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EXHIBIT 99.a
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$600,000,000
364-DAY CREDIT AGREEMENT
among
ONEOK, INC.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent and as a Bank,
Letter of Credit Issuing Bank and Swing Line Bank,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
BANC OF AMERICA SECURITIES LLC,
Sole Lead Arranger and Book Manager
THE FIRST NATIONAL BANK OF CHICAGO,
Syndication Agent
FIRST UNION NATIONAL BANK,
Documentation Agent
SUNTRUST BANK, ATLANTA,
Co-Documentation Agent
Dated as of July 2, 1999
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TABLE OF CONTENTS
Page
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Section 1. DEFINITIONS........................................................1
1.1 Certain Defined Terms...................................................1
1.2 Other Definitional Provisions..........................................17
Section 2. THE LOANS.........................................................17
2.1 Revolving Loans........................................................17
2.2 Swing Line.............................................................17
2.3 Loan Accounts..........................................................19
2.4 Letters of Credit......................................................19
2.5 Procedure for Borrowings...............................................23
2.6 Conversion and Continuation Elections..................................24
2.7 Limitation on Interest Periods.........................................25
2.8 Reductions of Commitments..............................................25
2.9 Interest on the Loans..................................................25
2.10 Maturity of Loans.....................................................26
2.11 Voluntary Prepayments.................................................26
2.12 Fees..................................................................26
(a) Arrangement Fee.....................................................26
(b) Facility Fee........................................................26
(c) Utilization Fee.....................................................27
(d) Letter of Credit Fees...............................................27
(e) Agency Fee..........................................................27
2.13 Computation of Fees and Interest......................................27
2.14 Use of Proceeds of Loans..............................................27
2.15 Funding Sources.......................................................28
2.16 Extension of Maturity Date............................................28
Section 3. PAYMENTS IN GENERAL...............................................28
3.1 Taxes..................................................................28
3.2 Payments by the Company................................................30
3.3 Payments on Non-Business Days..........................................31
3.4 Illegality.............................................................31
3.5 Increased Costs and Reduction of Return................................32
3.6 Funding Losses.........................................................32
3.7 Inability to Determine Rates...........................................32
3.8 Payments by Banks......................................................33
Section 4. CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND
EXTENSIONS OF CREDIT..............................................33
4.1 Conditions of Closing..................................................33
4.2 Conditions to all Extensions of Credit.................................34
4.3 Failure to Satisfy Conditions..........................................35
Section 5. REPRESENTATIONS AND WARRANTIES....................................35
5.1 Corporate Existence and Power..........................................35
5.2 Corporate Authorization; No Contravention..............................35
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5.3 Governmental Authorization.............................................36
5.4 Binding Effect.........................................................36
5.5 Litigation.............................................................36
5.6 No Default.............................................................36
5.7 ERISA Compliance.......................................................36
5.8 Use of Proceeds; Margin Regulations....................................36
5.9 Title to Properties....................................................37
5.10 Taxes.................................................................37
5.11 Financial Condition...................................................37
5.12 Environmental Matters.................................................37
5.13 Regulated Entities....................................................38
5.14 No Burdensome Restrictions............................................38
5.15 Insurance.............................................................38
5.16 Full Disclosure.......................................................38
5.17 Year 2000.............................................................38
Section 6. AFFIRMATIVE COVENANTS.............................................38
6.1 Financial Statements...................................................39
6.2 Certificates; Other Information........................................39
6.3 Notices................................................................39
6.4 Preservation of Corporate Existence, Etc...............................41
6.5 Maintenance of Property................................................41
6.6 Insurance..............................................................41
6.7 Payment of Obligations.................................................41
6.8 Compliance with Laws...................................................42
6.9 Inspection of Property and Books and Records...........................42
6.10 Compliance with ERISA.................................................42
6.11 Environmental Laws....................................................42
6.12 Year 2000.............................................................42
6.13 Subsidiary Guarantees.................................................42
6.14 Further Assurances....................................................43
Section 7. NEGATIVE COVENANTS................................................43
7.1 Limitation on Liens....................................................43
7.2 Merger and Sale of Assets..............................................44
7.3 Acquisitions, Loans and Investments....................................45
7.4 Compliance with ERISA..................................................45
7.5 Restricted Payments....................................................46
7.6 Limitation on Senior Funded Indebtedness...............................46
7.7 Change in Business.....................................................46
7.8 Transactions with Affiliates...........................................47
Section 8. EVENTS OF DEFAULT.................................................47
8.1 Events of Default......................................................47
8.2 Remedies...............................................................48
8.3 Rights Not Exclusive...................................................49
Section 9. THE ADMINISTRATIVE AGENT..........................................49
9.1 Appointment and Authorization..........................................49
9.2 Delegation of Duties...................................................50
9.3 Liability of Administrative Agent......................................50
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9.4 Reliance by Administrative Agent.......................................50
9.5 Notice of Default......................................................51
9.6 Credit Decision........................................................51
9.7 Indemnification........................................................52
9.8 Administrative Agent in Individual Capacity............................52
9.9 Successor Agent........................................................52
9.10 Lead Arranger and Book Manager; Agents................................53
Section 10. MISCELLANEOUS....................................................53
10.1 Amendments and Waivers; Extension of Availability Period..............53
10.2 Notices...............................................................53
10.3 No Waiver; Cumulative Remedies........................................54
10.4 Costs and Expenses....................................................54
10.5 Successors and Assigns................................................54
10.6 Assignments, Participations etc.......................................54
10.7 Set-off...............................................................56
10.8 Sharing of Payments, Etc..............................................56
10.9 Indemnity.............................................................57
(a) General Indemnity...................................................57
(b) Survival; Defense...................................................57
10.10 Marshalling; Payments Set Aside......................................58
10.11 Notification of Addresses, Lending Offices, Etc......................58
10.12 Maximum Rate.........................................................58
10.13 Counterparts.........................................................59
10.14 No Third Parties Benefited...........................................59
10.15 Severability.........................................................59
10.16 Governing Law and Jurisdiction.......................................59
10.17 Waiver of Jury Trial.................................................60
10.18 Entire Agreement.....................................................60
10.19 Interpretation.......................................................61
10.20 Survival.............................................................61
EXHIBITS
A Form of Request for Extension of Credit
B Form of Notice of Conversion/Continuation
C-1 Form of Revolving Loan Promissory Note
C-2 Form of Swing Loan Promissory Note
D Form of Opinion of Counsel
E Form of Notice of Commitment Assignment and Acceptance
F Form of Subsidiary Guaranty
SCHEDULES
1.1 Commitments
3 Addresses for Domestic and Offshore Lending Offices and Notices
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ONEOK, INC.
364-DAY CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Agreement") is made and dated as of July 2,
1999 by and among ONEOK, INC., an Oklahoma corporation (the "Company"), the
financial institutions from time to time party to this Agreement (collectively,
the "Banks"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Administrative Agent (the "Administrative Agent") and as a Bank, Letter of
Credit Issuing Bank and Swing Line Bank, FIRST UNION NATIONAL BANK, as
Documentation Agent and as a Bank, and SUNTRUST BANK, ATLANTA, as
Co-Documentation Agent and as a Bank.
RECITAL
The Company has requested that Banks make available a revolving credit
facility with letter of credit subfacility and swing line facility, and the
Banks, Issuing Bank and Administrative Agent are willing to do so on the terms
and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
Section 1. DEFINITIONS.
1.1 Certain Defined Terms. The following terms used in this Agreement
shall have the following meanings:
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in Control of, is Controlled by, or is under common Control
with, such Person.
"Administrative Agent" means Bank of America National Trust and Savings
Association in its capacity as administrative agent for the Banks hereunder, and
any successor agent.
"Agent-Related Persons" has the meaning specified in Section 9.3.
"Aggregate Commitment" means the combined Commitments of the Banks.
"Agreement" means this Credit Agreement, as it may hereafter be
amended, supplemented, restated or otherwise modified from time to time.
"Applicable Amount" means, for any day, with respect to outstanding
Loans of the Types referred to below, and the facility fees, utilization fees
and letter of credit fees referred to below, as the case may be, the per annum
amount set forth below under the caption "Facility Fee", "Applicable Margin for
Offshore Rate Loans", "Utilization Fee" or "Letter of Credit Fee", as the case
may be, based upon the ratings by ▇▇▇▇▇'▇ and S&P, respectively, applicable on
such date to the Index Debt (hereinafter defined):
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Pricing Level Applicable Amount (in basis points per annum)
------------------------------ ---------------------------------------------------------------------------------------
Rating of Applicable Margin for Letter of
Index Debt Facility Fee Offshore Rate Loans Utilization Fee Credit Fee
------------------------------ ------------ --------------------- --------------- ----------
A+ or higher by S&P and A1 or 6.5 bps 23.5 bps 10.0 bps 23.5 bps
higher by ▇▇▇▇▇'▇
A by S&P and A2 by ▇▇▇▇▇'▇ 7.0 bps 28.0 bps 10.0 bps 28.0 bps
A- by S&P and A3 by ▇▇▇▇▇'▇ 7.5 bps 32.5 bps 10.0 bps 32.5 bps
BBB+ by S&P and Baa1 by 10.0 bps 45.0 bps 12.5 bps 45.0 bps
▇▇▇▇▇'▇
BBB by S&P and Baa2 by ▇▇▇▇▇'▇ 12.5 bps 50.0 bps 12.5 bps 50.0 bps
BBB- by S&P and Baa3 by 15.0 bps 60.0 bps 15.0 bps 60.0 bps
▇▇▇▇▇'▇
Lower than BBB- by S&P and 20.0 bps 80.0 bps 17.5 bps 80.0 bps
Baa3 by ▇▇▇▇▇'▇
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall not have
in effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established a rating in the lowest of the categories
above; (ii) if the ratings established or deemed to have been established by
▇▇▇▇▇'▇ and S&P for the Index Debt shall fall within different categories, the
Applicable Amount shall be based on the higher of the two ratings; and (iii) if
the ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P
for the Index Debt shall be changed (other than as a result of a change in the
rating system of ▇▇▇▇▇'▇ or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. "Index Debt"
means senior, unsecured, long-term indebtedness for borrowed money of the
Company that is not guaranteed by any other Person or subject to any other
credit enhancement. Each change in the Applicable Amount shall apply during the
period commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of ▇▇▇▇▇'▇ or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Company
and the Banks shall negotiate in good faith to amend this definition to reflect
such changed rating system or the unavailability of ratings from such rating
agency and, pending the effectiveness of any such amendment, the Applicable
Amount shall be determined by reference to the rating most recently in effect
prior to such change or cessation.
"Arranger" means Bank of America Securities LLC, in its capacity as
lead arranger and book manager.
"Assignee" has the meaning specified in Section 10.6.
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"Availability Period" means the period from the Effective Date to but
excluding the Maturity Date.
"Bank" has the meaning assigned to that term in the introduction to
this Agreement. References to the "Banks" shall include Bank of America,
including in its capacity as Issuing Bank and in its capacity as Swing Line
Bank; for purposes of clarification only, to the extent that Bank of America may
have any rights or obligations in addition to those of the Banks due to its
status as Issuing Bank or Swing Line Bank, its status as such will be
specifically referenced.
"Bank of America" means Bank of America National Trust and Savings
Association.
"Base Rate" means a fluctuating rate per annum which is the higher of
(a) the Federal Funds Rate plus one-half of one percent (1/2%) per annum and (b)
the Reference Rate. Any change in the Base Rate due to a change in the Reference
Rate or the Federal Funds Rate shall be effective from and including the
effective date of such change in the Reference Rate or the Federal Funds Rate,
respectively.
"Base Rate Loans" means Loans made by the Banks bearing interest at
rates determined by reference to the Base Rate.
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Company on the same day by the Banks pursuant to Section 2.
"Borrowing Date" means the date a Borrowing is made.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City or San Francisco are authorized or
required by law to close and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which dealings are carried on in the
London interbank market.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder) of shares representing more than 40% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Company; (b) occupation of a majority of the seats (other
than vacant seats) on the board of directors of the Company by Persons who were
neither (i) nominated by the board of directors of the Company nor (ii)
appointed by directors so nominated; or (c) the acquisition of direct or
indirect Control of the Company by any Person or group; provided, however, that
the acquisition of equity interest in the Company by Western Resources, Inc. in
an amount representing up to 45% of the aggregate equity interest and/or up to
45% of the aggregate voting power represented by the issued and outstanding
capital stock of the Company shall not constitute a Change of Control.
"Closing Date" means July 2, 1999.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means the commitment of each Bank to make Extensions of
Credit in the amount set forth opposite the Bank's name in Schedule 1.1 under
the heading "Commitment" (such amount as the same may be reduced pursuant to
Section 2.8, other appropriate provisions herein or as a result of one or more
assignments pursuant to Section 10.6).
"Company" means ONEOK, Inc., an Oklahoma corporation.
"Consolidated Capitalization" of the Company and its Subsidiaries means
the aggregate of:
(i) Funded Indebtedness,
(ii) capital stock,
(iii) retained earnings, and
(iv) premium on capital stock and other capital surplus
all as shown by a consolidated balance sheet. For purposes of this definition,
in determining retained earnings there shall be deducted any amounts included in
the accounts of the Company and its Subsidiaries for goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles.
"Consolidated Net Tangible Assets" means (i) the total amount of assets
(less applicable reserves and other properly deductible items) which under GAAP
would be included on a consolidated balance sheet of the Company and its
Subsidiaries after deducting therefrom (a) all current liabilities, provided,
however, that there shall not be deducted ▇▇▇▇▇▇▇▇ recorded as revenues deferred
pending the outcome of rate proceedings (less applicable income taxes thereon),
if and to the extent the obligation to refund the same shall not have been
finally determined, (b) appropriate allowance for minority interests in common
stocks of Subsidiaries and (c) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, which in each
case under GAAP would be included on such consolidated balance sheet, less (ii)
the amount which would be so included on such consolidated balance sheet for
investments (less applicable reserves) made in Subsidiaries.
"Consolidated Senior Funded Indebtedness" means the Senior Funded
Indebtedness appearing on a consolidated balance sheet of the Company and its
Subsidiaries.
"Consolidated Subsidiaries" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such financial statements were prepared
as of such date.
"Contractual Obligation", as applied to any Person, means any provision
of any security issued by that Person or of any material indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
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"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise. Without
limitation, any director, executive officer or beneficial owner of 10% or more
of the equity of a Person shall for the purposes of this Agreement, be deemed to
control such Person. "Controlling" and "Controlled" have meanings correlative
thereto.
"Controlled Group" means the Company and all Persons (whether or not
incorporated) under common control or treated as a single employer with the
Company or any of its Subsidiaries pursuant to Section 414(b), (c), (m) or (o)
of the Code.
"Conversion Date" means any date on which the Company elects to convert
a Base Rate Loan to an Offshore Rate Loan or an Offshore Rate Loan to a Base
Rate Loan.
"Default" means any event which, with the giving of notice, the lapse
of time, or both, would constitute an Event of Default.
"Dollars" means lawful money of the United States of America.
"Domestic Lending Office" means, with respect to each Bank, the office
of that Bank designated as such on Schedule 3 hereto or such other office of the
Bank as it may from time to time specify to the Company and the Administrative
Agent.
"Effective Date" means July 6, 1999; provided, that all the conditions
in Section 4.1 are satisfied or waived on or before such date.
"Eligible Assignee" means (a) a financial institution organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; or (c) another Bank.
"Environmental Claim" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in or from property,
whether or not owned by the Company, or (b) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of,
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and agreements with, any Governmental Authorities, in each case relating to
environmental, health, safety and land use matters; including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), the
Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste
Disposal Act, the Federal Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Emergency Planning and Community Right-to-Know Act.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulation promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company or any Subsidiary of the
Company within the meaning of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan; (b) a withdrawal by any member of the Controlled
Group from a Qualified Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA); (c) a complete or partial withdrawal by any member of the Controlled
Group from a Multiemployer Plan; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination under Section 4041
or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a
Qualified Plan or Multiemployer Plan subject to Title IV of ERISA; (e) a failure
to make required contributions to a Qualified Plan or Multiemployer Plan; (f) an
event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Qualified Plan or Multiemployer Plan; (g) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon any member of the
Controlled Group; (h) an application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code with respect to any
Qualified Plan; (i) any member of the Controlled Group engages in or otherwise
becomes liable for a non-exempt prohibited transaction; or (j) a violation of
the applicable requirements of Section 404 or 405 of ERISA or the exclusive
benefit rule under Section 401(a) of the Code by any fiduciary with respect to
any Qualified Plan for which the Company or any of its Subsidiaries may be
directly or indirectly liable.
"Event of Default" means any of the events set forth in Section 8.
"Exchange Act" means, at any time, the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute.
"Existing Credit Facility" means the credit facility evidenced by the
Amended and Restated Credit Agreement dated August 12, 1998, as amended, by and
among the Company, Bank of America as Administrative Agent, BankOne Oklahoma,
N.A. as Documentation Agent, and the financial institutions party thereto.
"Extension of Credit" means (a) the Borrowing of Loans, (b) the
conversion or continuation of any Loans, or (c) any Letter of Credit Action
which has the effect of issuing a Letter of Credit, increasing the amount of any
Letter of Credit, extending the maturity of any Letter of Credit or making any
material modification to any Letter of Credit or the reimbursement of drawings
thereunder (collectively, the "Extensions of Credit").
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"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to Bank of America on such day on
such transactions as determined by Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereof.
"Funded Indebtedness" means all Indebtedness which by its terms matures
more than one year from the date of determination thereof, and any Indebtedness
maturing within one year from such date which is renewable or extendible at the
option of the obligor to a date beyond one year from such date, including any
Indebtedness renewable or extendible (whether or not theretofore renewed or
extended) under, or payable from the proceeds of other Indebtedness which may be
incurred pursuant to the provisions of, any revolving credit agreement or other
similar agreement; provided, however, that any Indebtedness of a Subsidiary for
which the Company is contingently liable in the manner provided in the
definition of Indebtedness shall be deemed to be Funded Indebtedness of the
Company, whether or not such indebtedness is Funded Indebtedness of such
Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, as to any Person, any (a) guaranty by that
Person of Indebtedness of, or other obligation payable or performable by, any
other Person or (b) assurance, agreement, letter of responsibility, letter of
awareness, undertaking or arrangement given by that Person to an obligee of any
other Person with respect to the payment or performance of an obligation by, or
the financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such
obligation or any collateral security therefor, any agreement to provide funds
(by means of loans, capital contributions or otherwise) to such other Person,
any agreement to support the solvency or level of any balance sheet item of such
other Person or any "keep-well" or other arrangement of whatever nature given
for the purpose
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of assuring or holding harmless such obligee against loss with respect to any
obligation of such other Person; provided, however, that the term Guaranty
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, covered by such
Guaranty Obligation or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the Person in good
faith.
"Indebtedness" means as to any Person at a particular time, all items
which would, in conformity with GAAP, be classified as liabilities on a balance
sheet of such Person as at such time (excluding trade and other accounts payable
in the ordinary course of business in accordance with customary trade terms and
which are not overdue for a period of more than 60 days and excluding deferred
taxes), but in any event including:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) any direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), banker's acceptances, bank
guaranties, surety bonds and similar instruments;
(c) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of property or
services, and indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether or
not such indebtedness shall have been assumed by such Person or is limited in
recourse;
(d) lease payment obligations under capital leases or Synthetic Lease
Obligations; and
(e) all Guaranty Obligations of such Person in respect of any of the
foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person except for customary exceptions
acceptable to the Requisite Banks.
"Indemnified Liabilities" has the meaning set forth in Section 10.9(a).
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors or other, similar
arrangement; in each case (a) and (b) under U.S. Federal, State or foreign law.
"Interest Payment Date" means, with respect to any Offshore Rate Loan,
the last Business Day of each Interest Period applicable to such Loan; with
respect to any
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Base Rate Loan (other than a Swing Line Loan), the last Business Day of each
calendar quarter; with respect to all Loans, the Maturity Date; provided,
however, that if any Interest Period for an Offshore Rate Loan exceeds three
months, interest shall also be paid on the date which falls three, six and nine
months after the beginning of such Interest Period.
"Interest Period" means, with respect to any Offshore Rate Loan, the
period commencing on the Business Day the Offshore Rate Loan is disbursed or
continued or on the date on which a Loan is converted into a Offshore Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by
the Company in its Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
(i) if any Interest Period pertaining to an Offshore Rate Loan
would otherwise end on a day which is not a Business Day, that Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan
that 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 at the end of such Interest Period; and
(iii) no Interest Period applicable to any Loan or portion
thereof shall extend beyond the Maturity Date.
"Investment" shall have the meaning set forth in Section 7.3.
"Issuing Bank" means Bank of America, or any successor issuing lender
hereunder.
"Lending Office" means, with respect to any Bank, the office or offices
of the Bank specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office," as the case may be, under its name on Schedule 3
hereto, or such other office or offices of the Bank as it may from time to time
specify to the Company and the Administrative Agent.
"Letter of Credit" means any letter of credit issued or outstanding
hereunder.
"Letter of Credit Action" means the issuance, supplement, amendment,
renewal, extension, modification or other action relating to a Letter of Credit.
"Letter of Credit Application" means an application for a Letter of
Credit Action as shall at any time be in use by Issuing Bank.
"Letter of Credit Cash Collateral Account" means a blocked deposit
account at Bank of America with respect to which the Company hereby pledges and
grants a security interest in and lien on such account to Administrative Agent
for and on behalf of the Banks as security for Letter of Credit Usage and with
respect to which the Company
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agrees to execute and deliver from time to time such documentation as
Administrative Agent may reasonably request to further assure and confirm such
security interest.
"Letter of Credit Commitment" means an amount equal to the lesser of
(a) $75,000,000 and (b) the Aggregate Commitment.
"Letter of Credit Usage" means, as at any date of determination, the
aggregate undrawn face amount of outstanding Letters of Credit plus the
aggregate amount of all drawings under the Letters of Credit honored by Issuing
Bank and not reimbursed to Issuing Bank by the Company or converted into Loans.
"Lien" means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give any kind
of security interest).
"Loan" means a Revolving Loan or a Swing Line Loan (collectively, the
"Loans").
"Loan Documents" means this Agreement, the Subsidiary Guaranty
Agreements, if any, and all documents and instruments delivered from time to
time in connection therewith.
"Margin Stock" has the meaning assigned to the term "Margin Stock" in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"Material Adverse Effect" means (i) a material adverse effect upon the
business, operations, properties, assets, liabilities (actual or contingent),
business prospects or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole, or (ii) a material impairment of the ability of
the Company to perform the Obligations or of the Banks to enforce the
Obligations.
"Maturity Date" means June 30, 2000, unless extended pursuant to
Section 2.16.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA which is maintained for employees of the Company or any
ERISA Affiliate of the Company.
"Notes" means the Revolving Notes and the Swing Loan Notes.
"Notice of Conversion/Continuation" means a notice given by the Company
to the Administrative Agent pursuant to Section 2.6, in substantially the form
of Exhibit B annexed hereto.
"Notice of Lien" means any "notice of lien" or similar document
intended to be filed or recorded with any court, registry, recorder's office,
central filing office or Governmental Authority for the purpose of evidencing,
creating, perfecting or preserving the priority of a Lien securing obligations
owing to a Governmental Authority.
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"Obligations" means all obligations of every nature of the Company from
time to time owed to the Administrative Agent or the Banks or any of them under
any Loan Document.
"Offshore Lending Office" means with respect to each Bank, the office
of such Bank designated as such on Schedule 3 hereto or such other office of
such Bank as such Bank may from time to time specify to the Company and the
Administrative Agent.
"Offshore Rate" means, for each Interest Period for any Offshore Rate
Loan, an interest rate per annum (rounded upward to the nearest 1/100 of one
percent) determined by the Administrative Agent pursuant to the following
formula:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where, LIBOR means, for such Interest Period:
(a) the rate per annum (rounded upward to the nearest 1/100 of one
percent) equal to the rate determined by Administrative Agent to be the
offered rate that appears on the page of the Telerate Screen that displays
an average British Bankers Association Interest Settlement Rate (such page
currently being page number 3750) for deposits in dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(b) in the event the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall cease
to be available, the rate per annum (rounded upward to the nearest 1/100 of
one percent) equal to the rate determined by Administrative Agent to be the
offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in
dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(c) in the event the rates referenced in the preceding subsections
(a) and (b) are not available, the rate per annum determined by
Administrative Agent as the rate of interest at which dollar deposits (for
delivery on the first day of such Interest Period) in same day funds in the
approximate amount of the applicable Offshore Rate Loan and with a term
equivalent to such Interest Period would be offered by its London Branch to
major banks in the offshore dollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period; and
"Eurodollar Reserve Percentage" means the maximum reserve
percentage (expressed as a decimal, rounded upward to the next 1/100 of one
percent) in effect on the date LIBOR for such Interest Period is determined
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(whether or not applicable to any Bank) under regulations issued from time
to time by the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency Liabilities") having a term equal to such
Interest Period. Such reserve percentages shall include those imposed
pursuant to Regulation D of the Federal Reserve Board. Offshore Rate Loans
shall be deemed to constitute Eurocurrency funding and to be subject to
such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Bank
under such Regulation D or any comparable regulation. The Eurodollar
Reserve Percentage shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
The Offshore Rate for each outstanding Offshore Rate Loan shall be
adjusted automatically as of the effective date of any change in the Eurodollar
Reserve Percentage.
"Offshore Rate Loans" means Loans bearing interest at rates determined
by reference to the Offshore Rate.
"Other Taxes" has the meaning specified in subsection 3.1(b).
"Outstanding Obligations" means, as of any date, and giving effect to
making any Extensions of Credit requested on such date and all payments,
repayments and prepayments made on such date, the sum of (a) the aggregate
outstanding principal amount of all Loans, and (b) all Letter of Credit Usage.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Participant" has the meaning specified in Section 10.6(c).
"Permitted Liens" has the meaning specified in Section 7.1.
"Person" means any individual, partnership, limited liability company,
corporation (including a business trust), joint stock company, joint venture,
trust, bank, trust company, unincorporated association or other entity or a
government or any agency or political subdivision thereof.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Company or any member of the Controlled Group sponsors or
maintains or to which the Company or member of the Controlled Group makes or is
obligated to make contributions, and includes any Multiemployer Plan or
Qualified Plan.
"Pro Rata Share" means with respect to each Bank the percentage set
forth opposite such Bank's name on Schedule 1.1 hereto.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and which
any member of the Controlled Group sponsors, maintains, or to which it makes or
is obligated to make contributions, or in the case of a multiple employer plan
(as described in Section
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4064(a) of ERISA) has made contributions at any time during the immediately
preceding period covering at least five (5) plan years, but excluding any
Multiemployer Plan.
"Reference Rate" means the rate of interest publicly announced from
time to time by Bank of America in San Francisco as its reference rate, as in
effect on such date of determination. The reference rate is set by Bank of
America based on various factors including Bank of America's costs and desired
return, general economic conditions, and other factors, and is used as a
reference point for pricing some loans. Bank of America may make loans at, above
or below the rate announced by it as its reference rate. Any change in the
reference rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder, a withdrawal from a Plan described in
Section 4063 of ERISA, or a cessation of operations described in Section 4062(e)
of ERISA.
"Request for Extension of Credit" means a written request substantially
in the form of Exhibit A duly completed and signed by a Responsible Officer. In
the case of a request for a new or amended Letter of Credit, the written Letter
of Credit Application shall be deemed to be the Request for Extension of Credit.
"Requisite Banks" means, as at any date of determination, (a) prior to
the termination of all Commitments, Banks having more than 50% of the Aggregate
Commitment, and (b) if the Commitments have then been terminated and there are
Loans and/or Letter of Credit Usage outstanding, Banks holding Loans and Letter
of Credit Usage aggregating more than 50% of the aggregate outstanding principal
amount of Loans and Letter of Credit Usage.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Responsible Officer" means the Chief Financial Officer, the Chief
Accounting Officer, any Vice President, the Treasurer or any Assistant Treasurer
of the Company.
"Revolving Loan" has the meaning specified in Section 2.1. Revolving
Loans may be either Base Rate Loans or Offshore Rate Loans.
"Revolving Note" means a promissory note in substantially the form of
Exhibit C-1 hereto, including any amendment, modification, renewal or
replacement thereof.
"S&P" means Standard & Poor's Ratings Group.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor statute.
"Senior Funded Indebtedness" means Funded Indebtedness other than
Subordinated Indebtedness.
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"Subordinated Indebtedness" means unsecured Indebtedness of the Company
for borrowed money which by its terms matures more than one year from the date
of creation thereof and is issued under an instrument or instruments which
contains substantially the following provisions with respect to the
subordination of such indebtedness (hereinafter in this paragraph called
"Subordinated Indebtedness") to the Obligations (and to other Indebtedness for
money borrowed by the Company, if so provided), the Obligations and such other
indebtedness for borrowed money, if any, being hereinafter in this definition
called "Superior Indebtedness":
(i) The Subordinated Indebtedness shall be subordinated and
junior in right of payment, to the extent and in the manner hereinafter set
forth, to the Superior Indebtedness:
(a) In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization or other
similar proceedings in connection therewith, relative to the Company or to
its creditors, as such, or to its property, or in the event of any
proceeding for voluntary liquidation, dissolution or other winding up of
the Company, whether or not involving insolvency or bankruptcy, then the
holders of Superior Indebtedness shall be entitled to receive payment in
full of all principal, premium and interest on all Superior Indebtedness
(including interest accruing after the date of commencement of any such
proceedings at the rate applicable to such Superior Indebtedness, whether
or not such interest is an allowable claim in any such proceeding) before
the holders of Subordinated Indebtedness shall be entitled to receive any
payment on account of principal, premium or interest on Subordinated
Indebtedness, and to that end (but subject to the power of a court of
competent jurisdiction to make other equitable provisions reflecting the
rights conferred by these provisions upon Superior Indebtedness and the
holders thereof with respect to Subordinated Indebtedness and the holders
thereof by a lawful plan of reorganization under applicable bankruptcy law)
the holders of Superior Indebtedness shall be entitled to receive for
application in payment thereof (including interest accruing after the date
of commencement of any such proceedings at the rate applicable to such
Superior Indebtedness, whether or not such interest is an allowable claim
in any such proceeding) and payment or distribution of any kind or
character, whether in cash or property or securities or by set-off or
otherwise, which may be payable or deliverable in any such proceedings in
respect of Subordinated Indebtedness (including any such payment or
distribution which may be payable or deliverable by reason of the
provisions of any indebtedness of the Company which is subordinate and
junior in right of payment to the Subordinated Indebtedness), except
securities which are subordinate and junior in right of payment to the
payment of Superior Indebtedness; and
(b) In the event that any Subordinated Indebtedness is
declared due and payable before its expressed maturity because of the
occurrence of a default thereunder (under circumstances when the provisions
of the foregoing clause (a) shall not be applicable), the holders of
Superior Indebtedness outstanding, at the time such Subordinated
Indebtedness so becomes due and payable because of such occurrence of a
default
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thereunder, shall be entitled to receive payment in full of all principal
of, and interest and premium, if any, on all Superior Indebtedness before
the holders of Subordinated Indebtedness are entitled to receive any
payment on account of the principal of, and interest and premium, if any,
on, the Subordinated Indebtedness.
(ii) No payment or prepayment, directly or indirectly, on
account of the principal of, or interest and premium, if any, on, the
Subordinated Indebtedness shall be made (in cash or property or securities,
or by set-off or otherwise), and no holder of Subordinated Indebtedness
shall be entitled to demand or receive any such payment or prepayment (a)
unless all amounts then due for principal, interest and premium, if any, on
all Superior Indebtedness have been paid in full in cash, or (b) if, at the
time of such payment or prepayment or immediately after giving effect
thereto, there shall have occurred any event of default under any Superior
Indebtedness or under any agreement pursuant to which any Superior
Indebtedness is issued.
(iii) Subject to the payment in full of Superior Indebtedness,
holders of the Subordinated Indebtedness shall be subrogated to the rights
of the holders of Superior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Superior
Indebtedness until the Subordinated Indebtedness shall be paid in full and
no payments or distributions to the holders of the Superior Indebtedness by
or on behalf of the Company from the proceeds that would otherwise be
payable to the holders of the Subordinated Indebtedness or by or on behalf
of the holders of the Subordinated Indebtedness shall, as between the
Company and the holders of Subordinated Indebtedness, be deemed to be a
payment by the Company to or on account of the Superior Indebtedness.
(iv) These provisions with respect to subordination cannot be
amended, modified or waived without the prior written consent of the holder
or holders of all Superior Indebtedness at the time outstanding, and the
subordination effected hereby shall not be affected by any amendment or
modification of, or addition or supplement to, any Superior Indebtedness or
any instrument or agreement relating thereto, without the prior written
consent of the holder or holders of all Superior Indebtedness at the time
outstanding.
(v) No present or future holder of Superior Indebtedness shall
be prejudiced in his right to enforce subordination of Subordinated
Indebtedness by any act or failure to act on the part of the Company. The
foregoing provisions as to subordination are solely for the purpose of
defining the relative rights of the holders of Superior Indebtedness, on
the one hand, and the holders of Subordinated Indebtedness, on the other
hand, and none of such provisions shall impair, as between the Company and
any holders of Subordinated Indebtedness, the obligation of the Company,
which is unconditional and absolute, to pay to the holders of Subordinated
Indebtedness the principal thereof, and the interest and premium, if any,
thereon in accordance with its terms, nor shall any such provisions prevent
any holder of Subordinated Indebtedness from exercising all remedies
otherwise permitted by applicable law or under the terms of such
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Subordinated Indebtedness upon default thereunder, subject to the rights
under the foregoing provisions of holders of Superior Indebtedness to
receive for application in payment thereof any payment or distribution of
any kind or character, whether in cash or property or securities, or by
set-off or otherwise, which may be payable or deliverable to the holders of
Subordinated Indebtedness.
(vi) The Company agrees, for the benefit of the holders of
Superior Indebtedness, that in the event any Subordinated Indebtedness is
declared due and payable before its expressed maturity because of the
occurrence of any event of default thereunder or otherwise, (a) the Company
will give prompt notice in writing of such happening to the holders of
Superior Indebtedness, and (b) all Superior Indebtedness shall forthwith
become immediately due and payable upon demand, regardless of the expressed
maturity thereof.
"Subsidiary" means any corporation, partnership, joint venture,
association, limited liability company or other business entity of which more
than 50% of the total voting power of shares of stock or other interests having
ordinary voting power for the election of directors, managers, trustees or other
governing body thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the other Subsidiaries of that
Person or a combination thereof.
"Subsidiary Guarantor" means a Subsidiary that executes a Guaranty
Agreement pursuant to Section 6.13 hereof.
"Subsidiary Guaranty Agreement" means a Guaranty Agreement delivered
pursuant to Section 6.13 hereof.
"Swing Commitment" means an amount equal to the lesser of (a)
$25,000,000 and (b) the Aggregate Commitment.
"Swing Line" means the revolving line of credit established by Swing
Line Bank in favor of the Company pursuant to Section 2.2.
"Swing Line Bank" means Bank of America, or any successor swing line
lender hereunder.
"Swing Line Loan" means a loan made by Swing Line Bank to the Company
under the Swing Line.
"Swing Loan Note" means a promissory note in substantially the form of
Exhibit C-2 hereto, including any amendment, modification, renewal or
replacement thereof.
"Synthetic Lease" means each arrangement, however described, under
which the obligor accounts for its interest in the property covered thereby
under GAAP as lessee of a lease which is not a capital lease and accounts for
its interest in the property covered thereby for Federal income tax purposes as
the owner.
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"Synthetic Lease Obligation" means, as to any Person with respect to
any Synthetic Lease at any time of determination, the amount of the liability of
such Person in respect of such Synthetic Lease that would (if such lease was
required to be classified and accounted for as a capital lease on a balance
sheet of such Person in accordance with GAAP) be required to be capitalized on
the balance sheet of such Person at such time.
"Taxes" has the meaning specified in subsection 3.1(a).
"Transferee" has the meaning specified in Section 10.6(e).
"Type" of Loan means (a) a Base Rate Loan, (b) an Offshore Rate Loan,
or (c) a Swing Line Loan.
"Year 2000 problem" has the meaning specified in Section 5.17.
"Year 2000 program" has the meaning specified in Section 5.17.
1.2 Other Definitional Provisions. References to "Sections" shall be to
Sections of this Agreement unless otherwise specifically provided. Any of the
terms defined in Section 1.1 may, unless the context otherwise requires, be used
in the singular or the plural depending on the reference. The word "including"
when used herein is not intended to be exclusive and means "including, without
limitation."
Section 2. THE LOANS.
2.1 Revolving Loans. Each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make loans under its Commitment to the
Company (each such loan, a "Revolving Loan") from time to time on any Business
Day during the Availability Period, in an aggregate amount not to exceed at any
time its Commitment; provided, however, that, after giving effect to any
Extension of Credit, Outstanding Obligations of all Banks shall not exceed the
Aggregate Commitment; and provided further, that (i) the aggregate principal
amount of Revolving Loans of any Bank, plus (ii) the aggregate principal amount
of such Bank's participation in the Swing Line Loans, plus (iii) the
participation of such Bank in Letter of Credit Usage, shall not at any time
exceed such Bank's Commitment. Within the limits of each Bank's Commitment, and
subject to the other terms and conditions hereof, the Company may borrow under
this Section 2.1, prepay pursuant to Section 2.11 and reborrow pursuant to this
Section 2.1.
2.2 Swing Line.
(a) Subject to the terms and conditions set forth in this Agreement,
Swing Line Bank agrees to make Swing Line Loans on any Business Day during the
Availability Period in such amounts as the Company may from time to time
request; provided, however, that (i) after giving effect to such Swing Line
Loan, the Swing Line Loans shall not exceed the Swing Commitment, (ii) the
Outstanding Obligations of all Banks shall not exceed the Aggregate Commitment
at any time; provided, further, that Swing Line Bank may terminate or suspend
the Swing Line at any time and from time to time in its sole discretion upon at
least 24 hours prior notice to Company. Within the limits of Swing Line Bank's
Swing Commitment, and subject to the other terms and conditions hereof, Company
may borrow, repay and reborrow under this Section. Unless notified to the
contrary by Swing Line Bank, Borrowings under the Swing Line may be
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made in amounts which are integral multiples of $100,000 ("integral amount")
upon irrevocable telephonic notice to Swing Line Bank followed by a written
notice to Swing Line Bank (with a copy to the Administrative Agent) not later
than 12:00 noon San Francisco time. Each such request for a Swing Line Loan
shall constitute a representation and warranty by Borrower that the conditions
set forth in Sections 4.2(c) and (d) are satisfied. Promptly after receipt of
such request, Swing Line Bank shall obtain telephonic verification from the
Administrative Agent that there is availability for such Swing Line Loan under
the Commitments. Each repayment of a Swing Line Loan shall be made to the
Administrative Agent for the account of the Swing Line Bank in an amount which
is an integral multiple of the integral amount by payment or debit at a demand
deposit account at Bank of America. All payments received after 12:00 noon San
Francisco time shall be deemed received on the next succeeding Business Day.
(b) Swing Line Loans shall bear interest at the Base Rate, payable on
the dates set forth in Section 2.2(c) or as otherwise may be specified by Swing
Line Bank and, in any event, on the Maturity Date. Interest on Swing Line Loans
shall be payable upon demand of Swing Line Bank. The interest payable on Swing
Line Loans is solely for the account of Swing Line Bank.
(c) The Swing Line Loans, together with interest thereon, shall be
payable on the earliest of (i) the fifth Business Day after it is made, (ii) the
Maturity Date and (iii) upon demand made by Swing Line Bank.
(d) Unless the Company has made other arrangements satisfactory to
Swing Line Bank in Swing Line Bank's sole discretion, if the principal amount of
Swing Line Loans exceeds $5,000,000 for three consecutive Business Days, then on
the next Business Day, the Company shall repay Swing Line Loans in a principal
amount necessary to reduce the Swing Line Loans below such amount to the
Administrative Agent at the Administrative Agent's Office not later than 10:00
A.M. (San Francisco time). The Company shall also pay accrued interest on any
principal amount so repaid. The Administrative Agent shall remit such amount to
Swing Line Bank, which Swing Line Bank shall then apply to the Swing Line Loans
by such amount.
(e) If the Company fails to timely make any principal or interest
payment required pursuant to subsections (b), (c) or (d) above, the
Administrative Agent shall promptly notify each Bank of its Pro Rata Share of
such amount. Each Bank shall make funds in an amount equal to its Pro Rata Share
of such amount available to the Administrative Agent at the Administrative
Agent's Office not later than 10:00 A.M. (San Francisco time) on the following
Business Day. The obligation of each Bank to make such payment shall be absolute
and unconditional and shall not be affected by the occurrence of an Event of
Default or any other occurrence or event. Any such payment shall not relieve or
otherwise impair the obligation of the Company to repay Swing Line Bank for any
amount of Swing Line Loans, together with interest as provided herein.
(f) If the conditions precedent set forth in Section 4 can be satisfied
(except for the giving of a Request for Extension of Credit) on any date the
Company is obligated to make, but fails to make, a repayment of Swing Line
Loans, the funding by the Banks pursuant to subsection (e) above shall be deemed
to be part of a Borrowing of Loans which are Base Rate Loans (without regard to
the minimum amount therefor) requested by the Company. If the conditions
precedent set forth in Section 4 cannot be satisfied on the date the Company is
obligated to make, but fails to make, such payment,
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the funding by the Banks pursuant to subsection (e) above shall be deemed to be
a funding by each Bank of its participation in such Swing Line Loans, and such
funds shall be payable by the Company upon demand and shall bear interest at the
rate set forth in Section 2.9(c), and each Bank making such funding shall
thereupon acquire a pro rata participation, to the extent of such payment, in
the claim of Swing Line Bank against the Company in respect of such payment and
shall share, in accordance with that pro rata participation, in any payment made
by the Company with respect to such claim.
2.3 Loan Accounts. The Loans made by each Bank shall be evidenced by
one or more loan accounts maintained by such Bank in the ordinary course of
business. Upon the request of any Bank made through the Administrative Agent,
such Bank's Loans may be evidenced by one or more Notes, instead of or in
addition to Loan accounts. Each such Bank may attach schedules to its Note(s)
and endorse thereon the date, amount and maturity of its Loans and payments with
respect thereto. Such loan accounts, records or Notes shall be conclusive absent
error of the amount of the Loans made by the Banks to the Company and the
interest and payments thereon. Any failure so to record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the Loans.
2.4 Letters of Credit.
(a) The Letter of Credit Commitment. Subject to the terms and
conditions hereof, at any time and from time to time from the Effective Date
through the date that is 30 days prior to the Maturity Date, the Issuing Bank
shall take such Letter of Credit Actions under the Commitments as the Company
may request; provided, however, that (i) the Outstanding Obligations of each
Bank shall not exceed such Bank's Commitment and the Outstanding Obligations of
all Banks shall not exceed the Aggregate Commitment at any time, (ii) the
aggregate outstanding Letter of Credit Usage shall not exceed the Letter of
Credit Commitment at any time, (iii) each Letter of Credit Action shall be in a
form acceptable to Issuing Bank and shall not violate any policies of Issuing
Bank, and (iv) the Issuing Bank shall not be required to issue Letters of Credit
that have automatic extension or renewal provisions ("evergreen" Letters of
Credit). Each Letter of Credit will be a nontransferable standby letter of
credit to support payment and/or performance obligations of the Company or one
of its Subsidiaries. No Letter of Credit shall expire more than 364 days after
the date of issuance. If any Letter of Credit is to remain outstanding after the
Maturity Date, the Company shall, not later than seven days prior to the
Maturity Date, deposit cash in an amount equal to one hundred and two percent
(102%) of such Letter of Credit Usage in a Letter of Credit Cash Collateral
Account.
(b) Requesting Letter of Credit Actions. The Company may irrevocably
request a Letter of Credit Action by delivering a Letter of Credit Application
therefor to Issuing Bank, with a copy to the Administrative Agent (who shall
notify the Banks), not later than 8:30 a.m. (San Francisco time) on the date
which is five Business Days prior to the date of the requested action therefor.
Unless Administrative Agent notifies Issuing Bank that such Letter of Credit
Action is not permitted hereunder or Issuing Bank determines that such Letter of
Credit Action is contrary to any Requirement of Law or policies of Issuing Bank
or does not otherwise conform to the requirements of this Agreement, Issuing
Bank shall effect such Letter of Credit Action. This Agreement shall control in
the event of any conflict with any Letter of Credit Application. Upon the
issuance of a Letter of Credit, each Bank shall be deemed to have purchased a
pro rata
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participation in such Letter of Credit from Issuing Bank in an amount equal to
that Bank's Pro Rata Share.
(c) Reimbursement of Payments Under Letters of Credit. The Company
shall reimburse Issuing Bank through Administrative Agent for any payment that
Issuing Bank makes under a Letter of Credit on or before the date of such
payment; provided, however, that if, during the Availability Period, the
conditions precedent set forth in Section 4 can be satisfied, the Company may
request a Borrowing of Loans to reimburse Issuing Bank for such payment on or
before the date thereof by complying with Section 2.1, or the Company may allow
a deemed Borrowing of Loans which are Base Rate Loans to take place on such
payment date pursuant to subsection (e) below.
(d) Funding by Banks When Issuing Bank Not Reimbursed. If the Company
fails to timely make the payment required pursuant to subsection (c) above,
Issuing Bank shall notify Administrative Agent of such fact and the amount of
such unreimbursed payment. Administrative Agent shall promptly notify each Bank
of its Pro Rata Share of such amount. Each Bank shall make funds in an amount
equal its Pro Rata Share of such amount available to Administrative Agent at
Administrative Agent's Office on the Business Day specified by Administrative
Agent. The obligation of each Bank to so reimburse Issuing Bank shall be
absolute and unconditional and shall not be affected by the occurrence of an
Event of Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of the Company to reimburse
Issuing Bank for the amount of any payment made by Issuing Bank under any Letter
of Credit, together with interest as provided herein.
(e) Nature of Banks' Funding. If the conditions precedent set forth in
Section 4 can be satisfied (except for the giving of a Request for Extension of
Credit) on the date the Company is obligated to make, but fails to make, a
reimbursement of a payment under a Letter of Credit, the funding by Banks
pursuant to subsection (d) above shall be deemed to be part of a Borrowing of
Loans which are Base Rate Loans (without regard to the minimum amount therefor)
requested by the Company. If the conditions precedent set forth in Section 4
cannot be satisfied on the date the Company is obligated to make, but fails to
make, a reimbursement of a payment under a Letter of Credit, the funding by
Banks pursuant to subsection (d) above shall be deemed to be a funding by each
Bank of its participation in such Letter of Credit, and such funds shall be
payable by the Company upon demand and shall bear interest at a rate which is
equal to the Base Rate plus the Applicable Amount, if any, plus 2% per annum,
and each Bank making such funding shall thereupon acquire a pro rata
participation, to the extent of such reimbursement, in the claim of Issuing Bank
against the Company in respect of such payment and shall share, in accordance
with that pro rata participation, in any payment made by the Company with
respect to such claim.
(f) Obligations Absolute. The obligation of the Company to pay to
Issuing Bank the amount of any payment made by Issuing Bank under any Letter of
Credit shall be absolute, unconditional, and irrevocable. Without limiting the
foregoing, the Company's obligation shall not be affected by any of the
following circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
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(ii) any amendment or waiver of or any consent to departure from
the Letter of Credit, this Agreement, or any other agreement or instrument
relating thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which the Company may have at any time against Issuing Bank,
Administrative Agent or any Bank, any beneficiary of the Letter of Credit
(or any persons or entities for whom any such beneficiary may be acting) or
any other Person, whether in connection with the Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto, or any
unrelated transactions;
(iv) any demand, statement, or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever so long as any such document appeared
to comply with the terms of the Letter of Credit;
(v) payment by Issuing Bank in good faith under the Letter of
Credit against presentation of a draft or any accompanying document which
does not strictly comply with the terms of the Letter of Credit; or any
payment made by Issuing Bank under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of any Letter of
Credit, including any arising in connection with any Insolvency Proceeding;
(vi) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
(vii) any error in the transmission of any message relating to a
Letter of Credit not caused by Issuing Bank, or any delay or interruption
in any such message;
(viii) any error, neglect or default of any correspondent of
Issuing Bank in connection with a Letter of Credit;
(ix) any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of Issuing Bank;
(x) so long as Issuing Bank in good faith determines that the
document appears to comply with the terms of the Letter of Credit, the
form, accuracy, genuineness or legal effect of any contract or document
referred to in any document submitted to Issuing Bank in connection with a
Letter of Credit; and
(xi) where Issuing Bank has acted in good faith and any other
circumstances whatsoever.
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In addition, the Company will promptly examine a copy of each Letter of
Credit and amendments thereto delivered to it and, in the event of any claim of
noncompliance with the Company's instructions or other irregularity, the Company
will immediately notify Issuing Bank in writing. The Company shall be
conclusively deemed to have waived any such claim against Issuing Bank and its
correspondents unless such notice is given as aforesaid.
(g) Role of Issuing Bank. Each Bank and the Company agree that, in
paying any drawing under a Letter of Credit, Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No Agent-Related Person
(as such term is defined in Section 9.3) nor any of the respective
correspondents, participants or assignees of Issuing Bank shall be liable to any
Bank for any action taken or omitted in connection herewith at the request or
with the approval of Banks or the Requisite Banks, as applicable; any action
taken or omitted in the absence of gross negligence or willful misconduct; or
the due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit. The Company hereby assumes all risks
of the acts or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Company's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of Issuing Bank, shall be liable or
responsible for any of the matters described in subsection (f) above. In
furtherance and not in limitation of the foregoing, Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and Issuing Bank shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(h) Applicability of International Standby Practices 1998. Unless
otherwise expressly agreed by Issuing Bank and the Company when a Letter of
Credit is issued, the rules of the "International Standby Practices 1998" or
such later revision as may be published by the Institute of International
Banking Law and Practice, subject to applicable laws, shall be deemed a part of
this Section and shall apply to such Letter of Credit.
(i) Issuance Fee and Documentary and Processing Charges Payable to
Issuing Bank. Concurrently with the issuance of each Letter of Credit, the
Company shall pay a letter of credit issuance fee to Issuing Bank, for the sole
account of Issuing Bank, equal to the aggregate stated amount for each Letter of
Credit times 10.0 basis points per annum for the stated duration thereof. In
addition, the Company shall pay directly to Issuing Bank for its sole account
its customary documentary and processing charges in accordance with its standard
schedule, as from time to time in effect, for any amendment or other occurrence
relating to a Letter of Credit. Such fee and charges are nonrefundable.
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(j) Letter of Credit Cash Collateral Account.
(i) The Company hereby pledges and grants a security interest in
and lien on the Letter of Credit Cash Collateral Account and all funds, cash and
instruments at any time on deposit or held therein to the Administrative Agent
for and on behalf of the Banks as security for the Obligations. The Letter of
Credit Cash Collateral Account shall be under the exclusive dominion and control
of the Administrative Agent. The Administrative Agent may, at any time or from
time to time, without notice to the Company, apply funds then held in the Letter
of Credit Cash Collateral Account to the payment of Obligations in respect of
Letters of Credit and other amounts owed under this Agreement.
(ii) The rate of interest earned on the Letter of Credit Cash
Collateral Account shall be comparable to the rates paid by Bank of America on
other similar accounts as in effect time to time; provided, however, that Bank
of America shall not be obligated to pay interest on said account during the
continuation of a Default or Event of Default.
(iii) At all times after a deposit is required in the Letter of
Credit Cash Collateral Account pursuant to Section 2.4(a) or Section 8.2(b), the
amount required to be on deposit in the Letter of Credit Cash Collateral Account
shall at all times equal not less than one hundred and two percent (102%) of the
Letter of Credit Usage. Such amount shall remain on deposit in the Letter of
Credit Cash Collateral Account until expiration or termination of all Letters of
Credit and payment of all Obligations, at which time it shall be paid to the
Company. There shall be no release of funds from the Letter of Credit Cash
Collateral Account at any time during the continuance of a Default or an Event
of Default.
(iv) The Company agrees that it will not sell or otherwise dispose
of any interest in the Letter of Credit Cash Collateral Account or any funds
held therein, or create or permit to exist any Lien upon said account or any
funds held therein other than the Lien hereby created.
(v) The Company agrees to pay to Bank of America all customary
fees, costs and expenses which Bank of America incurs in connection with opening
and maintaining the Letter of Credit Cash Collateral Account.
2.5 Procedure for Borrowings.
(a) Each Borrowing of Revolving Loans shall be made upon irrevocable
telephonic notice by the Company followed immediately by written notice in the
form of a Request for Extension of Credit (which telephonic notice must be
received by the Administrative Agent (i) prior to 8:30 a.m. (San Francisco time)
three Business Days prior to the requested Borrowing Date, in the case of
Offshore Rate Loans; and (ii) prior to 8:30 a.m. (San Francisco time) on the
requested Borrowing Date, in the case of Base Rate Loans), specifying: (i) the
amount of the Borrowing, which shall be in an aggregate minimum principal amount
of $5,000,000 and any multiple of $1,000,000 in excess thereof; (ii) the
requested Borrowing Date, which shall be a Business Day; (iii) whether the
Borrowing is to be comprised of Offshore Rate Loans or Base Rate Loans; and (iv)
the duration of the Interest Period applicable to Offshore Rate Loans included
in such notice. If the Request for Extension of Credit shall fail to specify the
duration of the Interest
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Period for any Borrowing comprised of Offshore Rate Loans, such Interest Period
shall be one month (but not beyond the Maturity Date).
(b) Promptly after receipt of a Request for Extension of Credit, the
Administrative Agent shall notify each Bank of the proposed Borrowing. Each Bank
shall make available to the Administrative Agent its Pro Rata Share of the
amount (if any) by which the principal amount of the proposed Borrowing exceeds
the principal amount of the Loans (if any) maturing on the Borrowing Date, in
same day funds, by remitting such funds to: Bank of America National Trust and
Savings Association, ABA No. ▇▇▇-▇▇▇-▇▇▇, Attn: Agency Administrative Services
No. 5596 For credit to: BANCONTROL Account No. 12331-15429, Reference: ONEOK,
Inc. at the office of the Administrative Agent located at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, no later than 11:00 a.m. (San Francisco
time) on the Borrowing Date. Upon satisfaction of the conditions set forth in
Section 4.2, the Administrative Agent shall make available to the Company on
such Borrowing Date the aggregate of the amounts (if any) so made available by
the Banks by causing an amount of same day funds equal to such aggregate amount
(if any) received by the Administrative Agent to be credited to the account of
the Company at such office of the Administrative Agent.
(c) Section 2.5(a) notwithstanding, if the Company shall not have given
a timely Request for Extension of Credit to be made on the last day of any
Interest Period for outstanding Loans, then unless the Administrative Agent
shall have received notice that the Company elects not to make a Borrowing on
such day the Administrative Agent shall be deemed to have received a Request for
Extension of Credit from the Company requesting Base Rate Loans to be made on
such day in an amount equal to the amount of such outstanding Loans.
(d) The failure of any Bank to make any Loan on any date shall not
relieve any other Bank of any obligation to make a Loan on such date, but no
Bank shall be responsible for the failure of any other Bank to so make its Loan.
2.6 Conversion and Continuation Elections.
(a) The Company may (i) elect to convert on any Business Day, any Base
Rate Loans (or any part thereof in an amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof) into Offshore Rate Loans;
(ii) elect to convert on the last day of the Interest Period therefor, any
Offshore Rate Loans (or any part thereof in an amount not less than $5,000,000)
or an integral multiple of $1,000,000 in excess thereof) into Base Rate Loans;
or (iii) elect to continue, on the last day of the Interest Period therefor, any
Offshore Rate Loans (or any part thereof in an amount not less than $5,000,000
or an integral multiple of $1,000,000 in excess thereof); provided, that if the
aggregate amount of Offshore Rate Loans shall have been reduced, by payment,
prepayment, or conversion of part thereof to be less than $5,000,000, Offshore
Rate Loans shall automatically convert into Base Rate Loans, and on and after
such date the right of the Company to continue such Loans as Offshore Rate Loans
shall terminate.
(b) Each conversion or continuation shall be made upon irrevocable
telephonic notice by the Company followed immediately by written notice in the
form of a Notice of Conversion/Continuation (which telephonic notice must be
received by the Administrative Agent prior to 8:30 a.m. (San Francisco time) at
least (i) three Business Days in advance of the conversion or continuation date,
if the Loans are to be converted
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into or continued as Offshore Rate Loans; and (ii) one Business Day in advance
of the conversion or continuation date, if the Loans are to be converted into
Base Rate Loans), specifying: (A) the proposed conversion or continuation date;
(B) the aggregate amount of Loans to be converted or continued; (C) the nature
of the proposed conversion or continuation; and (D) the duration of the
requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to select a new Interest Period to
be applicable thereto, or if any Event of Default shall then exist, the Company
shall be deemed to have elected to convert such Offshore Rate Loans into Base
Rate Loans effective as of the expiration date of such current Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Administrative Agent will promptly notify each Bank thereof, or, if no timely
notice is provided, the Administrative Agent will promptly notify each Bank of
the details of any automatic conversion. All conversions and continuations shall
be made pro rata according to the respective outstanding principal amounts of
the Loans with respect to which the notice was given held by each Bank.
2.7 Limitation on Interest Periods. Notwithstanding any other provision
contained in this Agreement, after giving effect to any Borrowing or conversion
or continuation of any Loans, there shall not be more than six different
Interest Periods for Offshore Rate Loans in effect.
2.8 Reductions of Commitments. The Company shall have the right, at any
time and from time to time, to terminate in whole or permanently reduce in part,
without premium or penalty, the unutilized portion of the Commitments in excess
of the Swing Line Loans; provided, that the Aggregate Commitment, as reduced,
shall at all times be equal to or exceed the Outstanding Obligations at such
time. The Company shall give not less than five Business Days' prior written
notice to the Administrative Agent designating the date (which shall be a
Business Day) of such termination or reduction and the amount of any partial
reduction. Promptly after receipt of a notice of such termination or partial
reduction, the Administrative Agent shall notify each Bank of the proposed
termination or reduction. Such termination or partial reduction of the
Commitments shall be effective on the date specified in the Company's notice and
shall terminate or reduce each Bank's Pro Rata share of the Aggregate Commitment
so reduced. Any partial reduction shall be in an aggregate minimum amount of
$5,000,000. Once reduced in accordance with this Section 2.8, the Commitments
may not be increased.
2.9 Interest on the Loans.
(a) Subject to Section 2.9(c), the Loans (other than Swing Line Loans)
shall bear interest on the unpaid principal amount thereof from the Borrowing
Date to maturity (whether by acceleration or otherwise) at a rate per annum
equal to either the Offshore Rate plus the Applicable Amount, as the same may be
adjusted pursuant to the definition of Applicable Amount, or the Base Rate plus
the Applicable Amount, if any.
(b) Interest shall be payable in arrears on the Loans (other than Swing
Line Loans) on each Interest Payment Date applicable to that Loan.
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(c) Not withstanding subsection (a) of this Section, while any Event of
Default exists or after acceleration, the Company shall pay interest on the
principal amount of all outstanding Loans (including the Swing Line Loans) at a
rate which is equal to the Base Rate plus the Applicable Amount, if any, plus 2%
per annum, with respect to Base Rate Loans, or the Offshore Rate plus the
Applicable Amount plus 2% per annum with respect to Offshore Rate Loans, or the
Base Rate plus 2% per annum with respect to Swing Line Loans, in each case to
the fullest extent permitted by applicable laws.
2.10 Maturity of Loans. Each Loan shall mature and the Company shall
repay the unpaid principal amount of each Loan on the Maturity Date.
2.11 Voluntary Prepayments.
(a) The Company may, upon not less than one Business Days' prior
written or telephonic notice confirmed in writing to the Administrative Agent
(in the case of a prepayment of a Base Rate Loan) or three Business Days' prior
written or telephonic notice confirmed in writing to the Administrative Agent
(in the case of a prepayment of an Offshore Rate Loan) (which notice the
Administrative Agent will promptly transmit to each Bank), at any time and from
time to time prepay any Loans in whole or in part in an aggregate minimum amount
of $5,000,000 and integral multiples of $1,000,000 in excess of that amount;
provided that in the event of any such prepayment of any Offshore Rate Loans,
the Company shall be obligated to reimburse the Banks in respect thereof
pursuant to Section 3.6. If such notice of prepayment does not specify how such
prepayment shall be applied, it shall be applied first to Base Rate Loans to the
full extent thereof before application to Offshore Rate Loans, as determined by
the Administrative Agent. Any prepayment of an Offshore Rate Loan shall be
accompanied by payment of all accrued, unpaid interest thereon.
(b) If for any reason the Outstanding Obligations exceed the Aggregate
Commitment as in effect or as reduced or because of any limitation set forth in
this Agreement or otherwise, the Company shall immediately prepay Loans and/or
deposit cash in a Letter of Credit Cash Collateral Account in an aggregate
amount equal to such excess.
2.12 Fees.
(a) Arrangement Fee. The Company shall pay to Bank of America for Bank
of America's own account an arrangement fee in an amount and at the times set
forth in a letter agreement between the Company and Bank of America dated May
21, 1999.
(b) Facility Fee. The Company shall pay to the Administrative Agent for
the account of each Bank pro rata according to its Pro Rata Share a facility fee
equal to the facility fee set forth in the definition of Applicable Amount times
the Aggregate Commitment, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter. If there is any change in the Applicable
Amount during any quarter, the Aggregate Commitment shall be multiplied by the
Applicable Amount separately for each period that such Applicable Amount was in
effect during such quarter. Such facility fee shall accrue from the Effective
Date to the Maturity Date and shall be due and payable quarterly in arrears on
the last Business Day of each calendar quarter and on the Maturity Date;
provided that, in connection with any reduction or termination of Commitments
pursuant to Section 2.8, the accrued facility fee calculated for the period
ending on such date shall also be paid on the date of such reduction or
termination, with the next
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succeeding quarterly payment being calculated on the basis of the period from
the reduction or termination date to such quarterly payment date. The facility
fee provided in this Section shall accrue at all times after the Effective Date,
including at any time during which one or more conditions in Section 4 are not
met.
(c) Utilization Fee. The Company shall pay to the Administrative Agent
for the account of each Bank pro rata according to its Pro Rata Share a
utilization fee equal to the utilization fee set forth in the definition of
Applicable Amount times the Outstanding Obligations, for each day during the
term hereof that the Outstanding Obligations exceeds 33% of the Aggregate
Commitment. If there is any change in the Applicable Amount during any quarter,
the Outstanding Obligations shall be computed and multiplied by the Applicable
Amount separately for each period that such Applicable Amount was in effect
during such quarter. Such utilization fee shall accrue from the Closing Date to
the Maturity Date and shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter and on the Maturity Date.
(d) Letter of Credit Fees. The Company shall pay to the Administrative
Agent for the account of each Bank pro rata according to its Pro Rata Share a
letter of credit fee with respect to each Letter of Credit, equal to the letter
of credit fee set forth in the definition of Applicable Amount multiplied by the
daily maximum amount available to be drawn on such outstanding Letter of Credit.
Such fee shall be due and payable quarterly in arrears on the last Business Day
of each calendar quarter during which such Letter of Credit is outstanding, and
on the Maturity Date (or such later date upon which such Letter of Credit shall
expire). If there is any change in the Applicable Amount during any quarter, the
daily maximum amount available to be drawn on such Letter of Credit shall be
multiplied by the Applicable Amount separately for each period that such
Applicable Amount was in effect during such quarter.
(e) Agency Fee. The Company shall pay to the Administrative Agent for
the Administrative Agent's own account an agency fee in the amount and at the
times set forth in a letter agreement between the Company and the Administrative
Agent dated the Closing Date.
2.13 Computation of Fees and Interest. All computations of interest
payable in respect of Base Rate Loans shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All computations
of interest payable in respect of all other Types of Loans and all fees shall be
made on the basis of a 360 day year and actual days elapsed, which results in
more interest being paid than if computed on the basis of a 365-day year.
Interest and fees shall accrue during each period during which interest or such
fees are computed from the first day thereof to the last day thereof.
2.14 Use of Proceeds of Loans. The Company may use the proceeds of
Loans to repay other Indebtedness of the Company or a Subsidiary of the Company,
to provide liquidity for commercial paper, for working capital, capital
expenditures, acquisitions, mergers, and other general corporate purposes not in
contravention of any Requirement of Law or of any Loan Document. No portion of
the proceeds of any Loan shall be used in connection with the acquisition of a
voting interest of five percent or more in any Person if such acquisition is
opposed by the board of directors or management of such Person.
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2.15 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Bank to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Bank that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
2.16 Extension of Maturity Date. The Company may request that the Banks
extend the Maturity Date for successive 364 day periods by notifying the Banks
in writing through the Administrative Agent not more than 45 days nor less than
30 days prior to the Maturity Date, then in effect. The Administrative Agent
shall promptly notify each Bank of such an extension request. Thereupon, the
parties hereto shall commence good faith negotiations as to the terms and
conditions of the proposed extension which shall include a full credit
assessment of the Company by the Banks. Each Bank shall have the right to
consent to or reject such extension request in the exercise of its sole and
absolute discretion and shall notify the Administrative Agent of its decision
not more than 30 days nor less then 20 days prior to the Maturity Date then in
effect. Failure by any Bank to notify the Administrative Agent of its decision
shall be deemed to be a rejection by such Bank of the extension request. If all
Banks consent to such extension, the Maturity Date shall be extended for 364
days from the then current Maturity Date.
Section 3. PAYMENTS IN GENERAL.
3.1 Taxes.
(a) Subject to Section 3.1(g), any and all payments by the Company to
each Bank or the Administrative Agent under this Agreement shall be made free
and clear of, and without deduction or withholding for, any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Administrative Agent, such taxes (including income taxes or franchise taxes) as
are imposed on or measured by each Bank's net income by the jurisdiction under
the laws of which such Bank or the Administrative Agent, as the case may be, is
organized or maintains a 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").
(b) In addition, the Company shall 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 hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Subject to Section 3.1(g), the Company shall indemnify and hold
harmless each Bank and the Administrative 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 3.1) paid by the Bank or
the Administrative Agent and any liability (including penalties, interest,
additions to tax and expenses to the extent not resulting from the gross
negligence or willful misconduct of a Bank or the Administrative Agent) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 30 days from the date the Bank or the Administrative Agent makes written
demand therefor.
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(d) If the Company shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any Bank
or the Administrative Agent, then, subject to Section 3.1(g): (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.1) such Bank or the Administrative 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 Company shall make such deductions, and (iii) the
Company shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.
(e) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes, the Company shall furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Administrative Agent.
(f) Each Bank which is a foreign Person (i.e., a Person other than a
United States Person for United States Federal income tax purposes) agrees that:
(i) it shall, no later than the Closing Date (or, in the case of a Bank which
becomes a party hereto pursuant to Section 10.6 after the Closing Date, the date
upon which the Bank becomes a party hereto) deliver to the Company through the
Administrative Agent: (A) if any Lending Office is located in the United States,
two accurate and complete signed originals of Internal Revenue Service Form 4224
or any successor thereto ("Form 4224"), and (B) if any Lending Office is located
outside the United States, two accurate and complete signed originals of
Internal Revenue Service Form 1001 or any successor thereto ("Form 1001"), in
each case indicating that the Bank is on the date of delivery thereof entitled
to receive payments of principal, interest and fees for the account of such
Lending Office or Offices under this Agreement free from withholding of United
States Federal income tax; (ii) if at any time the Bank changes its Lending
Office or Offices or selects an additional Lending Office as herein provided, it
shall with reasonable promptness deliver to the Company through the
Administrative Agent in replacement for, or in addition to, the forms previously
delivered by it hereunder: (A) if such changed or additional Lending Office is
located in the United States, two accurate and complete signed originals of Form
4224; or (B) otherwise, two accurate and complete signed originals of Form 1001,
in each case indicating that the Bank is on the date of delivery thereof
entitled to receive payments of principal, interest and fees for the account of
such changed or additional Lending Office under this Agreement free from
withholding of United States Federal income tax; (iii) it shall, before or
promptly after the occurrence of any event (including the passing of time but
excluding any event mentioned in (ii) above) requiring a change in the most
recent Form 4224 or Form 1001 previously delivered by such Bank and if the
delivery of the same be lawful, deliver to the Company through the
Administrative Agent two accurate and complete original signed copies of Form
4224 or Form 1001 in replacement for the forms previously delivered by the Bank;
and (iv) it shall, promptly upon the Company's reasonable request to that
effect, deliver to the Company such other forms or similar documentation as may
be required from time to time by any applicable law, treaty, rule or regulation
in order to establish such Bank's tax status for withholding purposes.
(g) The Company will not be required to pay any additional amounts in
respect of United States Federal income tax pursuant to Section 3.1(d) to any
Bank for the account of any Lending Office of such Bank: (i) if the obligation
to pay such additional amounts would not have arisen but for a failure by such
Bank to comply with its obligations under Section 3.1(f) in respect of such
Lending Office; (ii) if such Bank shall
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have delivered to the Company a Form 4224 in respect of such Lending Office
pursuant to Section 3.1(f)(i)(A), and such Bank shall not at any time be
entitled to exemption from deduction or withholding of United States Federal
income tax in respect of payments by the Company hereunder for the account of
such Lending Office after the date of delivery of such Form 4224; or (iii) if
the Bank shall have delivered to the Company a Form 1001 in respect of such
Lending Office pursuant to Section 3.1(f)(i)(B), and such Bank shall not at any
time be entitled to exemption from deduction or withholding of United States
Federal income tax in respect of payments by the Company hereunder for the
account of such Lending Office after the date of delivery of such Form 1001.
(h) If, at any time, the Company requests any Bank to deliver any forms
or other documentation pursuant to Section 3.1(f)(iv), then the Company shall,
on demand of such Bank through the Administrative Agent, reimburse such Bank for
any costs and expenses (including expenses of outside legal counsel and the
allocated costs of in-house counsel) reasonably incurred by such Bank in the
preparation or delivery of such forms or other documentation.
(i) If the Company is required to pay additional amounts to any Bank or
the Administrative Agent pursuant to Section 3.1(d), then such Bank shall use
its reasonable best efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Company which may thereafter accrue if such change in
the judgment of such Bank is not otherwise disadvantageous to such Bank.
(j) The agreements and obligations of the Company contained in this
Section 3.1 shall survive the payment in full of all other Obligations.
3.2 Payments by the Company.
(a) All payments of principal, interest and fees hereunder shall be
made without set-off, recoupment or counterclaim, and shall be in the same day
funds and delivered to the Administrative Agent for credit to:
Bank of America National Trust
and Savings Association
ABA No. ▇▇▇-▇▇▇-▇▇▇
Bancontrol Account No. 12331-15429
Reference: ONEOK, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
for the account of the Banks not later than 10:00 A.M. (San Francisco time) on
the date due; funds received by the Administrative Agent after that time shall
be deemed to have been paid by the Company on the next succeeding Business Day
and all applicable interest or fees shall continue to accrue.
(b) Except as otherwise provided in Section 2.4(c) with respect to the
Company reimbursing drawings under Letters of Credit, unless the Company has
notified the Administrative Agent prior to the date any payment to be made by it
is due, that it does not intend to remit such payment, Administrative Agent may,
in its discretion, assume that the Company has timely remitted such payment and
may, in its discretion and in reliance
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thereon, make available such payment to the Person entitled thereto. If such
payment was not in fact remitted to Administrative Agent in immediately
available funds, then each Bank shall forthwith on demand repay to
Administrative Agent the amount of such assumed payment made available to such
Bank, together with interest thereon in respect of each day from and including
the date such amount was made available by Administrative Agent to such Bank to
the date such amount is repaid to Administrative Agent at the Federal Funds
Rate.
3.3 Payments on Non-Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day which is not a Business Day, the
payment shall be made on the next succeeding Business Day and such extension of
time shall be included in the computation of the payment of the interest
hereunder; provided that, in the event that the day on which payment relating to
a Offshore Rate Loan is due is not a Business Day but is a day of the month
after which no further Business Day occurs in that month, then the due date
thereof shall be the next preceding Business Day and such shortening of time
shall be excluded in the computation of the payment of the interest hereunder.
3.4 Illegality.
(a) If any Bank shall determine that the introduction of any
Requirement of Law or any change in or in the interpretation or administration
thereof has made it unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for any Bank or its Lending Office
to make Offshore Rate Loans, then, on notice thereof by the Bank to the Company
through the Administrative Agent, the obligation of the Bank to make Offshore
Rate Loans shall be suspended until the Bank shall have notified the
Administrative Agent and the Company that the circumstances giving rise to such
determination no longer exists.
(b) If a Bank shall determine that it is unlawful to maintain any
Offshore Rate Loan, the Company shall prepay in full all Offshore Rate Loans of
the Bank then outstanding, together with interest accrued thereon, either on the
last day of the Interest Period thereof if the Bank may lawfully continue to
maintain such Offshore Rate Loans to such day, or promptly, if the Bank may not
lawfully continue to maintain such Offshore Rate Loans, together with any
amounts required to be paid in connection therewith pursuant to Section 3.6.
(c) If the Company is required to prepay any Offshore Rate Loans
immediately as provided in Section 3.4(b), then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount of
such repayment, a Base Rate Loan.
(d) Before giving any notice to the Administrative Agent pursuant to
this Section 3.4, the affected Bank shall designate a different Lending Office
with respect to its Offshore Rate Loans if such designation will avoid the need
for giving such notice or making such demand and will not, in the judgment of
the Bank, be illegal or otherwise disadvantageous to the Bank.
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3.5 Increased Costs and Reduction of Return.
(a) If any Bank shall determine that, due to either (i) the
introduction of or any change in or in the interpretation 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 such Bank of agreeing to make or
making, funding or maintaining any Offshore Rate Loans, then the Company shall
be liable for, and shall from time to time, upon demand therefor by such Bank
(with a copy of such demand to the Administrative Agent), pay to such Bank,
additional amounts as are sufficient to compensate such Bank for such increased
costs.
(b) If any Bank shall have determined that the introduction of any
applicable law, rule, regulation or guideline regarding capital adequacy, or any
change therein or any change in the interpretation or administration thereof by
any central bank or other Governmental Authority charged with the interpretation
or administration thereof, or compliance by the Bank (or its Lending Office) or
any corporation controlling the Bank, with any request, guideline or directive
regarding capital adequacy (whether or not having the force of law) of any such
central bank or other authority, affects or would affect the amount of capital
required or expected to be maintained by the Bank or any corporation controlling
the Bank and (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy and such Bank's desired return on
capital) determines that the amount of such capital is increased as a
consequence of its obligation under this Agreement, then, upon demand of such
Bank, the Company shall immediately pay to the Bank, from time to time as
specified by the Bank, additional amounts sufficient to compensate the Bank for
such increase.
3.6 Funding Losses. The Company agrees to reimburse each Bank and to
hold each Bank harmless from any loss or expense which the Bank may sustain or
incur as a consequence of: (a) the failure of the Company to make any payment or
prepayment of principal of any Offshore Rate Loan (including payments made after
any acceleration thereof); (b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have given) a Notice
of Borrowing or a Notice of Conversion/Continuation; (c) the failure of the
Company to make any prepayment after the Company has given a notice in
accordance with Section 2.11; or (d) the prepayment of an Offshore Rate Loan on
a day which is not the last day of the Interest Period with respect thereto;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans hereunder or from
fees payable to terminate the deposits from which such funds were obtained. This
covenant shall survive the payment in full of all other Obligations.
3.7 Inability to Determine Rates. If the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
ascertaining the Offshore Rate for any requested Interest Period with respect to
a proposed Offshore Rate Loan, or if the Requisite Banks advise the
Administrative Agent that the Offshore Rate applicable for any requested
Interest Period does not adequately and fairly reflect the cost to such Banks of
funding an Offshore Rate Loan, the Administrative Agent shall forthwith give
notice of such determination to the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans, as the case may
be, hereunder shall be suspended until the Administrative Agent upon the
instruction of the Requisite Banks revokes such notice in writing. Upon receipt
of such notice, the
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Company may revoke any Notice of Borrowing or Notice of Conversion/Continuation
then submitted by it. If the Company does not revoke such notice with respect to
Loans, the Banks shall make, convert or continue the Loans, as proposed by the
Company, in the amount specified in the applicable notice submitted by the
Company, but such Loans shall be made, converted or continued as Base Rate Loans
instead of Offshore Rate Loans.
3.8 Payments by Banks. Unless the Administrative Agent shall have
received notice from a Bank at least one Business Day prior to the date of any
proposed Borrowing (or, with respect to Borrowings comprised of Base Rate Loans,
prior to the Administrative Agent funding such Borrowing on such Borrowing Date)
that such Bank will not make available to the Administrative Agent for the
account of the Company the amount of that Bank's Pro Rata Share of the Loan, the
Administrative Agent may assume that each Bank has made such amount available to
the Administrative Agent on the Borrowing Date and the Administrative Agent may
(but shall not be so required), in reliance upon such assumption, make available
to the Company on such date a corresponding amount. If and to the extent any
Bank shall not have made its full amount available to the Administrative Agent
and the Administrative Agent in such circumstances has made available to the
Company such amount, that Bank shall within two Business Days following the date
of such Borrowing make such amount available to the Administrative Agent,
together with interest at the Federal Funds Rate for each day during such
period. A certificate of the Administrative Agent submitted to any Bank with
respect to amounts owing under this Section 3.8 shall be conclusive, absent
manifest error. If such amount is so made available, such payment to the
Administrative Agent shall constitute such Bank's Loan on the date of Borrowing
for all purposes of this Agreement. If such amount is not made available to the
Administrative Agent within two Business Days following the date of such
Borrowing, the Administrative Agent shall notify the Company of such failure to
fund and, upon demand by the Administrative Agent, the Company shall pay such
amount to the Administrative Agent for the Administrative Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time
to such Loan.
Section 4. CONDITIONS TO EFFECTIVENESS OF AGREEMENT
AND EXTENSIONS OF CREDIT.
4.1 Conditions of Closing. The obligation of each Bank to make its
first Extension of Credit hereunder is subject to condition that the
Administrative Agent shall have received on or before the Closing Date (or the
Effective Date, if Effective Date is specified below) all of the following, in
form and substance satisfactory to the Administrative Agent, the Arranger and
each Bank and their respective counsel and in sufficient copies for each Bank:
(a) Credit Agreement and Notes. This Agreement executed by the Company
and each of the Banks, and the Notes executed by the Company.
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of the
Company approving and authorizing the execution, delivery and performance
by the Company of this Agreement, the other Loan Documents to be delivered
hereunder and authorizing the borrowing of the Loans,
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certified as of the Closing Date by the Secretary or an Assistant Secretary
of the Company; and
(ii) A certificate of the Secretary or Assistant Secretary of the
Company, certifying the names and true signatures of the officers of the
Company authorized to execute and deliver, as applicable, this Agreement,
and all other Loan Documents to be delivered hereunder.
(c) Articles of Incorporation; By-laws and Good Standing. Each of the
following documents:
(i) the articles or certificate of incorporation of the Company as
in effect on the Closing Date, certified by the Secretary of State of the
State of incorporation of the Company as of a recent date and by the
Secretary or Assistant Secretary of the Company as of the Closing Date and
the bylaws of the Company as in effect on the Closing Date, certified by
the Secretary or Assistant Secretary of the Company as of the Closing Date;
and
(ii) a good standing certificate for the Company from the Secretary
of State of its state of incorporation and each state where the Company is
qualified to do business as a foreign corporation as of a recent date.
(d) Legal Opinion. Legal opinions dated as of the Closing Date,
addressed to the Administrative Agent and the Banks, from ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel to the Company, in the form of Exhibit D attached hereto, and from
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special counsel to the Administrative Agent.
(e) Payment of Fees. The Company shall have duly executed and delivered
the fee letters referred to in Sections 2.12(a) and (e) and shall have paid all
fees due and payable on the Closing Date arising under Section 2.12.
(f) Certificate. A certificate signed by a Responsible Officer, dated
as of the Effective Date, stating that: (i) the representations and warranties
contained in Section 5 are true and correct on and as of such date, as though
made on and as of such date; (ii) no Default or Event of Default exists on the
Effective Date; and (iii) there has occurred since August 31, 1998, no Material
Adverse Effect.
(g) Termination of Existing Credit Facility. The Company shall have
terminated the Existing Credit Facility on or before the Effective Date.
(h) Other Documents. Such other approvals, opinions or documents as any
Bank may reasonably request.
4.2 Conditions to all Extensions of Credit. The obligation of each Bank
to make, continue or convert any Extension of Credit hereunder (including its
initial Loan) is subject to the satisfaction of the following conditions
precedent on the relevant date:
(a) Request for Extension of Credit. With respect to borrowings of
Loans, the Administrative Agent shall have received a Request for Extension of
Credit.
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(b) Notice of Conversion/Continuation. With respect to conversions or
continuations of Loans, the Administrative Agent shall have received a Notice of
Conversion/Continuation.
(c) Continuation of Representations and Warranties. The representations
and warranties made by the Company contained in Section 5 shall be true and
correct on and as of the date of such Extension of Credit with the same effect
as if made on and as of such date.
(d) No Existing Default. No Default or Event of Default shall exist or
shall result from such Extension of Credit.
Each Extension of Credit to the Company hereunder shall constitute a
representation and warranty by the Company hereunder as of the date of each such
Extension of Credit that the conditions in this Section 4.2 have been satisfied.
4.3 Failure to Satisfy Conditions. If the Company shall fail to satisfy
the conditions set forth in Section 4.1 on or before 3:00 p.m. (San Francisco
time) on July 6, 1999, then, unless such condition(s) are waived by the
Administrative Agent and the Requisite Banks, this Agreement and the Commitments
of the Banks shall terminate automatically and be of no further force and
effect, provided, however that any provision of this Agreement which is
designated as surviving termination of this Agreement shall survive as provided
therein; and provided further that the Administrative Agent, the Arranger and
the Banks shall be entitled to retain all fees paid by the Company on the
Closing Date.
Section 5. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the Administrative Agent and
each Bank that:
5.1 Corporate Existence and Power. The Company and each of its
Subsidiaries: (a) is a corporation, partnership or limited liability company
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization; (b) has the power and
authority and all governmental licenses, authorizations, consents and approvals
to own its assets, carry on its business and to execute, deliver and perform its
obligations under the Loan Documents; (c) is duly qualified as a foreign
corporation or limited liability company, licensed and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification; and (d) is
in material compliance with all Requirements of Law.
5.2 Corporate Authorization; No Contravention. The execution, delivery
and performance by the Company of this Agreement and by the Company and any
Subsidiary Guarantor of any other Loan Document have been duly authorized by all
necessary corporate, partnership or limited liability company action and do not
and will not: (a) contravene the terms of the Company's or such Subsidiary
Guarantor's certificate of incorporation or bylaws, or other organization
document; (b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any indenture, agreement, lease, instrument,
Contractual Obligation, injunction, order, decree or
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undertaking to which the Company or such Subsidiary Guarantor is a party; or (c)
violate any material Requirement of Law.
5.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery, performance or enforcement against the Company of the
Agreement or against the Company or any Subsidiary Guarantor of any other Loan
Document or any other instrument or agreement required hereunder or thereunder
to be made by the Company or a Subsidiary Guarantor.
5.4 Binding Effect. This Agreement and each other Loan Document to
which the Company or a Subsidiary Guarantor is a party constitute the legal,
valid and binding obligations of the Company or such Subsidiary Guarantor, as
applicable, enforceable against the Company or such Subsidiary Guarantor, as
applicable, in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors' rights generally or by equitable principles
relating to enforceability.
5.5 Litigation. Except as disclosed in the Company's Annual Report on
Form 10-K for the year ending August 31, 1998 and in the Company's Quarterly
Reports on Form 10-Q for the quarters ending November 30, 1998, February 28,
1999 and May 31, 1999, as filed with the Securities and Exchange Commission,
there are no actions, suits, proceedings, claims or disputes pending, or to the
best knowledge of the Company, threatened or contemplated at law, in equity, in
arbitration or before any Governmental Authority, against the Company, or its
Subsidiaries or any of their respective properties which: (a) purport to affect
or pertain to this Agreement, or any Loan Document, or any of the transactions
contemplated hereby or thereby; or (b) if determined adversely to the Company,
or its Subsidiaries, might have a Material Adverse Effect. No injunction, writ,
temporary restraining order or any order of any nature has been issued by any
court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery and performance of this Agreement or any other Loan
Document, or directing that the transactions provided for herein or therein not
be consummated as herein or therein provided.
5.6 No Default. No Default or Event of Default exists or would result
from the incurring of obligations by the Company under this Agreement or by the
Company or any Subsidiary Guarantor under any other Loan Document. Neither the
Company, nor any of its Subsidiaries, is in default under or with respect to any
Contractual Obligation in any respect which, individually or together with all
such defaults, could have a reasonable likelihood of having a Material Adverse
Effect.
5.7 ERISA Compliance. Each of the Company and the ERISA Affiliates has
fulfilled its obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and are in compliance with all material respects
with the presently applicable provisions of ERISA and the Code, and have not
incurred any liability to the PBGC or any Plan or Multiemployer Plan.
5.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans
shall be used solely for the purposes set forth in Section 2.14. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the regulations of the Federal
Reserve Board, including Regulations U
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and X. Not more than 25% of the assets subject to the restrictions of Section
7.1 will at any time consist of Margin Stock. If reasonably requested by any
Bank or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Bank a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said Regulation
U.
5.9 Title to Properties. The Company and each of its Subsidiaries has
good record and marketable title in fee simple to or valid leasehold interests
in all its property, except for such defects in title as could not, individually
or in the aggregate, have a Material Adverse Effect. The property is free and
clear of all Liens or rights of others, except Permitted Liens.
5.10 Taxes. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP and no Notice of Lien has been filed or recorded. There is
no proposed tax assessment against the Company or any of its Subsidiaries which
would, if the assessment were made, have a Material Adverse Effect.
5.11 Financial Condition.
(a) The audited consolidated financial statements of financial
condition of the Company and its Subsidiaries dated August 31, 1998, and the
unaudited consolidated financial statements of the Company and its Subsidiaries
dated February 28, 1999, and in each case the related consolidated statements of
operations, stockholders' equity and cash flows for the fiscal year ended on
that date: (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; (ii) are complete, accurate and fairly present the financial condition
of the Company and its Subsidiaries as of the date thereof and results of
operations for the period covered thereby; and (iii) show all material
Indebtedness and other liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries as of the date thereof (including liabilities for
taxes and material commitments).
(b) Since August 31, 1998, there has been no Material Adverse Effect.
5.12 Environmental Matters. The operations of the Company and each of
its Subsidiaries comply in all material respects with all Environmental Laws.
The Company and each of its Subsidiaries has obtained all material licenses,
permits, authorizations and registrations required under any Environmental Law
("Environmental Permits") necessary for its operations, and all such
Environmental Permits are in good standing, and the Company and each of its
Subsidiaries is in compliance with all terms and conditions of such
Environmental Permits. There are no conditions or circumstances which may give
rise to any Environmental Claim arising from the operations of the Company or
its Subsidiaries, including Environmental Claims associated with any operations
of the Company or its Subsidiaries with a potential liability in excess of
$25,000,000 in the aggregate. Without limiting the generality of the foregoing,
the Company and its Subsidiaries have notified all of their employees of the
existence, if any,
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of any health hazard arising from the conditions of their employment and have
met all notification requirements under Title III of CERCLA or any other
Environmental Law.
5.13 Regulated Entities. None of the Company, any Person controlling
the Company, or any Subsidiaries of the Company, is (a) an "Investment Company"
within the meaning of the Investment Company Act of 1940; or (b) subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code or any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness.
5.14 No Burdensome Restrictions. Neither the Company, nor any of its
Subsidiaries is a party to or bound by any Contractual Obligation or subject to
any charter or corporate restriction or any Requirement of Law which could
reasonably be expected to have a Material Adverse Effect.
5.15 Insurance. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies or
self-insured, in such amounts, with such deductibles and covering such risks as
is customarily carried on by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary operates.
5.16 Full Disclosure. None of the representations or warranties made by
the Company or any of its Subsidiaries in the Loan Documents as of the date of
such representations and warranties, and none of the statements contained in
each exhibit, report, statement or certificate furnished by or on behalf of the
Company or any of its Subsidiaries in connection with the Loan Documents,
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, not misleading.
5.17 Year 2000. The Company has developed and implemented a
comprehensive, detailed program ("Year 2000 program") to address on a timely
basis the "Year 2000 problem" (that is, the risk that computer applications used
by the Company and its Subsidiaries may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999) and reasonably anticipates that it will on a timely
basis successfully resolve the Year 2000 problem for all material computer
applications used by it and its Subsidiaries. The Company, on the basis of
inquiry made, believes that each supplier, vendor and customer of the Company
that is of material importance to the financial well-being of the Company will
also successfully resolve on a timely basis the Year 2000 problem for all of its
material computer applications.
Section 6. AFFIRMATIVE COVENANTS.
The Company covenants and agrees that, so long as any Bank shall have
any Commitment hereunder, or any Loan or other amount payable hereunder shall
remain unpaid, or any Letter of Credit shall remain outstanding, unless the
Requisite Banks waive compliance in writing:
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6.1 Financial Statements. The Company shall deliver to the
Administrative Agent in form and detail satisfactory to the Administrative
Agent, with copies for each Bank:
(a) as soon as available, but not later than 120 days after the end of
each fiscal year of the Company, a copy of the Company's Annual Report on Form
10-K filed with the Securities and Exchange Commission, together with the
Company's annual stockholders' report; and
(b) as soon as available, but not later than 60 days after the end of
each of the first three fiscal quarters of each year a copy of the Company's
Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission,
together with the Company's interim stockholders' report.
6.2 Certificates; Other Information. The Company shall furnish to the
Administrative Agent with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements referred
to in Sections 6.1(a) and (b) above, a certificate (a "Compliance Certificate")
of a Responsible Officer (i) stating that, to the best of such officer's
knowledge, the Company, during such period, has observed or performed all of its
covenants and other agreements, and satisfied every condition contained in this
Agreement to be observed, performed or satisfied by it, and that such officer
has obtained no knowledge of any Default or Event of Default except as specified
in such certificate, and (ii) showing in detail the calculations supporting such
statement in respect of Section 7.5;
(b) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Company shall have filed with the Securities and Exchange
Commission; and
(c) from time to time such additional information regarding the
financial position or business of the Company or any of its Subsidiaries
(including, without limitation, any Plan or Multiemployer Plan and any reports
or other information required to be filed under ERISA) as the Administrative
Agent, at the request of any Bank, may reasonably request.
6.3 Notices. The Company shall promptly notify the Administrative Agent
and each Bank:
(a) of the occurrence of any Default or Event of Default and of the
occurrence or existence of any event or circumstance that foreseeably will
become a Default or Event of Default and the action which the Company is taking
or proposes to take with respect thereto;
(b) of any (i) breach or non-performance of, or any default under any
Contractual Obligation of the Company or any of its Subsidiaries which could
result in a Material Adverse Effect; or (ii) dispute, litigation, investigation,
proceeding or suspension which may exist at any time between the Company or any
of its Subsidiaries and any Governmental Authority which could result in a
Material Adverse Effect;
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(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary (i) in which
the amount of damages claimed is $25,000,000 (or its equivalent in another
currency or currencies) or more, (ii) in which injunctive or similar relief is
sought and which, if adversely determined, could have a Material Adverse Effect,
or (iii) in which the relief sought is an injunction or other stay of the
performance of this Agreement or any Loan Document or the operations of the
Company or any of its Subsidiaries;
(d) upon, but in no event later than ten days after, a Responsible
Officer becoming aware of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against
the Company or any Subsidiary or any of their properties pursuant to any
applicable Environmental Laws, (ii) all other Environmental Claims, and (iii)
any environmental or similar condition on any real property adjoining or in the
vicinity of the property of the Company or any Subsidiary that could reasonably
be anticipated to cause such property or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of such
property under any Environmental Laws which, in the case of each of clauses (i),
(ii) and (iii) could have a Material Adverse Effect;
(e) as soon as possible, and in any event within ten days after a
Responsible Officer knows or has reason to know that any of the events or
conditions specified below with respect to any Plan or Multiemployer Plan have
occurred or exist, a statement signed by a senior financial officer of the
Company setting forth details respecting such event or condition and the action,
if any, which the Company or its ERISA Affiliate proposes to take with respect
thereto (and a copy of any report or notice required to be filed with or given
to PBGC by the Company or an ERISA Affiliate with respect to such event or
condition):
(i) any Reportable Event with respect to a Plan, as to which PBGC
has not by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within 30 days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of Section
302 of ERISA shall be a reportable event regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a notice of intent
to terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or any ERISA Affiliate
of a notice from a Multiemployer Plan that such action has been taken by
PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company or any ERISA
Affiliate under Section 4201 or 4204 of ERISA from a Multiemployer Plan, or
the receipt by the Company or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA; and
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(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Company or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days, or
an action is taken by any such fiduciary under Section 4219(c)(5) of ERISA;
and
(f) promptly upon a Responsible Officer becoming aware of any Material
Adverse Effect, notice thereof.
Each notice pursuant to this Section shall be accompanied by a written
statement by a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Company proposes to
take with respect thereto.
6.4 Preservation of Corporate Existence, Etc. The Company shall and
cause each of its Subsidiaries to: (a) preserve and maintain in full force and
effect its corporate, partnership or limited liability company existence and
good standing under the laws of its State or jurisdiction of incorporation or
organization (except for mergers permitted by Section 7.2); (b) preserve and
maintain in full force and effect all material rights, privileges,
qualifications, permits, licenses and franchises necessary or desirable in the
normal conduct of its business (measured on a consolidated basis) except in
connection with transactions permitted by Section 7.2; (c) use its reasonable
efforts, in the ordinary course and consistent with past practice, to preserve
its business organization and preserve the goodwill and business of the
customers, suppliers and others having business relations with it; and (d)
preserve or renew all of its registered trademarks, trade names and service
marks, the non-preservation of which could have a Material Adverse Effect.
6.5 Maintenance of Property. The Company shall maintain, and shall
cause each of its Subsidiaries to maintain, and preserve all its property which
is used or useful in its business in good working order and condition, ordinary
wear and tear excepted. The Company shall use the standard of care typical in
the industry in the operation of its facilities.
6.6 Insurance. The Company shall self-insure or maintain, and shall
cause each Subsidiary to self-insure or to maintain, with financially sound and
reputable insurers, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons,
including workers' compensation insurance, public liability and property and
casualty insurance.
6.7 Payment of Obligations. The Company shall, and shall cause its
Subsidiaries to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including: (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary; (b) all lawful claims which, if
unpaid, might by law become a Lien upon its property; and (c) all Indebtedness
as and when due and payable.
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6.8 Compliance with Laws. The Company shall comply, and shall cause
each of its Subsidiaries to comply, in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over it or
its business (including the Federal Fair Labor Standards Act), except such as
may be contested in good faith or as to which a bona fide dispute may exist.
6.9 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each of its Subsidiaries to maintain, proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Company and such Subsidiaries.
The Company will permit, and will cause each of its subsidiaries to permit,
representatives of the Administrative Agent or any Bank to visit and inspect any
of their respective properties, to examine their respective corporate, financial
and operating records and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers employees and independent public accountants, all at the
expense of the Company and at such reasonable times during normal business hours
and as often as may be reasonably desired, upon reasonable advance notice to the
Company; provided, however, when an Event of Default exists the Administrative
Agent or any Bank may visit and inspect at the expense of the Company such
properties at any time during business hours and without advance notice.
6.10 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
6.11 Environmental Laws. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, except to the extent that noncompliance
could not reasonably be expected to have a Material Adverse Effect.
6.12 Year 2000. The Company will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 program and to assure that Year 2000
problems will not have a Material Adverse Effect. At the request of the
Administrative Agent, or any Bank, the Company will provide a description of the
Year 2000 program, together with any updates or progress reports with respect
thereto.
6.13 Subsidiary Guarantees.
(a) In the event that the Company uses proceeds of Loan(s) to make
Investment(s) in any Subsidiary in an aggregate cumulative amount from and after
the Effective Date of $350,000,000 or more, then the Company shall notify the
Administrative Agent and the Company shall cause such Subsidiary to deliver to
the Administrative Agent a Guaranty Agreement in the form attached hereto as
Exhibit F. Such notice and such Guaranty Agreement shall be delivered no later
than ten Business Days after the date that the Company's use of cash proceeds of
Loan(s) to make such Investment(s) in such Subsidiary equals or exceeds said
amount.
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(b) The Company shall cause to be delivered to the Administrative
Agent, together with said Guaranty Agreement, the following, in form and
substance satisfactory to the Administrative Agent and the Requisite Banks: (a)
copies of resolutions of the board of directors of such Subsidiary approving and
authorizing the execution, delivery and performance by the Subsidiary of said
Guaranty Agreement, certified as of the date of the Guaranty Agreement by the
Secretary or an Assistant Secretary of such Subsidiary, (b) a certificate of the
Secretary or Assistant Secretary of such Subsidiary, certifying the names and
true signatures of the officers of the Subsidiary authorized to execute and
deliver such Guaranty Agreement, and (c) a legal opinion from counsel to such
Subsidiary covering substantially the same matters with respect to such
Subsidiary as covered in, and in substantially the same form as, the legal
opinion delivered with respect to the Company on the Closing Date.
6.14 Further Assurances. The Company shall execute and deliver all such
further instruments, and perform such other acts, as Administrative Agent or
Requisite Banks may determine are reasonably necessary to effectuate the intent
of the Loan Documents.
Section 7. NEGATIVE COVENANTS.
The Company hereby covenants and agrees that, so long as any Bank shall
have any Commitment hereunder, or any Loan or other amount payable hereunder
shall remain unpaid, unless the Requisite Banks waive compliance in writing:
7.1 Limitation on Liens. The Company shall not, nor shall it permit any
of its Subsidiaries to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property or
assets, whether now owned or hereafter acquired, or offer or agree to do so,
other than the following ("Permitted Liens"):
(a) Liens created under this Agreement;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings;
(c) Liens (other than any Lien imposed by ERISA) on the property of the
Company or any of its Subsidiaries incurred, or pledges or deposits required, in
connection with workmen's compensation, unemployment insurance and other social
security legislation;
(d) Liens securing taxes that remain payable without penalty or which
are being contested in good faith by appropriate proceedings where collection
thereof is stayed; provided that the Company has set aside on its books reserves
with respect to such taxes (segregated to the extent required by GAAP) deemed by
it to be adequate;
(e) Purchase money security interests on any property acquired or held
by the Company in the ordinary course of business securing Indebtedness incurred
or assumed for the purpose of financing all or any part of the cost of acquiring
such property; provided that any such Lien attaches to such property
concurrently with or within 90 days
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after the acquisition thereof and provided that the principal amount of the
Indebtedness secured by any such purchase money security interests shall not in
the aggregate exceed 2.5% of the Consolidated Capitalization of the Company and
its Subsidiaries;
(f) Any right which any municipal or governmental body or agency may
have by virtue of any franchise, license, contract or status to purchase or
designate a purchaser of, or order the sale of, any property of the Company upon
payment of reasonable compensation therefor or to terminate any franchise,
license or other rights or to regulate the property and business of the Company;
(g) Any liens, neither assumed by the Company nor on which it
customarily pays interest, existing upon real estate or rights in or relating to
real estate acquired by the Company for sub-station, measuring station,
regulating station, gas purification station, compressor station, transmission
line, distribution line or right-of-way purposes;
(h) Easements or reservations in any property of the Company for the
purpose of roads, pipe lines, gas transmission and distribution lines, electric
light and power transmission and distribution lines, water mains and other like
purposes, and zoning ordinances, regulations and restrictions which do not
impair the use of such property in the operation of the business of the Company;
and
(i) Liens not otherwise permitted by this Section 7.1 if at the time
of, and after giving effect to, the creation or assumption of any such Lien, the
aggregate of all obligations of the Company secured by any Liens not otherwise
permitted hereby does not exceed 5% of the Consolidated Capitalization of the
Company and its Subsidiaries.
7.2 Merger and Sale of Assets. The Company shall not, nor shall it
permit any of its Subsidiaries to, consolidate with or merge into any other
corporation or entity, or convey, transfer or lease its properties and assets
substantially as an entirety (measured on a consolidated basis) to any Person,
and the Company shall not permit any Person to consolidate with or merge into
the Company, except that the Company may consolidate or merge with another
corporation or entity, and a Person may consolidate with or merge into the
Company, provided that:
(a) after giving effect to any interim merger(s) consummated pursuant
to the terms of the merger agreement in a transaction or series of transactions
occurring substantially simultaneously with the merger with the Company, the
Company shall be the ultimate surviving entity and shall be after the merger a
solvent corporation organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia;
(b) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default or Default shall
have happened and be continuing; and
(c) the Company has delivered to the Administrative Agent a certificate
signed by a Responsible Officer and an opinion of counsel, each stating that
such consolidation or merger complies with this Section 7.2 and that all
conditions precedent
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herein provided for relating to such transaction have been complied with, and
such certificate shall additionally state that, in the opinion of the board of
directors of the Company, the transaction is in the interest of the Company and
not disadvantageous to the Administrative Agent and the Banks,
provided, however, the foregoing shall not be deemed to restrict or preclude the
merger or consolidation of any Subsidiary with or into the Company or any other
Subsidiary, or the conveyance, transfer or lease of the properties and assets of
any Subsidiary substantially as an entirety (measured on a consolidated basis)
to any other Subsidiary, if the requirements of subsection 7.2(a) and (b) shall
have been met, and a certificate signed by a Responsible Officer and an opinion
of counsel, each stating that such consolidation, merger, conveyance, transfer
or lease complies with this Section 7.2 and that all conditions precedent herein
provided for relating to such transaction have been complied with, shall have
been delivered to the Administrative Agent in sufficient copies for each Bank,
provided, further, that the Company shall not convey or transfer any assets to a
Subsidiary for the purpose of improving the credit position of such Subsidiary
in order to enable it to borrow money.
7.3 Acquisitions, Loans and Investments. The Company shall not,
directly or indirectly, purchase or acquire, or permit any of its Subsidiaries
to purchase or acquire (including an acquisition by merger), or make any
commitment therefor, any capital stock, equity interest, assets, obligations or
other securities of or any interest in, any Person, or make any advance, loan,
extension of credit or capital contribution to or any other investment in, any
Person including, without limitation, any Affiliates of the Company (an
"Investment" or "Investments"), except for:
(a) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the ordinary
course of business;
(b) advances, loans or other extensions of credit by the Company to any
of its wholly-owned Subsidiaries or by any of its wholly-owned Subsidiaries to
another of its wholly-owned Subsidiaries of the Company in the ordinary course
of business;
(c) purchases of, or investments in, the capital stock, equity
interest, assets, obligations or other securities of, or interest in,
Subsidiaries, joint ventures or other Persons, in each case which are engaged
principally in the business of the purchasing, gathering, compression,
transportation, distribution, marketing, or storage of natural gas and
compressed natural gas, the exploration or production of natural gas or oil or
the processing of natural gas liquids, the underground piping of natural gas
distribution systems, or other natural gas-related businesses; provided that
such purchases or investments are not opposed by the board of directors or
management of such Person; and
(d) Transactions not otherwise permitted by this Section 7.3 if at the
time of, and after giving effect to, such extensions of credit and investments,
the aggregate book value of all such extensions of credit and investments not
otherwise permitted hereby does not exceed $25,000,000 in the aggregate.
7.4 Compliance with ERISA. The Company shall not directly or indirectly
and shall not permit any ERISA Affiliate directly or indirectly (i) to
terminate, any Plan subject to Title IV of ERISA so as to result in any material
(in the opinion of the
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Requisite Banks) liability to the Company or any ERISA Affiliate, (ii) to permit
to exist any ERISA Event or any other event or condition, which presents the
risk of a material (in the opinion of the Requisite Banks) liability of the
Company or any ERISA Affiliate, (iii) to make a complete or partial withdrawal
(within the meaning of ERISA Section 4201) from any Multiemployer Plan so as to
result in any material (in the opinion of the Requisite Banks) liability to the
Company or any ERISA Affiliate, (iv) to enter into any new Plan or modify any
existing Plan so as to increase its obligations thereunder except in the
ordinary course of business consistent with past practice which could result in
any material (in the opinion of the Requisite Banks) liability to the Company or
any ERISA Affiliate, or (v) permit the present value of all nonforfeitable
accrued benefits under each Plan (using the actuarial assumptions utilized by
the PBGC upon termination of a Plan) materially (in the opinion of the Requisite
Banks) to exceed the fair market value of Plan assets allocable to such
benefits, all determined as of the most recent valuation date for each such
Plan.
7.5 Restricted Payments. The Company covenants that it will not (a)
declare or pay any dividend (other than dividends payable in common stock of the
Company) or make any other distribution on any shares of capital stock of the
Company of any class or (b) purchase, redeem or otherwise acquire or retire for
value, either directly or indirectly (other than in exchange for or from the
proceeds of other shares of capital stock of the Company), any shares of capital
stock of the Company of any class, if the aggregate amount so declared, paid,
distributed or expended after August 31, 1998 would exceed the aggregate amount
of the consolidated net income of the Company and its Subsidiaries accumulated
after August 31, 1998 plus $125,000,000; provided, however, that the Company may
declare or pay dividends or make other distributions on any class or series of
preferred stock of the Company and may purchase or retire for a consideration
any shares thereof to the extent required to comply with any sinking or purchase
fund established therefor, but all amounts so declared, paid, distributed or
expended shall be included in all subsequent computations pursuant to this
Section 7.5. The term "stock" as used in this Section 7.5 shall include
warrants, rights and options to purchase stock.
7.6 Limitation on Senior Funded Indebtedness. The Company shall not
create, make, incur, assume, issue or guarantee, directly or indirectly, any
Senior Funded Indebtedness unless the Consolidated Net Tangible Assets of the
Company shall be at least equal to 150% of Consolidated Senior Funded
Indebtedness, after giving effect to the receipt and application of the proceeds
of any such Senior Funded Indebtedness proposed to be created, made, incurred,
assumed, issued or guaranteed, all as shown by the consolidated balance sheet of
the Company and its Subsidiaries as of a date not more than 90 days prior to the
proposed transaction (but giving effect thereto), prepared as hereinafter
provided. Said balance sheet shall be prepared by the Company on the basis of
the latest available consolidated balance sheet of the Company and its
Subsidiaries certified by a firm of certified or public accountants of
recognized national standing (which shall be as of a date not more than twelve
months prior to the date of such consolidated balance sheet), adjusted to
reflect the proposed transaction on a pro forma basis as well as to reflect
transactions which shall have occurred between the date of said certified
balance sheet and the date of said balance sheet.
7.7 Change in Business. The Company shall not, and shall not permit any
of its Subsidiaries to, engage in any material line of business substantially
different from those lines of business carried on by it on the date hereof.
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7.8 Transactions with Affiliates. The Company shall not, and shall not
permit any of its Subsidiaries to, enter into any transaction of any kind with
any Affiliate of the Company other than arm's-length transactions with
Affiliates that are otherwise permitted hereunder.
Section 8. EVENTS OF DEFAULT.
8.1 Events of Default. Any of the following events shall constitute an
"Event of Default":
(a) The Company fails to pay any amount of principal of any Extension
of Credit when due, or fails to pay any interest, fees or any other amount
payable hereunder or pursuant to any other Loan Document within five days of
when due; or
(b) Any representation or warranty by the Company or any of its
Subsidiaries herein, in any Loan Document or which is contained in any
certificate, document or financial or other statement furnished at any time
under this Agreement, or in or under any Loan Document, shall prove to have been
incorrect in any material respect on or as of the date made or deemed made; or
(c) The Company fails to perform or observe any term, covenant or
agreement contained in Section 6.3(a), 6.3(f), 6.9, or 7; or
(d) The Company fails to perform or observe any other term or covenant
contained in this Agreement or in any Loan Document (other than those covered by
Section 8.1(a) or 8.1(c) above) for 15 days after written notice thereof has
been given to the Company by the Administrative Agent at the request of any
Bank; or
(e) The Company or any of its Subsidiaries (i) fails to make any
payment in respect of any Indebtedness having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$25,000,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) or fails to make any payment in respect of
net obligations under swap contracts or other derivative instruments ("swap
contracts") of more than $25,000,000 in the aggregate when due, and such failure
continues after the applicable grace or notice period, if any, specified in the
document relating thereto on the date of such failure; or (ii) fails to perform
or observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness or swap contracts, and such failure continues after the applicable
grace or notice period, if any, specified in the document relating thereto on
the date of such failure if the effect of such failure, event or condition is to
cause, or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries), or counterparty to such swap
contracts, to cause such Indebtedness or obligation to be declared to be due and
payable prior to its stated maturity, or any contingent obligation to become
payable or cash collateral in respect thereof to be demanded; or
(f) The Company or any of its Subsidiaries (i) becomes insolvent or
generally fails to pay, or admit in writing its inability to pay, its debts as
they become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii)
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voluntarily ceases to conduct its business in the ordinary course substantially
as it is conducted on the Closing Date; (iii) commences any Insolvency
Proceeding or files any petition or answer in any Insolvency Proceeding; (iv)
acquiesces in the appointment of a receiver, trustee, custodian or liquidator
for itself or a substantial portion of its property, assets or business or
effects a plan or other arrangement with its creditors; (v) admits the material
allegations of a petition filed against it in any Insolvency Proceeding, or (vi)
takes any action to effectuate any of the foregoing; or
(g) Any involuntary Insolvency Proceeding is commenced or filed against
the Company or any Subsidiary or any writ, judgment, warrant of attachment,
execution or similar process, is issued or levied against a substantial part of
the Company's or any of its Subsidiaries' assets and any such proceedings or
petition shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy; or
(h) An event or condition specified in Section 7.4 shall occur or exist
with respect to any Plan or Multiemployer Plan and, as a result of such event or
condition, together with all other such events or conditions, the Company or any
ERISA Affiliate shall incur or in the opinion of the Requisite Banks shall be
reasonably likely to incur a liability to a Plan, a Multiemployer Plan or the
PBGC (or any combination of the foregoing) which is in the determination of the
Requisite Banks, material in relation to the consolidated financial position of
the Company and the Consolidated Subsidiaries; or
(i) A judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Company or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed for a period of 10
days; or any non-monetary judgment, order or decree shall be rendered against
the Company or any of its Subsidiaries which does or could be expected to have a
Material Adverse Effect, and either (i) enforcement proceedings shall have been
commenced by any Person upon such judgment or order or (ii) there shall be any
period of ten 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
(j) A Material Adverse Effect shall occur; or
(k) A Change of Control shall occur; or
(l) Any Loan Document, at any time after its execution and delivery and
for any reason other than the agreement of all Banks or satisfaction in full of
all the Obligations, ceases to be in full force and effect or is declared by a
court of competent jurisdiction to be null and void, invalid or unenforceable in
any respect; or Borrower or any Subsidiary Guarantor denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; or any Subsidiary Guarantor fails to
perform or observe any term or covenant contained in the Subsidiary Guaranty
executed by it.
8.2 Remedies. Without limiting any other rights or remedies of the
Administrative Agent or the Banks provided for elsewhere in this Agreement, or
the other Loan Documents, or by applicable law, or in equity, or otherwise:
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(a) the occurrence, and during the continuance, of any Event of Default
other than an Event of Default described in Section 8.1(f) or (g): (i) the
Requisite Banks may request Administrative Agent to, and Administrative Agent
thereupon shall, terminate the Commitments and/or declare all or any part of the
unpaid principal of all Loans, all interest accrued and unpaid thereon and all
other amounts payable under the Loan Documents to be forthwith due and payable,
whereupon the same shall become and be forthwith due and payable, without
protest, presentment, notice of dishonor, notice of intention to accelerate,
notice of acceleration, demand or further notice of any kind, all of which are
expressly waived by the Company; and (ii) Issuing Bank may, with the approval of
Administrative Agent on behalf of the Requisite Banks, demand immediate payment
by the Company of an amount equal to the aggregate amount of all outstanding
Letters of Credit Usage to be held in a Letter of Credit Cash Collateral
Account.
(b) Upon the occurrence of any Event of Default described in Section
8.1(f) or (g): (i) the Commitments and all other obligations of Administrative
Agent, the Issuing Bank or the Banks shall automatically terminate without
notice to or demand upon the Company, which are expressly waived by the Company;
(ii) the unpaid principal of all Loans, all interest accrued and unpaid thereon
and all other amounts payable under the Loan Documents shall be forthwith due
and payable, without protest, presentment, notice of dishonor, notice of
intention to accelerate, notice of acceleration, demand or further notice of any
kind, all of which are expressly waived by the Company; and (iii) an amount
equal to one hundred and two percent (102%) of the aggregate amount of all
outstanding Letters of Credit Usage shall be immediately due and payable to
Issuing Bank without notice to or demand upon the Company, which are expressly
waived by the Company, to be held in a Letter of Credit Cash Collateral Account.
8.3 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement.
Section 9. THE ADMINISTRATIVE AGENT.
9.1 Appointment and Authorization.
(a) Each Bank hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
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(b) Issuing Bank shall act on behalf of Banks with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time and except for so long as the Administrative Agent may agree at the request
of the Requisite Banks to act for such Issuing Bank with respect thereto;
provided, however, that Issuing Bank shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Section 9 with
respect to any acts taken or omissions suffered by Issuing Bank in connection
with Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "the Administrative Agent" as used in this
Section 9 included Issuing Bank with respect to such acts or omissions, and (ii)
as additionally provided in this Agreement with respect to Issuing Bank.
9.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through
administrative agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any administrative agent or attorney-in-fact that it selects with reasonable
care.
9.3 Liability of Administrative Agent. None of the Administrative
Agent, its Affiliates, or any of their respective officers, directors,
employees, administrative agents, or attorneys-in-fact (collectively, the
"Agent-Related Persons") shall (i) be liable for any action taken or omitted to
be taken by any of them under or in connection with this Agreement (except for
its own gross negligence or willful misconduct) or (ii) be responsible in any
manner to any of the Banks for any recital, statement, representation or
warranty made by the Company or any Subsidiary of the Company or any officer
thereof contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Bank to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Company or any of its Subsidiaries.
9.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, telecopy, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the
Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Requisite Banks as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Banks against any and all liability
and expense which may be incurred by it by reason of
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taking or continuing to take any such action. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Requisite Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Sections 4.1 and 4.2, each Bank shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Bank unless an officer of the Administrative Agent
responsible for the transactions contemplated by the Loan Documents shall have
received notice from the Bank prior to the initial Extension of Credit
specifying its objection thereto and either such objection shall not have been
withdrawn by notice to the Administrative Agent to that effect or the Bank shall
not have made available to the Administrative Agent the Bank's ratable portion
of such Extension of Credit.
9.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
payable to the Administrative Agent for the account of the Banks, unless the
Administrative Agent shall have received written notice from a Bank or the
Company referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Banks. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be requested by the
Requisite Banks; provided, however, that unless and until the Administrative
Agent shall have received any such request, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interests of the Banks.
9.6 Credit Decision. Each Bank expressly acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it and that no
act by the Administrative Agent hereinafter taken, including any review of the
affairs of the Company and its Subsidiaries shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Bank. Each Bank
represents to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries and
made its own decision to enter into this Agreement and extend credit to the
Company hereunder. Each Bank also represents that it will, independently and
without reliance upon the Administrative Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company.
Except for notices, reports and other documents expressly required to be
furnished to the Banks by the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other
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information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Company which may come into the
possession of any of the Agent-Related Persons.
9.7 Indemnification. The Banks agree to indemnify the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), ratably according to the
respective amounts of their outstanding Loans, or, if no Loans are outstanding,
their Commitment, from and against any and all Indemnified Liabilities
(including any such Indemnified Liabilities attributable to the ordinary, sole
or contributory negligence of the Agent-Related Persons, but excluding any
Indemnified Liabilities resulting solely from such Agent-Related Person's gross
negligence or willful misconduct). Without limitation of the foregoing, each
Bank shall reimburse the Administrative Agent promptly upon demand for its
ratable share of any costs or out-of-pocket expenses (including fees and
expenses of counsel and the allocated cost of in-house counsel) incurred by the
Administrative 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, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertakings in this Section 9.7 shall survive payment of all other
Obligations and the resignation of the Administrative Agent.
9.8 Administrative Agent in Individual Capacity. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from and generally engage in any kind of business with the
Company and its Subsidiaries and Affiliates as though Bank of America were not
the Administrative Agent hereunder and without notice to the Banks. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not the
Administrative Agent, and the terms "Bank" and "Banks" shall include Bank of
America in its individual capacity.
9.9 Successor Agent. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Banks. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, the Requisite
Banks shall appoint from among the Banks a successor agent for the Banks which
successor agent shall be approved by the Company. If no successor Agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may, but shall not be obligated to, appoint
after consulting with the Banks and the Company, a successor agent from among
the Banks. At end of such 30 days' notice period any successor agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor agent and
the retiring Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 9 and Sections
10.4 and 10.5 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement.
Concurrently with giving a notice of resignation, the Administrative Agent may,
in its sole discretion, require that all payments to be made between the Company
and the Banks that were previously made to the Administrative Agent on behalf of
the Company or the Banks, as applicable, shall thereafter be made directly
between the Company and the Banks. If no successor agent
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has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of Administrative Agent hereunder
until such time, if any, as the Requisite Banks appoint a successor agent as
provided for above.
9.10 Lead Arranger and Book Manager; Agents. No entity appearing on the
cover hereof or named herein as a Syndication Agent, Documentation Agent,
Co-Documentation Agent, Lead Arranger or Book Manager shall have any duties or
responsibilities hereunder.
Section 10. MISCELLANEOUS.
10.1 Amendments and Waivers; Extension of Availability Period. (a) No
amendment or waiver of any provision of this Agreement or any other Loan
Document and no consent with respect to any departure by the Company therefrom,
shall be effective unless the same shall be in writing and signed by the
Requisite Banks (and the Company, as to any amendment), and then such waiver
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Banks (and the Company, as to any
amendment) do any of the following: (a) increase the Commitment of any Bank or
subject any Bank to any additional obligations; (b) postpone or delay any date
fixed for any payment of principal, interest, fees or other amounts due
hereunder or under any Loan Document; (c) reduce the principal of, or the rate
of interest specified herein on any Loan, or of any fees or other amounts
payable hereunder or under any Loan Document; (d) change the Pro Rata Share of
the Commitments or of the aggregate unpaid principal amount of the Loans or
Letter of Credit Usage which shall be required for the Banks or any of them to
take any action hereunder; or (e) amend this Section 10.1; provided further,
that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Requisite Banks, affect the rights or
duties of the Administrative Agent under this Agreement; provided further, that
no amendment, waiver or consent shall, unless in writing and signed by Swing
Line Bank in addition to the Requisite Banks or all the Banks, as the case may
be, affect the rights or duties of Swing Line Bank under any Loan Document;
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by Issuing Bank in addition to the Requisite Banks or all Banks, as
the case may be, affect the rights or duties of Issuing Bank under any Loan
Document relating to Letters of Credit.
10.2 Notices. Except for telephonic notices expressly required or
permitted by Sections 2.3 and 2.5, all notices, requests and other
communications provided for hereunder shall be in writing (including
telegraphic, telex, facsimile transmission or cable communication) and mailed,
telegraphed, telexed, transmitted or delivered, if to the Company to its address
specified on Schedule 3 hereto; if to any Bank, to its Domestic Lending Office
specified on Schedule 3 hereto; and if to the Administrative Agent, to its
address specified on Schedule 3 hereto; or, as to the Company or the
Administrative Agent, to 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
Company and the Administrative Agent. All such notices and communications shall
be effective when delivered for overnight delivery, delivered to the telegraph
company, transmitted by telecopier and confirmed by telephone, transmitted by
telex and confirmed by telex
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answerback or delivered to the cable company, as applicable, or if delivered,
upon delivery, except that written and telephonic notices pursuant to Section 2
or 3 shall not be effective until received by the Administrative Agent.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent, any Bank or the
Company, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.
10.4 Costs and Expenses. The Company shall, whether or not the
transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Administrative Agent and the Arranger on
demand for all reasonable costs and expenses incurred in connection with the
development, due diligence, preparation, syndication, delivery, administration
and execution of, and any amendment, supplement, waiver or modification to, this
Agreement, any Loan Document and any other documents prepared in connection
herewith or therewith, and the consummation of the transactions contemplated
hereby and thereby, including the reasonable costs and expenses of counsel to
the Administrative Agent and the Arranger (and the reasonable allocated cost of
internal counsel) with respect thereto;
(b) pay or reimburse each Bank and the Administrative Agent on demand
for all reasonable costs and expenses incurred by them in connection with the
enforcement or preservation of any rights (including in connection with any
"workout" or restructuring regarding the Loans) under this Agreement, any Loan
Document, and any such other documents, including reasonable fees and
out-of-pocket expenses of counsel (and the reasonable allocated cost of internal
counsel) to the Administrative Agent and to each of the Banks; and
(c) pay or reimburse the Administrative Agent on demand for all
reasonable appraisal, audit, search and filing fees, incurred or sustained by
the Administrative Agent in connection with the matters referred to under
paragraphs (a) and (b) above.
10.5 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Bank.
10.6 Assignments, Participations etc.
(a) Any Bank may, with the written consent of the Administrative Agent
and the Company (provided, however that no consent of the Company shall be
required during the existence of an Event of Default), which consent shall not
be unreasonably withheld, at any time assign and delegate to one or more
Eligible Assignees and, with notice to the Administrative Agent, but without the
consent of the Administrative Agent, may assign to any of its wholly-owned bank
Affiliates (each an "Assignee") all or any part of the Loans or the Commitment
or any other rights or obligations of such Bank hereunder in a minimum amount
equal to the lesser of (i) such Bank's Commitment and (ii)
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$10,000,000; provided, however, that the Commitment of any Bank after giving
effect to any assignment shall not be less than $10,000,000; provided, further,
that the Company and the Administrative Agent may continue to deal solely and
directly with such Bank in connection with the interests so assigned to an
Assignee until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Company and the Administrative Agent by such Bank
and the Assignee and (ii) such Bank and its Assignee shall have delivered to the
Company and the Administrative Agent a Notice of Commitment Assignment Notice
and Acceptance substantially in the form of Exhibit E ("Notice of Assignment and
Acceptance"); and (iii) the processing fees of $3,500 shall have been paid to
the Administrative Agent in connection with such assignment (including, but not
limited to, an assignment by a Bank to another Bank or an Affiliate). Any Bank
may at any time assign all or any portion of its rights under this Agreement to
a Federal Reserve Bank. No such assignment shall release the transferor Bank
from its obligations hereunder.
(b) From and after the date that the Administrative Agent notifies the
assignor Bank and the Assignee that it has received the Notice of Assignment and
Acceptance, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Notice of Assignment and Acceptance, shall have the rights and
obligations of a Bank under the Loan Documents and (ii) the assignor Bank shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Notice of Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Loan Documents. The Commitment
allocated to each Assignee shall reduce the Commitment of the assigning Bank pro
tanto.
(c) Any Bank may at any time sell to one or more banks or other
entities (a "Participant"), participating interests in any Loans, the Commitment
of that Bank or any other interest of that Bank hereunder; provided, however,
that (i) the Bank's obligations under this Agreement shall remain unchanged,
(ii) the Bank shall remain solely responsible for the performance of such
obligations, (iii) the Company and the Administrative Agent shall continue to
deal solely and directly with the Bank in connection with the Bank's rights and
obligations under this Agreement, and (iv) no Bank shall transfer or grant any
participating interest under which the Participant shall have rights to approve
any amendment to, or any consent or waiver with respect to this Agreement except
to the extent such amendment, consent or waiver would require unanimous consent
as described in the first proviso to Section 10.1. In the case of any such
participation, the Participant shall not have any rights under this Agreement,
or any of the other Loan Documents, and all amounts payable by the Company
hereunder shall be determined as if such Bank had not sold such participation,
except that if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement.
(d) Any Bank may at any time pledge its Note or any other instrument
evidencing its rights as a Bank under this Agreement to a Federal Reserve Bank,
but no such pledge shall release that Bank from its obligations hereunder or
grant to such Federal Reserve Bank the rights of a Bank hereunder absent
foreclosure of such pledge.
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(e) Each Bank agrees (1) to maintain the confidentiality of all
non-public "forward-looking" or forecasting financial information provided to it
by the Company or any Subsidiary of the Company or by the Administrative Agent
on such Company's or Subsidiary's behalf in connection with this Agreement and
not to distribute such information except to its employees on a "need to know
basis", and (2) to take normal and reasonable precautions and exercise due care
to maintain the confidentiality of all other non-public information provided to
it by the Company or any Subsidiary of the Company or by the Administrative
Agent on such Company's or Subsidiary's behalf in connection with this Agreement
and neither it nor any of its Affiliates shall use any such information
described in the foregoing clauses (1) or (2) for any purpose or in any manner
other than pursuant to the terms contemplated by this Agreement, except to the
extent such information described in the foregoing clauses (1) or (2) (i) was or
becomes generally available to the public other than as a result of a disclosure
by the Bank, or (ii) was or becomes available on a non-confidential basis from a
source other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company known to the Bank; provided, further,
however, that any Bank may disclose such information (A) at the request of any
Bank regulatory authority or in connection with an examination of such Bank by
any such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable law; (D)
at the express direction of any other agency of any State of the United States
of America or of any other jurisdiction in which such Bank conducts its
business; and (E) to such Bank's independent auditors and other professional
advisors who have agreed to keep such information confidential. Notwithstanding
the foregoing, the Company authorizes each Bank to disclose to any Participant
or Assignee (each, a "Transferee") and any prospective Transferee such financial
and other information in such Bank's possession concerning the Company or its
Subsidiaries which has been delivered to the Banks pursuant to this Agreement or
which has been delivered to the Banks by the Company in connection with the
Banks' credit evaluation of the Company prior to entering into this Agreement;
provided that such Transferee agrees in writing to such Bank to keep such
information confidential to the same extent required of the Banks hereunder.
10.7 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists, each Bank is authorized at any
time and from time to time, without prior notice to the Company, any such notice
being waived by the Company 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 Company against any and all
Obligations of the Company now or hereafter existing under this Agreement or any
other Loan Document and any Loan held by such Bank irrespective of whether or
not the Administrative Agent or such Bank shall have made demand under this
Agreement or any Loan Document and although such Obligations may be contingent
or unmatured. Each Bank agrees promptly to notify the Company and the
Administrative Agent after any such set-off and application made by such Bank;
provided, however, 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 10.7 are in addition to the other rights and remedies (including without
limitation, other rights of set-off) which the Bank may have.
10.8 Sharing of Payments, Etc. If, other than as provided in Section
3.1, 3.5 or 3.6, any Bank shall obtain on account of the Obligations owed to it
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise)
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(a) in excess of its Pro Rata Share of payments on account of the Obligations
owed to all the Banks, such Bank shall forthwith (i) notify the Administrative
Agent of such fact (and the Administrative Agent will promptly notify the other
Banks), and (ii) purchase from the other Banks such participations in the
Obligations held by 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 the
purchasing Bank, such purchase shall to that extent be rescinded and each other
Bank shall repay to the purchasing Bank the purchase price paid thereto together
with an amount equal to such paying Bank's ratable share (according to the
proportion of (A) the amount of such paying Bank's required repayment to (B) 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 Company agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 10.8 may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of set-off, but
subject to Section 10.7) with respect to such participation as fully as if such
Bank were the direct creditor of the Company in the amount of such
participation. The Administrative Agent shall keep records (which shall be
conclusive and binding in the absence of manifest error), of participations
purchased pursuant to this Section 10.8 and shall in each case notify the Banks
following any such purchases.
10.9 Indemnity. Whether or not the transactions contemplated hereby
shall be consummated:
(a) General Indemnity. The Company shall pay, indemnify, and hold each
Bank, the Arranger, the Administrative Agent and each of their respective
Affiliates, officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses or disbursements (including the
reasonable costs and expenses of counsel to each Indemnified Person (and the
reasonable allocated cost of internal counsel)) of any kind or nature whatsoever
in connection with or arising out of or as a result of this Agreement or any
other Loan Document or the Company's use of any Loan, or any investigation,
litigation or proceeding related thereto, whether or not the Administrative
Agent or such Bank is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"), INCLUDING ANY INDEMNIFIED LIABILITIES ATTRIBUTABLE
TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNIFIED PERSON;
provided, that the Company shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities arising from the gross negligence
or willful misconduct of such Indemnified Person.
(b) Survival; Defense. The obligations in this Section 10.9 shall
survive payment of all other Obligations. At the election of any Indemnified
Person, the Company shall defend such Indemnified Person using legal counsel
reasonably satisfactory to such Indemnified Person in such Person's sole
discretion, at the sole cost and expense of the Company, and the Banks and the
Administrative Agent shall cooperate with the reasonable requests of such
counsel. All amounts owing under this Section 10.9 shall be paid within 30 days
after demand.
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10.10 Marshalling; Payments Set Aside. Neither the Administrative Agent
nor the Banks shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of
the Company or any other Person or against or in payment of any or all of the
Obligations. To the extent that the Company makes a payment or payments to the
Administrative Agent or the Banks, or the Administrative Agent or the Banks
enforce their Liens or exercise their rights of set-off, and such payment or
payments or the proceeds of such enforcement or set-off or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party in connection
with any Insolvency Proceeding, or otherwise, then to the extent of such
recovery the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such enforcement or set-off had not occurred.
10.11 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Administrative Agent in writing of any changes in the address to
which notices to the Bank should be directed, of addresses of its Offshore
Lending Office and its Domestic Lending Office, of payment instructions in
respect of all payments to be made to it hereunder and of such other
administrative information as the Administrative Agent shall reasonably request.
10.12 Maximum Rate. It is the intention of the parties hereto to comply
strictly with applicable usury laws, if any; accordingly, notwithstanding any
provision to the contrary contained herein or in any fee letter or other Loan
Document or any other document otherwise relating hereto, in no event shall this
Agreement or any Note or such documents require or permit the payment, taking,
reserving, receiving, collection or charging of any sums constituting interest
under applicable laws which exceed the maximum amount permitted by such laws. If
any such excess interest is called for, contracted for, charged, taken,
reserved, or received in connection with any Loan or in any fee letter or other
Loan Document, or in any communication by the Administrative Agent, any Bank or
any other person to the Company or any other person, or in the event all or part
of the principal or interest of any Loan shall be prepaid or accelerated, so
that under any of such circumstances or under any other circumstance whatsoever
the amount of interest contracted for, charged, taken, reserved, or received on
the amount of principal actually outstanding from time to time under this
Agreement or any Note shall exceed the maximum amount of interest permitted by
applicable usury laws, then in any such event it is agreed as follows: (i) the
provisions of this paragraph shall govern and control, (ii) neither the Company
nor any other person or entity now or hereafter liable for the payment of any
Loan shall be obligated to pay the amount of such interest to the extent such
interest is in excess of the maximum amount of interest permitted by applicable
usury laws, (iii) any such excess which is or has been received notwithstanding
this paragraph shall be credited against the then unpaid principal balance of
the Loans or, if the Loans have been or would be paid in full by such credit,
refunded to the Company, and (iv) the provisions of this Agreement, the Notes
and the other Loan Documents, and any communication to the Company, shall
immediately be deemed reformed and such excess interest reduced, without the
necessity of executing any other document, to the maximum lawful rate allowed
under applicable laws as now or hereafter construed by courts having
jurisdiction hereof or thereof. Without limiting the foregoing, all calculations
of the rate of interest contracted for, charged, collected, taken, reserved, or
received in connection herewith which are made for the purpose of determining
whether such rate exceeds the maximum lawful rate shall be made to the extent
permitted by applicable laws by amortizing, prorating, allocating and spreading
during the period of the full term of the
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Loans, including all prior and subsequent renewals and extensions, all interest
at any time contracted for, charged, taken, collected, reserved, or received.
The terms of this paragraph shall be deemed to be incorporated in every Loan
Document and communication relating to this Agreement, the Loans and the Notes.
To the extent that, notwithstanding the choice of law of the parties made
herein, the interest rate laws of the State of Texas are applicable to the
Loans, the applicable interest rate ceiling is the weekly ceiling (formerly the
indicated rate ceiling) determined in accordance with Tex. Rev. Civ. Stat.,
Title 79, Article 5069-1D.003, also codified at Texas Finance Code, Section
303.301 (formerly Article 5069-1.04 (a)(1)), and, to the extent that this
Agreement is deemed an open end account as such term is defined in Tex. Rev.
Civ. Stat., Title 79, Article 5069-1B.002(14), also codified at Texas Finance
Code Section 301.001(3) (formerly Article 5069-1.01(f)), the Banks retain the
right to modify the interest rate in accordance with applicable law.
The parties agree that Texas Finance Code, Chapter 346 (formerly Tex. Rev.
Civ. Stat., Title 79, Chapter 15), which regulates certain revolving loan
accounts and revolving triparty accounts, shall not apply to any revolving loan
accounts created under this Agreement or the Notes or maintained in connection
therewith.
10.13 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement in any number of separate counterparts, each of
which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent.
10.14 No Third Parties Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
the Company, Administrative Agent and Banks in connection with the Loans, and is
made for the sole benefit of the Company, Administrative Agent and Banks, and
Administrative Agent's and Banks' successors and assigns. Except as provided in
Sections 10.4 and 10.9, no other Person shall have any rights of any nature
hereunder or by reason hereof.
10.15 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.16 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF TEXAS (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS OF THAT STATE); PROVIDED HOWEVER, ANY ISSUE OR ISSUES RELATING TO THE
AMOUNT OR RATE OF INTEREST THAT MAY BE LAWFULLY CONTRACTED FOR, CHARGED, TAKEN,
RESERVED, OR RECEIVED HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS SHALL
BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA; PROVIDED FURTHER THAT THE ADMINISTRATIVE AGENT AND THE BANKS SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
-59-
64
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR THE
SOUTHERN DISTRICT OF TEXAS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THOSE COURTS. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE COMPANY, THE ADMINISTRATIVE
AGENT AND THE BANKS FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
IT AT ITS ADDRESS SPECIFIED PURSUANT TO SECTION 10.2 HEREOF. EACH OF THE
COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT
AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY TEXAS LAW.
10.17 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS AND THE
ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire Agreement and understanding among the Company,
the Banks and the Administrative Agent and supersedes all prior or
contemporaneous Agreements and understandings of such persons, verbal or
written, relating to the subject matter hereof and thereof except for the fee
letters referred to in Section 2.12 and any prior arrangements made with respect
to the payment by the Company of (or any indemnification for) any fees, costs or
expenses payable to or incurred (or to be incurred) by or on behalf of the
Administrative Agent or the Banks.
-60-
65
10.19 Interpretation. This Agreement is the result of negotiations
between and has been reviewed by counsel to the Administrative Agent, the
Company and other parties, and is the product of all parties hereto.
Accordingly, this Agreement and the other Loan Documents shall not be construed
against the Banks, the Administrative Agent or the Company merely because of the
Administrative Agent's, the Banks' or the Company's involvement in the
preparation of such documents and agreements.
10.20 Survival. In the event that any Letter of Credit remains
outstanding after the Maturity Date, then, notwithstanding the termination of
the Commitments, the repayment of all outstanding Loans, and the
collateralization of such Letters of Credit by means of one or more deposits to
a Letter of Credit Cash Collateral Account, the provisions of this Agreement
(other than Section 7) shall remain in force and effect for so long as any such
Letter of Credit remains outstanding or any amount payable by or other
obligation of the Company in respect of such Letter of Credit remains unpaid or
unperformed. This Section 10.20 shall be cumulative with and in addition to any
other provision of this Agreement providing for survival of any representation,
warranty, covenant or undertaking of any party.
THIS WRITTEN LOAN AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS
EXECUTED IN CONNECTION HEREWITH, REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
-61-
66
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ONEOK, INC.
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Issuing Bank,
Swing Line Bank and a Bank
By
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Director
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
67
THE FIRST NATIONAL BANK OF CHICAGO
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
68
FIRST UNION NATIONAL BANK, as
Documentation Agent and as a Bank
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
69
SUNTRUST BANK, ATLANTA, as
Co-Documentation Agent and as a Bank
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
70
BANK OF OKLAHOMA, N.A.
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
71
CITIBANK, N.A.
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
72
FLEET NATIONAL BANK
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, NATIONAL ASSOCIATION
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
74
THE DAI-ICHI KANGYO BANK, LTD.
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
75
UMB BANK, N.A.
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
77
WESTSTAR BANK
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
78
SCHEDULE 1.1
COMMITMENTS AND PRO RATA SHARES
PRO RATA
BANK COMMITMENT SHARE
---- ---------- -----
Bank of America National Trust $ 100,000,000 16.6666666%
and Savings Association
The First National Bank of
Chicago 82,750,000 13.7916667%
First Union National Bank 82,750,000 13.▇▇▇▇▇▇▇%
SunTrust Bank, Atlanta 75,000,000 12.▇▇▇▇▇▇▇%
Bank of Oklahoma, N.A. 50,000,000 8.▇▇▇▇▇▇▇%
Citibank, N.A. 50,000,000 8.3333333%
Fleet National Bank 50,000,000 8.▇▇▇▇▇▇▇%
Chase Bank of Texas, National
Association 30,000,000 5.0000000%
The Dai-Ichi Kangyo Bank, Ltd. 25,000,000 4.▇▇▇▇▇▇▇%
UMB Bank, n.a. 25,000,000 4.▇▇▇▇▇▇▇%
Union Bank of California 25,000,000 4.▇▇▇▇▇▇▇%
WestStar Bank 4,500,000 0.7500000%
Total $600,000,000 100.0000000%
Schedule 1.1 - Page 1
79
SCHEDULE 3
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
COMPANY
ONEOK, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Chief Financial Officer
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ADMINISTRATIVE AGENT
Notices (other than Requests for Extensions of Credit):
Bank of America National Trust and
Savings Association
Three ▇▇▇▇▇ Center, Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Director
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Requests for Extensions of Credit:
Bank of America National Trust
and Savings Association, as Administrative Agent
Agency Administrative Services, #5596
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
Vice President/ATM
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America National Trust
And Savings Association
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 3 - Page 1
80
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as a Bank, as Issuing Bank and as Swing Line Bank
Address of Domestic and Offshore Lending Office:
Bank of America National Trust and
Savings Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Assistant Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
Bank of America National Trust and
Savings Association
Three ▇▇▇▇▇ Center, Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Director
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America National Trust and
Savings Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Assistant Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE FIRST NATIONAL BANK OF CHICAGO
Address of Domestic and Offshore Lending Office:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 3 - Page 2
81
Address for Notices:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST UNION NATIONAL BANK
Address for Domestic and Offshore Lending Office:
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SUNTRUST BANK, ATLANTA
Address for Domestic and Offshore Lending Office:
SunTrust Bank, Atlanta
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
SunTrust Bank, Atlanta
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 3 - Page 3
82
BANK OF OKLAHOMA, N.A.
Address of Domestic and Offshore Lending Office:
Bank of Oklahoma, N.A.
BOK Tower ▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. Been
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
Bank of Oklahoma, N.A.
BOK Tower ▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. Been
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A.
Address of Domestic and Offshore Lending Office:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET NATIONAL BANK
Address of Domestic and Offshore Lending Office:
Fleet National Bank
Mail Stop: MA OF D07J
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
Fleet National Bank
Mail Stop: MA OF D07J
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 3 - Page 4
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, NATIONAL ASSOCIATION
Address of Domestic and Offshore Lending Office:
Chase Bank of Texas, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Chase Bank of Texas, National Association
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Ms. ▇▇▇▇▇ German
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE DAI-ICHI KANGYO BANK, LTD.
Address of Domestic and Offshore Lending Office:
The Dai-Ichi Kangyo Bank, Ltd.
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
The Dai-Ichi Kangyo Bank, Ltd.
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 3 - Page 5
84
UMB BANK, N.A.
Address of Domestic and Offshore Lending Office:
UMB Bank, n.a.
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
UMB Bank, n.a.
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
UNION BANK OF CALIFORNIA
Address of Domestic and Offshore Lending Office:
Union Bank of California, N.A.
Energy Capital Services
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
Union Bank of California, N.A.
Energy Capital Services
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WESTSTAR BANK
Address of Domestic and Offshore Lending Office:
WestStar Bank
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
WestStar Bank
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 3 - Page 6
85
EXHIBIT A
FORM OF REQUEST FOR EXTENSION OF CREDIT
TO: Bank of America National Trust
and Savings Association, as Administrative Agent
Agency Administrative Services, #5596
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
Vice President/ATM
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO: Bank of America National Trust
And Savings Association
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Pursuant to Section 2.5 of that certain $600,000,000 Credit Agreement
dated as of July 2, 1999 (as from time to time amended, extended, restated,
modified or supplemented, the "Credit Agreement;" capitalized terms used herein
shall have the meanings assigned to them in the Credit Agreement), among ONEOK,
Inc., an Oklahoma corporation (the "Company"), the Banks named therein (the
"Banks") and Bank of America National Trust and Savings Association, as
Administrative Agent (the "Administrative Agent"), this represents the Company's
request to borrow on __________ from the Banks, according to their respective
Pro Rata Share, $___________ as [Base Rate] [Offshore Rate] Loans. [The initial
Interest period for such Offshore Rate is requested to be a __________-month
period]. The proceeds of such Loans are to be deposited in the Company's account
at the Administrative Agent.
The undersigned Responsible Officer hereby certifies that:
(a) the representations and warranties of the Company contained in the
Credit Agreement are true, correct and complete in all material respects on and
as of the date hereof to the same extent as though made on and as of the date
hereof; and
(b) no Default or Event of Default has occurred and is continuing under
the Credit Agreement or will result from the proposed Extension of Credit.
DATED:
----------------
ONEOK, INC.
By
----------------------------------------
Title
-------------------------------------
Exhibit A - Page 1
86
EXHIBIT B
FORM OF NOTICE OF CONVERSION/CONTINUATION
TO: Bank of America National Trust
and Savings Association, as Administrative Agent
Agency Administrative Services, #5596
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
Vice President/ATM
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO: Bank of America National Trust
And Savings Association
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
1. Conversion Selection. Pursuant to Section 2.6 of that certain
$600,000,000 Credit Agreement dated as of July 2, 1999 (as from time to time
amended, extended, restated, modified or supplemented, the "Credit Agreement;"
capitalized terms used herein shall have the meanings assigned to them in the
Credit Agreement), among ONEOK, Inc., an Oklahoma corporation (the "Company"),
the Banks named therein (the "Banks") and Bank of America National Trust and
Savings Association, as Administrative Agent (the "Administrative Agent"), this
represents the Company's request to convert $________of existing [Base Rate]
[Offshore Rate] Loans, the final day of the current Interest Period (if
applicable) of which is __________, 19__, to [Offshore Rate] [Base Rate] Loans,
as follows:
Interest Period
(Offshore
Dollar Amount Rate loans)
------------- -----------
$____________ ________ days
Maturing on __________, 19__
2. Continuation Selection (Offshore Rate Loans). Pursuant to Section
2.5 of the Agreement, please continue $__________ of existing Offshore Rate
Loans, the final day of the current Interest Period of which is __________,
19____, as follows:
Exhibit B - Page 1
87
Requested
Dollar Amount Interest Period
------------- ---------------
$___________ ______ days
Maturing on __________, 19__
The undersigned Responsible Officer hereby certifies that:
(a) the representations and warranties of the Company contained in the
Credit Agreement are true, correct and complete in all material respects on and
as of the date hereof to the same extent as though made on and as of the date
hereof; and
(b) no Default or Event of Default has occurred and is continuing under
the Credit Agreement or will result from the proposed conversion or
continuation.
Unless otherwise defined herein, capitalized terms used herein have the
meanings assigned to them in the Agreement.
ONEOK, INC.
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Exhibit B - Page 2
88
EXHIBIT C-1
FORM OF REVOLVING LOAN PROMISSORY NOTE
U.S. $______________ Dated:_____________,_____
FOR VALUE RECEIVED, the undersigned, ONEOK, INC., an Oklahoma
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of ________
_______ (the "Bank"), for the account of its applicable lending office, on the
Maturity Date (as defined in the Credit Agreement referred to below), the
principal amount of $ _______, or, if less, the aggregate principal amount of
the Revolving Loans (as defined in the Credit Agreement referred to below) owed
to the Bank by the Borrower on such Maturity Date.
The Borrower promises to pay interest on the unpaid principal amount
hereof until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement referred to
below. Both principal and interest are payable in lawful money of the United
States of America to Bank of America National Trust and Savings Association, as
Administrative Agent, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in same
day funds. Each Revolving Loan owed to the Bank by the Borrower, and all
payments made on account of principal thereof, may be recorded by the Bank and,
prior to any transfer hereof, endorsed on the grid attached hereto which is part
of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is subject
to and entitled to the benefits of, the Credit Agreement dated as of July 2,
1999 (as amended or otherwise modified from time to time, the "Credit
Agreement") among the Borrower, the Bank, certain other banks parties thereto
and Bank of America National Trust and Savings Association as Administrative
Agent for the Bank and such other banks. The Credit Agreement, among other
things, (i) provides for the making of Revolving Loans to the Borrower from time
to time pursuant to Section 2.1 of the Credit Agreement in an aggregate
outstanding amount not to exceed at any time the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such advance
owed to the Bank being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified. Capitalized
terms used herein which are not defined herein and are defined in the Credit
Agreement are used herein as therein defined.
The Borrower hereby waives presentment, demand, protest, notice of
dishonor, notice of intent to accelerate, notice of acceleration and any other
notice of any kind, except as provided in the Credit Agreement. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Texas (without regard to principles of conflicts
of laws of that State); provided however, any issue or issues relating to the
amount or rate of interest that may be lawfully contracted for, charged, taken,
reserved, or received hereunder or under any of the other loan documents shall
be governed and construed in accordance with the laws of the
Exhibit C-1-Page 1
89
State of California; provided further that the Administrative Agent and the
Banks shall retain all rights arising under federal law.
ONEOK, INC.
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Exhibit C-1 - Page 2
90
EXHIBIT C-2
FORM OF SWING LOAN PROMISSORY NOTE
U.S. $25,000,000.00 Dated:_____________,_____
FOR VALUE RECEIVED, the undersigned, ONEOK, INC., an Oklahoma
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (the "Bank"), for the account of
its applicable lending office, on the Maturity Date (as defined in the Credit
Agreement referred to below), the principal amount of $25,000,000.00, or, if
less, the aggregate principal amount of the Swing Line Loans (as defined in the
Credit Agreement referred to below) owed to the Bank by the Borrower on such
Maturity Date.
The Borrower promises to pay interest on the unpaid principal amount
hereof until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement referred to
below. Both principal and interest are payable in lawful money of the United
States of America to Bank of America National Trust and Savings Association, as
Administrative Agent, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in same
day funds. Each Swing Line Loan owed to the Bank by the Borrower, and all
payments made on account of principal thereof, may be recorded by the Bank and,
prior to any transfer hereof, endorsed on the grid attached hereto which is part
of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is subject
to and entitled to the benefits of, the Credit Agreement dated as of July 2,
1999 (as amended or otherwise modified from time to time, the "Credit
Agreement") among the Borrower, the Bank, certain other banks parties thereto
and Bank of America National Trust and Savings Association as Administrative
Agent for the Bank and such other banks. The Credit Agreement, among other
things, (i) provides for the making of Swing Line Loans to the Borrower from
time to time pursuant to Section 2.2 of the Credit Agreement in an aggregate
outstanding amount not to exceed at any time the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such advance
owed to the Bank being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified. Capitalized
terms used herein which are not defined herein and are defined in the Credit
Agreement are used herein as therein defined.
The Borrower hereby waives presentment, demand, protest, notice of
dishonor, notice of intent to accelerate, notice of acceleration and any other
notice of any kind, except as provided in the Credit Agreement. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Texas (without regard to principles of conflicts
of laws of that State); provided however, any issue or issues relating to the
amount or rate of interest that may be lawfully contracted for, charged, taken,
reserved, or received hereunder or under any of the other loan documents shall
be governed and construed in accordance with the laws of the
Exhibit C-2-Page 1
91
State of California; provided further that the Administrative Agent and the
Banks shall retain all rights arising under federal law.
ONEOK, INC.
By
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Exhibit C-2 - Page 2
92
EXHIBIT D
[INTENTIONALLY OMITTED FROM THIS COPY]
Exhibit D-1 - Page 1
93
EXHIBIT E
FORM OF COMMITMENT ASSIGNMENT NOTICE
AND ACCEPTANCE
---------------, -----
TO: Bank of America National Trust
and Savings Association, as Administrative Agent
Agency Management Services, #5596
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
Vice President/ATM
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO: Bank of America National Trust
And Savings Association
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is made to the $600,000,000 Credit Agreement dated as of July
2, 1999 (as from time to time amended, extended, restated, modified or
supplemented, the "Credit Agreement;" capitalized terms used herein shall have
the meanings assigned to them in the Credit Agreement) among ONEOK, Inc.,
certain Banks party thereto and Bank of America National Trust and Savings
Association, as Administrative Agent (the "Administrative Agent") for said
Banks.
1. We hereby give you notice of, and request your consent to, the
assignment by _________________ (the "Assignor") to _______________ (the
"Assignee") of _____% of the right, title and interest of the Assignor in and to
the Credit Agreement (including without limitation the right, title and interest
of the Assignor in and to the Commitment of the Assignor, all outstanding Loans
made by the Assignor, and outstanding Letter of Credit Usage). Before giving
effect to such assignment: the amount of the Assignor's Commitment is _________;
the aggregate principal amount of its outstanding Loans is $___________; and the
aggregate face amount of Letter of Credit Usage is $__________.
2. The Assignee hereby represents and warrants that it has complied
with the requirements of Section 10.6(a) of the Credit Agreement in connection
with this assignment.
Exhibit E - Page 1
94
3. The Assignee agrees that, upon receiving your consent to such
assignment and from and after ________________, the Assignee will be bound by
the terms of the Credit Agreement, with respect to the interest in the Credit
Agreement assigned to it as specified above, as fully and to the same extent as
if the Assignee were the Bank originally holding such interest in the Credit
Agreement.
4. The following administrative details apply to the Assignee:
(A) Offshore Lending Office:
Assignee name:
---------------------------------
Address:
---------------------------------------
Attention:
-------------------------------------
Telephone: ( )
--- -------------------------------
Telecopier: ( )
--- ------------------------------
Telex (Answerback):
-------------------
(B) Domestic Lending Office:
Assignee name:
---------------------------------
Address:
---------------------------------------
Attention:
-------------------------------------
Telephone: ( )
--- -------------------------------
Telecopier: ( )
--- ------------------------------
Telex (Answerback):
-------------------
(C) Notice Address:
Assignee name:
---------------------------------
Address:
---------------------------------------
Attention:
-------------------------------------
Telephone: ( )
--- -------------------------------
Telecopier: ( )
--- ------------------------------
Telex (Answerback):
-------------------
(D) Payment Instructions:
Account No.:
-----------------------------------
At:
--------------------------------------
--------------------------------------
--------------------------------------
Ref.:
------------------------------------------
Attention:
-------------------------------------
Exhibit E - Page 2
95
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Commitment Assignment Notice and Acceptance to be executed by their respective
duly authorized officials, officers or administrative agents as of the date
first above mentioned.
Very truly yours,
[Name of Assignor]
By
--------------------------------------
Title:
----------------------------------
[Name of Assignee]
By
--------------------------------------
Title:
----------------------------------
We hereby consent to the foregoing assignment.
ONEOK, INC.
By
------------------------------------
Title:
--------------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By
------------------------------------
Title:
--------------------------------
Exhibit E - Page 3
96
EXHIBIT F
FORM OF SUBSIDIARY GUARANTY
THIS GUARANTY AGREEMENT (this "Guaranty") by _____________, a
__________ [corporation] ("Guarantor"), is in favor of each of the Banks (herein
defined) from time to time parties to the Credit Agreement (herein defined) and
in favor of Bank of America National Trust and Savings Association (together
with its successors and assigns herein called the "Administrative Agent"), as
the Administrative Agent for and on behalf of the financial institutions (the
"Banks") now or hereafter party to that certain Credit Agreement (as the same
may be amended, modified or restated from time to time and at any time, the
"Credit Agreement"), dated as of July 2, 1999, among ONEOK, Inc., an Oklahoma
corporation (the "Company"), the Banks, the Administrative Agent and Bank of
America National Trust and Savings Association as a Bank, Letter of Credit
Issuing Bank and Swing Line Bank. All capitalized terms used but not defined
herein shall have the meaning assigned to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Credit Agreement, the Banks have
agreed to make certain Extensions of Credit to the Company;
WHEREAS, pursuant to Section 6.13 of the Credit Agreement, the Company
agreed, among other things, to cause certain Subsidiaries to execute and deliver
to the Administrative Agent a Guaranty in the form attached to the Credit
Agreement; and
WHEREAS, Guarantor is a Subsidiary of the Company, is engaged in
business related to the business of the Company, and will derive substantial
direct and indirect economic benefit from the Extensions of Credit;
WHEREAS, the obligation of the Banks to continue the Extensions of
Credit is conditioned upon, among other things, the execution and delivery by
Guarantor of this Guaranty;
NOW, THEREFORE, (i) in consideration of the premises and to induce the
Banks to enter into the Credit Agreement and to make and/or to continue the
Extensions of Credit, (ii) at the special insistence and request of the
Administrative Agent and the Banks, and (iii) for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor, for the benefit of the Administrative Agent and the Banks, hereby
agrees as follows:
Section 1. Defined Terms.
"Other Guarantors" shall have the meaning specified in Section
16 hereof.
Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
Exhibit F - Page 1
97
Section 2. Guaranty.
(a) Guarantor hereby, jointly and severally with any Other
Guarantors, unconditionally and irrevocably guarantees the prompt performance
and payment in full in Dollars when due (whether at stated maturity, by
acceleration or otherwise) of the Obligations of the Company, and further agrees
to pay all costs, fees and expenses (including, without limitation, counsel
fees, and the allocated cost of in-house counsel) incurred by the Administrative
Agent or any Bank in enforcing any rights under this Guaranty; subject, however,
to the limitations set forth in Section 2(b) hereof.
(b) Guarantor and by their acceptance hereof each of the
Administrative Agent and each Bank hereby confirms that it is the intention of
all such parties that the guarantee by Guarantor pursuant to this Guaranty not
constitute a fraudulent transfer or conveyance for purposes of any federal,
state or foreign law. To effectuate the foregoing intention, the Administrative
Agent, the Banks and Guarantor hereby irrevocably agree that the obligations of
Guarantor under this Guaranty shall be limited to the maximum amount as will,
after giving effect to any collections from or payments made by or on behalf of
any Other Guarantor, result in the obligations of Guarantor under this Guaranty
not constituting a fraudulent conveyance or fraudulent transfer under federal,
state or foreign law; provided, however, that (i) the obligations of Guarantor
shall be presumed to be the full amount of the Obligations and (ii) if Guarantor
claims that its liability hereunder is less than the entire amount of the
Obligations, Guarantor shall have the burden of proving, by clear and convincing
evidence, that Guarantor's liability hereunder should be so limited since the
information concerning, and the circumstances of, the financial condition of
Guarantor is more readily available to and is under the control of Guarantor.
Section 3. Guaranty Absolute.
(a) The obligations of Guarantor hereunder are those of a
primary obligor, and not merely a surety, and are independent of the Obligations
and the obligations of any Other Guarantor. A separate action or actions may be
brought against Guarantor whether or not an action is brought against the
Company, any other guarantor (including the Other Guarantors) or any other
obligor in respect of the Obligations or whether the Company, any other
guarantor (including Other Guarantors) or any other obligor in respect of the
Obligations is joined in any such action or actions.
(b) Guarantor guarantees that the Obligations will be paid and
performed strictly in accordance with the terms of the Credit Agreement and the
other Loan Documents regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or the Banks with respect thereto. Guarantor agrees that
its guarantee constitutes a guarantee of payment when due and not of collection.
The liability of Guarantor under this Guaranty shall be absolute and
unconditional irrespective of:
(i) any lack of genuineness, validity, legality or
enforceability of the Credit Agreement, any other Loan Document or any
other document, agreement or instrument relating thereto or any
assignment or transfer of any thereof;
Exhibit F - Page 2
98
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations
(including, without limitation, the possible extension of the Maturity
Date and increase of the amount of the Commitments all on the terms and
conditions set forth in the Credit Agreement), or any waiver,
indulgence, compromise, renewal, extension, amendment, modification of,
or addition, consent, supplement to, or consent to departure from, or
any other action or inaction under or in respect of, the Credit
Agreement or any other Loan Document or any document, instrument or
agreement relating to the Obligations or any other instrument or
agreement referred to therein or any assignment or transfer of any
thereof;
(iii) any release or partial release of any other
guarantor (including Other Guarantors) or other obligor in respect of
the Obligations;
(iv) any exchange, release or non-perfection of any
collateral for all or any of the Obligations, or any release, or
amendment or waiver of, or consent to departure from, any guaranty or
security, for all or any of the Obligations;
(v) any furnishing of any additional security for any
of the Obligations;
(vi) the liquidation, bankruptcy, insolvency or
reorganization of the Company, any other guarantor (including Other
Guarantors) or other obligor in respect of the Obligations or any
action taken with respect to this Guaranty by any trustee or receiver,
or by any court, in any such proceeding;
(vii) any modification or termination of any
intercreditor or subordination agreement pursuant to which the claims
of other creditors of the Company or of Guarantor or any Other
Guarantors are subordinated to those of the Banks; or
(viii) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable discharge
of, the Company or Guarantor or any Other Guarantors.
(c) This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment or performance of the
Obligations, or any part thereof, is, upon the commencement of an Insolvency
Proceeding by or against the Company or Guarantor or any Other Guarantor or
otherwise pursuant to applicable law, rescinded or reduced in amount or must
otherwise be restored or returned by the Administrative Agent or any Bank, all
as though such payment or performance had not been made.
(d) If an event permitting the acceleration of any of the
Obligations shall at any time have occurred and be continuing and such
acceleration shall at such time be prevented by reason of the pendency as to the
Company of an Insolvency Proceeding, Guarantor agrees that, for purposes of this
Guaranty and its obligations hereunder, the Obligations shall be deemed to have
been accelerated and Guarantor shall forthwith pay such Obligations (including,
without limitation, interest which but for the pendency of an
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99
Insolvency Proceeding with respect to the Company, would accrue on such
Obligations), and the other obligations hereunder, without any further notice or
demand.
Section 4. Waivers. To the fullest extent permitted by applicable law,
Guarantor hereby waives promptness, diligence, notice of intention to
accelerate, notice of acceleration, notice of acceptance and any and all other
notices with respect to any of the Obligations and this Guaranty and any
requirement that the Administrative Agent or any Bank protect, secure, perfect
or insure any security interest in or any Lien on any property subject thereto
or exhaust any right or take any action against the Company, any other guarantor
(including Other Guarantors) or any other Person or any collateral or security
or to any balance of any deposit accounts or credit on the books of any Bank in
favor of the Company or Guarantor or any Other Guarantors. Guarantor expressly
waives each and every right to which it may be entitled by virtue of the
suretyship law of the State of Texas including, without limitation, any rights
Guarantor may have pursuant to Rule 31, Texas Rules of Civil Procedure, Section
17.001, Texas Civil Practice and Remedies Code, and Chapter 34 of the Texas
Business and Commerce Code.
Section 5. Subrogation. Guarantor will not exercise any rights of
subrogation, reimbursement and contribution, contractual, statutory or
otherwise, which it may acquire by way of subrogation under this Guaranty, by
any payment hereunder or otherwise, until all of the Obligations of the Company
have been paid and performed in full in cash, all Commitments have terminated
and all Letters of Credit have expired.
Section 6. Representations and Warranties.
(a) General. Guarantor represents and warrants to the
Administrative Agent and the Banks as of the date hereof that all of the
representations and warranties contained in Section 5 of the Credit Agreement
are true and correct with respect to Guarantor to the extent such
representations and warranties refer to Subsidiary Guarantors, and such
representations and warranties are hereby incorporated by reference.
(b) Benefit to Guarantor. Guarantor represents and warrants
that Guarantor has determined that its liability and obligation under this
Guaranty will substantially benefit it directly, and its board of directors or
other governing body has made that determination. The Company, Guarantor and the
other Subsidiaries of the Company are mutually dependent on each other in the
conduct of their respective businesses and do business together as an integrated
business enterprise. The maintenance and improvement of the Company's financial
condition is vital to sustaining Guarantor's businesses and the transactions
contemplated in the Credit Agreement produce distinct and identifiable financial
and economic direct and indirect benefits to Guarantor.
The representations and warranties set forth in this Section 6 shall
survive the execution and delivery of this Guaranty.
Section 7. Further Assurances. Guarantor agrees that at any time and
from time to time, at Guarantor's expense, Guarantor will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Administrative Agent may reasonably
request, to enable the Administrative Agent to protect and to exercise and
enforce its rights and remedies hereunder.
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Section 8. Application of Payments. Any payment received by the
Administrative Agent from Guarantor (or from any Bank pursuant to Section 13
below), shall be applied by the Administrative Agent as follows:
First, to the payment of costs and expenses of collection and
all expenses (including, without limitation, any legal fees and
disbursements and the allocated cost of in-house counsel), liabilities
and advances made or incurred by the Administrative Agent in connection
therewith;
Next, to the Banks pro rata, based on their Pro Rata Share of
the Outstanding Obligations; and
Finally, after payment and performance in full of all
Obligations, the termination of the Commitments and the expiration of
all Letters of Credit, the payment to Guarantor, or its successors and
assigns, or to whomsoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct, of any surplus then
remaining from such proceeds.
Section 9. Decisions Relating to Exercise of Remedies. Notwithstanding
anything in this Guaranty to the contrary, the Administrative Agent may
exercise, and at the request of the Requisite Banks shall exercise or refrain
from exercising, all rights and remedies provided for herein and provided by
law.
Section 10. No Waiver. No failure on the part of the Administrative
Agent or any Bank to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 11. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty, nor consent to any departure by Guarantor herefrom, shall in any
event be effective unless the same shall be in writing and signed, in the case
of amendments, by Guarantor and by the Administrative Agent and, if required by
Section 10.1 of the Credit Agreement, either the Requisite Banks or all of the
Banks, as the case may be, and, in the case of consents or waivers, by the
Administrative Agent and, if required by Section 10.1 of the Credit Agreement,
either the Requisite Banks or all of the Banks, as the case may be, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which made or given. Nothing in this
Section 11 shall require the Administrative Agent or any Bank to obtain the
consent of Guarantor prior to taking any action described in Section 3(b)
hereof.
Section 12. Notices. All notices, requests and other communications
provided for hereunder shall be in writing and given to Administrative Agent as
provided in Section 10.2 of the Credit Agreement. All communications and notices
hereunder to Guarantor shall be given to Guarantor at its address set forth on
the signature page hereof or at such other address as shall be designated by
Guarantor in a written notice to the Administrative Agent.
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Section 13. Right to Set-off.
(a) Upon the occurrence and during the continuance of any
Event of Default under the Credit Agreement, Guarantor authorizes each Bank 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 Guarantor against any and
all of the Obligations, without prior notice to Guarantor or demand under this
Guaranty, all of which are hereby waived, and although such Obligations may be
contingent and unmatured. Each Bank which sets-off pursuant to this Section
13(a) shall give prompt notice to Guarantor following the occurrence thereof;
provided that the failure to give such notice shall not affect the validity of
the set-off.
(b) Any payment obtained pursuant to Section 13(a) above (or
in any other manner directly from Guarantor) by any Bank shall be remitted to
the Administrative Agent and distributed among the Banks in accordance with the
provisions of Section 8 above.
Section 14. Continuing Guaranty. This Guaranty is a continuing guaranty
and shall (a) remain in full force and effect until indefeasible payment and
performance in full in cash (after the termination of the Commitments) of the
Obligations and all other amounts payable under this Guaranty and the expiration
of all Letters of Credit; (b) be binding upon Guarantor, its successors and
assigns; and (c) inure to the benefit of the Administrative Agent, the Banks and
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), any Bank may assign or otherwise
transfer its rights and obligations under the Credit Agreement to any other
Person or entity, and such other Person or entity shall thereupon become vested
with all the benefits in respect thereof granted to the Bank herein or
otherwise, all as provided in, and to the extent set forth in, Section 10.6 of
the Credit Agreement.
Section 15. Subordination of the Credit Parties' Obligations to
Guarantor. Guarantor hereby expressly covenants and agrees for the benefit of
the Administrative Agent and the Banks that all obligations and liabilities of
the Company, any Other Guarantors and each of their respective Subsidiaries to
Guarantor of whatsoever description (including, without limitation, all
intercompany receivables of Guarantor from the Company, Other Guarantors and
Subsidiaries) shall be subordinated and junior in right of payment to the
Obligations. Following the occurrence of an Event of Default, any indebtedness
of the Company, Other Guarantors and their Subsidiaries to Guarantor shall, if
the Administrative Agent shall so request, be collected and received by
Guarantor as trustees for the Administrative Agent and the Banks and paid over
to the Administrative Agent and the Banks on account of the Obligations.
Section 16. Other Guarantors. Guarantor acknowledges that pursuant to
Section 6.13 of the Credit Agreement other Subsidiaries of the Company
(collectively, the "Other Guarantors") now or hereafter may guarantee the
payment and performance of the Obligations, jointly and severally with
Guarantor. Notwithstanding any provision of this Guaranty to the contrary, all
of Guarantor's and such Other Guarantors' rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full, in cash, of the Obligations, and no payment may be
made in respect of such rights of indemnity, contribution or subrogation
Exhibit F - Page 6
102
until all of the Obligations have been paid or performed in full, in cash, all
Commitments have expired or been terminated, and all Letters of Credit have
expired.
Section 17. Severability. The illegality or unenforceability of any
provision of this Guaranty or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Guaranty or any instrument or agreement required
hereunder.
Section 18. Taxes.
(a) Any and all payments by Guarantor to each Bank or the
Administrative Agent under this Guaranty and any other Loan Document shall be
made free and clear of, and without deduction or withholding for, any Taxes. In
addition, Guarantor shall pay all Other Taxes.
(b) Subject to Section 3.1(g) of the Credit Agreement,
Guarantor, jointly and severally with any Other Guarantors, agree to indemnify
and hold harmless each Bank and the Administrative 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) paid by the
Bank or the Administrative Agent and any liability (including penalties,
interest, additions to tax and expenses to the extent not resulting from the
gross negligence or willful misconduct of a Bank or Administrative Agent)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payment under this indemnification
shall be made within 30 days after the date the Bank or the Administrative Agent
makes written demand therefor.
(c) If Guarantor shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Administrative Agent, then, subject to Section
3.1(g) of the Credit Agreement: (i) the sum payable shall be increased as
necessary so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums payable
under this Section) such Bank or the Administrative Agent, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions or withholdings been made; (ii) Guarantor shall make such deductions
and withholdings; and (iii) Guarantor shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance with
applicable law.
(d) Within 30 days after the date of any payment by Guarantor
of Taxes or Other Taxes, Guarantor shall furnish the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Administrative Agent.
SECTION 19. GOVERNING LAW AND JURISDICTION.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS OF THAT STATE); PROVIDED, HOWEVER, THAT ANY ISSUE OR ISSUES
RELATING TO THE AMOUNT OR RATE OF INTEREST THAT MAY BE LAWFULLY CONTRACTED FOR,
CHARGED, TAKEN, RESERVED OR RECEIVED HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED
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IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS OF THAT STATE); PROVIDED FURTHER, THAT THE
ADMINISTRATIVE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR THE SOUTHERN DISTRICT OF TEXAS, AND BY
EXECUTION AND DELIVERY OF THIS GUARANTY, GUARANTOR CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THOSE COURTS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO IT AT ITS ADDRESS SPECIFIED IN SECTION 12 HEREOF. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY BANK TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST GUARANTOR IN ANY OTHER JURISDICTION. GUARANTOR WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY TEXAS LAW.
(c) GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT
RELATED HERETO.
SECTION 20. WAIVER OF JURY TRIAL. GUARANTOR WAIVES ITS RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF
ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY
AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE. GUARANTOR AGREES THAT ANY SUCH CLAIM OR CAUSE
OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, GUARANTOR FURTHER AGREES THAT ITS RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS GUARANTY OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 21. Interpretation. This Guaranty is the result of negotiations
between and has been reviewed by counsel to the Administrative Agent, Guarantor
and
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104
other parties, and is the product of all parties hereto. Accordingly, this
Guaranty and the other Loan Documents shall not be construed against the Banks,
the Administrative Agent or Guarantor merely because of the Administrative
Agent's, the Banks' or Guarantor's involvement in the preparation of such
documents and agreements.
SECTION 22. ENTIRE AGREEMENT. THIS WRITTEN GUARANTY AND THE INSTRUMENTS
AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
specified below.
Date:
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By
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Name:
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Title:
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Address:
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Exhibit F - Page 10