Exhibit 1(a)
ONEOK, INC.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Agreement") is made and dated as of March 22,
2000 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, N.A., as Administrative Agent (the
"Administrative Agent") and as a Bank.
RECITAL
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The Company has requested that Banks make available a revolving credit
facility and the Banks 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.
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1.1 Certain Defined Terms. The following terms used in this
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Agreement shall have the following meanings:
"Affiliate" means, as to any Person, any other Person which, directly
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or indirectly, is in Control of, is Controlled by, or is under common Control
with, such Person.
"Administrative Agent" means Bank of America, N.A. in its capacity as
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administrative agent for the Banks hereunder, and any successor agent.
"Agent-Related Persons" has the meaning specified in Section 9.3.
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"Aggregate Commitment" means the combined Commitments of the Banks.
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"Agreement" means this Credit Agreement, as it may hereafter be
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amended, supplemented, restated or otherwise modified from time to time.
"Applicable Amount" means, for any day, with respect to outstanding
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Loans of the Types referred to below, and the facility fees and utilization 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",
and "Utilization Fee", as the case may be, based upon the ratings by Moody's 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)
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Rating of Applicable Margin for Offshore
Index Debt Facility Fee Rate Loans Utilization Fee
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A+ or higher by S&P and A1 6.5 bps 23.5 bps 10.0 bps
or higher by Moody's
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A by S&P and A2 by Moody's 7.0 bps 28.0 bps 10.0 bps
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A- by S&P and A3 by Moody's 7.5 bps 32.5 bps 10.0 bps
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BBB+ by S&P and Baa1 by 10.0 bps 45.0 bps 12.5 bps
Moody's
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BBB by S&P and Baa2 by 12.5 bps 50.0 bps 12.5 bps
Moody's
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BBB- by S&P and Baa3 by 15.0 bps 60.0 bps 15.0 bps
Moody's
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Lower than BBB- by S&P and 20.0 bps 80.0 bps 17.5 bps
Baa3 by Moody's
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For purposes of the foregoing, (i) if either Moody's 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
Moody's 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 Moody's and S&P
for the Index Debt shall be changed (other than as a result of a change in the
rating system of Moody's 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"
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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 Moody's 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
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arranger.
"Assignee" has the meaning specified in Section 10.6.
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"Availability Period" means the period from the Effective Date to but
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excluding the Maturity Date.
"Bank" has the meaning assigned to that term in the introduction to this
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Agreement.
"Bank of America" means Bank of America, N.A.
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"Base Rate" means a fluctuating rate per annum which is the higher of (a)
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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
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determined by reference to the Base Rate.
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"Borrowing" means a borrowing hereunder consisting of Loans made to the
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Company on the same day by the Banks pursuant to Section 2.
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"Borrowing Date" means the date a Borrowing is made.
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"Business Day" means any day other than a Saturday, Sunday or other day on
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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
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Laws."
"Change in Control" means (a) the acquisition of ownership, directly or
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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 March 22, 2000.
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"Code" means the Internal Revenue Code of 1986, as amended.
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"Commitment" means the commitment of each Bank to make Extensions of Credit
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in the amount set forth opposite the Bank's name in Schedule 1.1 under the
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heading "Commitment" (such amount as the same may be reduced pursuant to Section
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2.8, other appropriate provisions herein or as a result of one or more
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assignments pursuant to Section 10.6).
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"Company" means ONEOK, Inc., an Oklahoma corporation.
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"Consolidated Capitalization" of the Company and its Subsidiaries means the
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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
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(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,
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however, that there shall not be deducted ▇▇▇▇▇▇▇▇ recorded as revenues deferred
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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.
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"Consolidated Senior Funded Indebtedness" means the Senior Funded
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Indebtedness appearing on a consolidated balance sheet of the Company and its
Subsidiaries.
"Consolidated Subsidiaries" means at any date any Subsidiary or other entity
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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
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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.
"Control" means the possession, directly or indirectly, of the power to
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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
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thereto.
"Controlled Group" means the Company and all Persons (whether or not
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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
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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
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time, or both, would constitute an Event of Default.
"Dollars" means lawful money of the United States of America.
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"Domestic Lending Office" means, with respect to each Bank, the office of
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that Bank designated as such on Schedule 3 hereto or such other office of the
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Bank as it may from time to time specify to the Company and the Administrative
Agent.
"Effective Date" means March 22, 2000; provided, that all the conditions in
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Section 4.1 are satisfied or waived on or before such date.
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"Eligible Assignee" means (a) a financial institution organized under the
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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
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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.
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"Environmental Laws" means all federal, state or local laws, statutes,
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common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, 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
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regulation promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
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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
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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.
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"Exchange Act" means, at any time, the Securities Exchange Act of 1934, as
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amended from time to time, and any successor statute.
"Extension of Credit" means (a) the Borrowing of Loans, or (b) the
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conversion or continuation of any Loans (collectively, the "Extensions of
Credit").
"Federal Funds Rate" means, for any day, the rate per annum (rounded upwards
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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
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System or any successor thereof.
"Funded Indebtedness" means all Indebtedness which by its terms matures more
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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
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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
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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
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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
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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 of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; provided, however, that the term
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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
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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.
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"Indemnified Liabilities" has the meaning set forth in Section 10.9(a).
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"Insolvency Proceeding" means (a) any case, action or proceeding before any
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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
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last Business Day of each Interest Period applicable to such Loan; with respect
to any Base Rate Loan, the last Business Day of each calendar quarter; with
respect to all Loans, the Maturity Date; provided, however, that if any Interest
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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
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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:
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(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.
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"Lending Office" means, with respect to any Bank, the office or offices of
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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
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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.
"Lien" means any lien, mortgage, pledge, security interest, charge or
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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.
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"Loan Documents" means this Agreement, the Subsidiary Guaranty Agreements,
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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
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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
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business, operations, properties, assets, 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.
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"Maturity Date" means June 30, 2000, unless extended pursuant to Section
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2.16.
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"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
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"Multiemployer Plan" means a "multiemployer plan" as defined in Section
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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.
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"Notice of Conversion/Continuation" means a notice given by the Company to
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the Administrative Agent pursuant to Section 2.6, in substantially the form of
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Exhibit B annexed hereto.
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"Notice of Lien" means any "notice of lien" or similar document intended to
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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.
"Obligations" means all obligations of every nature of the Company from time
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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
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such Bank designated as such on Schedule 3 hereto or such other office of such
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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,
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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
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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
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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
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(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 (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
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reference to the Offshore Rate.
"Other Taxes" has the meaning specified in subsection 3.1(b).
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"Outstanding Obligations" means, as of any date, and giving effect to making
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any Extensions of Credit requested on such date and all payments, repayments and
prepayments made on such date, the sum of the aggregate outstanding principal
amount of all Loans.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
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succeeding to any or all of its functions under ERISA.
"Participant" has the meaning specified in Section 10.6(c).
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"Permitted Liens" has the meaning specified in Section 7.1.
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"Person" means any individual, partnership, limited liability company,
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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)
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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 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 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
9
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.
---------
"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 outstanding, Banks holding Loans aggregating more than 50% of the
aggregate outstanding principal amount of Loans.
"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 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.
"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
10
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 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
11
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
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.
------------
"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.
"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, or (b) an Offshore Rate 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
12
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 the aggregate principal amount of Revolving Loans of
----------------
any Bank 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 [Intentionally Omitted].
---------------------
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 [Intentionally Omitted].
---------------------
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 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 the office designated by the
Administrative Agent, 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.
13
(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 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; 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.
-----------
14
2.9 Interest on the Loans.
---------------------
(a) Subject to Section 2.9(c), the 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 on each Interest
Payment Date applicable to that Loan.
(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 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, 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 in an
aggregate amount equal to such excess.
2.12 Fees.
----
(a) 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 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.
---------
15
(b) 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.
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 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.
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.
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.
(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
16
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 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.
17
(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. 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.
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.
18
(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.
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 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
19
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, 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 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 (or other evidence of good standing)
for the Company for the state of its 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 opinion 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.
---------
20
(e) 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, 1999, no Material
Adverse Effect.
(f) 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.
(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.
-----------
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 undertaking to which the
Company or such Subsidiary Guarantor is a party; or (c) violate any material
Requirement of Law.
21
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, 1999, in the Company's Quarterly Report
on Form 10-Q for the quarterly period ending November 30, 1999, in the Company's
Transition Report on Form 10-Q for the transition period ending December 31,
1999, and in the Company's Form S-4 and Forms 8-K filed subsequent to August 31,
1999, all as filed with the Securities and Exchange Commission (collectively,
the "SEC Filings"), 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 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
22
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, 1999 and 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) Reference is hereby made to Section 5.5 of this Agreement for
disclosure of litigation against the Company.
(c) Since August 31, 1999, 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, 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.
23
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 it has successfully resolved 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 has also successfully resolved 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, unless the Requisite Banks waive compliance in writing:
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;
24
(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;
(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
(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.
25
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
---------
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.
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.
26
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 has taken and has caused 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.
(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;
27
(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 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
28
(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 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 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.
29
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.
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
30
(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) 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.
31
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:
(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): 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
(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 and the Banks shall automatically terminate without notice to or demand
upon the Company, which are expressly waived by the Company; and (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.
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. 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.
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
32
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 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 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.
33
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 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. The entity named on the cover hereof as Sole
-------------
Lead Arranger shall not 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
34
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 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.
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 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
35
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)
$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.
(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
36
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) (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.
37
(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.
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 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
38
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) AND APPLICABLE FEDERAL LAW; PROVIDED HOWEVER, 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 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
39
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 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.
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.
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]
40
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 /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: D. ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President-Risk Control Officer
-----------------------------------
41
BANK OF AMERICA, N.A.,
as Administrative Agent
By
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Director
BANK OF AMERICA, N.A., as a Bank
By
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Director
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
42
SCHEDULE 1.1
------------
COMMITMENTS AND PRO RATA SHARES
PRO RATA
BANK COMMITMENT SHARE
---- ---------- -----
Bank of America, N.A. $200,000,000 100.00%
43
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, N.A.
Three ▇▇▇▇▇ Center, Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Director
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Requests for Extensions of Credit:
Bank of America, N.A., as Administrative Agent
Agency Administrative Services, #5596
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
Vice President/ATM
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America, N.A.
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
44
BANK OF AMERICA, N.A.,
----------------------
as a Bank
Address of Domestic and Offshore Lending Office:
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
Bank of America, N.A.
Three ▇▇▇▇▇ Center, Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Director
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Assistant Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
45
EXHIBIT A
---------
FORM OF REQUEST FOR EXTENSION OF CREDIT
---------------------------------------
TO: Bank of America, N.A.,
as Administrative Agent
Agency Administrative Services, #5596
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
Vice President/ATM
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO: Bank of America, N.A.
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Pursuant to Section 2.5 of that certain $200,000,000 Credit Agreement
dated as of March 22, 2000 (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, N.A., 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
-----------------------------------
46
EXHIBIT B
---------
FORM OF NOTICE OF CONVERSION/CONTINUATION
-----------------------------------------
TO: Bank of America, N.A.,
as Administrative Agent
Agency Administrative Services, #5596
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
Vice President/ATM
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO: Bank of America, N.A.,
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
1. Conversion Selection. Pursuant to Section 2.6 of that certain
--------------------
$200,000,000 Credit Agreement dated as of March 22, 2000 (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, N.A., 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:
Requested
Dollar Amount Interest Period
------------- ---------------
$___________ ______ days
Maturing on __________, 19__
47
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:
----------------------------------
48
EXHIBIT C
---------
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, N.A., 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
March 22, 2000 (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, N.A., 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 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:
----------------------------------
49
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
----------------------------------------------------------------------------------------------------
Amount of
Date Amount of Type of Principal Maturity Notation
Loan Loan Repaid Date Made By
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
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50
EXHIBIT D
---------
51
EXHIBIT E
---------
FORM OF COMMITMENT ASSIGNMENT NOTICE
-------------------------------------
AND ACCEPTANCE
--------------
_______________, _____
TO: Bank of America, N.A.,
as Administrative Agent
Agency Management Services, #5596
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
Vice President/ATM
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO: Bank of America, N.A.
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is made to the $200,000,000 Credit Agreement dated as of
March 22, 2000 (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, N.A., 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 and all outstanding
Loans made by the Assignor). Before giving effect to such assignment: the
amount of the Assignor's Commitment is $__________; the aggregate principal
amount of its outstanding Loans 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.
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.
52
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:
------------------------------
Attention:
----------------------------------
Telephone: ( )
----------------------------------
Telecopier: ( )
---------------------------------
Telex (Answerback):
-------------------------
(C) Notice Address:
Assignee name:
------------------------------
Address:
------------------------------------
Attention:
----------------------------------
Telephone: ( )
----------------------------------
Telecopier: ( )
---------------------------------
Telex (Answerback):
-------------------------
(D) Payment Instructions:
Account No.:
--------------------------------
At:
-----------------------------
-----------------------------
-----------------------------
Ref.:
---------------------------------------
Attention:
----------------------------------
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:
----------------------------------
53
[Name of Assignee]
By
--------------------------------------
Title:
----------------------------------
We hereby consent to the
foregoing assignment.
ONEOK, INC.
By
--------------------------------
Title:
----------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent
By
--------------------------------
Title:
----------------------------
54
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, N.A. (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 March 22, 2000, among
ONEOK, Inc., an Oklahoma corporation (the "Company"), the Banks, the
Administrative Agent and Bank of America, N.A. as a 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.
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
55
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;
(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
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(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 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 and all Commitments have
terminated.
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
and the termination of the Commitments, 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.
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.
---------
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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; (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 until
all of the Obligations have been paid or performed in full, in cash, and all
Commitments have expired or been terminated.
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.
59
(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 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 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.
60
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.
61
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:
--------------------------- -------------------------------
By
-----------------------------
Name:
------------------------
Title:
-----------------------
Address:
---------------------
---------------------
62