
83
[Signature page to Second Amended and Restated Credit Agreement]
BW CAPITAL MARKETS, INC.
By:
--------------------------------
Authorized Officer
By:
--------------------------------
Authorized Officer
84
[Signature page to Second Amended and Restated Credit Agreement]
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
--------------------------------
Authorized Officer
By:
--------------------------------
Authorized Officer
85
[Signature page to Second Amended and Restated Credit Agreement]
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------
Authorized Officer
86
[Signature page to Second Amended and Restated Credit Agreement]
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, CAYMAN
ISLAND BRANCH
By:
--------------------------------
Authorized Officer
By:
--------------------------------
Authorized Officer
87
[Signature page to Second Amended and Restated Credit Agreement]
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By:
--------------------------------
Title:
-----------------------------
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By:
--------------------------------
Title:
-----------------------------
88
[Signature page to Second Amended and Restated Credit Agreement]
BANK OF OKLAHOMA, N.A.
By:
--------------------------------
Authorized Officer
By:
--------------------------------
Authorized Officer
89
[Signature page to Second Amended and Restated Credit Agreement]
COMMERCE BANK, N.A.
By:
--------------------------------
Authorized Officer
90
[Signature page to Second Amended and Restated Credit Agreement]
CREDIT AGRICOLE INDOSUEZ
By:
--------------------------------
Authorized Officer
By:
--------------------------------
Authorized Officer
91
[Signature page to Second Amended and Restated Credit Agreement]
WITHDRAWING ORIGINAL BANKS:
The following Original Banks sign only for purposes
of acknowledging the assignment, without recourse
and without representation or warranty, of 100% of
their Commitments pursuant to the Original Credit
Agreement:
BANKBOSTON, N.A.
By:
------------------------------------------------
Authorized Officer
MELLON BANK
By:
------------------------------------------------
Authorized Officer
92
SCHEDULE I
APPLICABLE LENDING OFFICES
Domestic Eurodollar
Name of Bank Lending Office Lending Office
-------------- ----------------- -----------------
Citibank N.A. Citibank N.A. Citibank N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Notices: Notices:
Citibank, N.A. Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: None Telex: None
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Dept: Medium Term Finance Dept: Medium Term Finance
with copies to: with copies to:
Citicorp North America, Inc. Citicorp North America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 127001 Telex: 127001
(Attn. Route Code HOUAA) (Attn. Route Code HOUAA)
Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc. Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc.
Account Officer Account Officer
The Chase The Chase Manhattan Bank The Chase Manhattan Bank
Manhattan ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
The Fuji Bank, The Fuji Bank, Limited The Fuji Bank, Limited
Limited (New York Branch) (New York Branch)
(New York Branch) 2 World Trade Center 2 World Trade Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
SCHEDULE I-1
93
Domestic Eurodollar
Name of Bank Lending Office Lending Office
-------------- ----------------- -----------------
Bank of Montreal Bank of Montreal Bank of Montreal
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - Client Services Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - Client Services
Commerzbank AG, Commerzbank AG, Atlanta Agency Commerzbank AG, Atlanta Agency
Atlanta Agency ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇ 1230 Peachtree St., NE
Suite 3500 Suite 3500
Atlanta, Georgia 30309 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Credit Lyonnais Credit Lyonnais New York Branch Credit Lyonnais New York Branch
New York Branch 1301 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Bank One, NA Bank One, NA Bank One, NA
Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇, 10 0634, 1BOP, 10
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇
ABN AMRO Bank ABN AMRO Bank, N.V. ABN AMRO Bank, N.V.
N.V. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 60604-1003 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Credit Administration Attn: Credit Administration
with copies to: with copies to:
ABN AMRO Bank, N.V. ABN AMRO Bank, N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 60604-1003 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Loan Administration Attn: Loan Administration
SCHEDULE I-2
94
Domestic Eurodollar
Name of Bank Lending Office Lending Office
-------------- ----------------- -----------------
ABN AMRO North America, Inc. ABN AMRO North America, Inc.
Three Riverway, Suite ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Nepreux Attn: ▇▇▇▇▇▇▇ Nepreux
The Bank of The Bank of Toyko-Mitsubishi, The Bank of Toyko-Mitsubishi,
Toyko-Mitsubishi, Ltd., Houston Agency Ltd., Houston Agency
Ltd., Houston ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
Agency Houston, Texas 77002-5216 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇▇▇▇ Attn: ▇.▇. ▇▇▇▇▇▇▇▇
Barclays Bank PLC Barclays Bank PLC-New York Branch Barclays Bank PLC-New York Branch
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
AmSouth AmSouth Bank AmSouth Bank
First American Center First American Center
Fourth & Union St. ▇▇-▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇. ▇▇-▇▇▇▇
Nashville, Tennessee 37237-0310 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇
Banque Nationale Banque Nationale de Paris, Houston Banque Nationale de Paris, Houston
de Paris, Houston Agency Agency
Agency ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
SCHEDULE I-3
95
Domestic Eurodollar
Name of Bank Lending Office Lending Office
-------------- ----------------- -----------------
Arab Banking Arab Banking Corp. Arab Banking Corp. (Grand Cayman)
Corporation ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ 277 Park Avenue, 32nd Floor
(B.S.C.) ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Loan Administration Attn: Loan Administration
BW Capital BW Capital Markets, Inc. BW Capital Markets, Inc.
Markets, Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Rockefeller Center
Suite 1919 Suite 1919
New York, New York 10111 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Westdeutsche Westdeutsche Landesbank Girozentrale, Westdeutsche Landesbank Girozentrale,
Landesbank New York Branch New York Branch
Girozentrale, 1211 Avenue of the Americas 1211 Avenue of the Americas
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Branch Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
Credit Suisse Credit Suisse First Boston Credit Suisse First Boston
First Boston ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇
DG Bank DG Bank DG Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Societe Generale, Societe Generale, Southwest Agency Societe Generale, Southwest Agency
Southwest Agency ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telex: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Tequlla English Attn: Tequlla English
Loan Specialist Loan Specialist
SCHEDULE I-4
96
Domestic Eurodollar
Name of Bank Lending Office Lending Office
-------------- ----------------- -----------------
The Sumitomo The Sumitomo Bank, Limited The Sumitomo Bank, Limited
Bank, Limited ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telex: SUMBK 420515/SUMBK Telex: SUMBK 420515/SUMBK
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: with copies to:
The Sumitomo Bank, Limited The Sumitomo Bank, Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇, V.P. Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇, V.P.
PANA - Legal Department PANA - Legal Department
National National Westminster Bank PLC National Westminster Bank PLC
Westminster New York Branch Nassau Branch
Bank ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10022 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇
with copies to: with copies to:
Greenwich NatWest Greenwich NatWest
▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Bank of Nova The Bank of Nova Scotia The Bank of Nova Scotia
Scotia ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇. 600 Peachtree St., N.E.
Suite 2700 Suite 2700
Atlanta, Georgia 30308 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 00542319 Telex: 00542319
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with copy to: with copy to:
1100 Louisiana, Suite 3000 1100 Louisiana, Suite 3000
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
SCHEDULE I-5
97
Domestic Eurodollar
Name of Bank Lending Office Lending Office
-------------- ----------------- -----------------
Bank of America, Bank of America, N.A. Bank of America, N.A.
N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with copy to: with copy to:
Bank of America Bank of America
Three ▇▇▇▇▇ Center, Suite 4550 Three ▇▇▇▇▇ Center, Suite 4550
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇
Bank of New York Bank of New York Bank of New York
One ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Ray)
Bank of Oklahoma, Bank of Oklahoma, N.A. Bank of Oklahoma, N.A.
N.A. One ▇▇▇▇▇▇▇▇ Center, 8th Floor One ▇▇▇▇▇▇▇▇ Center, 8th Floor
Tulsa, Oklahoma 74192 ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Bob)
Canadian Imperial Canadian Imperial Bank of Commerce Canadian Imperial Bank of Commerce
Bank of Commerce Two Paces West Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 30339 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to: with a copy to:
1600 ▇▇▇▇▇, Ste. 3000 1600 Smith, Ste. 3000
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇
SCHEDULE I-6
98
Domestic Eurodollar
Name of Bank Lending Office Lending Office
-------------- ----------------- -----------------
Commerce Bank, Commerce Bank, N.A. Commerce Bank, N.A.
N.A. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 17th Floor ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Industrial Bank Industrial Bank of Japan Trust Industrial Bank of Japan Trust
of Japan Trust 1251 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Credit Agricole Credit Agricole Indosuez Credit Agricole Indosuez
Indosuez Texas Commerce Tower Texas Commerce Tower
600 ▇▇▇▇▇▇, Suite 2340 600 ▇▇▇▇▇▇, Suite 2340
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
UBS UBS AG, Stamford Branch UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Royal Bank of Royal Bank of Canada, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Assistant Manager, Loan Attn: Assistant Manager, Loan
Processing Processing
SCHEDULE I-7
99
SCHEDULE II
BORROWER INFORMATION
Schedule II-1
100
SCHEDULE III
PERMITTED BORROWER LIENS
Schedule III-1
101
SCHEDULE IV
COMMITMENTS
AS OF JANUARY 24, 2000
--------------------------------------------------------------------------------
BANKS COMMITMENT
--------------------------------------------------------------------------------
Citibank, N.A. $ 89,000,000
--------------------------------------------------------------------------------
Arab Banking Corporation (B.S.C.) $ 25,000,000
--------------------------------------------------------------------------------
BW Capital Markets, Inc. $ 25,000,000
--------------------------------------------------------------------------------
The Chase Manhattan Bank $ 89,000,000
--------------------------------------------------------------------------------
CIBC Inc. $ 89,000,000
--------------------------------------------------------------------------------
The Fuji Bank, Limited, New York Branch $ 62,000,000
--------------------------------------------------------------------------------
Bank of America, N.A. $ 49,000,000
--------------------------------------------------------------------------------
Banque Nationale de Paris $ 25,000,000
--------------------------------------------------------------------------------
Commerce Bank, N.A. $ 5,000,000
--------------------------------------------------------------------------------
Commerzbank AG, New York & Grand Cayman Branch $ 89,000,000
--------------------------------------------------------------------------------
Credit Agricole Indosuez $ 30,000,000
--------------------------------------------------------------------------------
Credit Suisse First Boston $ 16,000,000
--------------------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale, New York Bra $ 40,000,000
--------------------------------------------------------------------------------
DG Bank Deutsche Genoesenschaftbank AG $ 25,000,000
--------------------------------------------------------------------------------
National Westminster Bank PLC $ 35,000,000
--------------------------------------------------------------------------------
AmSouth Bank $ 20,000,000
--------------------------------------------------------------------------------
Bank of Oklahoma, N.A. $ 5,000,000
--------------------------------------------------------------------------------
Bank of Montreal $ 50,000,000
--------------------------------------------------------------------------------
Credit Lyonnais New York Branch $ 89,000,000
--------------------------------------------------------------------------------
Bank One, NA $ 89,000,000
--------------------------------------------------------------------------------
UBS AG, Stamford Branch $2 5,000,000
--------------------------------------------------------------------------------
ABN AMRO Bank N.V. $ 70,000,000
================================================================================
Schedule IV-1
102
--------------------------------------------------------------------------------
BANKS COMMITMENT
--------------------------------------------------------------------------------
The Bank of New York $ 65,000,000
--------------------------------------------------------------------------------
The Bank of Nova Scotia $ 89,000,000
--------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi, Ltd. - Houston Agency $ 20,000,000
--------------------------------------------------------------------------------
Barclays Bank PLC $ 65,000,000
--------------------------------------------------------------------------------
Industrial Bank of Japan Trust Company $ 25,000,000
--------------------------------------------------------------------------------
Royal Bank of Canada, New York $ 45,000,000
--------------------------------------------------------------------------------
Societe Generale, Southwest Agency $ 40,000,000
--------------------------------------------------------------------------------
The Sumitomo Bank, Limited $ 10,000,000
================================================================================
COMMITMENTS $1,400,000,000
================================================================================
Schedule IV-2
103
SCHEDULE V
RATING CATEGORIES
Applicable
Rating Category S&P or ▇▇▇▇▇'▇ ratings of the senior unsecured Applicable Commitment
of the Borrower long-term debt of the Borrower* Margin Fee Rate
--------------- ---------------------------------------------- ---------- -----------
One A or better by S&P or A2 or better by ▇▇▇▇▇'▇ .50% .075%
Two A- by S&P or A3 by ▇▇▇▇▇'▇ .625% .085%
Three BBB+ by S&P or Baa1 by ▇▇▇▇▇'▇ .75% .095%
Four BBB by S&P or Baa2 by ▇▇▇▇▇'▇ .875% .10%
Five BBB- by S&P and Baa3 by ▇▇▇▇▇'▇ 1.125% .15%
Six BBB- by S&P or Baa3 by ▇▇▇▇▇'▇ 1.5% .20%
Seven Borrower is Unrated or none of the above applies 2.0% .25%
to Borrower
*If split-rated, the higher rating will apply.
Schedule V-1
104
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENWOOD DIVISION
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ )
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ )
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,)
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ) Civil Action No 8:▇▇-▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. )
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, )
and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ )
)
Plaintiffs, )
) ANSWERS OF DEFENDANT
v. )▇▇▇▇▇▇▇▇ ENERGY VENTURES, INC.
) TO LOCAL RULE 26.06
) INTERROGATORIES AND
COLONIAL PIPELINE COMPANY, a Delaware ) REQUEST FOR DOCUMENTS
Corporation; BP AMOCO CORPORATION, an )
Indiana Corporation, f/k/a Amoco Oil Company;)
B.P. EXPLORATION & OIL, INC., )
an Ohio Corporation; ▇▇▇▇▇▇▇▇ ENERGY )
VENTURES, INC., a Delaware Corporation; )
and ▇▇▇▇▇▇▇▇ PIPELINE COMPANY, a Delaware )
Corporation. )
)
Defendants. )
)
▇▇▇▇▇▇▇▇ Energy Ventures, Inc., through counsel, hereby respectfully
responds to Local Rule 26.06 Interrogatories and Directives to Produce as
follows:
(1) If the defendant is improperly identified, give the proper
identification and state whether counsel will accept service of an amended
summons and pleading reflecting the correct identification.
ANSWER: Defendant ▇▇▇▇▇▇▇▇ Energy Ventures, Inc. (hereinafter "▇▇▇▇▇▇▇▇")
is properly identified.
105
(2) Furnish a detailed factual basis for each defense you assert in your
responsive pleading. If a contract, writing or document forms the basis of any
claim against you and/or the basis for any defense asserted, quote or attach the
relevant portions, state your construction thereof and your position with regard
thereto.
ANSWER:
▇▇▇▇▇▇▇▇ did not acquire the facilities at issue in this matter until
nearly twenty years after Plaintiffs' settled and released their claims for
alleged contamination from the facilities in 1980. ▇▇▇▇▇▇▇▇ purchased its share
of the former Conoco petroleum storage facility identified in Paragraph 7 of the
Complaint through a series of purchase agreements dated May 10, 1996, June 18,
1998 and February 19, 1999, and purchased the former Amoco petroleum storage
facility identified in Paragraph 7 of the Complaint through a purchase agreement
dated October 29, 1998. Prior to acquiring these properties, ▇▇▇▇▇▇▇▇ had no
control over the facilities and asserts that it cannot be held responsible for
alleged negligence or contamination of prior owners. Furthermore, ▇▇▇▇▇▇▇▇
contends that any releases of petroleum products that may have occurred at its
facilities subsequent to its ownership were promptly contained and have not
reached or otherwise impacted Plaintiffs' properties.
(1) Upon information and belief, Plaintiffs' claims are barred by reason of
their failure to mitigate, minimize or avoid the damages alleged in the
Complaint. Furthermore, upon information and belief, some or all of Plaintiffs
have operated or allowed to be operated a junkyard on their property(ies), used
septic systems and engaged in other activities that may have contributed to
contamination of the Plaintiffs' property.
2
106
(2) Any acts or omissions alleged in the Complaint may have occurred,
resulted from or have been proximately caused by the superseding intervention of
causes and parties outside the control of ▇▇▇▇▇▇▇▇. Plaintiffs previously filed
suit against Amoco Oil Company, Southern Facilities, Inc., ▇▇▇▇▇▇▇▇ Petroleum
Company, Gulf Oil Company and Petroleum Pipeline Company alleging damage to
their properties and other claims due to alleged environmental contamination.
▇▇▇▇▇▇▇▇ asserts that it cannot be held responsible for the alleged acts of the
parties to Plaintiffs' original action, current co-defendants, or other parties
allegedly responsible for the contamination and damage to Plaintiffs'
properties.
(3) All or some of Plaintiffs' claims are barred by the applicable statutes
of limitation. Plaintiffs' Complaint purports to assert causes of action arising
after the execution of the April 11, 1980 Release between Plaintiffs and the
parties to the original action. Under applicable law, ▇▇▇▇▇▇▇▇ asserts that some
or all of Plaintiffs' claims are therefore barred the statutes of limitation and
the doctrine of laches.
(4) Upon information and belief, Plaintiffs have consented to the presence
of contaminants on their property. At the time Plaintiffs entered into the
Release on April 11, 1980, Plaintiffs recognized that contamination existed on
their property and would continue to remain there. Nonetheless, Plaintiffs
entered into a Release Agreement with Amoco Oil Company, Southern Facilities,
Inc., ▇▇▇▇▇▇▇▇ Petroleum Company, Gulf Oil Company and Petroleum Pipeline
Company with the express understanding that contamination would remain on their
properties. In addition, upon information and belief, some or all of Plaintiffs
assumed the risk by purchasing and/or moving to their property with knowledge of
the existence of contamination.
(5) Although it was not a party to the Release agreement entered into by
Plaintiffs and the defendants in the prior litigation, ▇▇▇▇▇▇▇▇ asserts that all
or some of Plaintiffs' claims are barred by the terms of the Release and
application of the easements granted in connection with the settlement of the
3
107
prior litigation. Furthermore, Plaintiffs entered into an Agreement of
Settlement, Unconditional Release of Claims, and Covenant not to ▇▇▇ with Conoco
Inc. on January 27, 2000 which releases ▇▇▇▇▇▇▇▇ from any claims based upon the
condition of the former Conoco facility now owned by ▇▇▇▇▇▇▇▇.
(6) The imposition of punitive damages in an action of this nature, or
under the facts such as those alleged, would be violative of the Constitution of
the State of South Carolina and the United States of America. ▇▇▇▇▇▇▇▇ has not
acted willfully or maliciously toward Plaintiffs and there is no basis for
Plaintiffs' punitive damages claim.
(3) Describe by name and citation or other generally recognized
identification, decisions, statutes, ordinances, acts, codes, regulations and
legal principles, standards, and customs or usages, which you contend are
especially applicable to this action. State which jurisdiction's law applies to
each claim or defense and why.
ANSWER:
South Carolina law applies to Plaintiffs' common law claims and ▇▇▇▇▇▇▇▇'
defenses thereto. ▇▇▇▇▇▇▇▇ contends that the following decisions and statutes
are especially applicable to this action:
Statute of Limitations:
S.C. Code ▇▇▇. Sections 15-3-530, 15-3-535
▇▇▇▇ ▇. Ruscon Corp., 321 S.C. 360, 468 S.E.2d 645 (1995)
▇▇▇▇ v. City of Rock Hill, 330 S.C. 640, 500 S.E.2d 157 (Ct. App. 1998)
▇▇▇▇▇ ▇. School District No. Five of ▇▇▇▇▇▇▇▇ County, 294 S.C. 530, 366 S.E.2d
47 (Ct. App. 1988)
Assumption of Risk:
Davenport ▇. ▇▇▇▇▇▇ Hope Plantation Horizontal Property Regime, 333 S.C. 71, 508
S.E.2d 565 (1998)
▇▇▇▇▇▇▇ v. South Carolina Dept. of Highways and Public Transp., 301 S.C. 35, 389
S.E.2d 646 (1990)
4
108
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 282 S.C. 288, 318 S.E.2d 24 (Ct. App. 1984)
Contributory Negligence:
▇▇▇▇▇▇ ▇. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Frozen Foods, Inc., 309 S.C. 13, 419 S.E.2d 795 (Ct. App. 1992)
Laches:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, 325 S.C. 367, 479 S.E.2d 849 (Ct. App. 1996)
Mitigation of Damages:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Carolina, Inc., 310 S.C. 417, 426 S.E.2d 834 (1993)
Du Bose ▇. ▇▇▇▇▇▇▇, 215 S.C. 468, 56 S.E.2d 95 (1949)
▇▇▇▇▇▇▇▇ v. City of ▇▇▇▇▇▇▇▇, 81 S.C. 178, 62 S.E.862 (1908)
▇▇▇▇▇▇▇▇ reserves the right to assert additional defenses and supporting
authority once discovery is conducted.
(4) If you contend that some other person or legal entity is, in whole or
in part, liable to you or the party asserting a claim against you in this
matter, identify such person or entity and describe the basis of said liability.
ANSWER:
▇▇▇▇▇▇▇▇ has claims for indemnification against Amoco, BP Amoco, ▇▇▇▇▇▇,
TOC, and Conoco arising from their prior use and operation of the facilities
currently owned by ▇▇▇▇▇▇▇▇. In addition, ▇▇▇▇▇▇▇▇ may have claims against
Amoco, BP, BP Amoco and Colonial Pipeline Company with respect to the migration
of contaminants across or under ▇▇▇▇▇▇▇▇' property. ▇▇▇▇▇▇▇▇ also has a claim
for indemnification against ▇▇▇▇▇▇▇▇, the transportation company that caused an
approximately 20 gallon gasoline spill at the ▇▇▇▇▇▇▇▇ facility in July 1999. By
agreement of the
5
109
parties, ▇▇▇▇▇▇▇▇ is not pursuing these claims for indemnification or
contribution at this time. ▇▇▇▇▇▇▇▇ reserves the rights to assert these claims,
and any others, once discovery is conducted.
(5) State the full names, addresses, and telephone numbers of all lay
witnesses whose testimony you may use at the trial of this case and describe the
specific factual issues to which that testimony is expected to relate.
ANSWER:
Plaintiffs
The following individuals may testify regarding operations at the former
Amoco, Southern Facilities, Conoco and current ▇▇▇▇▇▇▇▇ facilities:
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Energy Ventures
______ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
_______________
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
(Address unknown)
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Energy Services
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
6
110
▇▇▇▇ ▇▇▇▇▇▇▇▇
Department of Health and Environmental Control
Bureau of Water
Groundwater Assessment and Development
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
North Augusta, South Carolina
▇▇▇-▇▇▇-▇▇▇▇
Any witness listed by any other party. ▇▇▇▇▇▇▇▇ reserves the right to name
and call additional fact witnesses once discovery is conducted.
(6) Identify by full name, address, and telephone number each person whom
you expect to call as an expert witness at the trial of this case, and, as to
each expert so identified, state the subject matter on which he is expected to
testify, the substance of the facts and opinions to which he is expected to
testify, and a summary of the grounds for each opinion.
ANSWER:
Since no discovery has been conducted, ▇▇▇▇▇▇▇▇ has not yet determined
which expert witnesses it will call in this matter and will provide the names of
any expert witnesses as soon as such determination has been made.
7
111
(7) Set forth the names of all insurance companies or other insuring
entities which may be liable to satisfy part or all of a judgment centered
against you in this action, or to indemnify or reimburse for payments made to
satisfy the judgment. Set forth the insurance coverage relating to each claim
against you, the number of each policy, the amount of applicable liability
coverage provided in each policy, and the named insured in each policy. Are you
aware of any question of coverage?
ANSWER:
AEGIS
Policy No. X0559A1A98
Named Insured: The ▇▇▇▇▇▇▇▇ Companies, Inc.
Excess: over $2,000,000 retention
$35,000,000 claim first made; $35,000,000 aggregate
▇▇▇▇▇▇▇▇ is currently unaware of any question of coverage.
(8) State the time you estimate it will take you to complete discovery.
Explain if appropriate.
ANSWER:
Since this matter involves complex factual and legal issues and will
necessarily involve expert opinion testimony, the parties are preparing a
proposed scheduling order to submit for the Court's consideration.
8
112
(9) As to each claim, state whether it should be tried jury or nonjury and
why. If the answer is different with respect to any claim from the answer given
by any party, explain why your answer is different and state the basis for your
answer.
ANSWER:
▇▇▇▇▇▇▇▇ asserts that all of Plaintiffs' claims and ▇▇▇▇▇▇▇▇' defenses
thereto, except those for declaratory judgment and injunctive relief, should be
tried by a jury.
(10) If the defendant is a publicly owned entity, or a partner, parent,
subsidiary or affiliate of a publicly-owned entity, identify the publicly-owned
entity and its relationship to the defendant. If there is a publicly-owned
entity not a party to the case that has a significant financial interest in the
outcome, identify such entity and the nature of the financial interest.
ANSWER: Not applicable.
(11) Is there any reason why this action should be transferred to another
division?
ANSWER:
No.
(12) Do you want a mediation conference to be scheduled in this case? If
so, when?
ANSWER:
▇▇▇▇▇▇▇▇ asserts that a mediation conference would be appropriate in this
matter after the completion of discovery.
9
113
(13) Do you, at this time, request or oppose an expedited trial under Local
Civil Rule 16.12 through 16.14? If so, include the information requested by that
local civil rule in these responses.
ANSWER:
Due to the complex factual and legal issues and anticipated lengthy
discovery period needed, ▇▇▇▇▇▇▇▇ does not request an expedited trial.
(14) If you are asserting a counterclaim or other secondary claim, provide
the information required by Local Civil Rule 26.03(e).
ANSWER:
▇▇▇▇▇▇▇▇ is not asserting a counterclaim or other secondary claim at this
time.
Respectfully submitted this the ___ day of March, 2000.
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fed. ID No. 4876
▇▇▇▇▇ ▇. Day
Fed. ID No. 7267
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
A Professional Limited Liability Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
P.O. Drawer 10208
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇ ▇▇▇▇
▇.▇. ▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇
10
114
W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
N.C. State Bar No. 19927
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
N.C. State Bar No. 22329
Attorneys for Defendant
▇▇▇▇▇▇▇▇ Energy Ventures, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
A Professional Limited Liability Company
3300 One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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CERTIFICATE OF SERVICE
I certify that I have this day served the party in this action with a copy
of the foregoing ANSWERS OF DEFENDANT ▇▇▇▇▇▇▇▇ ENERGY VENTURES, INC. TO LOCAL
RULE 26.06 INTERROGATORIES AND REQUEST FOR DOCUMENTS by placing said copy in the
United States mail, postage prepaid, addressed as follows to the attorneys of
record:
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