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EXHIBIT 4.18
CREDIT AGREEMENT
dated as of January 20, 1999
among
SONAT INC.,
THE BANKS NAMED HEREIN,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent
and
SUNTRUST BANK, ATLANTA,
as Documentation Agent
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TABLE OF CONTENTS
Article Page
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I. LOANS............................................................................................ 1
ss.1.01 Syndicated Loans............................................................... 1
ss.1.02 Money Market Loans............................................................. 1
ss.1.03 Swingline Commitment........................................................... 4
ss.1.04 Change of Commitments.......................................................... 5
ss.1.05 Borrowings of Syndicated Loans................................................. 6
ss.1.06 Several Commitments; Remedies Independent...................................... 8
ss.1.07 Availability of Funds.......................................................... 8
ss.1.08 Borrowings of Swingline Loans.................................................. 8
ss.1.09 Lending Offices................................................................ 9
ss.1.10 Notes.......................................................................... 9
II. PAYMENTS, INTEREST AND CERTAIN FEES.............................................................. 10
ss.2.01 Repayment of Loans............................................................. 10
ss.2.02 Interest....................................................................... 10
ss.2.03 Interest Periods............................................................... 11
ss.2.04 Prepayments.................................................................... 11
ss.2.05 Payments, etc.................................................................. 12
ss.2.06 Pro Rata Treatment; Sharing.................................................... 12
ss.2.07 Computations................................................................... 13
ss.2.08 Facility Fee................................................................... 14
ss.2.09 Administration Fee............................................................. 14
III. PROVISIONS RELATING TO FIXED RATE LOANS.......................................................... 14
ss.3.01 Additional Costs............................................................... 14
ss.3.02 Limitation on Types of Loans................................................... 17
ss.3.03 Illegality..................................................................... 17
ss.3.04 Treatment of Affected Loans.................................................... 17
ss.3.05 Compensation................................................................... 17
ss.3.06 Survival....................................................................... 18
IV. CONDITIONS....................................................................................... 18
ss.4.01 Conditions to Effectiveness.................................................... 18
ss.4.02 Conditions Precedent to Loans.................................................. 19
V. COVENANTS........................................................................................ 19
ss.5.01 Financial Statements........................................................... 19
ss.5.02 Access to Books and Inspection................................................. 20
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Article Page
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ss.5.03 Litigation..................................................................... 21
ss.5.04 Maintenance of Existence....................................................... 21
ss.5.05 Merger; Sale of Assets......................................................... 21
ss.5.06 Default; Investment Rating..................................................... 22
ss.5.07 ERISA.......................................................................... 22
ss.5.08 Liens.......................................................................... 22
ss.5.09 Total Indebtedness to Consolidated Capitalization.............................. 23
ss.5.10 [Intentionally Omitted.]....................................................... 23
ss.5.11 Insurance...................................................................... 23
ss.5.12 Maintenance of Properties...................................................... 23
ss.5.13 Public Utility Holding Company Act............................................. 24
VI. REPRESENTATIONS AND WARRANTIES................................................................... 24
ss.6.01 Corporate Existence and Powers................................................. 24
ss.6.02 Corporate Authority, etc....................................................... 24
ss.6.03 Financial Condition............................................................ 24
ss.6.04 Litigation..................................................................... 25
ss.6.05 Taxes.......................................................................... 25
ss.6.06 Approvals...................................................................... 25
ss.6.07 ERISA.......................................................................... 25
ss.6.08 Margin Regulations............................................................. 25
ss.6.09 Certain Subsidiaries........................................................... 26
ss.6.10 Investment Company Act......................................................... 26
ss.6.11 Environmental Laws............................................................. 26
ss.6.12 Year 2000 Problem.............................................................. 26
VII. EVENTS OF DEFAULT................................................................................ 26
VIII. MISCELLANEOUS.................................................................................... 28
ss.8.01 Waiver......................................................................... 28
ss.8.02 Notices and Delivery of Documents.............................................. 29
ss.8.03 Governing Law.................................................................. 29
ss.8.04 Offsets, etc................................................................... 29
ss.8.05 Disposition of Loans........................................................... 29
ss.8.06 Expenses....................................................................... 30
ss.8.07 Amendments, Waivers, etc....................................................... 30
ss.8.08 Definitions.................................................................... 31
ss.8.09 Successors and Assigns......................................................... 31
ss.8.10 Counterparts................................................................... 31
ss.8.11 Confidentiality................................................................ 32
IX. THE AGENTS....................................................................................... 32
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Article Page
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ss.9.01 Appointment, Power and Immunities.............................................. 32
ss.9.02 Reliance by Agents............................................................. 32
ss.9.03 Default........................................................................ 33
ss.9.04 Rights as a Lender............................................................. 33
ss.9.05 Indemnification................................................................ 33
ss.9.06 Reports........................................................................ 34
ss.9.07 Non-Reliance on Agents and Other Banks......................................... 34
ss.9.08 Failure to Act................................................................. 34
ss.9.09 Resignation or Removal of Agents............................................... 34
ss.9.10 Documentation Agent............................................................ 35
ss.9.11 Syndication Agent.............................................................. 35
SCHEDULE 1 Definitions
SCHEDULE 2 Lending Offices and/or Addresses for Notices
SCHEDULE 3 Commitments
EXHIBIT A-1 Form of Note for Syndicated Loans
EXHIBIT A-2 Form of Note for Money Market Loans
EXHIBIT A-3 Form of Note for Swingline Loans
EXHIBIT B Form of Opinion of Counsel to the Company
EXHIBIT C Form of Opinion of Special New York
Counsel to the Banks
EXHIBIT D Form of Money Market Quote Request
EXHIBIT E Form of Money Market Quote
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CREDIT AGREEMENT dated as of January 20, 1999 among SONAT INC., a
Delaware corporation (the "Company"); the undersigned banks (each herein called
a "Bank"); and THE CHASE MANHATTAN BANK, as Administrative Agent, BANK OF
AMERICA National Trust AND Savings Association, as Syndication Agent and
SUNTRUST BANK, ATLANTA, as Documentation Agent (in such capacities, each such
agent being herein called an "Agent" and collectively the "Agents"); and CREDIT
LYONNAIS, NEW YORK BRANCH, as Managing Agent.
The Company has requested the Banks to extend credit to the Company for
the general corporate purposes of the Company. The Banks are prepared to do so
on the terms hereof.
Accordingly, the Company, each Bank and the Agents hereby agree as
follows:
I. LOANS
ss.1.01 Syndicated Loans. Each Bank severally agrees, on the terms of
this Agreement, to make loans to the Company in Dollars during the period from
and including the date hereof to but not including the Commitment Termination
Date in an aggregate principal amount at any one time outstanding up to but not
exceeding the amount of such Bank's Commitment as then in effect. Subject to the
terms of this Agreement, during such period the Company may borrow, repay and
reborrow the amount of the Commitments; provided that the sum of (i) the
aggregate principal amount of all Money Market Loans, plus (ii) the aggregate
principal amount of all Syndicated Loans plus (iii) the aggregate principal
amount of all Swingline Loans, at any one time outstanding shall not exceed the
aggregate amount of the Commitments at such time except that, notwithstanding
the foregoing, Money Market Loans outstanding at the time of any termination or
reduction of the Commitments pursuant to ss.1.04 hereof need not be prepaid on
account of this proviso.
ss.1.02 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans, the Company may, as
set forth in this ss.1.02, request the Banks to make offers to make Money Market
Loans to the Company in Dollars. The Banks may, but shall have no obligation to,
make such offers and the Company may, but shall have no obligation to, accept
any such offers in the manner set forth in this ss.1.02. Money Market Loans
shall be Set Rate Loans, provided that:
(i) there may be no more than fifteen different Interest
Periods for both Syndicated Loans (other than Domestic Loans) and Money
Market Loans outstanding at the same time (for which purpose Interest
Periods described in different lettered clauses of the definition of
the term "Interest Period" in ss.2.03 hereof shall be deemed to be
different Interest Periods even if they are coterminous); and
(ii) the sum of (x) aggregate principal amount of all Money
Market Loans, plus (y) the aggregate principal amount of all Syndicated
Loans plus (z) the aggregate principal amount of all Swingline Loans,
at any one time outstanding shall not
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exceed the aggregate amount of the Commitments at such time except
that, notwithstanding the foregoing, Money Market Loans outstanding at
the time of any termination or reduction of the Commitments pursuant to
ss.1.04 hereof need not be prepaid on account of this proviso.
(b) When the Company wishes to request offers to make Money Market
Loans, it shall give each Bank notice (a "Money Market Quote Request") so as to
be received no later than 11:00 a.m. New York time on the Business Day next
preceding the date of borrowing proposed therein or such other time and date as
the Company and the Majority Banks may agree. The Company may request offers to
make Money Market Loans for up to three different Interest Periods in a single
notice (for which purpose Interest Periods in different lettered clauses of the
definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous); provided that the request for
each separate Interest Period shall be deemed to be a separate Money Market
Quote Request for a separate borrowing (a "Money Market Borrowing"). Each such
notice shall be substantially in the form of Exhibit D hereto and shall specify
as to each Money Market Borrowing:
(i) the proposed date of such borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Money Market Borrowing,
which shall be at least $25,000,000 (or in larger multiples of
$5,000,000) but shall not cause the limits specified in ss.1.02 hereof
to be violated (without giving effect to any other Money Market
Borrowing subject to a simultaneous Money Market Quote Request);
(iii) the duration of the Interest Period applicable thereto;
and
(iv) the date on which the Money Market Quotes are to be
submitted if it is before the proposed date of borrowing (the date on
which such Money Market Quotes are to be submitted is called the
"Quotation Date").
Except as otherwise provided in this ss.1.02, no Money Market Quote Request
shall be given within five Business Days (or such other number of days as the
Company and the Majority Banks may agree) of any other Money Market Quote
Request.
(c) (i) Each Bank may submit one or more Money Market Quotes, each
containing an offer to make a Money Market Loan in response to any Money Market
Quote Request; provided that, if the Company's request under ss.1.02(b) hereof
specified more than one Interest Period, such Bank may make a single submission
containing one or more Money Market Quotes for each such Interest Period. Each
Money Market Quote must be submitted to the Company not later than 10:00 a.m.
New York time on the Quotation Date or such other time and date as the Company
and the Majority Banks may agree. Subject to ss.3.02(b), ss.3.03, ss.4.02 and
Article VII hereof, any Money Market Quote so made shall be irrevocable except
with the written consent of the Company.
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(ii) Each Money Market Quote shall be substantially in the
form of Exhibit E hereto and shall specify:
(A) the proposed date of borrowing and the Interest Period
therefor;
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount shall be at
least $5,000,000 or a larger multiple of $1,000,000; provided that
the aggregate principal amount of all Money Market Loans for which
a Bank submits Money Market Quotes (x) may be greater or less than
the Commitment of such Bank but (y) may not exceed the principal
amount of the Money Market Borrowing for a particular Interest
Period for which offers were requested;
(C) the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%) offered for each Money
Market Loan (the "Money Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Company, no Money Market Quote shall contain
qualifying, conditional or similar language or propose terms other than or in
addition to those set forth in the applicable Money Market Quote Request and, in
particular, no Money Market Quote may be conditioned upon acceptance by the
Company of all (or some specified minimum) of the principal amount of the Money
Market Loan for which such Money Market Quote is being made.
(d) Not later than 11:30 a.m. New York time on the Quotation Date or
such other time and date as the Company and the Majority Banks may agree, the
Company shall notify each Bank of its acceptance or nonacceptance of the offers
so notified to it pursuant to ss.1.02(c)(i) hereof (and the failure of the
Company to give such notice by such time shall constitute nonacceptance). In the
case of acceptance, such notice shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Company may accept any
Money Market Quote in whole or in part (provided that any Money Market Quote
accepted in part shall be at least $5,000,000 or in larger multiples of
$1,000,000); provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Borrowing shall be at least $25,000,000 (or in larger multiples of
$5,000,000) but shall not cause the limits specified in ss.1.02 hereof
to be violated;
(iii) acceptance of offers may be made only in ascending order
of Money Market Rates, in each case commencing with the lowest rate so
offered; and
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(iv) the Company may not accept any offer that fails to comply
with ss.1.02(c)(ii) hereof or otherwise fails to comply with the
requirements of this Agreement (including, without limitation,
ss.1.02(a) hereof).
If offers are made by two or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Company among such Banks as nearly as possible (in multiples of $1,000,000)
in proportion to the aggregate principal amount of such offers. Determinations
by the Company of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error. Promptly after the acceptance by the Company of any
Money Market Quote, the Company shall give Chase notice of the principal amount
of each Money Market Loan to be made pursuant to such Money Market Quote, the
rate of interest per annum and the duration of the Interest Period applicable
thereto and the name of the Bank making such Loan.
(f) Any Bank whose offer to make any Money Market Loan has been
accepted shall, not later than 1:00 p.m. New York time on the date specified for
the making of such Loan, make the amount of such Loan available to Chase at
account number 323-506909 maintained by Chase with The Chase Manhattan Bank at
its Principal Office in immediately available funds, for account of the Company.
The amount so received by Chase shall, subject to the terms and conditions of
this Agreement, be made available to the Company on such date by depositing the
same, in immediately available funds, in an account of the Company maintained
with The Chase Manhattan Bank at its Principal Office designated by the Company.
(g) The amount of any Money Market Loan made by any Bank shall not
constitute a utilization of such Bank's Commitment.
ss.1.03 Swingline Commitment. Subject to the terms and conditions
hereof, the Swingline Bank agrees to make a portion of the credit otherwise
available to the Company under the Commitments by making swingline loans
("Swingline Loans") in Dollars to the Company during the period from and
including the date hereof to but not including the Commitment Termination Date;
provided that (a) the aggregate principal amount of Swingline Loans outstanding
at any time shall not exceed the Swingline Commitment then in effect, (b) the
aggregate principal amount of Swingline Loans plus the aggregate principal
amount of Syndicated Loans made by the Swingline Bank outstanding at any time
shall not exceed the Swingline Bank's Commitment then in effect, and (c) the
Company shall not request, and the Swingline Bank shall not make, any Swingline
Loan if, after giving effect to the making of such Swingline Loan, the sum of
(i) the aggregate principal amount of all Money Market Loans, plus (ii) the
aggregate principal amount of all Syndicated Loans plus (iii) the aggregate
principal amount of all Swingline Loans, at any one time outstanding shall
exceed the aggregate amount of the Commitments at such time except that,
notwithstanding the foregoing, Money Market Loans outstanding at the time of any
termination or reduction of the Commitments pursuant to ss.1.04 hereof need not
be prepaid on account of this proviso. During such period, the Company may use
the Swingline Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof.
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ss.1.04 Change of Commitments.
(a) The Company shall have the right at any time or from time to time
upon not less than three Business Days' prior notice to Chase (specifying the
date and the aggregate amount of each such reduction or termination) to
terminate in whole, or to reduce in part, (i) the aggregate unused amount of the
Commitments (and, in accordance with ss.1.02(g) hereof, outstanding Money Market
Loans shall not constitute a utilization of the Commitments) and/or (ii) the
aggregate unused amount of the Swingline Commitment. Each such reduction of the
Commitments shall be in an aggregate amount of at least $25,000,000 and a
multiple of $1,000,000 and each such reduction of the Swingline Commitment shall
be in an aggregate amount of at least $5,000,000 and a multiple of $1,000,000.
Chase shall promptly notify each Bank of its proportionate share and the date of
each such reduction.
(b) If either (i) during any period of 12 consecutive months,
individuals who were directors of the Company at the beginning of such period
cease to constitute a majority of the board of directors of the Company (except
for changes due to the retirement or death of any such individuals) or (ii) any
Person (or group of Persons which has an agreement, arrangement or understanding
for the purpose of acquiring the shares of the Company) shall acquire, directly
or indirectly, beneficial ownership or control of more than 50% of the then
outstanding voting shares of the Company (either such event being hereinafter
referred to as a "Change in Control"), then each Bank (through Chase) may, by
notice to the Company not later than the date 20 Business Days after the Company
shall have notified the Agents of any such Change in Control, reduce the
Commitment of such Bank in an amount equal to the unused amount of such Bank's
Commitment (and, in accordance with ss.1.02(g) hereof, outstanding Money Market
Loans shall not constitute a utilization of such Bank's Commitment) and the
Swingline Bank, by such notice, may reduce the Swingline Commitment in an amount
equal to the unused amount thereof. The Company agrees, as soon as it shall
become known to one of its senior officers, to notify the Agents of any such
Change in Control (and Chase shall promptly notify the Banks thereof), but the
failure to so notify shall not preclude any Bank from reducing the unused amount
of such Bank's Commitment as aforesaid.
(c) Provided that no Default shall have occurred and be continuing, the
Company may at any time terminate the Commitment of any Bank (and, in the case
of the Swingline Bank, the Swingline Commitment) that has claimed any
compensation under ss.3.01(a) or ss.3.01(c) hereof at any time during the
preceding one-month period, in whole but not in part, by (i) giving Chase (which
shall promptly notify such Bank) not less than five Business Days' prior notice
thereof, which notice shall be irrevocable and effective only upon receipt by
Chase and shall specify the identity of such Bank and the effective date of such
termination, and (ii) paying to such Bank (and there shall become due and
payable) on such date the outstanding principal amount of all Loans made by such
Bank, interest on such principal amount accrued to such date, any amounts
payable to such Bank pursuant to Article III hereof in connection therewith and
all other amounts owing to such Bank by the Company hereunder (provided that the
obligations of the Company under Article III and ss.8.06 hereof to such Bank
shall survive such termination).
(d) Provided that no Default shall have occurred and be continuing, the
Company may at any time replace any Bank that has claimed any compensation under
ss.3.01(a) or
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ss.3.01(c) hereof at any time during the preceding one-month period, in whole
but not in part, by giving Chase not less than five Business Days' prior notice
(and Chase shall promptly notify such Bank), that it intends to replace such
Bank with one or more banks (which may include any other Bank under this
Agreement) selected by the Company and acceptable to Chase (which shall not
unreasonably withhold its consent). Any such replacement shall be accomplished
pursuant to documentation in form and substance satisfactory to Chase. Upon the
effective date of any replacement under this ss.1.04(d) (and as a condition
thereto), the Company shall repay to the Bank being replaced the principal of
and interest on each Loan then outstanding from such Bank together with all
other amounts owing to such Bank hereunder and such replacement bank (or banks,
as the case may be) shall make a loan (or loans) to the Company in the
(aggregate) principal amount of each such Loan so repaid which loan (or loans)
shall be of the same type and have the same maturity and interest rate as the
respective Loan so repaid), whereupon such replacement bank (or banks) shall
become a "Bank" (or "Banks") for all purposes of this Agreement having a
Commitment (or Commitments in the aggregate) (and, in the case of the Swingline
Bank, the Swingline Commitment) in the amount of such Bank being replaced and
such loan (or loans) shall be deemed a Loan (or Loans) hereunder.
(e) The Swingline Bank may terminate in its sole discretion the
Swingline Commitment by giving the Company written notice thereof at least 30
days in advance of the date of such termination.
(f) The Commitments (and, in the case of the Swingline Bank, the
Swingline Commitment) once terminated or reduced may not be reinstated, except
that the Swingline Commitment may be reinstated by agreement of the Swingline
Bank and the Company.
ss.1.05 Borrowings of Syndicated Loans.
(a) Each Syndicated Loan shall be either a Domestic Loan or Eurodollar
Loan. Syndicated Loans on the occasion of any borrowing thereof hereunder may be
Domestic Loans or Eurodollar Loans (each a "type" of Loan) or any combination
thereof; provided that there may be no more than ten Interest Periods for
Eurodollar Loans outstanding at the same time; and provided, further, that there
may be no more than fifteen different Interest Periods for both Eurodollar Loans
and Money Market Loans outstanding at the same time (for which purpose Interest
Periods described in different lettered clauses of the definition of the term
"Interest Period" in ss.2.03 hereof shall be deemed to be different Interest
Periods even if they are coterminous).
(b) The Company shall give Chase (which shall promptly notify the
Banks) notice of each borrowing hereunder of Syndicated Loans, which notice
shall be irrevocable and effective only upon receipt by Chase, shall specify
with respect to the Syndicated Loans to be borrowed (i) the aggregate amount
(which shall be at least $10,000,000 or a multiple of $1,000,000 in excess
thereof), (ii) the type or types of Loans to be borrowed and the aggregate
amount of each type, (iii) the date of such borrowing (which shall be a Business
Day), and (iv) (in the case of Eurodollar Loans) the duration of the Interest
Period therefor and shall be given not later than 11:00 a.m. New York time, in
the case of Domestic Loans, on the same day as the date
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of such borrowing and, in the case of Eurodollar Loans, on the day which is not
less than three Business Days prior to the date of such borrowing.
(c) If at any time during which Syndicated Loans are outstanding under
this Agreement the Company shall fail to give a notice of the type referred to
in ss.1.05(b) or otherwise to advise Chase in writing by 11:00 a.m. New York
time on the day which is not less than one Business Day prior to the maturity
date of any such Syndicated Loans that it does not intend to reborrow an amount
at least equal to the aggregate amount of such Syndicated Loans (or, if less,
the aggregate amount of the Commitments) on such maturity date, the Company
shall be deemed to have given on such first Business Day preceding such maturity
date a notice of borrowing hereunder for Domestic Loans to be made on such date
in an amount equal to the lesser of (i) the aggregate principal amount of the
Syndicated Loans which are maturing on such date or (ii) the aggregate amount of
the Commitments to be outstanding on such date (after giving effect to any
reductions of the Commitments to be effected on such date), and Chase shall
notify the Banks of such borrowing.
(d) Subject to Chase's receipt or deemed receipt of a notice of
borrowing as provided in ss.1.05(b) or ss.1.05(c) hereof and to Chase's receipt
of notice from the Swingline Bank of the outstanding principal amount of the
Swingline Loans as of the Swingline Business Day next preceding the date of such
notice of borrowing, Chase shall give each Bank not less than three Business
Days' prior notice (with respect to each borrowing of Eurodollar Loans) or
same-day notice by noon (with respect to each borrowing of Domestic Loans), as
the case may be, of each such borrowing specifying (i) the aggregate amount to
be borrowed, (ii) the date of borrowing, (iii) the type or types of Loans to be
borrowed, (iv) in the case of any Fixed Rate Loans to be borrowed, the duration
of the Interest Period therefor and (v) such Bank's pro rata portion thereof.
Each Bank's (other than the Swingline Bank's) pro rata portion of each
Syndicated Loan shall equal a fraction, the numerator of which shall be the
amount of such Bank's Commitment as of the date the notice of borrowing is given
for such Syndicated Loan and the denominator of which shall be (i) the aggregate
Commitments of all Banks as of the date such notice of borrowing is given minus
(ii) the outstanding principal amount of the Swingline Loans as of the next
preceding Swingline Business Day. The Swingline Bank's pro rata portion of each
Syndicated Loan shall equal a fraction, the numerator of which shall be (i) the
amount of the Swingline Bank's Commitment as of the date the notice of borrowing
is given with respect to such Syndicated Loan minus (ii) the outstanding
principal amount of the Swingline Loans as of the next preceding Swingline
Business Day and the denominator of which shall be (i) the aggregate Commitment
of all Banks as of the date such notice of borrowing is given minus (ii) the
outstanding principal amount of the Swingline Loans as of the next preceding
Swingline Business Day. From and including the date that notice of a borrowing
of a Syndicated Loan is given to but excluding the date that such Syndicated
Loan is made, the principal amount of such Syndicated Loan required to be made
by the Swingline Bank shall be deemed to be outstanding for purposes of clause
(b) of ss.1.03.
(e) Not later than 1:00 p.m. New York time on the date specified for
each borrowing of Syndicated Loans, each Bank shall make available to Chase, at
account number 323-506909 maintained by The Chase Manhattan Bank at its
Principal Office in immediately available funds the amount of the Syndicated
Loan or Syndicated Loans to be made by it on such
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date, for account of the Company. The amount so received by Chase shall, subject
to the terms and conditions of this Agreement, be made available to the Company
on such date by depositing the same, in immediately available funds, in an
account of the Company maintained with The Chase Manhattan Bank at its Principal
Office designated by the Company. If any Bank shall (i) be obligated but fail to
make available the amount of the Syndicated Loan to be made by it on the date
specified for a borrowing hereunder and (ii) have any Syndicated Loans which are
maturing on such date, such maturing Syndicated Loans shall automatically be
extended in an amount equal to (but not in excess of) the amount of the
Syndicated Loan to be made and in the type and for the Interest Period of such
Loan to be made (and such Loan which would otherwise mature on such date shall
not be considered to be past due hereunder).
ss.1.06 Several Commitments; Remedies Independent. The failure of any
Bank to make any Loan to be made by it shall not relieve any other Bank of its
obligation to make its Loan on such date, but neither any other Bank nor any
Agent shall be responsible for such failure. The amounts payable at any time by
the Company hereunder and under the Notes to each Bank shall be a separate and
independent debt and each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement and the Notes, and it shall not be
necessary for any other Bank or any Agent to consent to, or to be joined as an
additional party in, any proceedings for such purposes.
ss.1.07 Availability of Funds. Unless Chase shall have been notified by
a Bank prior to the date of any borrowing hereunder that such Bank does not
intend to make available to Chase such Bank's Loans to be made on such day,
Chase may assume that such Bank has made the amount of such Loans to be made
available to Chase on such date and Chase may in reliance upon such assumption
(but shall not be required to) make available to the Company a corresponding
amount. If such proceeds are not in fact made available to Chase by such Bank,
Chase shall be entitled to recover such corresponding amount on demand from such
Bank (or, if such Bank fails to pay such corresponding amount forthwith upon
such demand, from the Company) together with interest thereon in respect of each
day during the period commencing on the date such corresponding amount was made
available to the Company and ending on (but excluding) the date Chase recovers
such corresponding amount at a rate per annum equal to the Federal Funds Rate
for such day (or if such day is not a Business Day, the next preceding Business
Day).
ss.1.08 Borrowings of Swingline Loans. (a) If on any Swingline Business
Day prior to the Commitment Termination Date the aggregate disbursements
authorized by the Company and made from the Swingline Account exceed the
aggregate cash on hand and deposits received in the Swingline Account on such
Swingline Business Day, the Swingline Bank shall make a Swingline Loan to the
Company in an amount equal to such excess (subject to the provisions of ss.1.03
hereof), unless otherwise instructed by the Company. Each Swingline Loan shall
be credited to the Swingline Account as of the date made. The outstanding
Swingline Loans shall bear interest at such rate per annum as the Company and
the Swingline Bank shall agree. Accrued interest on the outstanding Swingline
Loans shall be paid on each date on which the outstanding Swingline Loans are
paid in full and on the first Swingline Business Day of each month if there are
any outstanding Swingline Loans on the Swingline Business Day next preceding
such day. The Company shall have the right to prepay the outstanding Swingline
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Loans, in whole or in part, at any time. All payments with respect to Swingline
Loans shall be made at the Lending Office of the Swingline Bank. Upon request of
the Company made on any Swingline Business Day, the Swingline Bank shall give
Chase notice as promptly as practicable but in any event by no later than 11:00
a.m. New York time on the next Swingline Business Day of the outstanding
principal amount of the Swingline Loans as of the close of business on the
Swingline Business Day next preceding the date that such notice is given to
Chase.
(b) In the case of any of the Events of Default specified in paragraphs
A through I of Article VII hereof, (i) the Swingline Bank may, by notice to the
Company, terminate the Swingline Commitment hereunder and it shall thereupon
terminate, and (ii) the Swingline Bank may, by notice to the Company, declare
the outstanding Swingline Loans and Swingline Note and all other obligations of
the Company thereunder to be due and payable, whereupon the same shall become
forthwith due and payable, without further protest, presentment, notice or
demand, all of which are expressly waived by the Company. In case of any of the
Events of Default specified in paragraph J or K of Article VII hereof, without
any notice to the Company or any act by the Swingline Bank, the Swingline
Commitment hereunder shall terminate forthwith and the principal of and interest
accrued on the outstanding Swingline Loans and the Swingline Note and all other
obligations of the Company thereunder shall become and be due and payable.
ss.1.09 Lending Offices. The Loans of each type made by each Bank shall
be made and maintained at such Bank's Applicable Lending Office for Loans of
such type.
ss.1.10 Notes.
(a) The Syndicated Loans made by each Bank shall be evidenced by a
single promissory note (a "Syndicated Note") of the Company substantially in the
form of Exhibit A-1 hereto, dated the Effective Date, payable to such Bank in a
principal amount equal to the amount of its Commitment as originally in effect
and otherwise duly completed. The date, amount, type, interest rate and maturity
date of each Syndicated Loan made by each Bank to the Company, and each payment
made on account of the principal thereof, shall be recorded by such Bank on its
books and, prior to any transfer of such Note held by it, endorsed by such Bank
on the schedule attached to such Note or any continuation thereof. The failure
of any Bank to make any notation or entry or any error in such a notation or
entry shall not, however, limit or otherwise affect any obligation of the
Company under this Agreement or the Notes.
(b) The Money Market Loans made by any Bank shall be evidenced by a
single promissory note (a "Money Market Note") of the Company substantially in
the form of Exhibit A-2 hereto, dated the date of the delivery of such Note to
Chase under this Agreement, payable to such Bank and otherwise duly completed.
The date, amount, interest rate and maturity date of each Money Market Loan made
by each Bank to the Company, and each payment made on account of the principal
thereof, shall be recorded by such Bank on its books and, prior to any transfer
of such Note held by it, endorsed by such Bank on the schedule attached to such
Note or any continuation thereof. The failure of any Bank to make any notation
or entry or any error in such a notation or entry shall not, however, limit or
otherwise affect any obligation of the Company under this Agreement or the
Notes.
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(c) The Loans made by the Swingline Bank shall be evidenced by a single
promissory note (a "Swingline Note") of the Company substantially in the form of
Exhibit A-3 hereto, dated the Effective Date, payable to the Swingline Bank in a
principal amount equal to the amount of the Swingline Commitment as originally
in effect and otherwise duly completed. The date, amount, type, interest rate
and maturity date of each Swingline Loan made by the Swingline Bank to the
Company, and each payment made on account of the principal thereof, shall be
recorded by the Swingline Bank on its books and, prior to any transfer of such
Note held by it, endorsed by the Swingline Bank on the schedule attached to such
Note or any continuation thereof. The failure of the Swingline Bank to make any
notation or entry or any error in such a notation or entry shall not, however,
limit or otherwise affect any obligation of the Company under this Agreement or
the Notes.
II. PAYMENTS, INTEREST AND CERTAIN FEES
ss.2.01 Repayment of Loans. The Company hereby promises to pay to Chase
for account of each Bank, the principal amount of each Loan made by such Bank
(except for the Swingline Loan, as to which payments shall be made to the
Swingline Bank pursuant to ss.1.08), and such Loan shall mature, on the last day
of the Interest Period therefor.
ss.2.02 Interest. The Company hereby promises to pay to Chase for
account of each Bank, interest on the unpaid principal amount of each Loan made
by such Bank (except for the Swingline Loans, as to which payments shall be made
to the Swingline Bank pursuant to ss.1.08) for the period from and including the
date of such Loan to but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(a) if such Loan is a Domestic Loan, the Base Rate (as in effect from
time to time) plus the Applicable Margin (if any);
(b) if such Loan is a Eurodollar Loan, the Fixed Rate for such Loan
for the Interest Period for such Loan plus the Applicable Margin (as in
effect from time to time during the Interest Period for such Loan); and
(c) if such Loan is a Set Rate Loan, the Money Market Rate for such
Loan for the Interest Period therefor quoted by the Bank making such Loan
and accepted by the Company in accordance with ss.1.02 hereof.
Notwithstanding the foregoing, the Company hereby promises to pay to Chase for
account of each Bank, interest at the applicable Post-Default Rate on any
principal of any Loan made by such Bank, and on any other amount payable by the
Company hereunder or under the Notes held by such Bank to or for account of such
Bank, which shall not be paid in full when due (whether at stated maturity, by
acceleration or otherwise), for the period from and including the due date
thereof to but excluding the date the same is paid in full. Accrued interest on
each Loan shall be payable on each Interest Payment Date for such Loan, except
that interest payable at the Post-Default Rate shall be payable from time to
time on demand and interest on any Eurodollar Loan that is converted into a
Domestic Loan (pursuant to ss.3.04 hereof) shall be payable on the date of
conversion (but only to the extent so converted). Promptly after the
determination of any
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interest rate provided for herein or any change therein, Chase shall give notice
thereof to the Banks, to which such interest is payable and to the Company.
ss.2.03 Interest Periods. As used in this Agreement, "Interest Period"
shall mean:
(a) With respect to any Eurodollar Loan, the period commencing on the
date such Eurodollar Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Company may select as provided in ss.1.05(b) hereof,
except that each Interest Period which commences on the last Business Day
of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end
on the last Business Day of the appropriate subsequent calendar month;
(b) With respect to any Domestic Loan, the period commencing on the
date such Domestic Loan is made and ending on the date such Loan is repaid;
(c) With respect to any Set Rate Loan, the period commencing on the
date such Set Rate Loan is made and ending on any Business Day up to 180
days thereafter, as the Company may select as provided in ss.1.02(b)
hereof; and
(d) With respect to a Swingline Loan, the period commencing on the
Swingline Business Day on which such Swingline Loan is made and ending on
the date such Swingline Loan is repaid.
Notwithstanding the foregoing: (i) no Interest Period may commence before and
end after the Commitment Termination Date; (ii) each Interest Period which would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, in the case of an Interest Period for Eurodollar
Loans, if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); and (iii) notwithstanding
clause (i) above, no Interest Period for any Eurodollar Loans shall have a
duration of less than one month and, if the Interest Period for any Eurodollar
Loans would otherwise be a shorter period, such Loans shall not be available
hereunder.
ss.2.04 Prepayments. (a) The Company shall have the right, at any time
or from time to time, to prepay Syndicated Loans in whole or in part, provided
that (i) the Company shall give Chase notice of each such prepayment not less
than three Business Days' prior to the date of such prepayment (which notice
shall be effective upon receipt), (ii) each partial prepayment shall be in an
aggregate principal amount which is at least $1,000,000 or a multiple thereof,
(iii) interest on the principal prepaid, accrued to the prepayment date, shall
be paid on the prepayment date and (iv) in the case of prepayment of a
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto, the Company shall pay compensation, if any, due in accordance with
ss.3.05(a) with respect thereto. The Company may not prepay any Money Market
Loans. Notwithstanding the foregoing, upon not less than four Business Days'
prior notice (which shall be effective upon receipt) the Company may
simultaneously prepay all Loans then outstanding hereunder and terminate in
whole the Commitments (in which case interest on the principal
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prepaid, accrued to the prepayment date, together with all other amounts owing
hereunder, including without limitation under ss.3.05, shall be paid on such
prepayment date).
(b) If, after giving effect to any termination or reduction of the
Commitment of any Bank pursuant to ss.1.04(a) or (b) hereof, the outstanding
aggregate principal amount of the Syndicated Loans held by such Bank exceeds the
amount of such Bank's Commitment, the Company shall prepay or pay such
Syndicated Loans (of a type to be designated by the Company by notice to Chase
not less than four Business Days prior to the date of such termination or
reduction and, failing such notice, such prepayment or repayment shall be
applied, first, to the outstanding Domestic Loans and, next, to the extent
necessary, to the outstanding Fixed Rate Loans with the fewest number of days
remaining in the Interest Periods therefor on such termination or reduction
date) in an aggregate principal amount equal to such excess, together with
interest thereon accrued to the date of such prepayment or payment and any other
amounts payable pursuant to ss.3.05 hereof in connection therewith.
ss.2.05 Payments, etc.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Company under this
Agreement and the Notes shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to Chase at its Principal
Office, not later than 11:00 a.m. New York time on the date on which such
payment shall become due; provided that, if a new Loan is to be made by any Bank
on a date the Company is to repay any principal of an outstanding Loan of such
Bank, such Bank shall apply the proceeds of such new Loan to the payment of the
principal to be repaid and only an amount equal to the difference (if any)
between the principal to be borrowed and the principal to be repaid shall be
made available by such Bank to Chase as provided in ss.1.02 or ss.1.05 hereof
(if such principal to be borrowed exceeds such principal to be repaid) or paid
by the Company to Chase pursuant to this ss.2.05 (if such principal to be repaid
exceeds such principal to be borrowed).
(b) Each payment received by Chase under this Agreement or any Note for
account of a Bank shall be paid promptly to such Bank, in immediately available
funds, for account of such Bank's Applicable Lending Office for the Loan in
respect of which such payment is made.
(c) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day which is not a Business Day (or, in the case of
any Swingline Loan or Swingline Note, a Swingline Business Day) such date shall
be extended to the next succeeding Business Day (or, in the case of any
Swingline Loan or Swingline Note, the next succeeding Swingline Business Day)
and interest shall be payable for any principal so extended for the period of
such extension.
ss.2.06 Pro Rata Treatment; Sharing.
(a) Except to the extent otherwise provided herein: (i) each borrowing
from the Banks under ss.1.01 hereof shall be made from the Banks and each
termination or reduction of the amount of the Commitments under ss.1.04 hereof
shall be applied to the Commitments of the
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Banks, pro rata according to the amounts of their respective Commitments; (ii)
each payment of principal of Syndicated Loans by the Company shall be made for
account of the Banks pro rata in accordance with the respective unpaid principal
amounts of the Syndicated Loans held by the Banks; and (iii) each payment of
interest on Syndicated Loans by the Company shall be made for account of the
Banks pro rata in accordance with the amounts of interest on Syndicated Loans
due and payable to the respective Banks.
(b) If any Bank shall obtain payment of any principal of or interest on
any Loan made by it to the Company under this Agreement through the exercise of
any right of set-off, banker's lien or counterclaim or similar right or
otherwise, and, as a result of such payment, such Bank shall have received a
greater percentage of the principal or interest then due to such Bank hereunder
than the percentage received by any other Banks, it shall promptly purchase from
such other Banks participations in (or, if and to the extent specified by such
Bank, direct interests in) the Loans made by such other Banks (or in interest
due thereon, as the case may be) in such amounts, and make such other
adjustments from time to time as shall be equitable, to the end that all the
Banks shall share the benefit of such excess payment (net of any expenses which
may be incurred by such Bank in obtaining or preserving such excess payment) pro
rata in accordance with the unpaid principal of and/or interest on the Loans
held by each of the Banks before giving effect to such payment. To such end all
the Banks shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
(c) The Company agrees that any Bank so purchasing a participation (or
direct interest) in the Loans made by other Banks (or in interest due thereon,
as the case may be) may exercise all rights of set-off, bankers' lien,
counterclaim or similar rights with respect to such participation as fully as if
such Bank were a direct holder of Loans in the amount of such participation.
(d) Nothing contained herein shall require any Bank to exercise any
such right or shall affect the right of any Bank to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Company.
(e) If, under any applicable bankruptcy, insolvency or other similar
law, any Bank receives a secured claim in lieu of a set-off to which this
ss.2.06 applies, such Bank shall, to the extent practicable, exercise its rights
in respect of such secured claim in a manner consistent with the rights of the
Banks entitled under this ss.2.06 to share in the benefits of any recovery on
such secured claim.
(f) Notwithstanding the foregoing, this ss.2.06 shall not be applicable
to the Swingline Bank with respect to Swingline Loans.
ss.2.07 Computations. Interest on Money Market Loans and Eurodollar
Loans shall be computed on the basis of a year of 360 days and actual days
elapsed (including the first day but excluding the last day) occurring in the
period for which payable, and interest on Domestic Loans, Swingline Loans and
facility fees shall be computed on the basis of a year of 365
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or 366 days, as the case may be, and actual days elapsed (including the first
day but excluding the last day) occurring in the period for which payable.
ss.2.08 Facility Fee. The Company shall pay to Chase for account of
each Bank a facility fee on such Bank's Commitment (whether used or not) for the
period commencing on the Effective Date and ending on the Commitment Termination
Date (or such earlier date on which such Bank's Commitment shall have terminated
in full pursuant to ss.1.04 hereof) at a rate per annum for each day during such
period equal to the Applicable Facility Fee Rate in effect on such day. Accrued
facility fees shall be payable quarterly on the last Business Day in March,
June, September and December in each year, commencing the first such date after
the Effective Date and on the date the Commitments are terminated in full.
ss.2.09 Administration Fee. The Company agrees to pay to Chase for its
own account a non-refundable fee in the amount of $5,000 for each Quarterly
Period commencing on or prior to the date on which the Commitments are
terminated in full. Such fee shall not be pro-rated and shall be paid in arrears
on the last Business Day of each Quarterly Period in each year, commencing with
the first such Business Day after the Effective Date, and on the date the
Commitments are terminated in full.
III. PROVISIONS RELATING TO FIXED RATE LOANS. The following provisions
shall apply to all Fixed Rate Loans:
ss.3.01 Additional Costs.
(a) The Company shall pay directly to each Bank from time to time on
request pursuant to paragraph (d) of this ss.3.01 such amounts as such Bank may
determine to be necessary to compensate it for any costs which such Bank
determines are attributable to its making or maintaining of any Fixed Rate Loans
or its obligation to make any Fixed Rate Loans hereunder, or any reduction in
any amount receivable by such Bank hereunder in respect of any of such Loans or
such obligation (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any Regulatory Change
which:
(i) changes the basis of taxation of any amounts payable to such
Bank under this Agreement or its Notes in respect of any of such Loans
(other than taxes imposed on or measured by the overall net income of
such Bank or of its Applicable Lending Office for any of such Loans by
the jurisdiction in which such Bank has its principal office or such
Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than in the case of any Bank for any period as to
which the Company is required to pay any amount under paragraph (e)
below, the reserves against "Eurocurrency liabilities" under Regulation
D therein referred to) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, such Bank
(including any of such Loans or any deposits referred to in the
definition of "Fixed Base Rate" in Schedule 1 hereof), or any
commitment of such Bank (including the Commitment of such Bank
hereunder); or
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(iii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or its
Commitment.
If any Bank requests compensation from the Company under this ss.3.01(a), the
Company may, by notice to such Bank (with a copy to Chase), suspend the
obligation of such Bank to make additional Loans of the type with respect to
which such compensation is requested (in which case the provisions of ss.3.04
hereof shall be applicable) until either (A) the Regulatory Change giving rise
to such request ceases to be in effect or (B) such Bank gives notice to the
Company that it will no longer require the Company to pay Additional Costs
arising from such Regulatory Change.
(b) Without limiting the effect of the provisions of paragraph (a) of
this ss.3.01, in the event that, by reason of any Regulatory Change, any Bank
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Bank which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank which includes Eurodollar
Loans or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Bank so elects by
notice to the Company (with a copy to Chase), the obligation of such Bank to
make additional Loans of such type hereunder shall be suspended until such
Regulatory Change ceases to be in effect (in which case the provisions of
ss.3.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this
ss.3.01 (but without duplication), the Company shall pay directly to each Bank
from time to time on request pursuant to paragraph (d) of this ss.3.01 such
amounts as such Bank may determine to be necessary to compensate such Bank for
any costs which it determines are attributable to the maintenance by such Bank
(or any Applicable Lending Office), pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the force of law) of
any court or governmental or monetary authority (i) following any Regulatory
Change or (ii) implementing any risk-based capital guideline or requirement
(whether or not having the force of law and whether or not the failure to comply
therewith would be unlawful) heretofore or hereafter issued by any government or
governmental or supervisory authority implementing at the national level the
Basle Accord (including, without limitation, the Final Risk Based Capital
Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part
208, Appendix A; ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) and the Final Risk-Based Capital
Guidelines of the Office of the Comptroller of the Currency (12 CFR Part 3,
Appendix A)), of capital in respect of its Commitment or Loans (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Bank (or any Applicable Lending
Office) to a level below that which such Bank (or any Applicable Lending Office)
could have achieved but for such law, regulation, interpretation, directive or
request). For purposes of this ss.3.01(c), "Basle Accord" shall mean the
proposals for risk-based capital framework described by the Basle Committee on
Banking Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital Standards" dated
July 1988, as amended, modified and supplemented and in effect from time to time
or any replacement thereof.
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(d) Each Bank will notify the Company of any event occurring after the
date of this Agreement that will entitle such Bank to compensation under
paragraph (a) or (c) of this ss.3.01 as promptly as practicable, but in any
event within 90 days, after such Bank obtains actual knowledge thereof;
provided, however, that if any Bank fails to give such notice within 90 days
after it obtains actual knowledge of such an event, such Bank shall, with
respect to compensation payable pursuant to this ss.3.01 in respect of any costs
resulting from such event, only be entitled to payment under this ss.3.01 for
costs incurred from and after the date 90 days prior to the date that such Bank
does give such notice; and provided, further, that each Bank will designate a
different Applicable Lending Office for the Loans of such Bank affected by such
event or by the matters requiring compensation pursuant to paragraph (e) of this
ss.3.01, and take other measures in its sole discretion, if such designation or
other measures will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Bank, result in a
material cost to, or be otherwise disadvantageous to, such Bank, except that
such Bank shall have no obligation to designate an Applicable Lending Office
located in the United States of America. Each Bank will furnish to the Company a
certificate setting forth the basis and amount of each request by such Bank for
compensation under paragraph (a) or (c) of this ss.3.01. Determinations and
allocations by any Bank for purposes of this ss.3.01 of the effect of any
Regulatory Change pursuant to paragraph (a) or (b) of this ss.3.01, or of the
effect of capital maintained pursuant to paragraph (c) of this ss.3.01, on its
costs or rate of return of maintaining Loans or its obligation to make Loans, or
on amounts receivable by it in respect of Loans, and of the amounts required to
compensate such Bank under this ss.3.01, shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis.
(e) Without limiting the effect of the foregoing (but without
duplication), the Company shall pay to each Bank on the last day of each
Interest Period so long as such Bank is maintaining reserves against
"Eurocurrency liabilities" under Regulation D (or, unless the provisions of
paragraph (b) above are applicable, so long as such Bank is, by reason of any
Regulatory Change, maintaining reserves against any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or against any
category of extensions of credit or other assets of such Bank which includes any
Eurodollar Loans) an additional amount (determined by such Bank and notified,
not less than five Business Days prior to the end of the applicable Interest
Period, to the Company through Chase) equal to the product of the following for
each Eurodollar Loan made by such Bank for each day during such Interest Period:
(i) the principal amount of such Eurodollar Loan outstanding
on such day; and
(ii) the remainder of (x) a fraction the numerator of which
is the annual rate (expressed as a decimal) at which interest accrues
on such Eurodollar Loan for such Interest Period as provided in this
Agreement (less the Applicable Margin) and the denominator of which is
one minus the effective annual rate (expressed as a decimal) at which
such reserve requirements are imposed on such Bank on such day minus
(y) such numerator; and
(iii) 1/360.
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ss.3.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Fixed Base Rate for
any Interest Period in accordance with the terms hereof:
(a) Chase determines, which determination shall be conclusive, that
quotations of interest rates for the relevant deposits referred to in the
definition of "Fixed Base Rate" in Schedule 1 hereof are not being provided
in the relevant amounts or for the relevant maturities for purposes of
determining rates of interest for any type of Fixed Rate Loans as provided
herein; or
(b) the Majority Banks determine, which determination shall be
conclusive, and notify (or notifies, as the case may be) Chase that the
relevant rates of interest referred to in the definition of "Fixed Base
Rate" in Schedule 1 hereof upon the basis of which the rate of interest for
Eurodollar Loans for such Interest Period is to be determined are not
likely adequately to cover the cost to such Banks (or to such quoting Bank)
of making or maintaining such type of Loans;
then Chase shall give the Company and each Bank prompt notice thereof, and so
long as such condition remains in effect, the Banks (or such quoting Bank) shall
be under no obligation to make additional Loans of such type.
ss.3.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain Eurodollar Loans
hereunder, then such Bank shall promptly notify the Company thereof (with a copy
to Chase) and such Bank's obligation to make Eurodollar Loans shall be suspended
until such time as such Bank may again make and maintain Eurodollar Loans (in
which case the provisions of ss.3.04 hereof shall be applicable).
ss.3.04 Treatment of Affected Loans. If the obligation of any Bank to
make a particular type of Fixed Rate Loans shall be suspended pursuant to
ss.3.01 or ss.3.03 hereof (Loans of such type being herein called "Affected
Loans" and such type being herein called the "Affected Type"), all Loans (other
than Money Market Loans) which would otherwise be made by such Bank as Loans of
the Affected Type shall be made instead as Domestic Loans and, if an event
referred to in ss.3.01(b) or ss.3.03 hereof has occurred and such Bank so
requests by notice to the Company with a copy to Chase, all Affected Loans of
such Bank then outstanding shall be automatically converted into Domestic Loans
on the date specified by such Bank in such notice and, to the extent that
Affected Loans are so made (or converted), all payments of principal which would
otherwise be applied to such Bank's Affected Loans shall be applied instead to
such Loans.
ss.3.05 Compensation. The Company shall pay to Chase for account of
each Bank, upon the request of such Bank through Chase, such amount or amounts
(the basis for which shall be set forth in reasonable detail in such request) as
shall be sufficient (in the reasonable opinion of such Bank) to compensate it
for any loss, cost or expense which such Bank determines is attributable to:
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(a) any payment or conversion of a Fixed Rate Loan or a Set Rate Loan
made by such Bank for any reason (including, without limitation, the
acceleration of the Loans pursuant to Article VII hereof) on a date other
than the last day of the Interest Period for such Loan; or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Article IV hereof to be satisfied, but excluding the failure of such Bank
to make a Loan when so obligated hereunder) to borrow a Fixed Rate Loan or
a Set Rate Loan (with respect to which, in the case of a Money Market Loan,
the Company has accepted a Money Market Quote) from such Bank on the date
for such borrowing specified in the relevant notice of borrowing given
pursuant to ss.1.05 or ss.1.02 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid or converted
or not borrowed for the period from the date of such payment, conversion or
failure to borrow to the last day of the Interest Period for such Loan (or, in
the case of a failure to borrow, the Interest Period for such Loan which would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein minus the Applicable Margin for
such Loan over (ii) the interest component of the amount such Bank would have
bid in the London interbank market (if such Loan is a Eurodollar Loan) or the
United States secondary certificate of deposit market (if such Loan is a Set
Rate Loan) for Dollar deposits of leading banks in amounts comparable to such
principal amount and with maturities comparable to such period (as reasonably
determined by such Bank).
ss.3.06 Survival. The obligations of the Company under this Article III
shall survive the repayment of the Loans and the cancellation of the Notes.
IV. CONDITIONS
ss.4.01 Conditions to Effectiveness. The Agreement herein contemplated
shall become effective on January 20, 1999 (the "Effective Date"), provided that
on the Effective Date, Chase has received each of the following documents (with
a copy for each Bank delivered to Chase), in form and substance satisfactory to
Chase:
(i) one or more counterparts of this Agreement executed by
each of the parties hereto;
(ii) certified copies of all corporate action taken by the
Company to authorize the execution and delivery of this Agreement and
the Notes and the borrowings hereunder;
(iii) a certificate of a duly authorized officer of the
Company as to the incumbency, and setting forth a specimen signature,
of each of the persons (a) who has signed this Agreement on behalf of
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the Company, (b) who will sign the Notes on behalf of the Company, and
(c) who will, until replaced by other persons duly authorized for that
purpose, act as the representatives of the Company for the purpose of
signing documents in connection with this Agreement and the
transactions contemplated hereby;
(iv) the Syndicated Note and the Money Market Note for each
Bank and the Swingline Note for the Swingline Bank, all as provided in
ss.1.10 hereof, in each case duly completed and executed by the
Company;
(v) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Company, substantially in the form of Exhibit B hereto, which (except
as to matters of New York or Federal law) may rely as to certain
matters upon an opinion of the Executive Vice President and General
Counsel of the Company substantially in the form attached to said
Exhibit B;
(vi) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel
to the Banks and the Agents, substantially in the form of Exhibit C
hereto; and
(vii) such other statements, documents, reports or
certificates as any Bank or Agent may reasonably request.
ss.4.02 Conditions Precedent to Loans. The obligation of any Bank to
make any Loan hereunder (including any Money Market Loan and such Bank's initial
Syndicated Loan on or after the Effective Date) is subject to the further
conditions precedent that, both immediately prior to such Loan and also after
giving effect thereto: (a) either (i) if such borrowing is a Money Market Loan
or will increase the outstanding aggregate principal amount of the Syndicated
Loans, no Default shall have occurred and be continuing or (ii) in the case of
any other borrowing, no Event of Default shall have occurred and be continuing;
and (b) the representations and warranties made by the Company in Article VI
(other than, if such borrowing is not a Money Market Loan and will not increase
the outstanding aggregate principal amount of the Syndicated Loans, the last
sentence of ss.6.03, ss.6.04, ss.6.05, ss.6.07, ss.6.09 and ss. 6.11 hereof)
shall be true on and as of the date of the notice or deemed notice of borrowing
for such Loans and on the date of the making of such Loans with the same force
and effect as if made on and as of each such date. The obligation of any Bank to
make a Eurodollar Loan hereunder is subject to the further condition precedent
that, both immediately prior to such Loan and also after giving effect thereto,
no Default shall have occurred and be continuing. Each notice or deemed notice
of borrowing by the Company hereunder shall constitute a certification by the
Company to the effect set forth in the two preceding sentences to the extent
applicable to the borrowing that is the subject of such notice (both as of the
date of such borrowing notice and, unless the Company otherwise notifies Chase
in such borrowing notice or prior to the date of such borrowing, as of the date
of such borrowing).
V. COVENANTS. So long as any Loan or any other amount owing by the
Company to any Agent or Bank hereunder remains outstanding or any Bank's
Commitment remains in effect:
ss.5.01 Financial Statements. The Company shall deliver to each Bank:
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(a) As soon as available and in any event within 60 days after the end
of each of the first three quarterly accounting periods in each fiscal
year, the 10-Q report of the Company for such period;
(b) As soon as available and in any event within 120 days after the
end of each fiscal year, the 10-K report of the Company for such fiscal
year, accompanied by (A) an opinion as to the financial statements
contained in such 10-K report of independent certified public accountants
of recognized national standing, and (B) a statement by said accountants
that in the course of their regular examination of the Company and its
Consolidated Subsidiaries for purposes of their opinion they obtained no
knowledge, except as specifically stated, of the occurrence and continuance
of any Default;
(c) With each report delivered under ss.5.01(a) or (b) hereof, (A) a
statement signed by an Appropriate Officer of the Company certifying and,
where calculations are necessary, demonstrating compliance by the Company
with the provisions of ss.5.09 hereof, and (B) a statement of an
Appropriate Officer of the Company that such officer has no knowledge,
except as specifically stated, of the occurrence and continuance of any
Default.
(d) Promptly after their becoming available:
(i) Copies of all financial statements, reports and proxy
statements which the Company shall have sent to its stockholders generally.
(ii) Copies of all regular and periodic reports, if any, which
the Company or any Restricted Subsidiary shall have filed with the
Securities and Exchange Commission, or any governmental agency substituted
therefor, or with any national securities exchange.
(e) From time to time, with reasonable promptness, such further
information regarding the business, affairs and financial position of the
Company and each Subsidiary as any Bank may reasonably request.
ss.5.02 Access to Books and Inspection. The Company shall, upon
reasonable request by any Bank, give any representative of such Bank access, at
the Company's principal office, during normal business hours to, and permit such
representative to examine, copy or make excerpts from, any and all books,
records and documents in the possession of the Company relating to its affairs
and the affairs of its Subsidiaries, excluding, however, any privileged and
confidential communications or other materials, and to inspect any of the
properties of the Company or such Subsidiaries; provided that all information
(other than publicly available information) delivered by the Company to any Bank
pursuant to this ss.5.02 is strictly confidential, and each Bank agrees that it
shall (or shall cause the persons referred to in clause (ii) below to) maintain
the confidentiality of any such information, subject to: (i) the obligation to
disclose such information pursuant to subpoena or other legal process, or to
regulatory or examining authorities or other governmental agencies having
jurisdiction, or otherwise as may be required by law; (ii) the right to disclose
such information to the independent auditors and counsel of such Bank, or to
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the Agents or any other Bank; and (iii) the right to disclose such information
to assignees and participants (including prospective assignees and participants)
as provided in ss.8.05 hereof.
ss.5.03 Litigation. Notwithstanding any other provision of this
Agreement, the Company shall, promptly after its becoming available, furnish to
each Bank a copy of any report filed by the Company with the Securities and
Exchange Commission which contains a statement, description or disclosure as to
any litigation or proceeding before any governmental or regulatory agencies
affecting the Company or any of its Subsidiaries.
ss.5.04 Maintenance of Existence. The Company will preserve and
maintain, and cause each of its Restricted Subsidiaries to preserve and
maintain, its corporate existence, provided that the foregoing shall not prevent
a merger or consolidation, or sale or other disposition of assets, of the
Company or any Restricted Subsidiary unless otherwise prohibited by this
Agreement.
ss.5.05 Merger; Sale of Assets. The Company shall not:
(a) merge into or consolidate with any corporation if (i) the Company
is not the surviving corporation, (ii) the Company is the surviving
corporation and a majority of the board of directors of the Company for a
period of three months after the effective date of such merger does not
consist of individuals who were directors of the Company 12 months prior to
such effective date (except for changes due to the retirement or death of
any such individuals) or (iii) after giving effect to such merger or
consolidation, a Default has occurred and is continuing; or
(b) permit any Restricted Subsidiary to be a party to any merger or
consolidation or to transfer all or substantially all of its assets, except
that any such Restricted Subsidiary may merge or consolidate with, or
transfer all or substantially all of its assets to, the Company or any of
the Company's other Subsidiaries provided that (i) the surviving entity of
such merger or consolidation or the transferee of such assets (if it is not
the Company or another Restricted Subsidiary) shall thereafter be treated
as a Restricted Subsidiary for all purposes of this Agreement and (ii)
after giving effect to such merger, consolidation or transfer of assets, no
Default shall have occurred and be continuing; or
(c) sell, assign, transfer or otherwise dispose of all or
substantially all of its assets or, in any case, any stock of or other
equity interest in any of the Restricted Subsidiaries, except that (i)
stock of or other equity interest in any such Restricted Subsidiary may be
sold, assigned or transferred by the Company to any of its wholly-owned
Subsidiaries provided that thereafter such Subsidiary shall be treated as a
Restricted Subsidiary for all purposes of this Agreement and the Company
shall not permit such Subsidiary to sell, assign, transfer or otherwise
dispose of any such stock or other equity interest except to the Company or
otherwise in accordance with this clause (c), (ii) stock of or other equity
interest in any Restricted Subsidiary may be sold, assigned, transferred or
disposed of (whether by the Company or any of its wholly-owned
Subsidiaries) so long as immediately after giving effect to such
transaction the Company
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and/or one or more of its wholly-owned Subsidiaries owns stock of or other
equity interests in such Restricted Subsidiary (x) representing, in the
case of a partnership, not less than 80% of the outstanding capital and
profit interests in such partnership or, in the case of any other entity,
not less than 80% of the fair market value of the outstanding stock of or
other equity interests in such Restricted Subsidiary (excluding Mandatory
Preferred Stock of such Restricted Subsidiary) and (y) representing not
less than 80% of the ordinary voting power for the election of directors or
other persons performing similar functions of such Restricted Subsidiary
(other than stock or other equity interests having such power only by
reason of the happening of a contingency) and (iii) Mandatory Preferred
Stock of any Restricted Subsidiary may be sold, assigned, transferred or
disposed of (whether by the Company or any of its Subsidiaries).
ss.5.06 Default; Investment Rating. The Company shall:
(a) as soon as it shall become known to a senior officer of the
Company, forthwith notify each Agent if any Default shall have occurred;
and
(b) if ▇▇▇▇▇'▇ or S&P (or any successor thereto) shall have assigned a
new rating to the senior debt securities of the Company, notify each Agent
of such new rating within 30 days after it is first announced by the
applicable rating agency.
ss.5.07 ERISA. The Company will furnish to the Banks:
(a) as soon as possible and in any event within 15 days after the
Company knows or has reason to know that any Termination Event has
occurred, a statement of a senior officer of the Company describing such
Termination Event and the action, if any, which the Company proposes to
take with respect thereto;
(b) from time to time promptly after the request of any Bank, copies
of each annual report filed pursuant to Section 104 of ERISA with respect
to each Plan (including, to the extent required by Section 103 of ERISA,
the related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information referred
to in Section 103) and each annual report filed with respect to each Plan
under Section 4065 of ERISA;
(c) promptly after receipt thereof by the Company from the PBGC,
copies of each notice received by the Company of PBGC's intention to
terminate any Plan or to have a trustee appointed to administer any Plan;
and
(d) promptly after such request, such other documents and information
relating to Plans as any Bank may reasonably request from time to time.
ss.5.08 Liens. The Company will not, and will not permit any Subsidiary
to, grant a security interest in any stock of any of the Restricted Subsidiaries
or Citrus Corp. The Company will not grant a security interest in any of its
other assets to secure Indebtedness (except as provided in the next sentence)
unless the Company simultaneously grants to any Designated Agent for the benefit
of the Banks an equal and ratable security interest in the assets subject to
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such security interest. The provisions of the preceding sentence shall not apply
to the grant by the Company of:
(a) Any purchase money mortgage or purchase money security
interest created to secure all or part of the purchase price of any
property (or to secure a loan made to enable the Company to acquire the
property described in such mortgage or in any applicable security
agreement); provided that such mortgage or security interest shall
extend only to the property so acquired, fixed improvements thereon,
replacements thereof and the income and profits therefrom;
(b) Any security interest on any property acquired or
constructed by the Company, and created not later than twelve months
after (i) such acquisition or completion of such construction or (ii)
commencement of operation of such property, whichever is later;
provided that such security interest shall extend only to the property
so acquired or constructed, fixed improvements thereon, replacements
thereof and income and profits therefrom;
(c) Any security interest deemed to be created as a result of
the deposit of cash or securities for the purpose of defeasance of
Indebtedness; and
(d) Any security interest in any of its cash or cash
equivalents (within the meaning of generally accepted accounting
principles) created by the Company for the purpose of securing
Derivative Obligations of the Company, provided that the aggregate
amount of all cash or cash equivalents secured by security interests
permitted by this clause (d) shall not exceed $25,000,000.
(e) Any security interest not otherwise permitted under the
preceding clauses (a) through (d) in any of its assets created by the
Company for the purpose of securing Indebtedness of the Company,
provided that the aggregate amount of all Indebtedness of the Company
secured by security interests permitted by this clause (e) shall not
exceed $10,000,000.
ss.5.09 Total Indebtedness to Consolidated Capitalization. The Company
will not at any time permit Total Indebtedness of the Company to exceed 65% of
the Consolidated Capitalization of the Company.
ss.5.10 [Intentionally Omitted.]
ss.5.11 Insurance. The Company will, and will cause each of its
Subsidiaries to, keep insured with financially sound and reputable insurers or
through self-insurance conforming with practices of similar corporations
maintaining systems of self-insurance all property of a character usually
insured by corporations engaged in the same or similar business similarly
situated against loss or damage of the kinds and in the amounts customarily
insured against by such corporations and carry such other insurance as is
usually carried by such corporations.
ss.5.12 Maintenance of Properties. The Company will, and will cause
each of its Subsidiaries to, keep all of its material properties necessary in
its business in good working order
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and condition appropriate for the use being made thereof, ordinary wear and tear
excepted; except, in every case, as and to the extent that the Company or its
Subsidiaries may be prevented from maintaining their respective properties by
fire, strikes, lockouts, acts of God, inability to obtain labor or materials,
governmental (including judicial) restrictions, enemy action, civil commotion or
unavoidable casualty or similar causes beyond the control of the Company;
provided, however, that nothing in this ss.5.12 shall prevent the Company or any
of its Subsidiaries from discontinuing the use, operation or maintenance of any
of such properties if such discontinuance is, in the judgment of the Company or
its applicable Subsidiary, desirable in the conduct of the business of the
Company or such Subsidiary and if such discontinuance is not disadvantageous in
any material respect to the Banks; and provided, further, that nothing in this
ss.5.12 shall prohibit any sale, assignment, transfer or other disposition
permitted by ss.5.05 hereof.
ss.5.13 Public Utility Holding Company Act. The Company will not, and
will not permit any of its Subsidiaries to, be subject to regulation under the
Public Utility Holding Company Act of 1935, as amended.
VI. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
as follows:
ss.6.01 Corporate Existence and Powers. The Company and each of its
Restricted Subsidiaries is a corporation duly incorporated and validly existing
and in good standing under the laws of the jurisdiction of its incorporation
(or, in case of any Restricted Subsidiary not a corporation, such Restricted
Subsidiary is duly organized and validly existing under the laws of the
jurisdiction of its organization) and is duly licensed or qualified to do
business and is in good standing in all states in which the Company believes the
conduct of its business or the ownership of its assets requires such
qualification, and the Company has corporate power to make this Agreement and
the Notes and to borrow hereunder.
ss.6.02 Corporate Authority, etc. The making and performance by the
Company of this Agreement and the Notes and each borrowing hereunder have been
duly authorized by all necessary corporate action and do not and will not
contravene any provision of law applicable to the Company or of the certificate
of incorporation or by-laws of the Company or result in the material breach of,
or constitute a material default or require any consent under, or result in the
creation of any material lien, charge or other security interest or encumbrance
not permitted by ss.5.08 hereof upon any property or assets of the Company or
any of its Restricted Subsidiaries pursuant to, any indenture or other agreement
or instrument to which the Company or any of its Restricted Subsidiaries is a
party or by which the Company or any of its Restricted Subsidiaries or any of
their respective properties may be bound or affected (or, if any such consent is
so required, the Company has obtained such consent, which is sufficient for the
purpose and remains in full force and effect, and copies thereof have been
furnished to Chase). This Agreement has been duly and validly executed and
delivered by the Company and constitutes, and each of the Notes when executed
and delivered will constitute, its legal, valid and binding obligation,
enforceable in accordance with its terms.
ss.6.03 Financial Condition. The consolidated balance sheets of the
Company and its Consolidated Subsidiaries as at December 31, 1997 and September
30, 1998 and the related
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statements of consolidated income and cash flows of the Company and its
Consolidated Subsidiaries for the 12 months and nine months ended on said dates,
respectively, heretofore furnished by the Company to the Banks, fairly present
in all material respects the financial condition of the Company and its
Consolidated Subsidiaries as at said dates and the results of their operations
and cash flows for the 12 months and nine months, respectively, then ended in
accordance with generally accepted accounting principles (except that (i) the
financial statements as of September 30, 1998 and for the nine months then ended
were prepared in accordance with the rules of the Securities and Exchange
Commission applicable to interim financial statements and they are subject to
normal year-end audit adjustments and (ii) the financial statements as of
December 31, 1997 and for the 12 months then ended are subject to the accounting
developments as disclosed in the Company's Report on Form 10-Q for the quarter
ended September 30, 1998). Except as disclosed in a letter dated January 20,
1999, from the Treasurer of the Company, a copy of which has been furnished to
each Bank, since December 31, 1997 there has heretofore been no material adverse
change in the financial condition or operating results of the Company and its
Consolidated Subsidiaries, taken as a whole, from that set forth in the
consolidated balance sheet and related statements as at and for the period ended
on said date.
ss.6.04 Litigation. Except as disclosed in a letter dated January 20,
1999, from the Executive Vice President and General Counsel of the Company, a
copy of which has heretofore been furnished to each Bank, there are no actions,
suits or proceedings, and no proceedings before any arbitrator or by or before
any governmental commission, board, bureau or other administrative agency,
pending, or to the knowledge of the Company threatened, against or affecting the
Company or any Subsidiary which are reasonably likely to have a material adverse
effect on the financial condition, properties or operations of the Company and
its Subsidiaries, taken as a whole.
ss.6.05 Taxes. Each of the Company and each Restricted Subsidiary has
filed all material tax returns required to be filed and paid all material taxes
shown thereon to be due, including interest and penalties, or provided adequate
reserves for payment thereof, except to the extent the same have become due and
payable but are not yet delinquent, and except for any taxes and assessments of
which the amount, applicability or validity is currently being contested in good
faith by appropriate proceedings.
ss.6.06 Approvals. No approval, license or consent of any governmental
regulatory body is requisite to the making and performance by the Company of
this Agreement, or the execution, delivery and payment of the Notes (or, if any
such approval, license or consent is so requisite, the Company has obtained the
same, which is sufficient for the purpose and remains in full force and effect,
and copies thereof have been furnished to Chase).
ss.6.07 ERISA. The Company, and each Subsidiary, has met its minimum
funding requirements under ERISA with respect to all its Plans and has not
incurred any material liabilities to PBGC or to such Plan under ERISA in
connection with any such Plan.
ss.6.08 Margin Regulations. The Company is not engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U of the Board of Governors of the
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Federal Reserve System), and no part of the proceeds of any Loan will be used to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock.
ss.6.09 Certain Subsidiaries. Except as a consequence of a transaction
or transactions permitted by this Agreement, the Company directly or indirectly
owns all of the outstanding shares of common stock of each of the Restricted
Subsidiaries (except for directors' qualifying shares), and all shares of stock
of such corporations are validly issued, fully paid and non-assessable.
ss.6.10 Investment Company Act. The Company is not an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
ss.6.11 Environmental Laws. The Company and its Subsidiaries are in
compliance in all material respects with the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Superfund
Amendments and Reauthorization Act of 1986, the Resource Conservation and
Recovery Act, the Toxic Substances Control Act, as amended, the Clean Air Act,
as amended, the Clean Water Act, as amended, and each other federal, state or
local statute, law, ordinance, code, rule or regulation, regulating or imposing
liability or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, except for any noncompliance that is not
reasonably likely to have a material adverse effect on the financial condition,
properties or operations of the Company and its Subsidiaries, taken as a whole.
ss.6.12 Year 2000 Problem. The Company has (i) undertaken a detailed
review and assessment of all areas within its business and operations that could
reasonably be affected by the Year 2000 Problem, (ii) developed a detailed plan
and timeline for addressing the Year 2000 Problem on a timely basis and (iii)
implemented that plan to date in accordance with such plan and timeline. To the
best of Company's knowledge, all computer applications that are material to the
Company's business and operations will on a timely basis be able to perform
date-sensitive functions for all dates on and after January 1, 2000.
All representations and warranties made herein shall survive the making
of the Loans and the delivery of the Notes hereunder.
VII. EVENTS OF DEFAULT. If any of the following "Events of Default"
shall occur and shall not have been remedied:
A. default by the Company in the payment of any principal of
any of the Notes when the same becomes due and payable;
B. default by the Company in the payment of interest on any of
the Notes or any other amounts payable under ss.1.03 or ss.2.08 hereof
which shall remain unremedied for ten days after the same becomes due
and payable;
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C. any representation or warranty made by the Company in
Article VI hereof or in any certificate furnished to the Agents or to
the Banks hereunder (or deemed to have been given at the time of any
borrowing hereunder) shall prove to have been incorrect when made or
deemed made, in any material respect;
D. default by the Company in the due performance or observance
of ss.5.05, ss.5.08 or ss.5.09 hereof;
E. default by the Company in the due performance or observance
of ss.5.06(a) hereof which shall remain unremedied for a period of ten
days;
F. default by the Company in the due performance or observance
of ss.5.03 or ss.5.06(b) hereof which shall remain unremedied for a
period of 30 days after such default shall have become known to an
executive officer of the Company;
G. default by the Company in the due performance or observance
of any other covenant or agreement herein contained which shall remain
unremedied for a period of 30 days after written notice thereof shall
have been given to the Company by any Bank (through any Designated
Agent);
H. default by the Company or any Restricted Subsidiary (i) in
the payment of any Indebtedness of the Company and/or one or more
Restricted Subsidiaries in an aggregate unpaid principal amount of at
least $25,000,000, beyond the period or periods of grace (if any)
provided with respect thereto, or (ii) in the performance or observance
of any other provisions in indentures, credit or loan agreements or
other agreements or instruments under which such Indebtedness in such
aggregate unpaid principal amount of the Company and/or one or more
Restricted Subsidiaries is outstanding or by which such Indebtedness is
evidenced and, in the case of clause (ii) only, if the effect of such
default is to cause, or permit the holder or holders of such
Indebtedness (or a trustee or an agent on behalf of such holder or
holders) to cause, such Indebtedness to become due prior to its stated
maturity;
I. any Termination Event shall have occurred and shall have
continued under circumstances which result in an uninsured payment or
repayment liability of the Company or any of its Subsidiaries to PBGC
in an amount which is material in relation to the financial position of
the Company and its Subsidiaries, on a consolidated basis;
J. either the Company or one or more Restricted Subsidiaries
(taken as a group) with total assets of at least $10,000,000 in the
aggregate (such Restricted Subsidiary or Subsidiaries being hereinafter
called the "Restricted Group") shall (1) apply for or consent to the
appointment of, or taking possession by, a receiver, trustee,
custodian, liquidator or other similar official of itself or of all or
a substantial part of its assets, (2) admit in writing its inability to
pay its
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debts, or generally become unable to pay its debts, as they become due,
(3) make a general assignment for the benefit of its creditors, (4)
commence a voluntary case under the federal bankruptcy laws (as now or
hereafter in effect), (5) file a petition seeking to take advantage of
any other laws relating to bankruptcy, reorganization, insolvency,
winding-up or composition or readjustment of debts, or (6) acquiesce in
writing to, or fail to controvert in a timely and appropriate manner,
any petition filed against it or in any involuntary case under the
aforesaid federal bankruptcy laws; or corporate action shall be taken
by the Company or the Restricted Group for the purpose of effecting any
of the foregoing; or
K. a proceeding or case shall be commenced, without the
application or consent of the Company or the Restricted Group (as
defined in paragraph J above), in any court of competent jurisdiction,
seeking (1) its liquidation, reorganization, dissolution, winding-up,
or composition or readjustment of debts, (2) the appointment of a
receiver, trustee, custodian, liquidator or any similar official of
itself of all or a substantial part of its assets, (3) similar action
with respect to the Company or the Restricted Group under the federal
bankruptcy laws (as now or hereafter in effect) or any other laws
relating to bankruptcy, insolvency, reorganization, liquidation or
winding-up, or composition or adjustment of debts, and such proceeding
or case shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and
continued unstayed and in effect, for any period of 60 consecutive
days; or an order for relief against the Company or the Restricted
Group shall be entered in an involuntary case under such federal
bankruptcy laws,
THEREUPON, (in addition to the rights and remedies of the Swingline Bank
pursuant to ss.1.08(b)) (1) in the case of any of the Events of Default
specified in paragraphs A through I above, (i) any Designated Agent may and,
upon being directed so to do by the Majority Banks, shall, by notice to the
Company, terminate all Commitments hereunder and they shall thereupon terminate,
and (ii) any Designated Agent may and, upon being directed by Banks holding at
least 66-2/3% of the aggregate unpaid principal amount of the Loans shall, by
notice to the Company, declare all outstanding Loans and Notes and all other
obligations of the Company hereunder to be due and payable, whereupon the same
shall become forthwith due and payable, without further protest, presentment,
notice or demand, all of which are expressly waived by the Company, and (2) in
case of any of the Events of Default specified in paragraph J or K above,
without any notice to the Company or any act by any Designated Agent or the
Majority Banks or any Bank, all Commitments hereunder shall terminate forthwith
and the principal of and interest accrued on all the Loans and the Notes and all
other obligations of the Company hereunder shall become and be due and payable.
VIII. MISCELLANEOUS
ss.8.01 Waiver. No failure on the part of any Agent, Bank or holder of
a Note to exercise and no delay in exercising and no course of dealing with
respect to any right, power or privilege under this Agreement or the Notes shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power, or privilege under this Agreement or the Notes preclude
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any other or further exercise thereof or the exercise of any other right, power,
or privilege. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
ss.8.02 Notices and Delivery of Documents. Except as otherwise
specified herein, all notices and other communications hereunder shall be in
writing or by telex or telecopy, and shall be deemed to have been duly given
when transmitted by telex or telecopier or personally delivered or, in the case
of a mailed notice or other communication, three Business Days after the date
deposited in the mails, certified and postage prepaid, addressed to any party
hereto at its address given on Schedule 2 hereto or on the signature pages of,
or any schedule to, any amendment hereto, or at such other address of which any
party hereto shall have notified in writing the party giving such notice or (in
the case of a telex message) addressed to any party at any telex number which is
published as belonging to the addressee. Except as otherwise expressly provided
herein, all Notes and other documents to be delivered to any Agent under this
Agreement shall be delivered to it at its Principal Office.
ss.8.03 Governing Law. This Agreement and the Notes hereunder shall be
construed in accordance with and governed by the law of the State of New York.
ss.8.04 Offsets, etc. Upon the occurrence and during the continuance of
an Event of Default, each Bank is hereby authorized at any time and from time to
time, without notice to the Company except as required by law (any such notice
being expressly waived by the Company), 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 of the obligations of the
Company now or hereafter existing under this Agreement and the Notes held by
such Bank. Each Bank agrees promptly to notify the Company after any such
set-off and application made by such Bank, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of the Banks under this ss.8.04 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Banks may have.
ss.8.05 Disposition of Loans. Each Bank may at any time, at its own
expense, assign (but only with the prior written consent of the Company, which
it may refuse or grant in its sole discretion), or sell participations in, all
or any portion of any Loans made by it to another bank or other entity; provided
that no such assignment shall be in a principal amount less than $10,000,000.
Any Bank making an assignment hereunder shall pay to Chase an administrative fee
of $2,500 with respect to each assignment. In the case of an assignment, upon
notice thereof by such Bank to the Company and the Agents, to the extent of such
assignment and the Loans so assigned, the assignee shall have the same rights
and benefits as it would have if it were a Bank hereunder and the assignor shall
cease to have the rights and benefits of a Bank hereunder (provided that the
obligations of the Company under Article III to such Bank shall survive such
assignment). In the case of a participation, except as otherwise provided in
ss.2.06(c) hereof, the participant shall not have any rights under this
Agreement or such Bank's Notes (the participant's rights against such Bank in
respect of such participations to be those set forth in the agreement executed
by such Bank in favor of the participant relating thereto) and all amounts
payable by the Company under Article III hereof shall be determined as if such
Bank had not sold such participation. The granting of any such participation
shall not relieve the grantor of its
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Commitment hereunder. Each Bank may furnish any information concerning the
Company or any of its Subsidiaries in the possession of such Bank from time to
time to assignees and participants (including prospective assignees and
participants) under this ss.8.05, provided that, if any such information is
confidential information consisting of or based upon information provided by the
Company, prior to furnishing any such information such Bank shall obtain the
agreement of any such assignee or participant, in favor of the Company, to
maintain the confidentiality of such information, subject to the same
requirements and exceptions as specified in ss.5.02 hereof (and such Bank shall
promptly furnish a copy of each such agreement to the Company). Any Bank may at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Bank to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Bank from any of its obligations hereunder or
substitute any such pledgee or assignee for such Bank as a party hereto.
ss.8.06 Expenses. All statements, reports, certificates, opinions and
other documents or information furnished by the Company to the Agents or the
Banks under this Agreement shall be supplied without cost to the Agents or the
Banks. Further, the Company hereby agrees that it shall pay, on demand, whether
or not any Loan is made hereunder, (a) all reasonable out-of-pocket costs and
expenses of the Banks and the Agents incurred in connection with the
preparation, execution and delivery of this Agreement, or any amendment or
supplement thereto, and the Notes and the making of the Loans hereunder, (b) the
reasonable fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel
to the Banks, in connection therewith, and (c) all costs and expenses of
collection (including, without limitation, reasonable legal fees) incident to
the enforcement, protection or preservation of any right of any Bank under this
Agreement or the Notes.
ss.8.07 Amendments, Waivers, etc. This Agreement and the Notes may not
be amended, supplemented or modified, nor any of its terms be waived, except by
written instruments signed by the Company and the Majority Banks (and, in the
case of any amendment, supplement, modification or waiver affecting Article IX
hereof, each of the Agents); provided, however, that no such amendment,
supplement, modification or waiver shall, without the written consent of all of
the Banks: (i) extend the term of, or change the amount of, or change any of the
provisions of ss.1.04 hereof with respect to the reduction or increase of, the
Commitment of any Bank, or change the rate at which commitment or facility fees
accrue hereunder or extend the time for payment thereof, (ii) extend the
maturity of any Loan, change the rate of interest thereon, or affect in any way
the terms of payment thereof, (iii) alter the definition of "Majority Banks",
(iv) affect any provisions relating to Fixed Rate Loans, (v) alter this ss.8.07
or ss.8.09(a), (vi) waive any condition specified in Article IV, (vii) waive an
Event of Default under paragraph J or K of Article VII or modify the effect
thereof or (viii) waive or amend any representation contained in Article VI;
provided, further, that ss.1.03 and ss.1.08 hereof may be amended, supplemented
or modified, and any of the terms thereof waived, by written instrument signed
only by the Company and the Swingline Bank. Any such amendment, supplement,
modification or waiver so entered into shall apply equally to all of the Banks
and any holder of the Notes and shall be binding upon all parties hereto. Any
waiver hereunder shall be for such period and subject to such conditions as
shall be specified in such written instrument. In the case of any waiver of an
Event of Default, such Event of Default shall be deemed to be cured and not
continuing, but no such waiver shall
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extend to any subsequent or other Event of Default or any right, power or
privilege of the Banks hereunder in connection therewith.
ss.8.08 Definitions. Certain terms are defined in Schedule 1 hereto and
as used herein shall have meanings as so defined.
ss.8.09 Successors and Assigns. (a) This Agreement shall be binding
upon and inure to the benefit of the Banks, the Agents, the Company and their
respective successors and assigns, except that Company may not assign or
transfer any of its respective rights or obligations hereunder without the prior
written consent of all the Banks.
(b) Notwithstanding anything to the contrary contained herein, any Bank
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Agents and the Company, the option to provide to the
Company all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to Section 1.01 or 1.02, provided
that (i) nothing herein shall constitute a commitment to make any Loan by any
SPC and (ii) if an SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Loan, the Granting Lender shall be obligated to
make such Loan pursuant to the terms hereof. The making of a Syndicated Loan by
an SPC hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by the Granting Lender. Each party hereto
hereby agrees that no SPC shall be liable for any payment under this Agreement
for which a Bank would otherwise be liable, for so long as, and to the extent,
the related Granting Lender makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees that, prior to the date that is one year and one
day after the later of (i) the payment in full of all outstanding senior
indebtedness of any SPC and (ii) the Commitment Termination Date, it will not
institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceedings under the laws of the United States or any State thereof.
In addition, notwithstanding anything to the contrary contained in this Section
8.09(b), any SPC may (i) with notice to, but without the prior written consent
of, the Company or any Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to its Granting Lender or
to any financial institutions providing liquidity and/or credit facilities to or
for the account of such SPC to fund the Loans made by such SPC or to support the
securities (if any) issued by such SPC to fund such Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC. In no event shall the Company be
obligated to pay to an SPC that has made a Loan any greater amount than the
Company would have been obligated to pay under this Agreement if the Granting
Lender had made such Loan. Each Granting Lender shall indemnify and hold
harmless the Company and its directors, officers, employees and agents from and
against any and all losses, liabilities, claims, damages and expenses arising
from or attributable to the making of a Loan by an SPC of such Granting Lender.
ss.8.10 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one instrument and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
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32
ss.8.11 Confidentiality. Each of the Agents and the Banks agree to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relation to this Agreement or the enforcement
of rights hereunder, (f) subject to any agreement containing provisions
substantially the same as those of this Section, to any assignee of or
participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Company
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to any Agent
or any Bank on a nonconfidential basis from a source other than the Company. For
the purposes of this Section, "Information" means all information received from
the Company, its Subsidiaries or its agents relating to the Company or its
business, other than any such information that is available to any Agent or any
Bank on a nonconfidential basis prior to disclosure by the Company.
IX. THE AGENTS
ss.9.01 Appointment, Power and Immunities. Each Bank hereby irrevocably
appoints and authorizes each Designated Agent to act as its agent hereunder with
such powers as are specifically delegated to such Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
No Agent shall have any duties or responsibilities except those expressly set
forth in this Agreement, nor shall any Agent, by reason of this Agreement, have
a fiduciary relationship with any Bank. No Agent shall be responsible to the
Banks for any recitals, statements, representations or warranties contained in
this Agreement or in any information memorandum pertaining to the Company or in
any certificate or other document referred to or provided for in, or received by
any of them under, this Agreement, for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the Notes or any
other document referred to or provided for herein or for any failure by the
Company to perform its obligations under any thereof. Each Designated Agent may
employ agents and attorneys-in-fact and shall not be answerable, except as to
money or securities received by it or its authorized agents, for the negligence
or misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither the Agents nor any of their directors, officers,
employees or agents shall be liable or responsible for any action taken or
omitted to be taken by them hereunder or in connection herewith, except for
their own gross negligence or willful misconduct.
ss.9.02 Reliance by Agents. Each Agent shall be entitled to rely upon
any certificate, notice or other document (including any cable, telegram,
telecopy or telex) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper person or persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by Chase. Chase may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until a notice of the assignment
thereof satisfactory to Chase
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33
signed by such payee shall have been filed with it. As to any matters not
expressly provided for by this Agreement, each Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in accordance with
written instructions signed by the Majority Banks, and such instructions of the
Majority Banks and any action taken or failure to act pursuant thereto shall be
binding on all of the Banks.
ss.9.03 Default. No Agent shall be deemed to have knowledge of the
occurrence of a Default or an Event of Default (other than nonpayment of
principal, interest or commitment or other fees) unless such Agent has received
written notice from a Bank or the Company specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
any Designated Agent receives such a notice of the occurrence of a Default or an
Event of Default, such Agent shall give prompt written notice thereof to the
other Agents and the Banks. The Designated Agents shall take such action with
respect to such Default or Event of Default as shall be reasonably directed in
writing by the Majority Banks provided that (i) unless and until the Designated
Agents shall have received such directions, the Designated Agents may take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as they shall deem advisable in the best interests of the Banks
and (ii) in no event shall any Agent be required to institute any action, suit
or other proceeding in connection herewith.
ss.9.04 Rights as a Lender. With respect to its Commitment and the
Loans made by it or any collateral therefor, each of Chase, Bank of America and
SunTrust (and any successor Agent hereunder) in its capacity as a Bank under
this Agreement shall have the same rights and powers hereunder as any other Bank
and may exercise the same as though it were not acting as an Agent, and the term
"Bank" or "Banks" shall, unless the context otherwise indicates, include each of
Chase, Bank of America and SunTrust (and any successor Agent hereunder) in its
individual capacity. Each of Chase, Bank of America and SunTrust (and any
successor Agent hereunder) and their affiliates may (without having to account
therefor to any Bank) accept deposits from, lend money to and generally engage
in any kind of banking, trust or other business with the Company (and any of its
related companies) as if it were not acting as an Agent and may accept fees and
other consideration from the Company for services in connection with this
Agreement and otherwise without having to account for the same to the other
Agent and the Banks.
ss.9.05 Indemnification. The Banks severally agree to indemnify each
Agent (to the extent requested by such Agent as provided in ss.9.08 hereof
and/or to the extent not reimbursed by the Company), pro rata according to the
amounts of their respective Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against such Agent in any way relating to or arising
out of this Agreement or any other documents referred to herein or the
transactions contemplated hereby (including, without limitation, the costs and
expenses which the Company is obligated to pay under ss.8.06 hereof but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or of any such
other documents, provided that (a) such Agent shall have given the Banks notice
thereof and an opportunity to defend against the same at the expense of the
Banks and with counsel selected by the Majority Banks, (b) no Bank shall be
liable to an Agent for any of the foregoing to the extent they arise from such
Agent's gross negligence or willful
38
34
misconduct and (c) no Bank shall be liable for any amount in respect of any
compromise or settlement of any of the foregoing unless such compromise or
settlement is approved by the Majority Banks.
ss.9.06 Reports. Promptly after its receipt thereof, each Agent (or, if
all Agents shall have received the same, Chase) will forward to each Bank a copy
of each report, notice or other document required by this Agreement to be
delivered to such Agent for such Bank.
ss.9.07 Non-Reliance on Agents and Other Banks. Each Bank agrees that
it has, independently and without reliance on any Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Company and decision to enter into this Agreement and
that it will, independently and without reliance upon any Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking such action under this Agreement. No Agent shall be required to keep
itself informed as to the performance or observance by the Company of this
Agreement or any other document referred to or provided for herein or to make
inquiry of or to inspect the properties or books of the Company. Except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by any Agent hereunder, no Agent shall have any duty or
responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Company (or any
of its related companies) which may come into the possession of such Agent or
any of its affiliates.
ss.9.08 Failure to Act. Except for action expressly required of any
Agent under this Agreement, such Agent shall in all cases be fully justified in
failing or refusing to act unless it shall 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.
ss.9.09 Resignation or Removal of Agents. Subject to the appointment
and acceptance of a successor Agent as provided below, any Agent may resign at
any time by giving written notice thereof to the Banks and the Company and any
Agent may be removed at any time with or without cause by the Majority Banks.
Upon any such resignation or removal, the Majority Banks shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Majority Banks and shall have accepted such appointment within 30 days after
the retiring Agent's giving of notice of resignation or the Majority Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a bank which has an office (or
an affiliate or a Subsidiary with an office) in New York, New York. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Agreement shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
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35
ss.9.10 Documentation Agent. Nothing in this Agreement shall impose on
SunTrust, in its capacity as Documentation Agent, any duties or obligations
whatsoever.
ss.9.11 Syndication Agent. Nothing in this Agreement shall impose on
Bank of America, in its capacity as Syndication Agent, any duties or obligations
whatsoever.
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36
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SONAT INC.
By:
-------------------------------
Name:
Title:
AMSOUTH BANK, as a Bank
By:
--------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK, as a Bank
By:
--------------------------------
Name:
Title:
41
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Bank
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as a Bank
By:
--------------------------------
Name:
Title:
CREDIT LYONNAIS, NEW YORK
BRANCH, as a Bank
By:
--------------------------------
Name:
Title:
MELLON BANK, N.A., as a Bank
By:
--------------------------------
Name:
Title:
NORTHERN TRUST, as a Bank
By:
--------------------------------
Name:
Title:
42
38
REGIONS BANK, as a Bank
By:
--------------------------------
Name:
Title:
SOUTHTRUST BANK N.A., as a Bank
By:
--------------------------------
Name:
Title:
SUNTRUST BANK, ATLANTA, as a Bank
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Agents
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
--------------------------------
Name:
Title:
43
39
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Syndication Agent
By:
--------------------------------
Name:
Title:
SUNTRUST BANK, ATLANTA,
as Documentation Agent
By:
--------------------------------
Name:
Title:
44
SCHEDULE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"Additional Costs" shall have the meaning attributed thereto in
ss.3.01(a) hereof.
"Affected Loans" shall have the meaning attributed thereto in ss.3.04
hereto.
"Affected Type" shall have the meaning attributed thereto in ss.3.04
hereto.
"Agents" shall have the meaning attributed thereto in the preamble to
this Agreement.
"Annual Dates" shall mean the Quarterly Date in December of each year.
"Applicable Facility Fee Rate" shall mean, with respect to any day, the
percentage indicated below opposite the Rating Level in effect on such day:
Rating Level Percentage
------------ ----------
I 0.080%
II 0.100%
III 0.125%
IV 0.150%
V 0.200%
"Applicable Lending Office" shall mean, with respect to each Bank, with
respect to each type of Loan, the Lending Office designated for such type of
Loan on Schedule 2 hereof, or on the signature pages of, or any schedule to, any
amendment hereto, or such other office or affiliate of such Bank as such Bank
may from time to time specify to Chase and the Company as the office at which
its Loans of such type are to be made and maintained.
"Applicable Margin" shall mean: (a) with respect to Domestic Loans,
zero; and (b) with respect to any Eurodollar Loan on any day, the percentage
indicated below opposite the Rating Level in effect on such day:
Rating Level Percentage
------------ ----------
I 0.320%
II 0.350%
III 0.375%
IV 0.475%
V 0.500%
45
2
provided, that if on such day the aggregate principal amount of the Loans
outstanding equals or exceeds 33% of the Commitments in effect on such day,
0.125% shall be added to the foregoing percentage otherwise applicable on such
day.
"Appropriate Officer" shall mean the chief executive officer, the chief
operating officer, the chief financial officer, the Vice President -
Comptroller, the Vice President - Finance or the Treasurer.
"Bank of America" shall mean Bank of America National Trust and Savings
Association, in its capacity as Syndication Agent.
"Banks" shall have the meaning attributed thereto in the preamble to
this Agreement, and which shall include the Swingline Bank in its capacity as
such.
"Base Rate" shall mean, for any day, the higher of (a) the Federal
Funds Rate for such day plus 1/2 of 1% per annum and (b) the Prime Rate for such
day. Each change in any interest rate provided for herein based upon the Base
Rate resulting from a change in the Base Rate shall take effect at the time of
such change in the Base Rate.
"Basle Accord" shall have the meaning attributed thereto in ss.3.01(c)
hereto.
"Business Day" shall mean any day on which commercial banks are not
authorized or required to close in New York City and, if such day relates to a
borrowing of, a payment or prepayment of principal of or interest on, or the
Interest Period for, a Eurodollar Loan or a notice by the Company with respect
to any such borrowing, payment, prepayment or Interest Period, which is also a
day on which dealings in Dollar deposits are carried out in the London interbank
market.
"Change in Control" shall have the meaning attributed thereto in
ss.1.04(b) hereto.
"Chase" shall mean The Chase Manhattan Bank in its capacity as the
Administrative Agent.
"Commitment" shall mean, as to each Bank, the obligation of such Bank
to make Syndicated Loans pursuant to ss.1.01 hereof in an aggregate amount at
any one time outstanding up to but not exceeding the amount set opposite such
Bank's name on Schedule 3 to this Agreement under the caption "Commitment" (as
the same may be reduced at any time or from time to time pursuant to ss.1.04
hereof).
"Commitment Termination Date" shall mean the 363rd day after the
Effective Date.
"Company" shall have the meaning attributed thereto in the preamble to
this Agreement.
"Consolidated Capitalization" shall mean, for any Person, the sum of
Total Indebtedness and Equity of such Person and its Consolidated Subsidiaries.
46
3
"Consolidated Subsidiary" shall mean any Subsidiary of a Person which
was or shall be consolidated with such Person in any consolidated financial
statement furnished to the Banks under this Agreement.
"Default" shall mean an Event of Default or an event which, with the
notice or lapse of time or both specified in Article VII hereof, would become
such an Event of Default.
"Derivative Obligations" shall mean any transaction which is a rate
swap transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions).
"Designated Agents" shall mean Chase and Bank of America.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Domestic Loans" shall mean Syndicated Loans which bear interest at
rates based upon the Base Rate.
"Effective Date" shall have the meaning attributed thereto in ss.4.01
hereof.
"Equity" means at any time the sum of the following, for any Person and
its Consolidated Subsidiaries:
(i) the amount of share capital liability, including common and
preferred shares (less cost of treasury shares), plus
(ii) the amount of surplus and retained earnings (or, in the case of a
surplus or retained earnings deficit minus the amount of such deficit).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, including (unless the context otherwise requires)
any rules or regulations promulgated thereunder.
"Eurodollar Loans" shall mean Syndicated Loans, the interest rates on
which are determined on the basis of rates referred to in the definition of
"Fixed Base Rate".
"Event of Default" shall mean any of the Events of Default specified in
Article VII hereof.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, 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 (i) if the day for which such rate is to
be
47
4
determined 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 (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate charged to The Chase Manhattan Bank on such day on such transactions as
determined by Chase.
"Fixed Base Rate" shall mean, with respect to any Fixed Rate Loan, the
arithmetic mean (rounded upwards, if necessary, to the nearest 1/100 of 1%), as
determined by Chase, of the rate per annum quoted by each Reference Bank at
approximately 11:00 a.m. London time (or as soon thereafter as practicable) on
the date two Business Days prior to the first day of the Interest Period for
such Loan for the offering by such Reference Bank to leading banks in the London
interbank market of Dollar deposits having a term comparable to such Interest
Period and in an amount comparable to the principal amount of the Eurodollar
Loan to be made by such Reference Bank for such Interest Period. If any
Reference Bank is not participating in any Fixed Rate Loan, the Fixed Base Rate
for such Loan shall be determined by reference to the amount of the Loan which
such Reference Bank would have made had it been participating in such Loan. If
any Reference Bank does not timely furnish such information for determination of
any Fixed Base Rate, Chase shall determine such Fixed Base Rate on the basis of
information timely furnished by the remaining Reference Bank.
"Fixed Rate" shall mean, for any Fixed Rate Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by Chase
to be equal to the Fixed Base Rate for such Loan for the Interest Period for
such Loan.
"Fixed Rate Loans" shall mean Eurodollar Loans.
"Indebtedness" shall mean, for any Person, all obligations for borrowed
money or purchase money obligations of such Person which in accordance with
generally accepted accounting principles would be shown on the balance sheet of
such Person as a liability; all obligations under leases required to be
capitalized under generally accepted accounting principles at the time of
entering into such lease; all guarantees of such Person in respect of
Indebtedness of others; Indebtedness of others secured by any mortgage, pledge,
security interest, encumbrance, lien or charge upon property owned by such
Person, whether or not assumed; Operating Lease Obligations; and, only as to any
Consolidated Subsidiary of the Company, any Mandatory Preferred Stock of such
Consolidated Subsidiary; provided that Indebtedness shall not include: (i) any
Indebtedness evidence of which is held in treasury (but the subsequent resale of
such Indebtedness shall be deemed to constitute the creation thereof); or (ii)
any particular Indebtedness if, upon or prior to the maturity thereof, there
shall have been deposited with the proper depositary, in trust, money or United
States government securities (or evidences of such Indebtedness as permitted by
the instrument creating such Indebtedness) in the necessary amount to pay,
redeem or satisfy such Indebtedness; or (iii) only as to the Company, any
Indebtedness of the Company to any of its Subsidiaries provided that such
Indebtedness is subordinated in right of payment to the prior payment in full of
the obligations of the Company to the Banks and the Agents under this Agreement
and the termination in full of the Commitments hereunder (including interest
accruing on such obligations after the date of any filing by the Company of any
petition in bankruptcy or the commencement of any bankruptcy, insolvency or
similar proceeding with
48
5
respect to the Company) in the event that any Default under this Agreement shall
have occurred and be continuing and in the event of any insolvency, bankruptcy
or similar proceeding affecting the Company; or (iv) any indirect guarantees or
other contingent obligations in respect of Indebtedness of other Persons,
including agreements, contingent or otherwise, with such other persons or with
third persons with respect to, or to permit or assure the payment of,
obligations of such other persons, including, without limitation, agreements to
purchase or repurchase obligations of such other persons, to advance or supply
funds to, or to invest in, such other persons or to pay for properties, products
or services of such other persons (whether or not conveyed, delivered or
rendered); demand charge contracts, through-put, take-or-pay, keep-well,
make-whole or maintenance of working capital or similar agreements; or
guarantees with respect to rental or other similar periodic payments to be made
by such other Persons, including, but without limiting the generality of the
foregoing, the Guaranty Agreement dated as of June 1, 1968, as amended as of
August 1, 1968, May 1, 1970, April 13, 1973, May 26, 1973 and November 30, 1984,
between Boise Cascade Corporation, the Company and Parish of ▇▇▇▇▇▇▇▇▇▇,
Louisiana; or (v) any capitalized leases for space and/or equipment in respect
of oil and gas production platforms not in excess of $25,000,000 in the
aggregate; or (vi) any Indebtedness of Bear Creek Storage Company or Citrus
Corp. that is shown on the balance sheet of the Company as a liability and which
would not be required to be treated as Indebtedness of the Company or any of its
Subsidiaries under generally accepted accounting principles as in effect on the
date hereof but which is required to be treated as Indebtedness of the Company
or any of its Subsidiaries as a result of a change in generally accepted
accounting principles after the date hereof. For purposes of this Agreement, the
principal amount of any Indebtedness of any Person (excluding Operating Lease
Obligations and Mandatory Preferred Stock of a Consolidated Subsidiary) shall
mean the amount required in accordance with generally accepted accounting
principles to be shown as a liability on the balance sheet of such Person (or,
in the case of Indebtedness of another Person required to be treated as
Indebtedness of such Person under this Agreement, the balance sheet of such
other Person) prepared as of the applicable date.
"Interest Payment Date" shall mean, as to any Loan, the last day of the
Interest Period for such Loan and (i) with respect to a Set Rate Loan with an
Interest Period longer than 90 days, the last day of each consecutive 90 day
period (other than such last day if such last day occurs within two Business
Days of the last day of such Interest Period) occurring during such Interest
Period commencing with the first day of such Interest Period, (ii) with respect
to a Eurodollar Loan with an Interest Period longer than three months, the last
day of each consecutive three month period (other than such last day if such
last day occurs within two Business Days of the last day of such Interest
Period) occurring during such Interest Period commencing with the first day of
such Interest Period and (iii) with respect to a Domestic Loan, each Quarterly
Date that occurs prior to the end of the Interest Period for such Loan.
"Interest Period" shall mean, for any Loan, the period provided for
such Loan pursuant to ss.2.03 hereof.
"Loans" shall mean Money Market Loans, Syndicated Loans and Swingline
Loans.
"Majority Banks" shall mean Banks having at least 66-2/3% of the
aggregate amount of the Commitments; provided that, if the Commitments shall
have terminated, Majority
49
6
Banks shall mean Banks and SPCs holding at least 66-2/3% of the aggregate unpaid
principal amount of the Loans.
"Mandatory Preferred Stock" shall mean, for any Person, the aggregate
stated liquidation value of any outstanding preferred stock issued by such
Person which is required to be redeemed, in whole or in part, by sinking fund or
other mandatory payments at any time prior to the Commitment Termination Date.
"Moody's" shall mean ▇▇▇▇▇'▇ Investor Service, Inc.
"Money Market Borrowing" shall have the meaning assigned to such term
in ss.1.02(b) hereof.
"Money Market Loans" shall mean the loans provided for by ss.1.02
hereof.
"Money Market Note" shall have the meaning assigned to such term in
ss.1.10(b) hereof.
"Money Market Quote" shall mean an offer in accordance with ss.1.02(c)
hereof by a Bank to make a Money Market Loan with one single specified interest
rate.
"Money Market Quote Request" shall have the meaning assigned to such
term in ss.1.02(b) hereof.
"Money Market Rate" shall have the meaning assigned to such term in
ss.1.02(c)(ii)(C) hereof.
"Note" shall mean a Syndicated Note, a Money Market Note or a Swingline
Note.
"Operating Lease Obligations" shall mean, for the Company at any date,
if the minimum annual rental commitments of the Company and its Consolidated
Subsidiaries as lessee under leases (other than capital leases and mineral
leases) in effect on such date for the fiscal year in which such date occurs
shall exceed $30,000,000, the minimum rental commitments of the Company and its
Consolidated Subsidiaries as lessee over the remaining terms of such leases that
cause such minimum annual rental commitments to exceed $30,000,000, discounted
to present value at the rate of 10% per annum. For purposes of this definition,
rental payments under leases having the longest terms and which cannot be
canceled by the Lessee without the incurrence of a substantial penalty shall be
deemed to be those leases that cause such aggregate minimum rental commitments
to exceed $30,000,000.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Person" shall mean an individual, a corporation, a company, a
voluntary association, a partnership, a trust, an unincorporated organization or
a government or any agency, instrumentality or political subdivision thereof.
50
7
"Plan" shall mean any employee benefit or other plan maintained by the
Company or any Subsidiary of the Company for its employees and covered by Title
IV of ERISA.
"Post-Default Rate" shall mean, in respect of any amount payable under
this Agreement which is not paid when due (whether at stated maturity, by
acceleration or otherwise), a rate per annum for each day during the period from
the due date of such amount until such amount shall be paid in full equal to 2%
above the Base Rate in effect on such day (provided that, if the amount so in
default is principal of a Fixed Rate Loan or a Money Market Loan and the due
date thereof is a day other than the last day of the Interest Period therefor,
the "Post-Default Rate" for such principal shall be, for the period from and
including such due date to but excluding the last day of the Interest Period for
such Loan, 2% above the interest rate for such Loan as provided in ss.2.02
hereof and, thereafter, the rate provided for above in this definition).
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at its Principal Office as its prime commercial lending rate.
"Principal Office" shall mean (i) with respect to Chase or The Chase
Manhattan Bank, its principal office in New York, New York, presently located at
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. and (ii) with respect to Bank of
America, its principal office in Concord California, presently located at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇.
"Quarterly Dates" shall mean the last day of each March, June,
September and December, commencing on the first such date after the Effective
Date.
"Quarterly Period" shall mean the period of three consecutive calendar
months ending on each Quarterly Date.
"Quotation Date" shall have the meaning attributed thereto in
ss.1.02(b)(iv) hereof.
"Rating Level" shall mean, as of any day, the level indicated below
opposite the statement that is correct with respect to the ratings of the
Company's senior unsecured long-term debt securities as of such day, provided,
that if the ratings of S&P and Moody's on such day fall within different levels,
the level shall be the level which is one level above the level with the lower
rating unless there is a difference of more than two levels, in which case the
level shall be the level which is one level below the level with the higher
rating:
51
8
Rating Level
------ -----
A- or better by S&P or A3 or better by Moody's I
BBB+ by S&P or Baa1 by Moody's II
BBB by S&P or Baa2 by ▇▇▇▇▇'▇ III
BBB- by S&P or Baa3 by ▇▇▇▇▇'▇ IV
Below BBB- by S&P and below Baa3 by ▇▇▇▇▇'▇ V
For purposes of this definition, "I" shall be the highest level and "V" shall be
the lowest level. If any rating established or deemed to have been established
by ▇▇▇▇▇'▇ or S&P shall be changed, such change shall be effective as of the
date on which it is first announced by the applicable rating agency. Each change
in the Rating Level shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of ▇▇▇▇▇'▇ or S&P shall
change so as to make the above ratings inapplicable, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations or
shall no longer have in effect a rating for any reason, the Company and the
Banks shall negotiate in good faith to amend the references to specific ratings
in this definition to reflect such changed rating system or the non-availability
of ratings from such rating agency or to select a substitute rating agency and
pending or in the absence of any agreement the Rating Level will be determined
by reference to the single available rating, if any, or, in the absence of any
rating, then such rating agencies will be deemed to have established a rating in
Level V.
"Reference Banks" shall mean The Chase Manhattan Bank and Bank of
America National Trust and Savings Association (or their Applicable Lending
Offices, as the case may be).
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be amended or
supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Bank, any change
after the date of this Agreement in United States Federal, state or foreign law
or regulations (including, without limitation, Regulation D) or the adoption or
making after such date of any interpretation, directive or request applying to a
class of banks including such Bank of or under any United States Federal, state
or foreign law or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
52
9
"Restricted Subsidiaries" shall mean SNG, Sonat Exploration and any
other Subsidiary of the Company which shall acquire or succeed to all or any
substantial part of the assets or the stock of any such Restricted Subsidiary
(in which case any references to any such Restricted Subsidiary in this
Agreement shall, mutatis mutandis, be deemed to refer to such other Subsidiary).
"Set Rate Auction" shall mean a solicitation of Money Market Quotes
setting forth Money Market Rates pursuant to ss.1.02 hereof.
"Set Rate Loans" shall mean Money Market Loans the interest rates on
which are determined on the basis of Money Market Rates pursuant to a Set Rate
Auction.
"SNG" shall mean Southern Natural Gas Company, a wholly-owned
Subsidiary of the Company (except for directors' qualifying shares).
"Sonat Exploration" shall mean Sonat Exploration Company, a
wholly-owned Subsidiary of the Company (except for directors' qualifying
shares).
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇-▇▇▇▇ ▇▇▇▇ Companies.
"SPC" shall have the meaning provided in ss.8.09(b).
"Subsidiary" shall mean, as to any Person, any corporation, partnership
or other entity at least a majority of whose securities or other ownership
interests having ordinary voting power for the election of directors or other
persons performing similar functions of such corporation, partnership or entity
(other than securities or other ownership interests having such power only by
reason of the happening of a contingency) are at the same time owned by such
Person and/or one or more of its other Subsidiaries.
"SunTrust" shall mean SunTrust Bank, Atlanta, in its capacity as the
Documentation Agent.
"Swingline Account" shall mean the account of the Company maintained
with the Swingline Bank at its Lending Office which the Company and the
Swingline Lender shall designate as the Swingline Account for purposes of this
Agreement.
"Swingline Bank" shall mean SunTrust Bank, Atlanta, in its capacity as
the lender of Swingline Loans.
"Swingline Business Day" shall mean any day on which commercial banks
are not authorized or required to close in Atlanta, Georgia.
"Swingline Commitment" shall mean the obligation of the Swingline Bank
to make Swingline Loans pursuant to ss.1.03 hereof in an aggregate principal
amount at any one time outstanding up to but not exceeding $60,000,000.
53
10
"Swingline Loans" shall have the meaning assigned to such term in
ss.1.03 hereof.
"Swingline Note" shall have the meaning assigned to such term in
ss.1.10(c) hereof.
"Syndicated Loans" shall mean the loans provided for by ss.1.01 hereof.
"Syndicated Note" shall have the meaning assigned to such term in
ss.1.10(a) hereof.
"Termination Event" shall mean any event or condition which would
constitute grounds under ss.4042 of ERISA for the termination of, or for the
appointment of a trustee to administer, any Plan.
"Total Indebtedness" shall mean, for any Person, the aggregate unpaid
principal amount of the Indebtedness of such Person and its Consolidated
Subsidiaries (excluding Indebtedness of any Consolidated Subsidiary to such
Person or another such Consolidated Subsidiary and, except for the Company,
Indebtedness of such Person to any of its Consolidated Subsidiaries).
"Year 2000 Problem" shall mean for any Person the risk that computer
applications used by such Person may be unable to perform properly
date-sensitive functions involving certain dates after December 31, 1999.
54
SCHEDULE 2
LENDING OFFICES
AND/OR
ADDRESSES FOR NOTICES
1. SONAT INC.
Address for Notices:
AmSouth-Sonat Tower
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telex: 4955644
Answerback: SNGC UI
2. The Chase Manhattan Bank (as a Bank and as
Administrative Agent)
Lending Office for All Types of Loans:
The Chase Manhattan Bank
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Chase Manhattan Bank
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Loan and Agency Services
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Oil & Gas Group
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
55
2
Attention: Financial Products Money Market Management
6th Floor
Chase Securities Inc.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
3. Bank of America National Trust and Savings
Association (as a Bank and as Syndication Agent)
Lending Office for All Types of Loans:
Bank of America National Trust and Savings Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Bank of America National Trust and Savings Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Bank of America National Trust and Savings Association Three ▇▇▇▇▇
Center, ▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
56
3
4. SunTrust Bank, Atlanta (as a Bank,
as the Swingline Bank and as Documentation Agent)
Lending Office for All Types of Loans:
SunTrust Bank, Atlanta
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Address for Notices:
SunTrust Bank, Atlanta
P.O. Box 4418, Mail Code 120
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telex: 54220
Answerback: TruscoIntAtl
5. The Bank of Nova Scotia
Lending Office for All Types of Loans:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Address for Loan Documentation Matters:
The Bank of Nova Scotia
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
57
4
6. Credit Lyonnais, New York Branch
Lending Office for All Types of Loans
Credit Lyonnais, New York Branch
c/o Credit Lyonnais Houston Representative ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Credit Lyonnais, New York Branch
c/o Credit Lyonnais Houston Representative ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 6868674
Answerback: ▇▇ ▇▇▇ UN
7. Mellon Bank, N.A.
Lending Office for All Types of Loans:
Mellon Bank, N.A.
Three Mellon Bank Center
Loan Administration
Room 1203
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Supervisor
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Address for notices:
Mellon Bank, N.A.
One Mellon Bank Center
Room 4425
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
58
5
Address for Notices Regarding Money Market Loans
Mellon Bank, N.A.
One Mellon Bank Center
Capital Markets, Room 151-0400
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
8. AmSouth Bank
Lending Office for All Types of Loans:
AmSouth Bank
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
AmSouth Bank
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
9. Regions Bank
Lending Office for All Types of Loans
Regions Bank (Birmingham)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Regions Bank (Birmingham)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
59
6
10. The Bank of New York
Lending Office for All Types of Loans
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
11. Northern Trust
Lending Office for All Types of Loans
Northern Trust
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone:
Fax:
Address for Notices:
Northern Trust
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇-▇▇▇▇
12. SouthTrust Bank N.A.
Lending Office for All Types of Loans
SouthTrust Bank N.A.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone:
Fax:
60
7
Address for Notices:
SouthTrust Bank N.A.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
61
SCHEDULE 3
BANKS COMMITMENT
THE CHASE MANHATTAN BANK $ 45,000,000.00
BANK OF America National Trust and Savings Association 45,000,000.00
SUNTRUST BANK, ATLANTA 60,000,000.00
CREDIT LYONNAIS, NEW YORK BRANCH 45,000,000.00
THE BANK OF NOVA SCOTIA 30,000,000.00
MELLON BANK, N.A. 35,000,000.00
AMSOUTH BANK 30,000,000.00
THE BANK OF NEW YORK 30,000,000.00
REGIONS BANK 30,000,000.00
NORTHERN TRUST 25,000,000.00
SOUTHTRUST BANK N.A. 25,000,000.00
---------------
$400,000,000.00
62
EXHIBIT A-1
[Form of Note for Syndicated Loans]
PROMISSORY NOTE
$ , 19
-------------------- ----------- ---
New York, New York
FORVALUE RECEIVED, SONAT INC., a Delaware corporation (the "Company"),
hereby promises to pay to ___________ (the "Bank"), for account of its
respective Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the principal office of The Chase Manhattan Bank at ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal sum of _______
Dollars (or such lesser amount as shall equal the aggregate unpaid principal
amount of the Syndicated Loans made by the Bank to the Company under the Credit
Agreement), in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each
such Syndicated Loan, at such office, in like money and funds, for the period
commencing on the date of such Syndicated Loan until such Syndicated Loan shall
be paid in full, at the rates per annum and on the dates provided in the Credit
Agreement.
The date, amount, type, interest rate and maturity date of each
Syndicated Loan made by the Bank to the Company, and each payment made on
account of the principal thereof, shall be recorded by the Bank on its books
and, prior to any transfer of this Note, endorsed by the Bank on the schedule
attached hereto or any continuation thereof. The failure of the Bank to make any
notation or entry or any error in such a notation or entry shall not, however,
limit or otherwise affect any obligation of the Company under the Credit
Agreement or this Note.
This Note is one of the Notes referred to in the Credit Agreement (as
modified and supplemented and in effect from time to time, the "Credit
Agreement") dated as of January 20, 1999, among the Company, the banks named
therein and The Chase Manhattan Bank, as Administrative Agent, Bank of America
National Trust and Savings Association, as Syndication Agent, and SunTrust Bank,
Atlanta, as Documentation Agent, and evidences Syndicated Loans made by the Bank
thereunder. Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
63
2
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
SONAT INC.
By
-------------------------------
Title:
64
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described Credit
Agreement to the Company, on the dates, in the principal amounts, of the types,
bearing interest at the rates and maturing on the dates set forth below, subject
to the payments and prepayments of principal set forth below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
---- -------- ---- -------- -------- ------- -------- --------
65
EXHIBIT A-2
[Form of Note for Money Market Loans]
PROMISSORY NOTE
, 19
----------------- ---
New York, New York
FOR VALUE RECEIVED, SONAT INC., a Delaware corporation (the "Company"),
hereby promises to pay to (the "Bank"), for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the aggregate unpaid principal amount of the Money Market
Loans made by the Bank to the Company under the Credit Agreement, in lawful
money of the United States of America and in immediately available funds, on the
dates and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Money Market Loan, at such
office, in like money and funds, for the period commencing on the date of such
Money Market Loan until such Money Market Loan shall be paid in full, at the
rates per annum and on the dates provided in the Credit Agreement.
The date, amount, interest rate and maturity date of each Money Market
Loan made by the Bank to the Company, and each payment made on account of the
principal thereof, shall be recorded by the Bank on its books and, prior to any
transfer of this Note, endorsed by the Bank on the schedule attached hereto or
any continuation thereof. The failure of the Bank to make any notation or entry
or any error in such a notation or entry shall not, however, limit or otherwise
affect any obligation of the Company under the Credit Agreement or this Note.
This Note is one of the Notes referred to in the Credit Agreement (as
modified and supplemented and in effect from time to time, the "Credit
Agreement") dated as of January 20, 1999, among the Company, the banks named
therein and The Chase Manhattan Bank, as Administrative Agent, Bank of America
National Trust and Savings Association, as Syndication Agent, and SunTrust Bank,
Atlanta, as Documentation Agent, and evidences Money Market Loans made by the
Bank thereunder. Capitalized terms used in this Note have the respective
meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
66
2
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
SONAT INC.
By
----------------------------------
Title:
67
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described Credit
Agreement to the Company, on the dates, in the principal amounts, bearing
interest at the rates and maturing on the dates set forth below, subject to the
payments and prepayments of principal set forth below:
Principal
Date Amount Maturity Amount Unpaid
of of Interest Date of Paid or Principal Notation
Loan Loan Rate Loan Prepaid Amount Made by
---- --------- -------- -------- ------- --------- --------
68
EXHIBIT A-3
[Form of Note for Swingline Loans]
PROMISSORY NOTE
$ , 19
-------------------------- ----------- ---
New York, New York
FOR VALUE RECEIVED, SONAT INC., a Delaware corporation (the "Company"),
hereby promises to pay to SUNTRUST BANK, ATLANTA (the "Bank"), for account of
its respective Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the principal office of The Chase Manhattan Bank at ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal sum of Dollars
(or such lesser amount as shall equal the aggregate unpaid principal amount of
the Swingline Loans made by the Bank to the Company under the Credit Agreement),
in lawful money of the United States of America and in immediately available
funds, on the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of each such
Swingline Loan, at such office, in like money and funds, for the period
commencing on the date of such Swingline Loan until such Swingline Loan shall be
paid in full, at the rates per annum and on the dates provided in the Credit
Agreement.
The date, amount, type, interest rate and maturity date of each
Swingline Loan made by the Bank to the Company, and each payment made on account
of the principal thereof, shall be recorded by the Bank on its books and, prior
to any transfer of this Note, endorsed by the Bank on the schedule attached
hereto or any continuation thereof. The failure of the Bank to make any notation
or entry or any error in such a notation or entry shall not, however, limit or
otherwise affect any obligation of the Company under the Credit Agreement or
this Note.
This Note is one of the Notes referred to in the Credit Agreement (as
modified and supplemented and in effect from time to time, the "Credit
Agreement") dated as of January 20, 1999, among the Company, the banks named
therein and The Chase Manhattan Bank, as Administrative Agent, Bank of America
National Trust and Savings Association, as Syndication Agent, and SunTrust Bank,
Atlanta, as Documentation Agent, and evidences Swingline Loans made by the Bank
thereunder. Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
69
2
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
SONAT INC.
By
----------------------------------
Title:
70
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described Credit
Agreement to the Company, on the dates, in the principal amounts, of the types,
bearing interest at the rates and maturing on the dates set forth below, subject
to the payments and prepayments of principal set forth below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
---- --------- ---- -------- -------- ------- -------- --------
71
EXHIBIT B
[Form of Opinion of Special Counsel to the Company]
January , 1999
---
To the Banks party to the Agreement
referred to below and The Chase
Manhattan Bank, as Administrative
Agent, Bank of America National Trust and Savings Association,
as Syndication Agent and SunTrust Bank,
Atlanta, as Documentation
Agent
Dear Sirs:
We have acted as special counsel for Sonat Inc., a Delaware corporation
(the "Company"), in connection with the execution and delivery of the Credit
Agreement (the "Agreement") dated as of January 20, 1999, among the Company, the
Banks named therein and The Chase Manhattan Bank, as Administrative Agent, Bank
of America National Trust and Savings Association, as Syndication Agent and
SunTrust Bank, Atlanta, as Documentation Agent.
This opinion is delivered to you pursuant to ss.4.01(v) of the
Agreement. All capitalized terms not otherwise defined herein shall have the
meanings attributed to them in the Agreement.
In this connection, and as a basis for the opinions expressed below, we
have examined or relied upon originals or copies, certified or otherwise
identified to our satisfaction, of such records, instruments, certificates and
other documents, have made such inquiries as to questions of fact of officers
and representatives of the Company and have made such examinations of law as we
have deemed necessary or appropriate for purposes of giving the opinions
hereinafter expressed. As to certain matters in respect of the opinions
expressed in paragraphs 1 and 2 below, we have relied, with your permission,
solely on the opinion, a copy of which is attached hereto, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Executive Vice President and General Counsel.
In rendering the opinions expressed below, we have assumed that the
Agreement has been duly authorized, executed and delivered by each party thereto
other than the Company, that each party thereto other than the Company has the
requisite power and authority to execute, deliver and perform the Agreement, and
that such execution, delivery and performance by such other parties does not and
will not breach, conflict with or constitute a violation of the laws or
governmental rules or regulations of any jurisdiction.
Each of the opinions expressed below is restricted to matters
controlled or affected by Federal laws, the General Corporation Law of the State
of Delaware and the laws of the State of New York.
72
2
On the basis of the foregoing, it is our opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware
and is duly licensed or qualified to do business and is in good
standing in the States of Alabama, Texas and New York, constituting
those states which we have been advised are the states in which the
Company believes the conduct of its business or the ownership of its
assets requires such qualification, and the Company has the corporate
power to make the Agreement and the Notes and to borrow under the
Agreement.
2. The making and performance by the Company of the Agreement
and the Notes and borrowings under the Agreement have been duly
authorized by all necessary corporate action and do not and will not
contravene any provision of law applicable to the Company or of the
certificate of incorporation or by-laws of the Company or result in the
material breach of, or constitute a material default or require any
consent under, or result in the creation of any material lien, charge
or other security interest or encumbrance (except as may be required by
the Agreement) upon any property or assets of the Company pursuant to,
any indenture or other agreement or instrument to which the Company is
a party or by which the Company or any of its property may be bound or
affected.
3. No approval, license or consent of any governmental
regulatory body is requisite to the making and performance by the
Company of the Agreement or the execution, delivery and payment of the
Notes.
4. The Agreement and the Notes have been duly executed and
delivered by the Company and each constitutes a valid and binding
agreement of the Company enforceable in accordance with its terms
(subject to applicable bankruptcy, fraudulent conveyance, fraudulent
transfer, preferential transfer, insolvency, moratorium and other like
laws of general application affecting creditors' rights and to the
application of general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and fair
dealing and whether considered in a proceeding in equity or at law),
except that we express no opinion as to ss.2.06(c) of the Agreement.
In connection with the above, we wish to point out that provisions of
the Agreement which permit any Agent or any Bank to take action or make
determinations or allocations, or to benefit from indemnities and similar
undertakings of the Company, may be subject to a requirement that such action be
taken or such determinations or allocations be made, and that any action or
inaction by an Agent or a Bank which may give rise to a request for payment
under such an indemnity or similar undertaking be taken or not taken, on a
reasonable basis and in good faith.
73
3
We express no opinion with respect to:
(A) the effect of any provision of the Agreement which is intended to
permit modification thereof only by means of an agreement in writing by the
parties thereto;
(B) the effect of any provision of the Agreement imposing penalties or
forfeitures;
(C) the enforceability of any provision of the Agreement to the extent
that such provision constitutes a waiver of illegality as a defense to
performance of contract obligations; and
(D) the effect of any provision of the Agreement relating to
indemnification or exculpation in connection with violations of any securities
laws or relating to indemnification, contribution or exculpation in connection
with willful, reckless or criminal acts or gross negligence of the indemnified
or exculpated Person or the Person receiving contribution.
Very truly yours,
74
(ATTACHMENT TO
EXHIBIT B)
[Form of Opinion of General Counsel]
January , 1999
---
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
As Executive Vice President and General Counsel of Sonat Inc., a
Delaware corporation (the "Company"), I am familiar with the Credit Agreement
(the "Agreement") dated as of January 20, 1999, among the Company, the Banks
named therein and The Chase Manhattan Bank, as Administrative Agent, Bank of
America National Trust and Savings Association, as Syndication Agent and
SunTrust Bank, Atlanta, as Documentation Agent.
This opinion is delivered to you in connection with the opinion which
you are rendering pursuant to ss.4.01(v) of the Agreement. You may rely on this
opinion in rendering your opinion, you may attach a copy hereof to your opinion
and the Banks may rely on this opinion as if it were addressed to them. All
capitalized terms not otherwise defined herein shall have the meaning attributed
to them in the Agreement.
In this connection, and as a basis for the opinions expressed below, I
have examined or relied upon originals or copies certified or otherwise
identified to my satisfaction, of such records, instruments, certificates and
other documents, have made inquiries as to questions of fact of officers and
representatives of the Company and have made such examinations of law as I have
deemed necessary or appropriate for purposes of giving the opinions hereinafter
expressed.
On the basis of the foregoing, it is my opinion that:
1. The Company is duly licensed or qualified to do business
and is in good standing in the States of Alabama, Texas and New York,
constituting those states in which the Company believes the conduct of
its business or the ownership of its assets requires such
qualification.
2. The making and performance by the Company of the Agreement
and the Notes and borrowings under the Agreement do not and will not
contravene any provision of law of the State of Alabama or the United
States applicable to the Company by virtue of the nature of its or any
of its Subsidiaries' businesses or of the properties owned or leased by
any of them or result in the material breach of, or constitute a
material default or require any consent under, or result in the
creation of any material lien, charge or other security interest or
encumbrance upon any property or assets of the Company pursuant to, any
indenture or other agreement or instrument to which the Company is a
party or by which the Company or any of its property may be bound or
affected.
75
2
3. The Company is not an "investment company" or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
4. Neither the Company nor any of its Subsidiaries is subject
to regulation under the Public Utility Holding Company Act of 1935, as
amended.
Very truly yours,
76
EXHIBIT C
[Form of Opinion of Special Counsel
to the Banks and the Agents]
January , 1999
---
To the Banks currently party to the
Credit Agreement referred to below and
listed on Schedule 1 attached hereto;
The Chase Manhattan Bank, as Administrative
Agent, Bank of America National Trust and Savings Association,
as Syndication Agent and SunTrust Bank,
Atlanta, as Documentation
Agent
Gentlemen:
We have acted as your special counsel in connection with the Credit
Agreement (the "Credit Agreement") dated as of January 20, 1999, among Sonat
Inc. (the "Company"), the Banks named therein and The Chase Manhattan Bank, as
Administrative Agent, Bank of America National Trust and Savings Association, as
Syndication Agent and SunTrust Bank, Atlanta, as Documentation Agent. Terms
defined in the Credit Agreement are used herein as defined therein.
We have assumed for purposes of our opinion hereinafter set forth that
(1) the Credit Agreement is a valid and legally binding obligation of each of
the Banks and that the Credit Agreement has been duly authorized, executed and
delivered by the Company, each Bank and each Agent, (2) the Company is duly
incorporated and validly existing under the laws of the State of Delaware and
has full power, authority and legal right to make and perform the Credit
Agreement and the Notes and that such execution, delivery and performance by the
Company does not contravene its certificate of incorporation or by-laws or
violate, or require any consent not obtained under, any applicable law or
regulation or any order, writ, injunction or decree of any court or other
governmental authority and does not violate, or require any consent not obtained
under, any contractual obligation applicable to or binding upon the Company and
(3) the Company is not an "investment company" within the meaning of and subject
to regulation under the Investment Company Act of 1940.
We have examined (i) a copy of the Credit Agreement signed by the
Company, each Bank and each Agent, (ii) a copy of the Notes delivered on the
date hereof and (iii) a copy of the opinion letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Company, addressed to you and dated the date hereof in respect
of the Credit Agreement together with the opinion of the Executive Vice
President and General Counsel of the Company, attached thereto. We have assumed
the genuineness of all signatures, the authenticity of documents submitted to us
as originals, the conformity with the originals of all documents submitted to us
as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
77
2
Based upon the foregoing and subject to the comments and qualifications
set forth below, we are of the opinion that the Credit Agreement constitutes,
and the Notes when executed and delivered for value (assuming due execution and
delivery by the Company) will constitute, valid and binding obligations of the
Company enforceable in accordance with their respective terms, except as the
foregoing may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing, and except that we express no opinion as to ss.2.06(c) of the Credit
Agreement.
We express no opinion in respect to:
(A) the effect of any provision of the Credit Agreement which is
intended to permit modification thereof only by means of an agreement in writing
by the parties thereto;
(B) the effect of any provisions of the Credit Agreement imposing
penalties or forfeitures;
(C) the enforceability of any provision of the Credit Agreement to the
extent that such provision constitutes a waiver of illegality as a defense to
performance of contract obligations; and
(D) the effect of any provision of the Credit Agreement relating to
indemnification or exculpation in connection with violations of any securities
laws or relating to indemnification, contribution or exculpation in connection
with willful, reckless or criminal acts or gross negligence of the indemnified
or exculpated Person or the Person receiving contribution.
We are members of the Bar of the State of New York and do not herein
intend to express any opinion as to any matters governed by any laws other than
the law of the State of New York and the Federal law of the United States of
America.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent.
Very truly yours,
78
EXHIBIT D
[Form of Money Market Quote Request]
[Date]
To: [Bank]
From: Sonat Inc.
Re: Money Market Quote Request
Pursuant to ss.1.02 of the Credit Agreement (the "Credit Agreement")
dated as of January 20, 1999, among Sonat Inc., the banks named therein and The
Chase Manhattan Bank, as Administrative Agent, Bank of America National Trust
and Savings Association, as Syndication Agent and SunTrust Bank, Atlanta, as
Documentation Agent, we hereby give notice that we request Money Market Quotes
for the following proposed Money Market Borrowing(s):
Borrowing Quotation Interest
Date Date [1] Amount [2] Period [3]
---- -------- ---------- ----------
Money Market Quotes responding to this Money Market Quote Request must
be submitted to us not later than [time and date] [4].
Terms used herein have the meanings assigned to them in the Credit
Agreement.
SONAT INC.
By
------------------------
Title:
--------------------
[1] For use if a Money Market Rate in a Set Rate Auction is requested to be
submitted before the Borrowing Date.
[2] Each amount must be $25,000,000 or a larger multiple of $5,000,000.
[3] A period of up to 180 days after the making of such Set Rate Loan and
ending on a Business Day.
[4] Insert time and date determined pursuant to ss.1.02(c)(i).
79
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF JANUARY 20,
1999 AMONG SONAT INC., THE BANKS NAMED HEREIN, THE CHASE MANHATTAN BANK, AS
ADMINISTRATIVE AGENT, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, AS
SYNDICATION AGENT AND SUNTRUST BANK, ATLANTA, AS DOCUMENTATION AGENT.
[Form of Money Market Quote]
To: Sonat Inc.
Attention:
Re: Money Market Quote to Sonat Inc. (the
"Borrower")
This Money Market Quote is given in accordance with ss.1.02(c) of the
Credit Agreement (the "Credit Agreement") dated as of January 20, 1999, among
the Borrower, the banks named therein and The Chase Manhattan Bank, as
Administrative Agent, Bank of America National Trust and Savings Association, as
Syndication Agent and SunTrust Bank, Atlanta, as Documentation Agent. Terms
defined in the Credit Agreement are used herein as defined therein.
In response to the Borrower's invitation dated ____________, 19__, we
hereby make the following Money Market Quote(s) on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Money Market Loan(s)
in the following principal amount[s], for the following
Interest Period(s) and at the following rate(s):
Borrowing Quotation Interest
Date Date [1] Amount [2] Period [3] Rate [4]
---- -------- ---------- ---------- --------
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate[s] us to make the Money Market Loan(s) for which any
offer(s) (is/are) accepted, in whole or in part (subject to the third sentence
of ss.1.02(d) of the Credit Agreement).
Very truly yours,
[Name of Bank]
By
------------------------------
Authorized Officer
2
80
3
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF JANUARY 20,
1999 AMONG SONAT INC., THE BANKS NAMED HEREIN, THE CHASE MANHATTAN BANK, AS
ADMINISTRATIVE AGENT, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, AS
SYNDICATION AGENT AND SUNTRUST BANK, ATLANTA, AS DOCUMENTATION AGENT.
Dated: ,
---------------
--------------------------
[1] As specified in the related Money Market Quote Request.
[2] The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000
or a larger multiple of $1,000,000.
[3] A period of up to 180 days after the making of such Set Rate Loan and
ending on a Business Day, as specified in the related Money Market
Quote Request.
[4] Specify rate of interest per annum (rounded to the nearest 1/10,000 of
1%).
3