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EXHIBIT 4.2
U.S. $1,700,000,000
CREDIT AGREEMENT
Dated as of July 25, 2000
among
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
as Borrower
THE BANKS NAMED HEREIN
as Banks
THE CHASE MANHATTAN BANK
and
COMMERZBANK AG
as Co-Syndication Agents
and
CREDIT LYONNAIS NEW YORK BRANCH
as Documentation Agent
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
as Arranger
and
CITIBANK, N.A.
as Agent
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENTS............................................................................................1
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS.........................................................................1
Section 1.1 Certain Defined Terms..................................................................1
Section 1.2 Computation of Time Periods...........................................................14
Section 1.3 Accounting Terms......................................................................15
Section 1.4 Miscellaneous.........................................................................15
Section 1.5 Ratings...............................................................................15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES.......................................................................15
Section 2.1 The A Advances........................................................................15
Section 2.2 Making the A Advances.................................................................16
Section 2.3 Fees..................................................................................18
Section 2.4 Reduction of the Commitments..........................................................18
Section 2.5 Repayment of A Advances...............................................................18
Section 2.6 Interest on A Advances................................................................18
Section 2.7 Additional Interest on Eurodollar Rate Advances.......................................19
Section 2.8 Interest Rate Determination...........................................................19
Section 2.9 Evidence of Debt......................................................................19
Section 2.10 Prepayments...........................................................................20
Section 2.11 Increased Costs.......................................................................21
Section 2.12 Illegality............................................................................22
Section 2.13 Payments and Computations.............................................................22
Section 2.14 Taxes.................................................................................24
Section 2.15 Sharing of Payments, Etc..............................................................26
Section 2.16 The B Advances........................................................................26
Section 2.17 Optional Termination..................................................................30
Section 2.18 Extension of Termination Date.........................................................30
Section 2.19 Voluntary Conversion of Advances......................................................30
Section 2.20 Automatic Provisions..................................................................31
ARTICLE III
CONDITIONS..............................................................................................31
Section 3.1 Conditions Precedent to Initial Advances..............................................31
Section 3.2 Additional Conditions Precedent to Each A Borrowing...................................32
Section 3.3 Conditions Precedent to Each B Borrowing..............................................32
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TABLE OF CONTENTS
(CONTINUED)
Page
ARTICLE IV
REPRESENTATIONS AND WARRANTIES..........................................................................33
Section 4.1 Representations and Warranties of the Borrower........................................33
ARTICLE V
COVENANTS OF THE BORROWER...............................................................................36
Section 5.1 Affirmative Covenants.................................................................36
Section 5.2 Negative Covenants....................................................................40
ARTICLE VI
EVENTS OF DEFAULT.......................................................................................43
Section 6.1 Events of Default.....................................................................43
ARTICLE VII
THE AGENT, CO-SYNDICATION AGENTS AND DOCUMENTATION AGENT
.......................................................................................................46
Section 7.1 Authorization and Action..............................................................46
Section 7.2 Agent's Reliance, Etc.................................................................46
Section 7.3 Citibank, Chase, Commerzbank, Credit Lyonnais.........................................47
Section 7.4 Bank Credit Decision..................................................................47
Section 7.5 Indemnification.......................................................................47
Section 7.6 Successor Agent.......................................................................48
Section 7.7 Co-Syndication Agents; Documentation Agent............................................48
ARTICLE VIII
MISCELLANEOUS...........................................................................................48
Section 8.1 Amendments, Etc.......................................................................48
Section 8.2 Notices, Etc..........................................................................49
Section 8.3 No Waiver; Remedies...................................................................49
Section 8.4 Costs and Expenses....................................................................49
Section 8.5 Right of Set-off......................................................................50
Section 8.6 Binding Effect; Transfers.............................................................51
Section 8.7 Governing Law.........................................................................54
Section 8.8 Interest..............................................................................54
Section 8.9 Execution in Counterparts.............................................................54
Section 8.10 Survival of Agreements, Representations and Warranties, Etc...........................55
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TABLE OF CONTENTS
(CONTINUED)
Page
Section 8.11 Borrower's Right to Apply Deposits....................................................55
Section 8.12 Confidentiality.......................................................................55
Section 8.13 WAIVER OF JURY TRIAL..................................................................56
Section 8.14 Miscellaneous.........................................................................56
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Schedules and Exhibits
Schedule I - Bank Information
Schedule II - Borrower Information
Schedule III - Permitted Liens
Schedule IV - Commitments
Schedule V - Rating Categories
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-2 - Notice of B Borrowing
Exhibit C - Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
Exhibit D - Opinion of Special Counsel to Agent
Exhibit E - Existing Loans and Investments in WCG Subsidiaries
Exhibit F - Form of Transfer Agreement
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CREDIT AGREEMENT
This Credit Agreement, dated as of July 25, 2000 (as may be amended,
modified, supplemented, renewed, extended or restated from time to time, this
"Agreement"), is by and among THE ▇▇▇▇▇▇▇▇ COMPANIES, INC., a Delaware
corporation ("TWC" or the "Borrower"); the various banks as are or may become
parties hereto (collectively, the "Banks"); THE CHASE MANHATTAN BANK and
COMMERZBANK AG, as Co-Syndication Agents, (in such capacity, together with any
successors in such capacity, the "Co-Syndication Agents"); CREDIT LYONNAIS NEW
YORK BRANCH, as Documentation Agent (in such capacity, together with any
successors in such capacity, the "Documentation Agent"); and CITIBANK, N.A., as
Agent (in such capacity, together with any successors in such capacity, the
"Agent"). In consideration of the mutual covenants and agreements contained
herein, the Borrower, the Agent and the Banks hereby agree as set forth herein.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower desires to obtain Commitments from the Banks
pursuant to which A Advances, on the terms and conditions and in the amounts set
forth herein, will be made to the Borrower from time to time prior to the
Termination Date; and
WHEREAS, the Banks are willing, on the terms and subject to the
conditions hereinafter set forth (including Article III), to extend such
Commitments and make such A Advances to the Borrower; and
WHEREAS, the Borrower may from time to time request B Advances pursuant
to the terms and conditions and in the amounts set forth herein, and one or more
Banks may (but are not obligated to) make such B Advances;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Advance" means an advance by a Bank to the Borrower as part
of an A Borrowing and refers to a Base Rate Advance or a Eurodollar
Rate Advance, each of which shall be a "Type" of A Advance.
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"A Borrowing" means a borrowing consisting of simultaneous A
Advances of the same Type to the Borrower made by each of the Banks
pursuant to Section 2.1.
"A Note" means a promissory note of the Borrower payable to
the order of any Bank, in substantially the form of Exhibit A-1 hereto,
(as such note may be amended, endorsed or otherwise modified from time
to time) delivered at the request of such Bank pursuant to Section 2.9
or 8.6, together with any other note accepted from time to time in
substitution or replacement therefor.
"Advance" means an A Advance or a B Advance.
"Agent" means Citibank, N.A. in its capacity as agent pursuant
to Article VII hereof and any successor Agent pursuant to Section 7.6.
"Agreement" has the meaning specified in the Preamble.
"American Soda" means American Soda, L.L.P., a Colorado
limited liability partnership.
"Applicable Commitment Fee Rate" means the rate per annum set
forth on Schedule V under the heading "Applicable Commitment Fee Rate"
for the relevant Rating Category applicable to the Borrower from time
to time. The Applicable Commitment Fee Rate shall change when and as
the relevant Rating Category applicable to the Borrower changes.
"Applicable Lending Office" means, with respect to each Bank,
such Bank's Domestic Lending Office in the case of a Base Rate Advance
and such Bank's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance and, in the case of a B Advance, the office of such Bank
notified by such Bank to the Agent as its Applicable Lending Office
with respect to such B Advance.
"Applicable Margin" means, as to any Eurodollar Rate Advance,
the rate per annum set forth in Schedule V under the heading
"Applicable Margin" for the relevant Rating Category applicable to the
Borrower from time to time. The Applicable Margin for any Eurodollar
Rate Advance shall change when and as the relevant applicable Rating
Category changes.
"Arranger" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
"Attributable Obligation" of any Person means, with respect to
any Sale and Lease- Back Transaction of such Person as of any
particular time, the present value at such time discounted at the rate
of interest implicit in the terms of the lease of the obligations of
the lessee under such lease for net rental payments during the
remaining term of the lease (including any period for which such lease
has been extended or may, at the option of such Person, be extended).
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"B Advance" means an advance by a Bank to the Borrower as part
of a B Borrowing resulting from the auction bidding procedure described
in Section 2.16.
"B Borrowing" means a borrowing consisting of simultaneous B
Advances to the Borrower from each of the Banks whose offer to make one
or more B Advances as part of such borrowing has been accepted by the
Borrower under the auction bidding procedure described in Section 2.16.
"B Note" means a promissory note of the Borrower payable to
the order of any Bank, in substantially the form of Exhibit A-2 hereto,
delivered at the request of such Bank pursuant to Sections 2.9, 2.16 or
8.6.
"B Reduction" has the meaning specified in Section 2.1.
"Banks" means the lenders listed on the signature pages hereof
and each other Person that becomes a Bank pursuant to the last sentence
of Section 8.6(a).
"Base Rate" means a fluctuating interest rate per annum as
shall be in effect from time to time which rate per annum shall at all
times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; or
(b) 1/2 of one percent per annum above the Federal Funds Rate
in effect from time to time.
"Base Rate Advance" means an A Advance which bears interest as
provided in Section 2.6(a).
"Borrower" means The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware
corporation.
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances or relates to any
B Advance as to which the related Notice of B Borrowing is delivered
pursuant to clause (B) of Section 2.16(a)(i), on which dealings are
carried on in the London interbank market.
"Cash Holdings" of any Person means the total investment of
such Person at the time of determination in:
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(a) demand deposits and time deposits maturing within
one year with a Bank (or other commercial banking institution
of the stature referred to in clause (d)(i));
(b) any note or other evidence of indebtedness,
maturing not more than one year after such time, issued or
guaranteed by the United States Government or by a government
of another country which carries a long-term rating of Aaa by
Moody's or AAA by S&P;
(c) commercial paper, maturing not more than nine
months from the date of issue, which is issued by
(i) a corporation (other than an affiliate
of the Borrower) and rated (x) A-1 by S&P, P-1 by
Moody's or F-1 by Fitch or (y) lower than set forth
in clause (x) above, provided that the value of all
such commercial paper shall not exceed 10% of the
total value of all commercial paper comprising "Cash
Holdings," or
(ii) any Bank (or its holding company) with
a rating on its unsecured long term debt of at least
AA by S&P or Aa by Moody's;
(d) any certificate of deposit or bankers acceptance,
maturing not more than three years after such time, which is
issued by either
(i) a commercial banking institution that is
a member of the Federal Reserve System and has a
combined capital and surplus and undivided profits of
not less than $1,000,000,000, or
(ii) any Bank with a rating on its unsecured
long term debt of at least AA by S&P or Aa by
Moody's;
(e) notes or other evidences of indebtedness maturing
not more than three years after such time, issued by
(i) a corporation (other than an affiliate
of the Borrower) rated AA by S&P or Aa by Moody's, or
(ii) any Bank (or its holding company) with
a rating on its unsecured long term debt of at least
AA by S&P or Aa by Moody's;
(f) any repurchase agreement entered into with any
Bank (or other commercial banking institution of the stature
referred to in clause (d)(i)) which
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(i) is secured by a fully perfected security
interest in any obligation of the type described in
any of clauses (a) through (d), and
(ii) has a market value at the time such
repurchase agreement is entered into of not less than
100% of the repurchase obligation of such Bank (or
other commercial banking institution) thereunder; and
(g) money market preferred instruments by
participation in a Dutch auction (or the equivalent) where the
investment is rated no lower than Aa by Moody's or AA by S&P.
"Chase" means The Chase Manhattan Bank.
"Citibank" means Citibank, N.A.
"Code" means, as appropriate, the Internal Revenue Code of
1986, as amended, or any successor federal tax code, and any reference
to any statutory provision shall be deemed to be a reference to any
successor provision or provisions.
"Commerzbank" means Commerzbank AG.
"Commitment" of any Bank means at any time the amount set
opposite or deemed (pursuant to clause (vii) of the last sentence of
Section 8.6(a) and as reflected in the relevant Transfer Agreement
referred to in such sentence) to be set opposite such Bank's name on
Schedule IV as such amount may be terminated, reduced or increased
after the date hereof, pursuant to Section 2.4, Section 2.17, Section
6.1 or Section 8.6(a).
"Consolidated" refers to the consolidation of the accounts of
any Person and its subsidiaries in accordance with generally accepted
accounting principles; provided that, unless otherwise provided,
"Consolidated" shall mean the consolidation of the accounts of the
Borrower and its Subsidiaries and shall not include any accounts of the
WCG Subsidiaries; provided that for purposes of the Consolidated
financial statements required to be delivered pursuant to Sections
4.1(e), 5.1(b)(ii) and 5.1(b)(iii) and where otherwise provided, the
consolidation of the accounts of the Borrower and its subsidiaries
shall include the WCG Subsidiaries.
"Consolidated Net Worth" of any Person means the Net Worth of
such Person and its Subsidiaries on a Consolidated basis plus, in the
case of the Borrower, the Designated Minority Interests to the extent
not otherwise included; provided that, in no event shall the value
ascribed to Designated Minority Interests exceed $136,892,000 in the
aggregate.
"Consolidated Tangible Net Worth" of any Person means the
Tangible Net Worth of such Person and its Subsidiaries on a
Consolidated basis.
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"Consolidating" refers to, with respect to the balance sheets
and statements of income and cash flows required by Sections 4.1(e),
5.1(b)(ii) and 5.1(b)(iii), the consolidation of the accounts of the
Borrower and its subsidiaries in accordance with the following format:
(i) the WCG Subsidiaries, (ii) the Borrower and its subsidiaries (which
term does not include the WCG Subsidiaries), (iii) consolidation
adjustments, and (iv) Consolidated financial statements of the Borrower
and each of its subsidiaries, including the WCG Subsidiaries.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.2, Section 2.19 or Section 2.20.
"Co-Syndication Agent" means either of Chase or Commerzbank,
together with the successors and assigns of each in such capacity.
"Credit Lyonnais" means Credit Lyonnais New York Branch.
"Debt" means, in the case of any Person, (i) indebtedness of
such Person for borrowed money, (ii) obligations of such Person
evidenced by bonds, debentures or notes, (iii) obligations of such
Person to pay the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of business), (iv) monetary obligations of such
Person as lessee under leases that are, in accordance with generally
accepted accounting principles, recorded as capital leases, (v)
obligations of such Person under guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (i) through (iv) of this definition and (vi) indebtedness or
obligations of others of the kinds referred to in clauses (i) through
(v) of this definition secured by any Lien on or in respect of any
property of such Person; provided, however, that Debt shall not include
any obligation under or resulting from any agreement referred to in
paragraph (y) of Schedule III; and provided further, it is the
understanding of the parties hereto that Debt shall not include any
monetary obligations or guaranties of monetary obligations of Persons
as lessee under leases that are, in accordance with generally accepted
accounting principles, recorded as operating leases.
"Designated Minority Interests" of the Borrower means, as of
any date of determination, the total of the minority interests in the
following Subsidiaries: (i) El Furrial, (ii) PIGAP II, (iii) Nebraska
Energy, (iv) Seminole, (v) American Soda, and (vi) other Subsidiaries,
as presented in the Consolidating balance sheet of the Borrower, in an
amount not to exceed in the aggregate $9,000,000 for such other
Subsidiaries not referred to in items (i) through (v); provided that
minority interests which provide for a stated preferred cumulative
return shall not be included in "Designated Minority Interests."
"Designating Bank" has the meaning specified in Section
8.6(d).
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"Documentation Agent" means Credit Lyonnais, together with its
successors and assigns in such capacity.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or pursuant to Section 8.6(a), or such
other office of such Bank as such Bank may from time to time specify to
the Borrower and the Agent.
"▇▇▇▇▇" means "Electronic Data Gathering, Analysis and
Retrieval" system, a database maintained by the Securities and Exchange
Commission containing electronic filings of issuers of certain
securities.
"El Furrial" means WilPro Energy Services (El Furrial)
Limited, a Cayman Islands corporation.
"Environment" shall have the meaning set forth in 42 U.S.C.
9601(8) or any successor statute and "Environmental" shall mean
pertaining or relating to the Environment.
"Environmental Protection Statute" shall mean any United
States local, state or federal, or any foreign, law, statute,
regulation, order, consent decree or other agreement or Governmental
Requirement arising from or in connection with or relating to the
protection or regulation of the Environment, including, without
limitation, those laws, statutes, regulations, orders, decrees,
agreements and other Governmental Requirements relating to the
disposal, cleanup, production, storing, refining, handling,
transferring, processing or transporting of Hazardous Waste, Hazardous
Substances or any pollutant or contaminant, wherever located.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) which is a member of a group of which the Borrower is a
member and which is under common control within the meaning of Section
414 of the Code and the regulations promulgated thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or pursuant to Section 8.6(a)
(or, if no such office is specified, its Domestic Lending Office) or
such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Agent.
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"Eurodollar Rate" means, for any Eurodollar Rate Advance
comprising part of the same A Borrowing for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Dow ▇▇▇▇▇ Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period. If for any reason such rate is not available, the
term "Eurodollar Rate" shall mean, for any Eurodollar Rate Advance
comprising part of the same A Borrowing for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Eurodollar Rate Advance" means an A Advance that bears
interest as provided in Section 2.6(b).
"Eurodollar Rate Reserve Percentage" of any Bank for any
Interest Period for any Eurodollar Rate Advance means the reserve
percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Bank with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.1.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"Fitch" means Fitch, Inc.
"Governmental Requirements" means all judgments, orders,
writs, injunctions, decrees, awards, laws, ordinances, statutes,
regulations, rules, franchises, permits, certificates, licenses,
authorizations and the like and any other requirements of any
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government or any commission, board, court, agency, instrumentality or
political subdivision thereof.
"Hazardous Substance" shall have the meaning set forth in 42
U.S.C. Section 9601(14) and shall also include each other substance
considered to be a hazardous substance under any Environmental
Protection Statute.
"Hazardous Waste" shall have the meaning set forth in 42
U.S.C. Section 6903(5) and shall also include each other substance
considered to be a hazardous waste under any Environmental Protection
Statute (including, without limitation 40 C.F.R. Section 261.3).
"Insufficiency" means, with respect to any Plan, the amount,
if any, by which the present value of the vested benefits under such
Plan exceeds the fair market value of the assets of such Plan allocable
to such benefits.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same A Borrowing, the period commencing on the
date of such A Advance or the date of the Conversion of any Base Rate
Advance into a Eurodollar Rate Advance and ending on the last day of
the period selected by the Borrower pursuant to the provisions below
and, thereafter, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last day of
the period selected by the Borrower pursuant to the provisions below.
The duration of each Interest Period shall be one, two, three or six
months, in each case as the Borrower may, upon notice received by the
Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select (it
being agreed that selection of a subsequent Interest Period for an
outstanding Eurodollar Rate Advance does not require that a Notice of A
Borrowing be given, inasmuch as no Advance is being requested or made
as a result of such selection); provided, however, that:
(i) Interest Periods commencing on the same date for A
Advances comprising part of the same A Borrowing shall be of
the same duration;
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last
day of such Interest Period shall be extended to occur on the
next succeeding Business Day, provided that if such extension
would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business
Day;
(iii) any Interest Period which begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
the calendar month in which it would have ended if there were
a numerically corresponding day in such calendar month; and
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(iv) the Borrower may not select any Interest Period that ends
after the Termination Date, and the Borrower may not select
any Interest Period if any Event of Default exists.
"Lien" means any mortgage, lien, pledge, charge, deed of
trust, security interest, encumbrance or other type of preferential
arrangement to secure or provide for the payment of any obligation of
any Person, whether arising by contract, operation of law or otherwise
(including, without limitation, the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title
retention agreement).
"Majority Banks" means at any time Banks having more than 50%
of the then aggregate unpaid principal amount of the A Advances
outstanding to Banks, or, if no such principal amount is then
outstanding, Banks having more than 50% of the principal amount of the
Commitments or, if no such principal amount is then outstanding and all
Commitments have terminated, Banks having more than 50% of the then
aggregate unpaid principal amount of the B Advances outstanding to
Banks (provided that for purposes of this definition and Sections 2.17,
6.1 and 7.1 neither the Borrower nor any Subsidiary or Related Party of
the Borrower, if a Bank, shall be included in (i) the Banks to which A
Advances or B Advances are owed or (ii) determining the aggregate
unpaid principal amount of the A Advances or the B Advances or the
amount of the Commitments). For purposes hereof, Advances made by an
SPC shall be considered Advances of its Designating Bank.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means an employee benefit plan as
defined in Section 3(2) of ERISA, other than a Multiemployer Plan,
subject to Title IV of ERISA to which the Borrower or any ERISA
Affiliate, and one or more employers other than the Borrower or an
ERISA Affiliate, is making or accruing an obligation to make
contributions or, in the event that any such plan has been terminated,
to which the Borrower or any ERISA Affiliate made or accrued an
obligation to make contributions during any of the five plan years
preceding the date of termination of such plan.
"Multiyear ▇▇▇▇▇▇▇▇ Credit Agreement" means that certain
Credit Agreement of even date herewith among The ▇▇▇▇▇▇▇▇ Companies,
Inc., NWP, TGPL and TGT, as Borrowers; the financial institutions party
thereto, as "Banks" thereunder; The Chase Manhattan Bank and
Commerzbank AG, as Co-Syndication Agents; Credit Lyonnais New York
Branch, as Documentation Agent; and Citibank, N.A. as Agent (as the
same may from time to time be amended, supplemented, restated or
otherwise modified).
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"Nebraska Energy" means Nebraska Energy, L.L.C., a Kansas
limited liability company.
"Net Debt" means for the Borrower as of any date of
determination, the excess of (x) the aggregate amount of all Debt of
the Borrower and its Subsidiaries on a Consolidated basis, excluding
Non-Recourse Debt, over (y) the sum of the Cash Holdings of the
Borrower and its Subsidiaries on a Consolidated basis.
"Net Worth" of any Person means, as of any date of
determination the excess of total assets of such Person over total
liabilities of such Person, total assets and total liabilities each to
be determined in accordance with generally accepted accounting
principles.
"Non-Recourse Debt" means Debt incurred by any non-material
Subsidiary which is a Non-Borrowing Subsidiary (as defined in the
Multiyear ▇▇▇▇▇▇▇▇ Credit Agreement) to finance the acquisition (other
than any acquisition from the Borrower or any Subsidiary) or
construction of a project, which Debt does not permit or provide for
recourse against the Borrower or any Subsidiary of the Borrower (other
than the Subsidiary that is to acquire or construct such project) or
any property or asset of the Borrower of any Subsidiary of the Borrower
(other than the property or assets of the Subsidiary that is to acquire
or construct such project). For purposes of this definition, a
"non-material Subsidiary" shall mean any Subsidiary of the Borrower,
which, as of the date of the most recent Consolidating balance sheet of
the Borrower delivered pursuant to Section 5.1 as described in clause
(ii) of the definition of "Consolidating," has total assets which
account for less than five percent (5%) of the total assets of the
Borrower and its Subsidiaries, as shown in the column described in
clause (ii) of the definition of "Consolidating" of such Consolidating
balance sheet; provided, that the total aggregate assets of the
non-material Subsidiaries shall not comprise more than ten percent
(10%) of the total assets of the Borrower and its Subsidiaries, as
shown in such column of such Consolidating balance sheet.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section
2.2(a).
"Notice of B Borrowing" has the meaning specified in Section
2.16(a).
"NWP" means Northwest Pipeline Corporation, a Delaware
corporation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Liens" means Liens specifically described on
Schedule III.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
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"PIGAP II" means WilPro Energy Services (PIGAP II) Limited, a
Cayman Islands corporation.
"Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) as defined in Section 3(2) of ERISA currently
maintained by, or in the event such plan has terminated, to which
contributions have been made or an obligation to make such
contributions has accrued during any of the five plan years preceding
the date of the termination of such plan by, the Borrower or any ERISA
Affiliate for employees of the Borrower or any ERISA Affiliate and
covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code.
"Public Filings" means the Borrower's annual report on Form
10-K/A for the year ended December 31, 1999, and the Borrower's
quarterly report on Form 10-Q for the quarter ended March 31, 2000.
"Rating Category" means, as to the Borrower, the relevant
category applicable to the Borrower from time to time as set forth on
Schedule V, which is based on the ratings (or lack thereof) of the
Borrower's senior unsecured long-term debt by S&P or Moody's. In the
event there is a split between the ratings of the Borrower's senior
unsecured long-term debt by S&P and ▇▇▇▇▇, "Rating Category" shall
mean, as to the Borrower, the relevant category applicable to the
Borrower from time to time as set forth on Schedule V, which is based
on the higher of the ratings of the Borrower's senior unsecured
long-term debt by S&P and ▇▇▇▇▇.
"Related Party" of any Person means any corporation,
partnership, joint venture or other entity of which more than 10% of
the outstanding capital stock or other equity interests having ordinary
voting power to elect a majority of the board of directors of such
corporation, partnership, joint venture or other entity or others
performing similar functions (irrespective of whether or not at the
time capital stock or other equity interests of any other class or
classes of such corporation, partnership, joint venture or other entity
shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person
or which owns at the time directly or indirectly more than 10% of the
outstanding capital stock or other equity interests having ordinary
voting power to elect a majority of the board of directors of such
Person or others performing similar functions (irrespective of whether
or not at the time capital stock or other equity interests of any other
class or classes of such corporation, partnership, joint venture or
other entity shall or might have voting power upon the occurrence of
any contingency); provided, however, that neither the Borrower nor any
Subsidiary of the Borrower shall be considered to be a Related Party of
the Borrower or any Subsidiary of the Borrower.
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc.
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"Sale and Lease-Back Transaction" of any Person means any
arrangement entered into by such Person or any Subsidiary of such
Person, directly or indirectly, whereby such Person or any Subsidiary
of such Person shall sell or transfer any property, whether now owned
or hereafter acquired, and whereby such Person or any Subsidiary of
such Person shall then or thereafter rent or lease as lessee such
property or any part thereof or other property which such Person or any
Subsidiary of such Person intends to use for substantially the same
purpose or purposes as the property sold or transferred.
"Seminole" means Seminole Pipeline Company, a Delaware
corporation.
"SPC" has the meaning specified in Section 8.6(d).
"Stated Termination Date" means July 24, 2001, or such later
date, if any as may be agreed to by the Borrower and the Banks pursuant
to Section 2.18.
"Subordinated Debt" means any Debt of the Borrower which is
effectively subordinated to the obligations of the Borrower hereunder
and under the Notes, if any.
"Subsidiary" of any Person means any corporation, partnership,
joint venture or other entity of which more than 50% of the outstanding
capital stock or other equity interests having ordinary voting power to
elect a majority of the board of directors of such corporation,
partnership, joint venture or other entity or others performing similar
functions (irrespective of whether or not at the time capital stock or
other equity interests of any other class or classes of such
corporation, partnership, joint venture or other entity shall or might
have voting power upon the occurrence of any contingency) is at the
time directly or indirectly owned by such Person. Notwithstanding the
above, in the case of the Borrower, "Subsidiary" shall not include the
WCG Subsidiaries, except that with respect to the Consolidated balance
sheet and related Consolidated statements of income and cash flows for
the Borrower referred to in Sections 4.1(e), 5.1(b)(ii) and 5.1(b)(iii)
and as otherwise specifically provided herein the term "Subsidiary"
used with respect to The Borrower shall include the WCG Subsidiaries.
"Tangible Net Worth" of any Person means, as of any date of
determination, the excess of total assets of such Person over total
liabilities of such Person, total assets and total liabilities each to
be determined in accordance with generally accepted accounting
principles, excluding, however, from the determination of total assets
(i) patents, patent applications, trademarks, copyrights and trade
names, (ii) goodwill, organizational, experimental, research and
development expense and other like intangibles, (iii) treasury stock,
(iv) monies set apart and held in a sinking or other analogous fund
established for the purchase, redemption or other retirement of capital
stock or Subordinated Debt, and (v) unamortized debt discount and
expense.
"Termination Date" means the earlier of (i) the Stated
Termination Date or (ii) the date of termination in whole of the
Commitments pursuant to Section 2.4, 2.17 or 6.1.
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"Termination Event" means (i) a "reportable event", as such
term is described in Section 4043 of ERISA (other than a "reportable
event" not subject to the provision for 30- day notice to the PBGC), or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a
"substantial employer," as such term is defined in Section 4001(a)(2)
of ERISA, or the incurrence of liability by the Borrower or any ERISA
Affiliate under Section 4064 of ERISA upon the termination of a Plan or
Multiple Employer Plan, or (iii) the distribution of a notice of intent
to terminate a Plan pursuant to Section 4041(a)(2) of ERISA or the
treatment of a Plan amendment as a termination under Section 4041 of
ERISA, or (iv) the institution of proceedings to terminate a Plan by
the PBGC under Section 4042 of ERISA, or (v) any other event or
condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer,
any Plan.
"TGPL" means Transcontinental Gas Pipe Line Corporation, a
Delaware corporation.
"TGT" means Texas Gas Transmission Corporation, a Delaware
corporation.
"Transfer Agreement" has the meaning specified in Section 8.6.
"TWC" is defined in the preface of this Agreement.
"Type" has the meaning set forth in the definition herein of A
Advance.
"Unrated" means that no senior unsecured long-term debt of the
Borrower is rated by S&P and no senior unsecured long-term debt of the
Borrower is rated by Moody's.
"WCG" means ▇▇▇▇▇▇▇▇ Communications Group, Inc., a Delaware
corporation.
"WCG Subsidiaries" means, collectively, WCG and any direct or
indirect Subsidiary of WCG.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary
of such Person all of the capital stock and other equity interests of
which is owned by such Person or any Wholly-Owned Subsidiary of such
Person.
"Withdrawal Liability" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
"WPC" means ▇▇▇▇▇▇▇▇ Gas Pipelines Central, Inc., a Delaware
corporation, formerly ▇▇▇▇▇▇▇▇ Natural Gas Company.
Section 1.2 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding."
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Section 1.3 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles, and each reference herein to "generally accepted
accounting principles" shall mean generally accepted accounting principles
consistent with those applied in the preparation of the financial statements
referred to in Section 4.1(e).
Section 1.4 Miscellaneous. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Article, Section, Schedule and Exhibit references are to Articles and Sections
of and Schedules and Exhibits to this Agreement, unless otherwise specified.
Section 1.5 Ratings. A rating, whether public or private, by S&P or
Moody's shall be deemed to be in effect on the date of announcement or
publication by S&P or Moody's, as the case may be, of such rating or, in the
absence of such announcement or publication, on the effective date of such
rating and will remain in effect until the announcement or publication of, or in
the absence of such announcement or publication, the effective date of, any
change in, or withdrawal or termination of, such rating. In the event the
standards for any rating by Moody's or S&P are revised, or any such rating is
designated differently (such as by changing letter designations to different
letter designations or to numerical designations), the references herein to such
rating shall be deemed to refer to the revised or redesignated rating for which
the standards are closest to, but not lower than, the standards at the date
hereof for the rating which has been revised or redesignated, all as determined
by the Majority Banks in good faith. Long-term debt supported by a letter of
credit, guaranty, insurance or other similar credit enhancement mechanism shall
not be considered as senior unsecured long-term debt. If either Moody's or S&P
has at any time more than one rating applicable to senior unsecured long-term
debt of the Borrower, the lowest such rating shall be applicable for purposes
hereof. For example, if Moody's rates some senior unsecured long-term debt of
the Borrower Ba1 and other such debt of the Borrower Ba2, the senior unsecured
long-term debt of the Borrower shall be deemed to be rated Ba2 by Moody's.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.1 The A Advances. Each Bank severally agrees, on the terms
and conditions hereinafter set forth, to make A Advances to the Borrower from
time to time on any Business Day during the period from the date hereof until
the Termination Date in an aggregate amount outstanding not to exceed at any
time such Bank's Commitment; provided that the aggregate amount of the
Commitments of the Banks shall, except for purposes of Section 2.3(a), be deemed
used from time to time to the extent of the aggregate amount of the B Advances
then outstanding to the Borrower and such deemed use of the aggregate amount of
such Commitments shall be applied to the Banks ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "B Reduction"). Each A Borrowing shall be in an aggregate
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amount not less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, and shall consist of A Advances of the same Type made to the Borrower
on the same day by the Banks ratably according to their respective Commitments.
Within the limits of each Bank's Commitment, the Borrower may borrow, prepay
pursuant to Section 2.10 and reborrow under this Section 2.1.
Section 2.2 Making the A Advances. (a) Each A Borrowing shall be made
on notice, given not later than (1) in the case of a proposed Borrowing
comprised of Eurodollar Rate Advances, 11:00 A.M. (New York City time) at least
three Business Days prior to the date of the proposed Borrowing, and (2) in the
case of a proposed Borrowing comprised of Base Rate Advances, 10:00 A.M. (New
York City time) on the date of the proposed Borrowing, by the Borrower to the
Agent, which shall give to each Bank prompt notice thereof by telecopy, telex or
cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be
by telephone, confirmed immediately in writing, or by telecopy, telex or cable
in substantially the form of Exhibit B-1 hereto, executed by the Borrower and
specifying therein the requested (i) date of such A Borrowing (which shall be a
Business Day), (ii) initial Type of A Advances comprising such A Borrowing,
(iii) aggregate amount of such A Borrowing, and (iv) in the case of an A
Borrowing comprised of Eurodollar Rate Advances, initial Interest Period for
each such A Advance. Each Bank shall, before 11:00 A.M. (New York City time) on
the date of such A Borrowing, make available for the account of its Applicable
Lending Office to the Agent at its New York address referred to in Section 8.2,
in same day funds, such Bank's ratable portion of such A Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower at the Agent's aforesaid address.
(b) Anything herein to the contrary notwithstanding:
(i) at no time shall there be outstanding to the Borrower more
than ten A Borrowings comprised of Eurodollar Rate Advances;
(ii) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than
$10,000,000;
(iii) if the Majority Banks shall notify the Agent that either
(A) the Eurodollar Rate for any Interest Period for any Eurodollar Rate
Advances will not adequately reflect the cost to such Banks of making
or funding their respective Eurodollar Rate Advances for such Interest
Period, or (B) that U.S. dollar deposits for the relevant amounts and
Interest Period for their respective Advances are not available to them
in the London interbank market, or it is otherwise impossible to have
Eurodollar Rate Advances, the Agent shall forthwith so notify the
Borrower and the Banks, whereupon (I) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance, and (II) the obligations of
the Banks to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Agent, at the request of the
Majority Banks, shall notify the Borrower and the Banks that the
circumstances causing such suspension no longer exist, and, except as
provided in Section 2.2(b)(v), each Advance comprising any requested A
Borrowing shall be a Base Rate Advance;
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(iv) if the Agent is unable to determine the Eurodollar Rate
for Eurodollar Rate Advances, the obligation of the Banks to make, or
to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Banks that the
circumstances causing such suspension no longer exist, and, except as
provided in Section 2.2(b)(v), each Advance comprising any requested A
Borrowing shall be a Base Rate Advance; and
(v) if the Borrower has requested a proposed A Borrowing
consisting of Eurodollar Rate Advances and as a result of circumstances
referred to in Section 2.2(b)(iii) or (iv) such A Borrowing would not
consist of Eurodollar Rate Advances, the Borrower may, by notice given
not later than 3:00 P.M. (New York City time) at least one Business Day
prior to the date such proposed A Borrowing would otherwise be made,
cancel such A Borrowing, in which case such A Borrowing shall be
canceled and no Advances shall be made as a result of such requested A
Borrowing, but the Borrower shall indemnify the Banks in connection
with such cancellation as contemplated by Section 2.2(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the
Borrower, except as set forth in Section 2.2(b)(v). In the case of any A
Borrowing which the related Notice of A Borrowing specifies is to be comprised
of Eurodollar Rate Advances, the Borrower shall indemnify each Bank against any
loss, cost or expense incurred by such Bank as a result of any failure to
fulfill on or before the date specified in such Notice of A Borrowing for such A
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund the A Advance to be made by such Bank as part of
such A Borrowing when such A Advance, as a result of such failure, is not made
on such date. A certificate in reasonable detail as to the basis for and the
amount of such loss, cost or expense submitted to the Borrower and the Agent by
such Bank shall be prima facie evidence of the amount of such loss, cost or
expense. If an A Borrowing which the related Notice of A Borrowing specifies is
to be comprised of Eurodollar Rate Advances is not made as an A Borrowing
comprised of Eurodollar Rate Advances as a result of Section 2.2(b), the
Borrower shall indemnify each Bank against any loss (excluding loss of profits),
cost or expense incurred by such Bank by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank prior to the time
such Bank is actually aware that such A Borrowing will not be so made to fund
the A Advance to be made by such Bank as part of such A Borrowing. A certificate
in reasonable detail as to the basis for and the amount of such loss, cost or
expense submitted to the Borrower and the Agent by such Bank shall be prima
facie evidence of the amount of such loss, cost or expense.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any A Borrowing that such Bank will not make available to the Agent
such Bank's ratable portion of such A Borrowing, the Agent may assume that such
Bank has made such portion available to the Agent on the date of such A
Borrowing in accordance with subsection (a) of this Section 2.2 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Bank shall not have
so made such ratable portion available to the Agent, such Bank and the Borrower
severally agree to repay to the Agent
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forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Agent, at (i) in the case of the Borrower,
the interest rate applicable at the time to A Advances comprising such A
Borrowing and (ii) in the case of such Bank, the Federal Funds Rate. If such
Bank shall repay to the Agent such corresponding amount, such amount so repaid
shall constitute such Bank's A Advance as part of such A Borrowing for purposes
of this Agreement.
(e) The failure of any Bank to make the A Advance to be made by it as
part of any A Borrowing shall not relieve any other Bank of its obligation, if
any, hereunder to make its A Advance on the date of such A Borrowing, but no
Bank shall be responsible for the failure of any other Bank to make the A
Advance to be made by such other Bank on the date of any A Borrowing.
Section 2.3 Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Agent for the
account of each Bank a commitment fee on the average daily unused (for the
purposes of this Section 2.3(a), B Advances shall not be considered to be usage
of any Commitment) portion of such Bank's Commitment to the Borrower from the
date hereof until the Termination Date at a rate per annum from time to time
equal to the Applicable Commitment Fee Rate from time to time, payable in
arrears on the last day of each March, June, September and December during the
term such Bank has any Commitment and on the Termination Date.
(b) Agent's Fees. The Borrower agrees to pay to the Agent, for its sole
account, such fees as may be separately agreed to in writing by the Borrower and
the Agent.
Section 2.4 Reduction of the Commitments. The Borrower shall have the
right, upon at least five Business Days notice to the Agent, to terminate in
whole or reduce ratably in part the unused portions of the respective
Commitments of the Banks; provided that each partial reduction shall be in the
aggregate amount of at least $10,000,000; and provided further, that the
aggregate amount of the Commitments of the Banks shall not be reduced to an
amount which is less than the aggregate principal amount of the Advances then
outstanding to the Borrower.
Section 2.5 Repayment of A Advances. The Borrower shall repay, on the
Stated Termination Date or such earlier date as the Notes may be declared due
pursuant to Article VI, the unpaid principal amount of each A Advance made by
each Bank to the Borrower.
Section 2.6 Interest on A Advances. The Borrower shall pay interest on
the unpaid principal amount of each A Advance made by each Bank to the Borrower
from the date of such A Advance until such principal amount shall be paid in
full, at the following rates per annum:
(a) Base Rate Advances. At such times as such A Advance is a Base Rate
Advance, a rate per annum equal at all times to the Base Rate in effect from
time to time, payable quarterly in arrears on the last day of each March, June,
September and December and on the date such Advance shall be Converted or paid
in full; provided that any amount of principal of any Base Rate Advance,
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interest, fees and other amounts payable hereunder (other than principal of any
Eurodollar Rate Advance) which is not paid when due (whether at stated maturity,
by acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to the sum of the Base Rate in effect from time to
time plus 2% per annum.
(b) Eurodollar Rate Advances. At such times as such A Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such A Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Margin in effect from time to time for such
A Advance, payable on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day which occurs during
such Interest Period every three months from the first day of such Interest
Period; provided that any amount of principal of any Eurodollar Rate Advance
which is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest, from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate per annum equal at all
times to the sum of the rate per annum required to be paid on such A Advance at
such time plus 2% per annum.
Section 2.7 Additional Interest on Eurodollar Rate Advances. The
Borrower shall pay to each Bank, so long as such Bank shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid principal amount of
each Eurodollar Rate Advance of such Bank, from the date of such Advance until
such principal amount is paid in full, at an interest rate per annum equal at
all times to the remainder obtained by subtracting (i) the Eurodollar Rate for
the Interest Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage of such Bank for such Interest Period, payable on each date
on which interest is payable on such Advance. Such additional interest shall be
determined by such Bank and notified to the Borrower through the Agent. A
certificate as to the amount of such additional interest submitted to the
Borrower and the Agent by such Bank shall be conclusive and binding for all
purposes, absent manifest error. No Bank shall have the right to recover any
additional interest pursuant to this Section 2.7 for any period more than 90
days prior to the date such Bank notifies the Borrower that additional interest
may be charged pursuant to this Section 2.7.
Section 2.8 Interest Rate Determination. The Agent shall give prompt
notice to the Borrower and the Banks of the applicable interest rate for each
Eurodollar Rate Advance determined by the Agent for purposes of Section 2.6(b).
Section 2.9 Evidence of Debt.
(a) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of the Borrower to such Bank
resulting from each A Advance and B Advance made by such Bank, including the
amounts of principal and interest payable and paid to such Bank from time to
time hereunder.
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(b) The Agent shall maintain accounts in which it shall record (i) the
amount of each Advance made hereunder, the Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Bank hereunder and (iii)
the amount of any sum received by the Agent hereunder for the account of the
Banks and each Bank's share thereof.
(c) The entries made in good faith in the accounts maintained pursuant
to paragraph (a) or (b) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein absent manifest error;
provided that the failure of any Bank or the Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Advances in accordance with the terms of this Agreement.
(d) Any Bank may request that the A Advances or any B Advance made by
it be evidenced by a Note. In such event, the Borrower shall prepare, execute
and deliver to such Bank a Note or Notes payable to the order of such Bank.
Thereafter, the Advances evidenced by such Note and interest thereon shall at
all times (including after assignment pursuant to Section 8.6) be represented by
one or more Notes payable to the order of the payee named therein.
Section 2.10 Prepayments.
(a) The Borrower shall not have any right to prepay any principal
amount of any A Advance, except as provided in this Section 2.10.
(b) The Borrower shall (i) in respect of Base Rate Advances, upon
notice to the Agent before 10:00 A.M. (New York City time) on the date of
prepayment and (ii) in respect of Eurodollar Rate Advances, upon at least three
Business Days' notice to the Agent, in each case stating the proposed date
(which shall be a Business Day) and aggregate principal amount of the
prepayment, prepay the outstanding principal amounts of the A Advances
comprising part of the same A Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount
prepaid and amounts, if any, required to be paid pursuant to Section 8.4(b) as a
result of such prepayment; provided, however, that each partial prepayment
pursuant to this Section 2.10(b) shall be in an aggregate principal amount not
less than $5,000,000 and in an aggregate principal amount such that after giving
effect thereto (1) no A Borrowing comprised of Base Rate Advances shall have a
principal amount outstanding of less than $5,000,000 and (2) no A Borrowing
comprised of Eurodollar Rate Advances shall have a principal amount outstanding
of less than $10,000,000.
(c) The Borrower will give notice to the Agent, at or before the time
of each prepayment by the Borrower of Advances, pursuant to this Section 2.10
specifying the Advances which are to be prepaid and the amount of such
prepayment to be applied to such Advances. Each payment of any Advance pursuant
to this Section 2.10 or any other provision of this Agreement shall be made in a
manner such that all Advances comprising part of the same Borrowing are paid in
whole or ratably in part.
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Section 2.11 Increased Costs.
(a) If, due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements included in
the Eurodollar Rate Reserve Percentage) in or in the interpretation, application
or applicability of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental or monetary
authority (whether or not having the force of law), there shall be any increase
in the cost to any Bank of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances to the Borrower, then the Borrower shall from time to
time, upon demand by such Bank (with a copy of such demand to the Agent), pay to
the Agent for the account of such Bank additional amounts sufficient to
compensate such Bank for such increased cost. A certificate as to the amount of
such increased cost, submitted to the Borrower and the Agent by such Bank, shall
be prima facie evidence of the amount of such increased cost. No Bank shall have
the right to recover any such increased costs for any period more than 90 days
prior to the date such Bank notifies the Borrower of any such introduction,
change, compliance or proposed compliance.
(b) If any Bank determines that compliance with any law or regulation
or any guideline or request from any central bank or other governmental or
monetary authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such Bank
or any corporation controlling such Bank and that the amount of such capital is
increased by or based upon the existence of such Bank's commitment to lend to
the Borrower hereunder and other commitments of this type, then, upon demand by
such Bank (with a copy of such demand to the Agent), the Borrower shall
immediately pay to the Agent for the account of such Bank, from time to time as
specified by such Bank, additional amounts sufficient to compensate such Bank or
such corporation in the light of such circumstances, to the extent that such
Bank reasonably determines such increase in capital to be allocable to the
existence of such Bank's commitment to lend hereunder. A certificate as to the
amount of such additional amounts, submitted to the Borrower and the Agent by
such Bank, shall be prima facie evidence of the amount of such additional
amounts. No Bank shall have any right to recover any additional amounts under
this Section 2.11(b) for any period more than 90 days prior to the date such
Bank notifies the Borrower of any such compliance.
(c) In the event that any Bank makes a demand for payment under
Sections 2.7, Section 2.14 or this Section 2.11, the Borrower may within ninety
(90) days of such demand, if no Event of Default or event which, with the giving
of notice or lapse of time or both, would constitute an Event of Default then
exists, replace such Bank with another commercial bank in accordance with all of
the provisions of the last sentence of Section 8.6(a) (including execution of an
appropriate Transfer Agreement); provided that (i) all obligations of such Bank
to lend hereunder shall be terminated and the Notes payable to such Bank and all
other obligations owed to such Bank hereunder shall be purchased in full without
recourse at par plus accrued interest at or prior to such replacement, (ii) such
replacement bank (unless such replacement bank is already a Bank prior to such
replacement) shall be reasonably satisfactory to the Agent, (iii) such
replacement bank shall, from and after such replacement, be deemed for all
purposes to be a "Bank" hereunder with a Commitment in the amount of the
Commitment of such Bank immediately prior to such replacement (plus, if such
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replacement bank is already a Bank prior to such replacement the respective
Commitment of such Bank to the Borrower prior to such replacement), as such
amount may be changed from time to time pursuant hereto, and shall have all of
the rights, duties and obligations hereunder of the Bank being replaced, and
(iv) such other actions shall be taken by the Borrower, such Bank and such
replacement bank as may be appropriate to effect the replacement of such Bank
with such replacement bank on terms such that such replacement bank has all of
the rights, duties and obligations hereunder as such Bank (including, without
limitation, execution and delivery of new Note(s) to such replacement bank if
requested by such replacement bank or if required pursuant to Section 2.9,
redelivery to the Borrower in due course of the Note(s) of the Borrower payable
to such Bank and specification of the information contemplated by Schedule I as
to such replacement bank).
(d) Before making any demand under this Section 2.11, each Bank agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost and would not, in the reasonable judgment of such Bank,
be otherwise disadvantageous to such Bank.
Section 2.12 Illegality. (a) Notwithstanding any other provision of
this Agreement, if any Bank shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation shall make it
unlawful, or that any central bank or other governmental or monetary authority
shall assert that it is unlawful, for any Bank or its Eurodollar Lending Office
to perform its obligations hereunder to make, or Convert a Base Rate Advance
into, a Eurodollar Rate Advance or to continue to fund or maintain any
Eurodollar Rate Advance, then, on notice thereof to the Borrower by the Agent,
(i) the obligation of each of the Banks to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Agent, at the request of
the Majority Banks, shall notify the Borrower and the Banks that the
circumstances causing such suspension no longer exist, and (ii) the Borrower
shall forthwith prepay in full all Eurodollar Rate Advances of all Banks then
outstanding together with all accrued interest thereon and all amounts payable
pursuant to Section 8.4(b), unless each Bank shall determine in good faith in
its sole opinion that it is lawful to maintain the Eurodollar Rate Advances made
by such Bank to the end of the respective Interest Periods then applicable
thereto or unless the Borrower, within five Business Days of notice from the
Agent, Convert all Eurodollar Rate Advances of all Banks then outstanding into
Base Rate Advances in accordance with Section 2.19.
(b) If legally permissible, before delivering any notice to the Agent
under this Section 2.12 regarding illegality of Eurodollar Rate Advances, each
Bank agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Eurodollar Lending
Office if the making of such a designation would avoid the need for, or reduce
the amount of, such increased cost and would not, in the reasonable judgment of
such Bank, be otherwise disadvantageous to such Bank.
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Section 2.13 Payments and Computations.
(a) The Borrower shall make each payment hereunder to be made by it not
later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars
to the Agent at its New York address referred to in Section 8.2 in same day
funds, without deduction, counterclaim or offset of any kind. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal, interest or commitment fees ratably (other than amounts payable
pursuant to Sections 2.2(c), 2.7, 2.11, 2.14, 2.16 or 8.4(b)) to the Banks for
the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Bank to such Bank for
the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. In no event shall any Bank be
entitled to share any fee paid to the Agent pursuant to Section 2.3(b), any
auction fee paid to the Agent pursuant to Section 2.16(a)(i) or any other fee
paid to the Agent, as such.
(b) [Intentionally Blank]
(c) (i) All computations of interest based on clause (a) of the
definition herein of Base Rate and of commitment fees shall be made by the Agent
on the basis of a year of 365 or 366 days, as the case may be, and (ii) all
computations of interest based on the Eurodollar Rate, the Federal Funds Rate or
clause (b) of the definition herein of Base Rate shall be made by the Agent, and
all computations of interest pursuant to Section 2.7 shall be made by a Bank, on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or commitment fees are payable. Each determination by the
Agent (or, in the case of Section 2.7, by a Bank) of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due by the Borrower to any Bank hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank
hereunder. If and to the extent the Borrower shall not have so made such payment
in full to the Agent, each Bank shall repay to the Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Agent, at the Federal Funds Rate.
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Section 2.14 Taxes.
(a) Any and all payments by the Borrower hereunder or under the Notes
shall be made, in accordance with Section 2.13, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings with respect thereto, and all liabilities with respect
thereto, excluding in the case of each Bank and the Agent, (i) taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Bank or the Agent (as the case may be) is organized or any
political subdivision thereof and (ii) taxes imposed as a result of a present or
former connection between such Bank or the Agent, as the case may be, and the
jurisdiction imposing such tax or any political subdivision thereof and, in the
case of each Bank, taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction of such Bank's Applicable Lending Office or any
political subdivision thereof, other than any such connection arising solely
from the Bank or Agent having executed or delivered, or performed its
obligations or received a payment under, or taken any other action related to
this Agreement (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Bank or the Agent, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.14) such Bank or the Agent, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made by the Borrower hereunder or under the
Notes executed by it or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or such Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrower will indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.14) owed and paid by such Bank or the Agent, as the case may be, and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Bank or the Agent, as the case may be, makes written demand therefor;
provided that, the Borrower shall have no liability pursuant to this clause (c)
of this Section 2.14 to indemnify a Bank or the Agent for Taxes or Other Taxes
which were paid by such Bank or the Agent more than ninety days prior to such
written demand for indemnification.
(d) In the event that a Bank or the Agent receives a written
communication from any governmental authority with respect to an assessment or
proposed assessment of any Taxes, such Bank or Agent shall promptly notify the
Borrower in writing and provide the Borrower with a copy
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of such communication. The Agent or a Bank's failure to provide a copy of such
communication to the Borrower shall not relieve the Borrower of any of its
obligations under Section 2.14(c).
(e) Within 30 days after the date of the payment of Taxes by or at the
direction of the Borrower, the Borrower will furnish to the Agent, at its
address referred to in Section 8.2, the original or a certified copy of a
receipt evidencing payment thereof. Should any Bank or the Agent ever receive
any refund, credit or deduction from any taxing authority to which such Bank or
the Agent would not be entitled but for the payment by the Borrower of Taxes as
required by this Section 2.14 (it being understood that the decision as to
whether or not to claim, and if claimed, as to the amount of any such refund,
credit or deduction shall be made by such Bank or the Agent, as the case may be,
in its reasonable judgment), such Bank or the Agent, as the case may be,
thereupon shall repay to the Borrower an amount with respect to such refund,
credit or deduction equal to any net reduction in taxes actually obtained by
such Bank or the Agent, as the case may be, and determined by such Bank or the
Agent, as the case may be, to be attributable to such refund, credit or
deduction.
(f) Each Bank organized under the laws of a jurisdiction outside the
United States shall on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank which is a party to this Agreement on
the date this Agreement becomes effective and on the date of the Transfer
Agreement pursuant to which it becomes a Bank is first effective in the case of
each other Bank, and from time to time thereafter as necessary or appropriate
(but only so long thereafter as such Bank remains lawfully able to do so),
provide each of the Agent and the Borrower with two original Internal Revenue
Service Forms W-8BEN or W-8ECI (or, in the case of a Bank that has provided a
certificate to the Agent that it is not (i) a "bank" as defined in Section
881(c)(3)(A) of the Internal Revenue Code, (ii) a ten-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the
Borrower or (iii) a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Internal Revenue Code), Internal
Revenue Service Form W-8BEN), or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Bank is exempt from or entitled
to a reduced rate of United States withholding tax on payments pursuant to this
Agreement or any other Loan Document or, in the case of a Bank that has
certified that it is not a "bank" as described above, certifying that such Bank
is a foreign corporation. If the forms provided by a Bank at the time such Bank
first becomes a party to this Agreement indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Bank provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such forms.
(g) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form, certificate or other document described
in subsection(f) of this Section 2.14 (other than if such failure is due to a
change in the applicable law, or in the interpretation or application thereof,
occurring after the date on which a form, certificate or other document
originally was required to be provided) such Bank shall not be entitled to
indemnification under subsection (a) or (c) of this Section 2.14 with respect to
Taxes imposed by the United States by reason of such
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failure; provided, however, that should a Bank become subject to Taxes because
of its failure to deliver a form, certificate or other document required
hereunder, the Borrower shall take such steps as such Bank shall reasonably
request to assist such Bank in recovering such Taxes.
(h) Any Bank claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Bank, be otherwise
materially disadvantageous to such Bank.
(i) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.14 shall survive the payment in full of principal and interest
hereunder and the termination of the Commitments.
(j) Notwithstanding any provision of this Agreement or the Notes, if
any, to the contrary, this Section 2.14 shall be the sole provision governing
indemnities and claims for taxes under this Agreement and the Notes, if any.
Section 2.15 Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary or involuntary, or through the exercise of any right
of set-off or otherwise) on account of the A Advances made by it (other than
pursuant to Sections 2.2(c), 2.7, 2.11, 2.14 or 8.4(b)) in excess of its ratable
share of payments on account of the A Advances obtained by all the Banks, such
Bank shall forthwith purchase from the other Banks such participations in the A
Advances owed to them as shall be necessary to cause such purchasing Bank to
share the excess payment ratably with each of them, provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Bank, such purchase from each Bank shall be rescinded and such Bank
shall repay to the purchasing Bank the purchase price to the extent of such
Bank's ratable share (according to the proportion of (i) the amount of the
participation purchased from such Bank as a result of such excess payment to
(ii) the total amount of such excess payment) of such recovery together with an
amount equal to such Bank's ratable share (according to the proportion of (i)
the amount of such Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. The
Borrower agrees that any Bank so purchasing a participation from another Bank
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Bank were the direct creditor of the
Borrower in the amount of such participation.
Section 2.16 The B Advances.
(a) Each Bank severally agrees that the Borrower may make B Borrowings
under this Section 2.16 from time to time on any Business Day during the period
from the date hereof until the earlier of (1) the Termination Date or (2) the
date occurring thirty (30) days prior to the Stated Termination Date in the
manner set forth below; provided that, following the making of each B Borrowing,
the aggregate amount of the Advances then outstanding to the Borrower shall not
exceed
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the aggregate amount of the Commitments of the Banks (computed without regard to
any B Reduction).
(i) The Borrower may request a B Borrowing under this Section
2.16 by delivering to the Agent, by telecopier, telex or cable,
confirmed immediately in writing, a notice of a B Borrowing (a "Notice
of B Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying the date and aggregate amount of the proposed B Borrowing,
the maturity date for repayment of each B Advance to be made as part of
such B Borrowing (which maturity date may not be earlier than the date
occurring 7 days after the date of such B Borrowing or later than the
earlier of (x) 6 months after the date of such B Borrowing or (y) the
Stated Termination Date), the interest payment date or dates relating
thereto, and any other terms to be applicable to such B Borrowing
(including, without limitation, the basis to be used by the Banks in
determining the rate or rates of interest to be offered by them as
provided in paragraph (ii) below and prepayment terms, if any, but
excluding any waiver or other modification to any of the conditions set
forth in Article III), not later than 10:00 A.M. (New York City time)
(A) at least one (1) Business Day prior to the date of the proposed B
Borrowing, if the Borrower shall specify in the Notice of B Borrowing
that the rates of interest to be offered by the Banks shall be fixed
rates per annum and (B) at least five (5) Business Days prior to the
date of the proposed B Borrowing, if the Borrower shall instead specify
in the Notice of B Borrowing the basis to be used by the Banks in
determining the rates of interest to be offered by them. The Agent
shall in turn promptly notify each Bank of each request for a B
Borrowing received by it from the Borrower by sending such Bank a copy
of the related Notice of B Borrowing. Each time that the Borrower gives
a Notice of B Borrowing, the Borrower shall pay to the Agent an auction
fee equal to $2000.
(ii) Each Bank may, if in its sole discretion it elects to do
so, irrevocably offer to make one or more B Advances to the Borrower as
part of such proposed B Borrowing at a rate or rates of interest
specified by such Bank in its sole discretion, by notifying the Agent
(which shall give prompt notice thereof to the Borrower), before 10:00
A.M. (New York City time) (x) on the date of such proposed B Borrowing,
in the case of a Notice of B Borrowing delivered pursuant to clause (A)
of paragraph (i) above, and (y) three Business Days before the date of
such proposed B Borrowing in the case of a Notice of B Borrowing
delivered pursuant to clause (B) of paragraph (i) above, of the minimum
amount and maximum amount of each B Advance which such Bank would be
willing to make as part of such proposed B Borrowing (which amounts
may, subject to the proviso to the first sentence of this Section
2.16(a), exceed such Bank's Commitment to the Borrower), the rate or
rates of interest therefor and such Bank's Applicable Lending Office
with respect to such B Advance; provided that if the Agent in its
capacity as a Bank shall, in its sole discretion, elect to make any
such offer, it shall notify the Borrower of such offer before 9:45 A.M.
(New York City time) on the date on which notice of such election is to
be given to the Agent by the other Banks. If any Bank wishes to request
a B Note in respect to its B Advance, such request shall be delivered
with the notice referred to in the preceding sentence. If any Bank
shall elect not to make such an offer, such Bank shall so notify the
Agent, before 10:00 A.M. (New York City time) on the date on which
notice of such election
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is to be given to the Agent by the other Banks, and such Bank shall not
be obligated to, and shall not, make any B Advance as part of such B
Borrowing; provided that the failure by any Bank to give such notice
shall not cause such Bank to be obligated to make any B Advance as part
of such proposed B Borrowing.
(iii) The Borrower shall, in turn, before 11:00 A.M. (New York
City time) (x) on the date of such proposed B Borrowing in the case of
a Notice of B Borrowing delivered pursuant to clause (A) of paragraph
(i) above and (y) three Business Days before the date of such proposed
B Borrowing in the case of a Notice of B Borrowing delivered pursuant
to clause (B) of paragraph (i) above, either
(A) cancel such B Borrowing by giving the Agent notice to that
effect, or
(B) accept one or more of the offers made by any Bank or Banks
pursuant to paragraph (ii) above, in order of the lowest to highest
rates of interest or margins (or, if two or more Banks bid at the same
rates of interest, and the amount of accepted offers is less than the
aggregate amount of such offers, the amount to be borrowed from such
Banks as part of such B Borrowing shall be allocated among such Banks
pro rata on the basis of the maximum amount offered by such Banks at
such rates or margin in connection with such B Borrowing), in any
aggregate amount up to the aggregate amount initially requested by the
Borrower in the relevant Notice of B Borrowing, by giving notice to the
Agent of the amount of each B Advance (which amount shall be equal to
or greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Agent on behalf of such
Bank for such B Advance pursuant to paragraph ii above) to be made by
each Bank as part of such B Borrowing, and reject any remaining offers
made by Banks pursuant to paragraph (ii) above by giving the Agent
notice to that effect.
(iv) If the Borrower notifies the Agent that such B Borrowing
is canceled pursuant to paragraph (iii)(A) above, the Agent shall give
prompt notice thereof to the Banks and such B Borrowing shall not be
made.
(v) If the Borrower accepts one or more of the offers made by
any Bank or Banks pursuant to paragraph (iii)(B) above, the Agent shall
in turn promptly notify (A) each Bank that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such B Borrowing and whether or not any offer or offers made by such
Bank pursuant to paragraph (ii) above have been accepted by the
Borrower, (B) each Bank that is to make a B Advance as part of such B
Borrowing, of the amount of each B Advance to be made by such Bank as
part of such B Borrowing, and (C) each Bank that is to make a B Advance
as part of such B Borrowing, upon receipt, that the Agent has received
forms of documents appearing to fulfill the applicable conditions set
forth in Article III. Each Bank that is to make a B Advance as part of
such B Borrowing shall, before 12:00 noon (New York City time) on the
date of such B Borrowing specified in the notice received from the
Agent pursuant to clause (A) of the preceding sentence or any later
time when such Bank shall have received notice from the Agent pursuant
to clause (C) of the preceding sentence, make
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available for the account of its Applicable Lending Office to the Agent
at its New York address referred to in Section 8.2 such Bank's portion
of such B Borrowing, in same day funds. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by the
Agent of such funds, the Agent will make such funds available to the
Borrower at the Agents aforesaid address. Promptly after each B
Borrowing the Agent will notify each Bank of the amount of the B
Borrowing, the consequent B Reduction and the dates upon which such B
Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount of not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof. The Borrower
agrees that it will not request a B Borrowing unless, upon the making of such B
Borrowing, the limitations set forth in the proviso to the first sentence of
Section 2.16(a) are complied with.
(c) Within the limits and on the conditions set forth in this Section
2.16, the Borrower may from time to time borrow under this Section 2.16, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.16; provided that a B Borrowing shall not be made by the Borrower within three
Business Days of the date of another B Borrowing.
(d) The Borrower shall repay to the Agent for the account of each Bank
which has made a B Advance to the Borrower, or each other holder of a B Note of
the Borrower, on the maturity date of each B Advance made to the Borrower (such
maturity date being that specified by the Borrower for repayment of such B
Advance in the related Notice of B Borrowing delivered pursuant to subsection
(a)(i) above and provided in the B Note, if any, evidencing such B Advance) the
then unpaid principal amount of such B Advance. The Borrower shall not have any
right to prepay any principal amount of any B Advance unless, and then only on
the terms specified by the Borrower for such B Advance in the related Notice of
B Borrowing delivered pursuant to subsection (a)(i) above and set forth in the B
Note evidencing such B Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of
each B Advance made to the Borrower from the date of such B Advance to the date
the principal amount of such B Advance is repaid in full, at the rate of
interest for such B Advance specified by the Bank making such B Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by the Borrower for such
B Advance in the related Notice of B Borrowing delivered pursuant to subsection
(a)(i) above, as provided in the B Note evidencing such B Advance.
(f) The indebtedness of the Borrower resulting from each B Advance made
to the Borrower as part of a B Borrowing shall, if requested by the Bank making
such B Advance, be evidenced by a separate B Note of the Borrower payable to the
order of the Bank making such B Advance.
(g) The failure of any Bank to make the B Advance to be made by it as
part of any B Borrowing shall not relieve any other Bank of its obligation, if
any, hereunder to make its B
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Advance on the date of such B Borrowing, but no Bank shall be responsible for
the failure of any other Bank to make the B Advance to be made by such other
Bank on the date of any B Borrowing.
Section 2.17 Optional Termination. Notwithstanding anything to the
contrary in this Agreement, if (i) any Person (other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Borrower or
of any Subsidiary of the Borrower) or two or more Persons acting in concert
(other than any group of employees of the Borrower or of any of its
Subsidiaries) shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of securities of the Borrower (or
other securities convertible into such securities) representing 35% or more of
the combined voting power of all securities of the Borrower entitled to vote in
the election of directors, other than securities having such power only by
reason of the happening of a contingency, or (ii) during any period of up to 24
consecutive months, commencing before or after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of the
Borrower or who were elected by individuals who at the beginning of such period
were such directors or by individuals elected in accordance with this clause
(ii) shall cease for any reason (other than as a result of death, incapacity or
normal retirement) to constitute a majority of the board of directors of the
Borrower, or (iii) any Person (other than the Borrower or a Wholly-Owned
Subsidiary of the Borrower) or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a merger or
purchase agreement with the Borrower pursuant to which such Person or Persons
shall have acquired the power to exercise, directly or indirectly, a controlling
influence over the management or policies of the Borrower; then the Agent shall
at the request, or may with the consent, of the Majority Banks, by notice of the
Borrower, declare all of the Commitments and the obligation of each Bank to make
Advances to be terminated, whereupon all of the Commitments and each such
obligation shall forthwith terminate, and the Borrower shall not have any
further right to borrow hereunder.
Section 2.18 Extension of Termination Date. By notice given to the
Agent and the Banks, at least thirty days but not more than sixty days before
the Stated Termination Date then in effect, the Borrower may request the Banks
to extend the Stated Termination Date for an additional period to a date which
is 364 days after the then current Stated Termination Date. Within thirty days
after receipt of such request, each Bank that agrees, in its sole and absolute
discretion, to so extend the Stated Termination Date shall notify the Borrower
and the Agent in writing that it so agrees, and if all Banks so agree the Stated
Termination Date shall be so extended.
Section 2.19 Voluntary Conversion of Advances. The Borrower may on any
Business Day, if no Event of Default then exists, upon notice (which shall be
irrevocable) given to the Agent not later than 11:00 A.M. (x) in the case of a
proposed Conversion into Eurodollar Rate Advances, on the third Business Day
prior to the date of the proposed conversion, and (y) in the case of a proposed
Conversion into Base Rate Advances, on the date of the proposed Conversion, and
subject to the provisions of Sections 2.2 and 2.12, Convert all Advances of one
Type comprising the same A Borrowing into Advances of the other Type; provided
that (i) no Conversion of any Eurodollar Rate Advances shall occur on a day
other than the last day of an Interest Period for such Eurodollar Rate Advances,
except as contemplated by Section 2.12, and (ii) Advances may not be Converted
into
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36
Eurodollar Rate Advances if the aggregate unpaid principal amount of the
Advances is less than $10,000,000. Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the A Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the Interest Period for each such
Advance.
Section 2.20 Automatic Provisions.
(a) If the Borrower shall fail to select the duration of any Interest
Period for Eurodollar Rate Advances in accordance with the provisions contained
in the definition of "Interest Period" in Section 1.1 and no Event of Default
shall exist, the Agent will forthwith so notify the Borrower and the Banks, and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, continue as Eurodollar Rate Advances with an Interest Period of
one month. If any Event of Default shall exist, such Advances shall convert into
Base Rate Advances on the last day of the then existing Interest Period.
(b) On the date on which the aggregate unpaid principal amount of the
Eurodollar Rate Advances of the Borrower shall be reduced to less than
$10,000,000, all of such Eurodollar Rate Advances shall automatically Convert
into Base Rate Advances.
ARTICLE III
CONDITIONS
Section 3.1 Conditions Precedent to Initial Advances. The obligation of
each Bank to make its initial Advance on or after the date hereof is subject to
the condition precedent that the Agent shall have received on or before the date
hereof, each dated on or before such date, in form and substance satisfactory to
the Agent and (except for the Notes, if any) in sufficient copies for each Bank:
(a) The A Notes executed by the Borrower to the order of each of the
respective Banks which has requested an A Note prior to the date hereof and this
Agreement executed by the Borrower.
(b) Certified copies of the resolutions of the Board of Directors, or
the Executive Committee thereof, of the Borrower authorizing the execution of
this Agreement and the Notes, to the extent such Notes may be requested by the
Banks.
(c) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying (i) that attached thereto are true and correct copies of the
Certificate of Incorporation and Bylaws of the Borrower, together with any
amendments thereto, and (ii) the names and true signatures of the officers of
the Borrower authorized to sign this Agreement, Notices of A Borrowing, Notices
of B Borrowing and any Notes to be executed by the Borrower and any other
documents to be delivered hereunder by the Borrower.
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(d) An opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, General Counsel of the
Borrower, substantially in the form of Exhibit C hereto and as to such other
matters as any Bank through the Agent may reasonably request.
(e) An opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the Agent,
substantially in the form of Exhibit D hereto.
(f) Evidence that principal and interest on all loans and advances
outstanding (if any) and on all accrued fees and other obligations owed by TWC
as borrower pursuant to that certain Second Amended and Restated Credit
Agreement dated as of January 24, 2000 among TWC, as borrower, the financial
institutions parties thereto (the "Prior Banks"), and Citibank, N.A., as agent
for the Prior Banks have been paid in full, which payments may be made with the
proceeds of the initial Borrowing.
(g) A certificate of an officer of the Borrower stating the respective
ratings by each of S&P and ▇▇▇▇▇'▇ of the senior unsecured long-term debt of the
Borrower as in effect on the date of this Agreement.
Section 3.2 Additional Conditions Precedent to Each A Borrowing. The
obligation of each Bank to make an A Advance on the occasion of any A Borrowing
(including the initial A Borrowing) shall be subject to the further conditions
precedent that on the date of such A Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of A Borrowing and the
acceptance by the Borrower of the proceeds of such A Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such A
Borrowing such statements are true):
(a) The representations and warranties contained in Section
4.1 pertaining to the Borrower and its Subsidiaries are correct on and
as of the date of such A Borrowing, before and after giving effect to
such A Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date,
(b) No event has occurred and is continuing, or would result
from such A Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both, and
(c) After giving effect to such A Borrowing and all other
Borrowings which have been requested on or prior to such date but which
have not been made prior to such date, the aggregate principal amount
of all Advances will not exceed the aggregate of the Commitments
(computed without regard to any B Reduction).
Section 3.3 Conditions Precedent to Each B Borrowing. The obligation of
each Bank which is to make a B Advance to the Borrower on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance as part of
such B Borrowing is subject to the further
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conditions precedent that (i) at or before the time required by paragraph (iii)
of Section 2.16(a), the Agent shall have received the written confirmatory
notice of such B Borrowing contemplated by such paragraph, (ii) on or before the
date of such B Borrowing, but prior to such B Borrowing, if the Bank making any
B Advance shall have requested a B Note pursuant to Section 2.16(a)(ii), the
Agent shall have received a B Note executed by the Borrower payable to the order
of such Bank for the B Advances to be made by such Bank as part of such B
Borrowing, in a principal amount equal to the principal amount of the B Advance
to be evidenced thereby and otherwise on such terms as were agreed to for such B
Advance in accordance with Section 2.16, and (iii) on the date of such B
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of B Borrowing and the acceptance by the Borrower of the
proceeds of such B Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such B Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.1 are
correct on and as of the date of such B Borrowing, before and after giving
effect to such B Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(b) No event has occurred and is continuing, or would result from such
B Borrowing or from the application of the proceeds therefrom, which constitutes
an Event of Default or which would constitute an Event of Default but for the
requirement that notice be given or time elapse or both;
(c) Following the making of such B Borrowing and all other Borrowings
to be made on the same day to the Borrower under this Agreement, the aggregate
principal amount of all Advances to the Borrower then outstanding will not
exceed the aggregate amount of the Commitments (computed without regard to any B
Reduction); and
(d) After giving effect to such B Borrowing and all other Borrowings
which have been requested on or prior to such date but which have not been made
prior to such date, the aggregate principal amount of all Advances will not
exceed the aggregate of the Commitments of the Banks (computed without regard to
any B Reduction).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is duly organized or validly formed, validly existing
and (if applicable) in good standing under the laws of the State of Delaware and
has all corporate or limited liability company powers and all governmental
licenses, authorizations, certificates, consents and approvals required to carry
on its business as now conducted in all material respects, except for those
licenses,
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authorizations, certificates, consents and approvals the failure to have which
could not reasonably be expected to have a material adverse effect on the
business, assets, condition or operation of the Borrower and its Subsidiaries
taken as a whole. Each material Subsidiary of the Borrower is duly organized or
validly formed, validly existing and (if applicable) in good standing under the
laws of its jurisdiction of incorporation or formation, except where the failure
to be so organized, existing and in good standing could not reasonably be
expected to have a material adverse effect on the business, assets, condition or
operations of the Borrower and its Subsidiaries taken as a whole. Each material
Subsidiary of the Borrower has all corporate or limited liability company powers
and all governmental licenses, authorizations, certificates, consents and
approvals required to carry on its business as now conducted in all material
respects, except for those licenses, authorizations, certificates, consents and
approvals the failure to have which could not reasonably be expected to have a
material adverse effect on the business, assets, condition or operation of the
Borrower and its Subsidiaries taken as a whole.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes, if any, delivered hereunder and the consummation of the
transactions contemplated by this Agreement are within the Borrower's corporate
or limited liability company powers, have been duly authorized by all necessary
corporate or limited liability company action, do not contravene (i) the
Borrower's charter, by-laws or formation agreement or (ii) law or any
contractual restriction binding on or affecting the Borrower and will not result
in or require the creation or imposition of any Lien prohibited by this
Agreement.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Borrower of this Agreement or
the Notes, if any, or the consummation of the transactions contemplated by this
Agreement.
(d) This Agreement has been duly executed and delivered by the
Borrower. This Agreement is the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms, except
as such enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally
and by general principles of equity. The A Notes, if any, are, and when executed
the B Notes, if any, will be, the legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms, except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and by general principles of equity.
(e) The Consolidated and Consolidating balance sheets of the Borrower
and its Subsidiaries as at December 31, 1999, and the related Consolidated and
Consolidating statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, copies of which have been furnished
to each Bank, and the Consolidated and Consolidating balance sheet of the
Borrower and its Subsidiaries as at March 31, 2000, and the related Consolidated
and Consolidating statements of income and cash flows of the Borrower and its
Subsidiaries for the three months then ended, duly certified by an authorized
financial officer of the Borrower, copies of
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40
which have been furnished to each Bank, fairly present, (in the case of such
balance sheets as at March 31, 2000, and such statements of income and cash
flows for the three months then ended, subject to year-end audit adjustments)
the Consolidated and Consolidating financial condition of the Borrower and its
Subsidiaries as at such dates and the Consolidated and Consolidating results of
operations of the Borrower and its Subsidiaries for the year and three month
period, respectively, ended on such dates, all in accordance with generally
accepted accounting principles consistently applied. Since March 31, 2000, there
has been no material adverse change in the condition or operations of the
Borrower or its Subsidiaries.
(f) Except as set forth in the Public Filings or as otherwise disclosed
in writing by the Borrower to the Banks and the Agent after the date hereof and
approved by the Majority Banks, there is no pending or, to the knowledge of the
Borrower, threatened action or proceeding affecting the Borrower or any material
Subsidiary of the Borrower (including any of the WCG Subsidiaries) before any
court, governmental agency or arbitrator, which could reasonably be expected to
materially and adversely affect the financial condition or operations of the
Borrower and its Subsidiaries taken as a whole or which purports to affect the
legality, validity, binding effect or enforceability of this Agreement or any
Note.
(g) No proceeds of any Advance has been or will be used for any purpose
or in any manner not permitted by Section 5.2(k).
(h) The Borrower is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Advance will be used to purchase or carry any such margin
stock (other than purchases of common stock expressly permitted by Section
5.2(k)) or to extend credit to others for the purpose of purchasing or carrying
any such margin stock. Following the application of the proceeds of each
Advance, not more than 25% of the value of the assets of the Borrower will be
represented by such margin stock and not more than 25% of the value of the
assets of the Borrower and its Subsidiaries (including the WCG Subsidiaries)
will be represented by such margin stock.
(i) The Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(j) No Termination Event has occurred or is reasonably expected to
occur with respect to any Plan that could reasonably be expected to have a
material adverse effect on the Borrower or any material Subsidiary of the
Borrower (including any material WCG Subsidiaries). Neither the Borrower nor any
ERISA Affiliate has received any notification that any Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA,
and the Borrower is not aware of any reason to expect that any Multiemployer
Plan is to be in reorganization or to be terminated within the meaning of Title
IV of ERISA that would have any material adverse effect on the Borrower, any
material Subsidiary of the Borrower (including any material WCG Subsidiaries) or
any ERISA Affiliate of the Borrower.
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(k) As of the date of this Agreement, the United States federal income
tax returns of the Borrower and its material Subsidiaries have been examined
through the fiscal year ended December 31, 1995. The Borrower and its
Subsidiaries have filed all United States Federal income tax returns and all
other material domestic tax returns which are required to be filed by them and
have paid, or provided for the payment before the same become delinquent of, all
taxes due pursuant to such returns or pursuant to any assessment received by the
Borrower or any such Subsidiary, other than those taxes contested in good faith
by appropriate proceedings. The charges, accruals and reserves on the books of
the Borrower and the material Subsidiaries of the Borrower in respect of taxes
are adequate.
(l) The Borrower is not a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," or a "public utility" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(m) Except as set forth in the Public Filings or as otherwise disclosed
in writing by the Borrower to the Banks and the Agent after the date hereof and
approved by the Majority Banks, the Borrower and its material Subsidiaries are
in compliance in all material respects with all Environmental Protection
Statutes to the extent material to their respective operations or financial
condition. Except as set forth in the Public Filings or as otherwise disclosed
in writing by the Borrower to the Banks and the Agent after the date hereof and
approved by the Majority Banks, the aggregate contingent and non-contingent
liabilities of the Borrower and its Subsidiaries (other than those reserved for
in accordance with generally accepted accounting principles and set forth in the
financial statements regarding the Borrower referred to in Section 4.1(e) and
delivered to each Bank and excluding liabilities to the extent covered by
insurance if the insurer has confirmed that such insurance covers such
liabilities or which the Borrower reasonably expects to recover from ratepayers)
which are reasonably expected to arise in connection with (i) the requirements
of Environmental Protection Statutes or (ii) any obligation or liability to any
Person in connection with any Environmental matters (including, without
limitation, any release or threatened release (as such terms are defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980) of
any Hazardous Waste, Hazardous Substance, other waste, petroleum or petroleum
products into the Environment) could not reasonably be expected to have a
material adverse effect on the business, assets, conditions or operations of the
Borrower and its Subsidiaries, taken as a whole. For purposes of this clause (m)
of Section 4.1, "Subsidiaries" shall be deemed to include WCG Subsidiaries.
ARTICLE V
COVENANTS OF THE BORROWER
Section 5.1 Affirmative Covenants. So long as any Note shall remain
unpaid, any Advance shall remain outstanding or any Bank shall have any
Commitment hereunder, the Borrower will, unless the Majority Banks shall
otherwise consent in writing:
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(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders (except where failure to comply could not
reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of the Borrower and its Subsidiaries taken as a
whole), such compliance to include, without limitation, the payment and
discharge before the same become delinquent of all taxes, assessments and
governmental charges or levies imposed upon it or any of its Subsidiaries or
upon any of its property or any property of any of its Subsidiaries, and all
lawful claims which, if unpaid, might become a Lien upon any property of it or
any of its Subsidiaries; provided that neither the Borrower nor any Subsidiary
of the Borrower shall be required to pay any such tax, assessment, charge, levy
or claim which is being contested in good faith and by proper proceedings and
with respect to which reserves in conformity with generally accepted accounting
principles, if required by such principles, have been provided on the books of
the Borrower or such Subsidiary, as the case may be.
(b) Reporting Requirements. Furnish to each of the Banks:
(i) as soon as possible and in any event within five days
after the occurrence of each Event of Default or each event which, with
the giving of notice or lapse of time or both, would constitute an
Event of Default, continuing on the date of such statement, a statement
of an authorized financial officer of the Borrower setting forth the
details of such Event of Default or event and the actions, if any,
which the Borrower has taken and proposes to take with respect thereto;
(ii) as soon as available and in any event not later than 60
days after the end of each of the first three quarters of each fiscal
year of the Borrower, the Consolidated and Consolidating balance sheets
of the Borrower and its Subsidiaries as of the end of such quarter and
the Consolidated and Consolidating statements of income and cash flows
of the Borrower and its Subsidiaries for the period commencing at the
end of the previous year and ending with the end of such quarter, all
in reasonable detail and duly certified (subject to year-end audit
adjustments) by an authorized financial officer of the Borrower as
having been prepared in accordance with generally accepted accounting
principles; provided that, if any financial statement referred to in
this clause (ii) of Section 5.1(b) is readily available on-line through
▇▇▇▇▇, the Borrower shall not be obligated to furnish copies of such
financial statement. An authorized financial officer of the Borrower
shall furnish a certificate (a) stating that he has no knowledge that
an Event of Default, or an event which, with notice or lapse of time or
both, would constitute an Event of Default has occurred and is
continuing or, if an Event of Default or such an event has occurred and
is continuing, a statement as to the nature thereof and the action, if
any, which the Borrower proposes to take with respect thereto, and (b)
showing in detail the calculation supporting such statement in respect
of Section 5.2(b); provided that, for purposes of clauses (b)(ii) and
(b) (iii) of this Section 5.1, "Subsidiaries," when used in relation to
a Consolidated balance sheet and the related statements of income and
cash flow, shall include the WCG Subsidiaries.
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(iii) as soon as available and in any event not later than 105
days after the end of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the Borrower and its
Subsidiaries, including therein Consolidated and Consolidating balance
sheets of the Borrower and its Subsidiaries as of the end of such
fiscal year and Consolidated and Consolidating statements of income and
cash flows of the Borrower and its Subsidiaries for such fiscal year,
in each case prepared in accordance with generally accepted accounting
principles and certified by Ernst & Young, LLP or other independent
certified public accountants of recognized standing acceptable to the
Majority Banks; provided that if any financial statement referred to in
this clause (iii) of Section 5.1(b) is readily available on-line
through ▇▇▇▇▇, such Borrower shall not be obligated to furnish copies
of such financial statement. The Borrower shall also deliver in
conjunction with such financial statements, a certificate of such
accounting firm to the Banks (a) stating that, in the course of the
regular audit of the business of the Borrower and its Subsidiaries,
which audit was conducted by such accounting firm in accordance with
generally accepted auditing standards, such accounting firm has
obtained no knowledge that an Event of Default or an event which, with
notice or lapse of time or both, would constitute an Event of Default,
has occurred and is continuing, or if, in the opinion of such
accounting firm, an Event of Default or such an event has occurred and
is continuing, a statement as to the nature thereof, and (b) showing in
detail the calculations supporting such statement in respect of Section
5.2(b);
(iv) such other information respecting the business or
properties, or the condition or operations, financial or otherwise, of
the Borrower or any of its material Subsidiaries as any Bank through
the Agent may from time to time reasonably request;
(v) promptly after the sending or filing thereof, copies of
all proxy material, reports and other information which the Borrower
sends to any of its security holders, and copies of all final reports
and final registration statements which the Borrower or any material
Subsidiary of the Borrower files with the Securities and Exchange
Commission or any national securities exchange; provided that, if such
proxy materials and reports, registration statements and other
information are readily available on-line through ▇▇▇▇▇, the Borrower
or material Subsidiary shall not be obligated to furnish copies
thereof;
(vi) as soon as possible and in any event within 30 Business
Days after the Borrower or any ERISA Affiliate knows or has reason to
know (A) that any Termination Event described in clause (i) of the
definition of Termination Event with respect to any Plan has occurred
that could have a material adverse effect on the Borrower or any
material Subsidiary of the Borrower (including any material WCG
Subsidiary) or any ERISA Affiliate or (B) that any other Termination
Event with respect to any Plan has occurred or is reasonably expected
to occur that could have a material adverse effect on the Borrower or
any material Subsidiary of the Borrower (including any material WCG
Subsidiary) or any ERISA Affiliate, a statement of the chief financial
officer or chief accounting officer of the Borrower describing such
Termination Event and the action, if any, which the Borrower or such
Subsidiary or ERISA Affiliate proposes to take with respect thereto;
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(vii) promptly and in any event within 25 Business Days after
receipt thereof by the Borrower or any ERISA Affiliate, copies of each
notice received by the Borrower or any ERISA Affiliate from the PBGC
stating its intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
(viii) within 30 days following request therefor by any Bank,
copies of each Schedule B (Actuarial Information) to each annual report
(Form 5500 Series) of the Borrower or any ERISA Affiliate with respect
to each Plan;
(ix) promptly and in any event within 25 Business Days after
receipt thereof by the Borrower or any ERISA Affiliate from the sponsor
of a Multiemployer Plan, a copy of each notice received by the Borrower
or any ERISA Affiliate concerning (A) the imposition of a Withdrawal
Liability by a Multiemployer Plan, (B) the determination that a
Multiemployer Plan is, or is expected to be, in reorganization within
the meaning of Title IV of ERISA, (C) the termination of a
Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the
amount of liability incurred, or expected to be incurred, by the
Borrower or any ERISA Affiliate in connection with any event described
in clause (A), (B) or (C) above that, in each case, could have a
material adverse effect on the Borrower or any ERISA Affiliate;
(x) not more than 60 days (or 105 days in the case of the last
fiscal quarter of a fiscal year of the Borrower) after the end of each
fiscal quarter of the Borrower, a certificate of an authorized
financial officer of the Borrower stating the respective ratings, if
any, by each of S&P and ▇▇▇▇▇'▇ of the senior unsecured long-term debt
of the Borrower as of the last day of such quarter; and
(xi) promptly after any withdrawal or termination of any
letter of credit, guaranty, insurance or other credit enhancement
referred to in the second to last sentence of Section 1.5 or any change
in the indicated rating set forth therein or any change in, or
issuance, withdrawal or termination of, the rating of any senior
unsecured long-term debt of the Borrower by S&P or ▇▇▇▇▇'▇, notice
thereof.
(c) Maintenance of Insurance. Maintain, and cause each of its material
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or its Subsidiaries operate,
provided that the Borrower or any of its Subsidiaries may self-insure to the
extent and in the manner normal for companies of like size, type and financial
condition.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights, franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified, and cause each Subsidiary to
qualify and remain qualified, as a foreign corporation in each jurisdiction in
which qualification is necessary or desirable in view of its business and
operations or the ownership of its properties,
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except (i) in the case of any Subsidiary of the Borrower, where the failure of
such Subsidiary to so preserve, maintain, qualify and remain qualified could not
reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of the Borrower and its Subsidiaries taken as a
whole; (ii) in the case of the Borrower, where the failure of the Borrower to
preserve and maintain such rights, franchises and privileges and to so qualify
and remain qualified could not reasonably be expected to have a material adverse
effect on the business, assets, condition or operations of the Borrower and its
Subsidiaries taken as a whole, (iii) the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted pursuant to Section 5.2(c), and
(iv) the Borrower and any of its Subsidiaries may be converted into a limited
liability company by statutory election; provided that any such conversion of
the Borrower shall not affect its liabilities and obligations to the Banks
pursuant to this Agreement.
Section 5.2 Negative Covenants. So long as any Note shall remain
unpaid, any Advance shall remain outstanding or any Bank shall have any
Commitment hereunder, the Borrower will not, without the written consent of the
Majority Banks:
(a) Liens, Etc. Create, assume, incur or suffer to exist, or permit any
of its Subsidiaries to create, assume, incur or suffer to exist, any Lien on or
in respect of any of its property, whether now owned or hereafter acquired, or
assign or otherwise convey, or permit any such Subsidiary to assign or otherwise
convey, any right to receive income, in each case to secure or provide for the
payment of any Debt of any Person, except, that the Borrower may create, incur,
assume or suffer to exist Permitted Liens.
(b) Debt. Permit the ratio of (A) the aggregate amount of Net Debt of
the Borrower to (B) the sum of the Consolidated Net Worth of the Borrower plus
Net Debt of the Borrower to exceed 0.65 to 1.0 at any time.
(c) Merger and Sale of Assets. Merge or consolidate with or into any
other Person, or sell, lease or otherwise transfer all or substantially all of
its assets, or permit any of its material Subsidiaries to merge or consolidate
with or into any other Person, or sell, lease or otherwise transfer all or
substantially all of its assets, except that this Section 5.2(c) shall not
prohibit:
(i) the Borrower and its Subsidiaries from selling, leasing or
otherwise transferring their respective assets in the ordinary course
of business;
(ii) any merger, consolidation or sale, lease or other
transfer of assets involving only the Borrower and its Subsidiaries;
provided, however, that transactions under this paragraph (ii) shall be
permitted if, and only if, (x) there shall not exist or result an Event
of Default or an event which with notice or lapse of time or both would
constitute an Event of Default and (y) in the case of each transaction
referred to in this paragraph (ii) involving the Borrower or any of its
Subsidiaries, such transaction could not reasonably be expected to
impair materially the ability of the Borrower to perform its
obligations hereunder and under any Notes issued pursuant hereto and
the Borrower shall continue to exist;
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(iii) the Borrower and its Subsidiaries from selling, leasing
or otherwise transferring their respective gathering assets and other
production area facilities, or the stock of any Person substantially
all of the assets of which are gathering assets and other production
area facilities, to the Borrower or any Subsidiary of the Borrower for
consideration that is not materially less than the net book value of
such assets and facilities; provided, however, that transactions under
this paragraph (iii) shall be permitted if, and only if, there shall
not exist or such transaction shall not result in an Event of Default
or an event which with notice or lapse of time or both would constitute
an Event of Default; or
(iv) sales of receivables of any kind.
(d) Agreements to Restrict Dividends and Certain Transfers. Enter into
or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to
exist, any consensual encumbrance or restriction on the ability of any
Subsidiary of the Borrower (i) to pay, directly or indirectly, dividends or make
any other distributions in respect of its capital stock or pay any Debt or other
obligation owed to the Borrower or to any Subsidiary of the Borrower; or (ii) to
make loans or advances to the Borrower or any Subsidiary of the Borrower, except
(1) encumbrances and restrictions on any immaterial Subsidiary of the Borrower,
(2) those encumbrances and restrictions existing on the date hereof, and (3)
other customary encumbrances and restrictions now or hereafter existing of the
Borrower or any of its Subsidiaries entered into in the ordinary course of
business that are not more restrictive in any material respect than the
encumbrances and restrictions with respect to the Borrower or its Subsidiaries
existing on the date hereof.
(e) Loans and Advances Investments. Make or permit to remain
outstanding, or allow any of its Subsidiaries to make or permit to remain
outstanding, any loan or advance to, or own, purchase or acquire any obligations
or debt securities of, any WCG Subsidiary, except that the Borrower and its
Subsidiaries may permit to remain outstanding loans and advances to a WCG
Subsidiary existing as of the date hereof and listed on Exhibit E hereof (and
such WCG Subsidiaries may permit such loans and advances to remain outstanding).
Except for those investments in existence on the date hereof and listed on
Exhibit E hereof, the Borrower shall not, and shall not permit any of its
Subsidiaries to, acquire or otherwise invest in any stock or other equity or
other ownership interest in a WCG Subsidiary.
(f) Maintenance of Ownership of Certain Subsidiaries. Sell, issue or
otherwise dispose of, or create, assume, incur or suffer to exist any Lien on or
in respect of, or permit any of its Subsidiaries to sell, issue or otherwise
dispose of or create, assume, incur or suffer to exist any Lien on or in respect
of, any shares of or any interest in any shares of the capital stock of or other
ownership interests in (1) WPC, TGPL, TGT or NWP, or any of their respective
material Subsidiaries or (2) any Subsidiary of the Borrower at the time it owns
any shares of or any interest in any shares of the capital stock of or other
ownership interests in WPC, TGPL, TGT or NWP or any of their respective material
Subsidiaries; provided, however, that this Section 5.2(f) shall not prohibit the
sale or other disposition of the stock of any Subsidiary of the Borrower to the
Borrower or any Wholly-Owned Subsidiary of the Borrower if, but only if, (x)
there shall not exist or result an Event of Default or an event which with
notice or lapse of time or both would constitute an Event
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of Default and (y) in the case of each sale or other disposition referred to in
this proviso involving the Borrower or any of its Subsidiaries, such sale or
other disposition could not reasonably be expected to impair materially the
ability of the Borrower to perform its obligations hereunder and under the Notes
and the Borrower shall continue to exist. Nothing herein shall be construed to
permit the Borrower or any of its Subsidiaries to purchase shares, any interest
in shares or any ownership interest in a WCG Subsidiary except as permitted by
clause (e) of this Section 5.2.
(g) Compliance with ERISA. (i) Terminate, or permit any ERISA Affiliate
to terminate, any Plan so as to result in any material liability of the Borrower
or any ERISA Affiliate or any material Subsidiary (including any material WCG
Subsidiary) to the PBGC, or (ii) permit to exist any occurrence of any
Termination Event with respect to a Plan which would have a material adverse
effect on the Borrower or any material Subsidiary (including any material WCG
Subsidiary).
(h) Transactions with Related Parties. Make any sale to, make any
purchase from, extend credit to, make payment for services rendered by, or enter
into any other transaction with, or permit any material Subsidiary of the
Borrower to make any sale to, make any purchase from, extend credit to, make
payment for services rendered by, or enter into any other transaction with, any
Related Party of the Borrower or of such Subsidiary unless as a whole such
sales, purchases, extensions of credit, rendition of services and other
transactions are (at the time such sale, purchase, extension of credit,
rendition of services or other transaction is entered into) on terms and
conditions reasonably fair in all material respects to the Borrower or such
Subsidiary in the good faith judgment of the Borrower.
(i) Guarantees. After the date of this Agreement, enter into any
agreement to guarantee or otherwise become contingently liable for, or permit
any of its Subsidiaries to guarantee or otherwise become contingently liable
for, Debt or any other obligation of any WCG Subsidiary or to otherwise insure a
WCG Subsidiary against loss.
(j) Sale and Lease-Back Transactions. Enter into, or permit any of its
Subsidiaries to enter into, any Sale and Lease-Back Transaction, if after giving
effect thereto the Borrower would not be permitted to incur at least $1.00 of
additional Debt secured by a Lien permitted by paragraph (z) of Schedule III.
(k) Use of Proceeds. Use any proceeds of any Advance for any purpose
other than general corporate purposes relating to the business of the Borrower
and its Subsidiaries, excluding any WCG Subsidiary (including, without
limitation, working capital and capital expenditures), or use any such proceeds
in any manner which violates or results in a violation of law; provided,
however, that no proceeds of any Advance will be used to acquire any equity
security of a class which is registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended, (other than any purchase of common stock of
any corporation, if such purchase is not subject to Sections 13 and 14 of the
Securities Exchange Act of 1934 and is not opposed, resisted or recommended
against by such corporation or its management or directors, provided that the
aggregate amount of common stock of any corporation (other than Apco Argentina
Inc., a Cayman
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Islands corporation) purchased during any calendar year shall not exceed 1% of
the common stock of such corporation issued and outstanding at the time of such
purchase) or in any manner which contravenes law, and no proceeds of any Advance
will be used to purchase or carry any margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
except purchases by the Borrower of its capital stock if, after giving effect
thereto, none of the Advances would constitute purpose credit within the meaning
of such Regulation U. The Borrower may not use any Advance to make any loan or
advance to, or own, purchase or acquire any obligations or debt securities of,
any WCG Subsidiary or to acquire or otherwise invest in any stock or other
equity or other ownership interest in a WCG Subsidiary.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance or any
Note executed by it when the same becomes due and payable, or shall fail to pay
any interest on any Advance or on any Note or any fee or other amount to be paid
by it hereunder within ten days after the same becomes due and payable; or
(b) Any certification, representation or warranty made by the Borrower
herein or by the Borrower (or any officer of the Borrower) in writing under or
in connection with this Agreement or any instrument executed in connection
herewith (including, without limitation, representations and warranties deemed
made pursuant to Section 3.2 or 3.3) shall prove to have been incorrect in any
material respect when made or deemed made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5. 1 (b) on its part to be performed
or observed and such failure shall continue for ten Business Days after the
earlier of the date notice thereof shall have been given to the Borrower by the
Agent or any Bank or the date the Borrower shall have knowledge of such failure,
or (ii) any term, covenant or agreement contained in this Agreement (other than
a term, covenant or agreement contained in Section 5. 1 (b)) or any Note on its
part to be performed or observed and such failure shall continue for five
Business Days after the earlier of the date notice thereof shall have been given
to the Borrower by the Agent or any Bank or the date the Borrower shall have
knowledge of such failure; or
(d) The Borrower or any Subsidiary of the Borrower shall fail to pay
any principal of or premium or interest on any Debt which is outstanding in a
principal amount of at least $60,000,000 in the aggregate (excluding Debt
incurred pursuant to any Advance) of the Borrower and/or such Subsidiary (as the
case may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such
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Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt shall be declared
to be due and payable, or required to be prepaid (other than by a regularly
scheduled required prepayment or as required pursuant to an illegality event of
the type set forth in Section 2.12), prior to the stated maturity thereof;
provided, however, that the provisions of this Section 6.1(d) shall not apply to
any Non-Recourse Debt of any Subsidiary of the Borrower which is a Non-Borrowing
Subsidiary as defined in and pursuant to the Multiyear ▇▇▇▇▇▇▇▇ Credit
Agreement; or
(e) The Borrower or any material Subsidiary of the Borrower shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any material Subsidiary of the Borrower seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it), shall remain undismissed or unstayed for a period of
60 days; or the Borrower or any material Subsidiary of the Borrower shall take
any action to authorize any of the actions set forth above in this subsection
(e); or
(f) Any judgment or order for the payment of money in excess of
$60,000,000 shall be rendered against the Borrower or any material Subsidiary of
the Borrower and remain unsatisfied and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(g) Any Termination Event with respect to a Plan shall have occurred
and, 30 days after notice thereof shall have been given to the Borrower by the
Agent, (i) such Termination Event shall still exist and (ii) the sum (determined
as of the date of occurrence of such Termination Event) of the Insufficiency of
such Plan and the Insufficiency of any and all other Plans with respect to which
a Termination Event shall have occurred and then exist (or in the case of a Plan
with respect to which a Termination Event described in clause (ii) of the
definition of Termination Event shall have occurred and then exist, the
liability related thereto) is equal to or greater than $75,000,000; or
(h) The Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount which, when aggregated with all other
amounts required to be paid to Multiemployer Plans in connection with Withdrawal
Liabilities (determined as of the date of such notification), exceeds
$75,000,000 in the aggregate or requires payments exceeding $50,000,000 per
annum; or
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(i) The Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the aggregate annual
contributions of the Borrower and the ERISA Affiliates to all Multiemployer
Plans which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years which include the date hereof by an amount exceeding
$75,000,000;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of Banks owed more than 50% in principal amount of the A Advances then
outstanding or, if no A Advances are then outstanding, Banks having more than
50% of the principal amount of the Commitments, by notice to the Borrower,
declare all of the Commitments and the obligation of each Bank to make Advances
to be terminated, whereupon all of the Commitments and each such obligation
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of Banks owed more than 50% in principal amount of the A Advances then
outstanding or if no A Advances are then outstanding, Banks having more than 50%
of the principal amount of the Commitments, or, if no A Notes are then
outstanding and all Commitments have terminated, the Banks owed more than 50% in
principal amount of the B Advances then outstanding, by notice to the Borrower,
declare the principal of the Advances, all interest thereon and all other
amounts payable by the Borrower under this Agreement to be forthwith due and
payable, whereupon such principal of the Advances, such interest and all such
amounts shall become and be forthwith due and payable, without requirement of
any presentment, demand, protest, notice of intent to accelerate, further notice
of acceleration or other further notice of any kind (other than the notice
expressly provided for above), all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of any Event of Default described
in Section 6.1(e), (A) the obligation of each Bank to make Advances shall
automatically be terminated and (B) the principal of the Advances outstanding,
all such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration or any other notice of any kind, all of which are hereby
expressly waived by the Borrower. For purposes of this Section 6.1, any Advance
owed to an SPC shall be deemed to be owed to its Designating Bank.
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ARTICLE VII
THE AGENT, CO-SYNDICATION AGENTS AND DOCUMENTATION AGENT
Section 7.1 Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement (including, without
limitation, enforcement of the terms of this Agreement or collection of the
principal of, and interest on the Advances, fees and any other amounts due and
payable pursuant to this Agreement), the Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of Banks owed more than 50% of the principal
amount of the A Advances then outstanding or, if no A Advances are then
outstanding, Banks having more than 50% of the Commitments (or, if no A Advances
are then outstanding and all Commitments have terminated, upon the instructions
of Banks owed more than 50% of the principal amount of the B Advances then
outstanding), and such instructions shall be binding upon all Banks; provided,
however, that the Agent shall not be required to take any action which exposes
the Agent to personal liability or which is contrary to any Note, this Agreement
or applicable law. The Agent agrees to give to each Bank prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
Section 7.2 Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat a Bank
as the obligee of any Advance or, if applicable, the payee of any Note until the
Agent receives and accepts a Transfer Agreement executed by the Borrower (if
required pursuant to Section 8.6), the Bank which is the assignor Bank, and the
assignee in accordance with the last sentence of Section 8.6(a); (ii) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or to inspect the
property (including the books and records) of the Borrower; (v) shall not be
responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto (including a Note requested by
a Bank, delivered to a Bank pursuant to Section 8.6 or otherwise held by a
Bank); and (vi) shall incur no liability under or in respect of any, Note or
this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
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Section 7.3 Citibank, Chase, Commerzbank, Credit Lyonnais. With respect
to its Commitments, the Advances made by it and the Notes, if any, issued to it,
Citibank shall have the same rights and powers under such Note and this
Agreement as any other Bank and may exercise the same as though it was not the
Agent; with respect to its Commitments, the Advances made by it and the Notes,
if any, issued to it, each of Chase, Commerzbank and Credit Lyonnais shall have
the rights and powers under any Note and this Agreement as any other Bank and
may exercise the same as though it was not a Co-Syndication Agent or
Documentation Agent, as the case may be. The term "Bank" or "Banks" shall,
unless otherwise expressly indicated, include each of Citibank, Chase,
Commerzbank and Credit Lyonnais in its individual capacity. Citibank, Chase,
Commerzbank and Credit Lyonnais and the respective affiliates of each may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any Subsidiary of the
Borrower, any Person who may do business with or own, directly or indirectly,
securities of the Borrower or any such Subsidiary and any other Person, all as
if Citibank were not the Agent and Credit Lyonnais and Commerzbank were not the
Co- Syndication Agents and Credit Lyonnais were not the Documentation Agent
without any duty to account therefor to the Banks.
Section 7.4 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent, any Co-Syndication Agent, the
Documentation Agent, the Arranger or any other Bank and based on the financial
statements referred to in Section 4.1(e) and such other documents and
information as it has deemed appropriate. made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent, any Co-Syndication Agent, the
Documentation Agent, the Arranger or any other Bank and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under any Note or this
Agreement.
Section 7.5 Indemnification. The Banks agree to indemnify the Agent (to
the extent not reimbursed by the Borrower), ratably according to the respective
principal amounts of the A Advances then owed to each of them (or if no A
Advances are at the time outstanding or if any A Advances are held by Persons
which are not Banks, ratably according to either (i) the respective amounts of
their Commitments, or (ii) if all Commitments have terminated, the respective
amounts of the Commitments immediately prior to the time the Commitments
terminated), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement,
provided that no Bank shall be liable to the Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agents gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or
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legal advice in respect of rights or responsibilities under this Agreement to
the extent that the Agent is not reimbursed for such expenses by the Borrower.
Section 7.6 Successor Agent. The Agent may resign at any time as Agent
under this Agreement by giving written notice thereof to the Banks and the
Borrower and may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks shall have the
right to appoint, with the consent the Borrower (which consent shall not be
unreasonably withheld and shall not be required if an Event of Default exists),
a successor Agent from among the Banks. If no successor Agent shall have been so
appointed by the Majority Banks with such consent, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be a Bank which is a commercial bank organized under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent under this Agreement by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent and shall function as the Agent under this
Agreement, and the retiring Agent shall be discharged from its duties and
obligations as Agent under this Agreement. After any retiring Agents resignation
or removal hereunder as Agent, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
Section 7.7 Co-Syndication Agents; Documentation Agent. The
Co-Syndication Agents and the Documentation Agent have no duties or obligations
under this Agreement. None of the Co- Syndication Agents or the Documentation
Agent shall have, by reason of this Agreement or the Notes, a fiduciary
relationship in respect of any Bank or the holder of any Note, and nothing in
this Agreement or the Notes, express or implied, is intended or shall be so
construed to impose on any of the Co-Syndication Agents or the Documentation
Agent any obligation in respect of this Agreement or the Notes.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Majority Banks, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Banks, do any of the following: (a) waive any of the
conditions specified in Article III, (b) increase the Commitments of the Banks
or subject the Banks to any additional obligations, (c) reduce the principal of,
or interest on, the outstanding Advances or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the
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outstanding Advances or any fees or other amounts payable hereunder, (e) take
any action which requires the signing of all the Banks pursuant to the terms of
this Agreement, (f) change the definition of Majority Banks or otherwise change
the percentage of the Commitments or of the aggregate unpaid principal amount of
the A Advances or B Advances, or the number of Banks, which shall be required
for the Banks or any of them to take any action under this Agreement, or (g)
amend this Section 8.1; and provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Banks required above to take such action, affect the rights or duties of the
Agent under any Note or this Agreement.
Section 8.2 Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopy, telegraphic, telex or
cable communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to any Bank, as specified opposite its name on Schedule I hereto
or specified pursuant to Section 8.6(a); if to the Borrower, as specified
opposite its name on Schedule II hereto; and if to Citibank, as Agent, to its
address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (telecopier number: (302)
894-6120), Attention: ▇▇▇▇▇ ▇▇▇▇, with a copy to Citicorp North America, Inc.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (telecopier number: (713)
654-2849; telex number 127001 (Attn: Route Code HOUAA)), Attention: The ▇▇▇▇▇▇▇▇
Companies, Inc. Account Officer, or, as to the Borrower or the Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent. All
such notices and communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective when received in the mail, sent by telecopier to
any party to the telecopier number as set forth herein or on Schedule I or
Schedule 11 or specified pursuant to Section 8.6(a) (or other telecopy number
specified by such party in a written notice to the other parties hereto),
delivered to the telegraph company, telexed to any party to the telex number set
forth herein or on Schedule I or Schedule II or specified pursuant to Section
8.6(a) (or other telex number designated by such party in a written notice to
the other parties hereto), confirmed by telex answerback, or delivered to the
cable company, respectively, except that notices and communications to the Agent
shall not be effective until received by the Agent. Any notice or communication
to a Bank shall be deemed to be a notice or communication to any SPC designated
by such Bank and no further notice to an SPC shall be required. Delivery by
telecopier of an executed counterpart of this Agreement or of any amendment or
waiver of any provision of this Agreement or any Schedule or Exhibit hereto to
be executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
Section 8.3 No Waiver; Remedies. No failure on the part of any Bank or
the Agent to exercise, and no delay in exercising, any right under any Note or
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies provided in this
Agreement are cumulative and not exclusive of any remedies provided by law.
Section 8.4 Costs and Expenses. (a)(i) The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Arranger and the
Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement,
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364-Day Credit Agreement
55
the Notes, if any, and the other documents to be delivered under this Agreement,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Agent with respect thereto and with respect to advising the
Agent as to its rights and responsibilities under this Agreement and any Note,
and (ii) the Borrower agrees to pay on demand all costs and expenses, if any
(including, without limitation, reasonable counsel fees and expenses, which may
include allocated costs of in-house counsel), of the Agent and each Bank in
connection with the enforcement (whether before or after the occurrence of an
Event of Default and whether through negotiations (including formal workouts or
restructurings), legal proceedings or otherwise) against the Borrower of any
Note of the Borrower or this Agreement and the other documents to be delivered
by the Borrower under this Agreement.
(b) If any payment (or purchase pursuant to Section 2.11(c)) of
principal of, or Conversion of, any Eurodollar Rate Advance or B Advance made to
the Borrower is made other than on the last day of an Interest Period relating
to such Advance (or in the case of a B Advance, other than on the original
scheduled maturity date thereof), as a result of a payment pursuant to Section
2.10 or 2.12 or acceleration of the maturity of the Advances pursuant to Section
6.1 or for any other reason or as a result of any purchase pursuant to Section
2.11(c) or any Conversion, the Borrower shall, upon demand by any Bank (with a
copy of such demand to the Agent), pay to the Agent for the account of such Bank
any amounts required to compensate such Bank for any additional losses, costs or
expenses which it may reasonably incur as a result of any such payment, purchase
or Conversion, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by such Bank to fund or maintain such Advance.
(c) The Borrower agrees, to the fullest extent permitted by law, to
indemnify and hold harmless the Agent, the Co-Syndication Agents, the
Documentation Agent, the Arranger and each Bank and each of their respective
directors, officers, employees and agents from and against any and all claims,
damages, liabilities and out-of-pocket expenses (including, without limitation,
reasonable fees and disbursements of counsel) for which any of them may become
liable or which may be incurred by or asserted against the Agent, the
Co-Syndication Agents, the Documentation Agent, the Arranger or such Bank or any
such director, officer, employee or agent (other than by another Bank or any
successor or assign of another Bank), in each case in connection with or arising
out of or by reason of any investigation, litigation, or proceeding, whether or
not any of the Agent, the Co- Syndication Agents, the Documentation Agent, the
Arranger, such Bank or any such director, officer, employee or agent is a party
thereto, arising out of, related to or in connection with this Agreement or any
transaction in which any proceeds of all or any part of the Advances are applied
(other than any such claim, damage, liability or expense to the extent
attributable to the gross negligence or willful misconduct of, or violation of
any law or regulation by, either the party seeking indemnity under this Section
8.4(c) or any of its directors, officers, employees or agents).
Section 8.5 Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.1 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.1,
each Bank is hereby authorized at any time and from time to time, to the
50
364-Day Credit Agreement
56
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Bank to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Notes, if any, held by
such Bank, irrespective of whether or not such Bank shall have made any demand
under this Agreement or such Notes and although such obligations may be
unmatured. Each Bank agrees promptly to notify the Borrower after such set-off
and application made by such Bank, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Bank under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Bank may
have.
Section 8.6 Binding Effect; Transfers. (a) This Agreement shall become
effective when it shall have been executed by the Borrower, the Co-Syndication
Agents, the Documentation Agent and the Agent and when each Bank listed on the
signature pages hereof has delivered an executed counterpart hereof to the
Agent, has sent to the Agent a facsimile copy of its signature hereon or has
notified the Agent that such Bank has executed this Agreement and thereafter
shall be binding upon and inure to the benefit of the Borrower, the Agent and
each Bank and their respective successors and assigns; provided that the
Borrower shall not have the right to assign any of its rights hereunder or any
interest herein without the prior written consent of all of the Banks. Each Bank
may assign to one or more banks, financial institutions or government entities
all or any part of, or may grant participations to one or more banks, financial
institutions or government entities in or to all or any part of, any Advance or
Advances owing to such Bank, any Note or Notes held by such Bank and all or any
portion of such Bank's Commitments, and to the extent of any such assignment or
participation (unless otherwise stated therein), the assignee or purchaser of
such assignment or participation shall, to the fullest extent permitted by law,
have the same rights and benefits hereunder and under such Note or Notes as it
would have if it were such Bank hereunder; provided that, except in the case of
an assignment meeting the requirements of the next sentence hereof, (1) (i) such
Bank's obligations under this Agreement, including, without limitation, its
Commitment hereunder, shall remain unchanged, (ii) such Bank shall remain
responsible for the performance thereof, (iii) such Bank shall remain the holder
of any such Note or Notes for all purposes under this Agreement, and (iv) the
Borrower, the other Banks and the Agent shall continue to deal solely with and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement; and (2) no Bank shall assign or grant a participation that
conveys to the assignee or participant the right to vote or consent under this
Agreement, other than the right to vote upon or consent to (i) any increase in
the amount of any Commitment of such Bank; (ii) any reduction of the principal
amount of, or interest to be paid on, such Bank's Advance or Advances; (iii) any
reduction of any fee or other amount payable hereunder to such Bank; or (iv) any
postponement of any date fixed for any payment of principal of, or interest on,
such Bank's Advance or Advances or Note or Notes or any fee or other amount
payable hereunder to such Bank.
If (I) the assignee of any Bank either (1) is another Bank or is an
affiliate of a Bank or (2) is approved in writing by the Agent and the Borrower
or (3) is approved in writing by the Agent and an Event of Default exists and
(II) such assignee assumes all or any portion (which portion shall be a
constant, and not a varying, percentage, and the amount of the Commitment
assigned, whether all
51
364-Day Credit Agreement
57
or a portion, shall be in a minimum amount of $10,000,000 or such lesser amount
as shall represent the entire remaining interest of such assigning Bank or as
may be otherwise approved in writing by the Agent and the Borrower for such
assignment) of the Commitment of such assigning Bank by executing a document in
the form of Exhibit F (or with such changes thereto as have been approved in
writing by the Agent in its sole discretion as evidenced by its execution
thereof) duly executed by the Agent, the Borrower (unless an Event of Default
exists or the Borrower has relinquished the right to approve the assignment
pursuant to Section 8.6(b)), such assigning Bank and such assignee and delivered
to the Agent ("Transfer Agreement"), then upon such delivery, (i) such assigning
Bank shall be released from its obligations under this Agreement with respect to
all or such portion, as the case may be, of its Commitments; (ii) such assignee
shall become obligated for all or such portion, as the case may be, of such
Commitments and all other obligations of such assigning Bank hereunder with
respect to or arising as a result of all or such portion, as the case may be, of
such Commitments; (iii) such assignee shall be assigned the right to vote or
consent under this Agreement, to the extent of all or such portion, as the case
may be, of such Commitments; (iv) the Borrower shall deliver, in replacement of
any A Note of the Borrower then outstanding which may have been executed to the
order of such assigning Bank or as may be requested by the assignee or the
assigning Bank (a) to such assignee upon its request or as required by Section
2.9, a new A Note of the Borrower in the amount of the Commitment of such
assigning Bank which is being so assumed by such assignee plus, in the case of
any assignee which is already a Bank hereunder, the amount of such assignee's
Commitment immediately prior to such assignment (any such assignee which is
already a Bank hereunder agrees to ▇▇▇▇ "Exchanged" and return to the Borrower,
with reasonable promptness following the delivery of such new A Note, the A Note
being replaced thereby, if any), (b) to such assigning Bank upon its request or
as required by Section 2.9, a new A Note in the amount of the balance, if any,
of the Commitment of such assigning Bank to the Borrower (without giving effect
to any B Reduction) retained by such assigning Bank (and such assigning Bank
agrees to ▇▇▇▇ "Exchanged" and return to the Borrower, with reasonable
promptness following delivery of such new A Notes, the A Note being replaced
thereby), and (c) to the Agent, photocopies of such new A Notes, if any; (v) if
such assignment is of all of such assigning Bank's Commitment, all of the
outstanding A Advances made by such assigning Bank shall be transferred to such
assignee; (vi) if such assignment is not of all of such Commitments, a part of
each A Advance to the Borrower equal to the amount of such Advance multiplied by
a fraction, the numerator of which is the amount of such portion of such
assigning Bank's Commitment so assumed and the denominator of which is the
amount of the Commitment of such assigning Bank (without giving effect to any B
Reduction) immediately prior to such assumption, shall be transferred to such
assignee and evidenced by such assignee's A Note from the Borrower, if requested
or required by Section 2.9, and the balance of such A Advance shall be evidenced
by such assigning Bank's new A Note, if any, from the Borrower delivered
pursuant to clause (iv)(b) of this sentence; (vii) if such assignee is not a
"Bank" hereunder prior to such assignment, such assignee shall become a party to
this Agreement as a Bank and shall be deemed to be a "Bank" hereunder and the
amount of all or such portion, as the case may be, of the Commitment so assumed
shall be deemed to be the amount set opposite such assigning Bank's name on
Schedule IV for purposes of this Agreement and (viii) if such assignee is not a
Bank hereunder prior to such assignment, such assignee shall be deemed to have
specified the offices of such assignee named in the respective Transfer
Agreement as its "Domestic Lending Office" and "Eurodollar Lending Office" for
all
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58
purposes of this Agreement and to have specified for purposes of Section 8.2 the
notice information set forth in such Transfer Agreement; and the Agent shall
promptly after execution of any Transfer Agreement by the Agent and the other
parties thereto notify the Banks of the parties to such Transfer Agreement and
the amounts of the assigning Bank's Commitment assumed thereby.
(b) [Intentionally Blank]
(c) The Borrower agrees to promptly execute the Transfer Agreement
pertaining to any assignment as to which approval by the Borrower of the
assignee is not required by clause (I) of the last paragraph of Section 8.6(a).
(d) Notwithstanding anything to the contrary contained herein, any Bank
(a "Designating Bank") with the consent of the Agent and, if no Event of Default
has occurred and is continuing, the Borrower may grant to a special purpose
funding vehicle (an "SPC"), identified as such in writing from time to time by
the Designating Bank to the Agent and the Borrower, the option to fund all or
any part of any A Advance that such Designating Bank is obligated to fund
pursuant to this Agreement or to fund all or part of any B Advance to the
Borrower pursuant to Section 2.16 which the Designating Bank has agreed to make;
provided that, no Designating Bank shall have granted at any one time such
option to more than one SPC and further provided that (i) such Designating
Bank's obligations under this Agreement (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such
Designating Bank shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the Borrower, the Agent and the other
Banks shall continue to deal solely and directly with such Designating Bank in
connection with such Designating Bank's rights and obligations under this
Agreement, (iv) any such option granted to an SPC shall not constitute a
commitment by such SPC to fund any Advance, and (v) neither the grant nor the
exercise of such option to an SPC shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrower under this
Agreement (including, without limitation, its obligations under Section 2.14).
The making of an Advance by an SPC hereunder shall utilize the Commitment of the
Designating Bank to the same extent, and as if, such Advance were made by such
Designating Bank. Each party hereto hereby agrees that no SPC shall be liable
for any indemnity or similar payment obligation under this Agreement to the
extent that any such indemnity or similar payment obligations shall have been
paid by its Designating Bank. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting against such
SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States. In addition, notwithstanding
anything to the contrary contained in this Section 8.6, an SPC may not assign
its interest in any Advance except that, with notice to, but without the prior
written consent of, the Borrower and the Agent and without paying any processing
fee therefor, such SPC may assign all or a portion of its interests in any
Advances to the Designating Bank or to any financial institutions (consented to
by the Borrower and Agent), providing liquidity and/or credit support to or for
the account of such SPC to support the funding or maintenance of Advances. Each
Designating Bank shall serve as the agent of its SPC and shall on behalf of its
SPC: (i) receive any
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364-Day Credit Agreement
59
and all payments made for the benefit of such SPC and (ii) give and receive all
communications and notices, and vote, approve or consent hereunder, and take all
actions hereunder, including, without limitation, votes, approvals, waivers,
consents and amendments under or relating to this Agreement and the other Loan
Documents. Any such notice, communication, vote, approval, waiver, consent or
amendment shall be signed by the Designating Bank for the SPC and need not be
signed by such SPC on its own behalf. The Borrower, the Agent and the Banks may
rely thereon without any requirement that the SPC sign or acknowledge the same
or that notice be delivered to the Borrower. This section may not be amended
without the written consent of any SPC. which shall have been identified to the
Agent and the Borrower.
(e) Any Bank may assign, as collateral or otherwise, any of its rights
(including, without limitation, rights to payments of principal of and/or
interest on the Advances) under this Agreement or any of the Advances to any
Federal Reserve Bank without notice to or consent of the Borrower or the Agent.
Section 8.7 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 8.8 Interest. It is the intention of the parties hereto that
the Agent and each Bank shall conform strictly to usury laws applicable to it,
if any. Accordingly, if the transactions with the Agent or any Bank contemplated
hereby would be usurious under applicable law, then, in that event,
notwithstanding anything to the contrary in this Agreement or any other
agreement entered into in connection with or as security for this Agreement, it
is agreed as follows: (i) the aggregate of all consideration which constitutes
interest under applicable law that is contracted for, taken, reserved, charged
or received by the Agent or such Bank, as the case may be, under the Notes, this
Agreement or under any other agreement entered into in connection with or as
security for this Agreement or the Notes shall under no circumstances exceed the
maximum amount allowed by such applicable law and any excess shall be canceled
automatically and, if theretofore paid, shall at the option of the Agent or such
Bank, as the case may be, be credited by the Agent or such Bank, as the case may
be, on the principal amount of the obligations owed to the Agent or such Bank,
as the case may be, by the Borrower or refunded by the Agent or such Bank, as
the case may be, to the Borrower, and (ii) in the event that the maturity of any
Note or other obligation payable to the Agent or such Bank, as the case may be,
is accelerated or in the event of any required or permitted prepayment, then
such consideration that constitutes interest under law applicable to the Agent
or such Bank, as the case may be, may never include more than the maximum amount
allowed by such applicable law and excess interest, if any, to the Agent or such
Bank, as the case may be, provided for in this Agreement or otherwise shall be
canceled automatically as of the date of such acceleration or prepayment and, if
theretofore paid, shall, at the option of the Agent or such Bank, as the case
may be, be credited by the Agent or such Bank, as the case may be, on the
principal amount of the obligations owed to the Agent or such Bank, as the case
may be, by the Borrower or refunded by the Agent or such Bank, as the case may
be, to the Borrower.
Section 8.9 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so
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364-Day Credit Agreement
60
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 8.10 Survival of Agreements, Representations and Warranties,
Etc. All warranties, representations and covenants made by the Borrower or any
officer of the Borrower herein or in any certificate or other document delivered
in connection with this Agreement shall be considered to have been relied upon
by the Banks and shall survive the issuance and delivery of the Notes, if any,
and the making of the Advances regardless of any investigation. The indemnities
and other payment obligations of the Borrower set forth in Sections 2.11, 2.14
and 8.4, and the indemnities by the Banks in favor of the Agent and its
officers, directors, employees and agents, will survive the repayment of the
Advances and the termination of this Agreement.
Section 8.11 Borrower's Right to Apply Deposits. In the event that any
Bank is placed in receivership or enters a similar proceeding, the Borrower may,
to the full extent permitted by law, make any payment due to such Bank
hereunder, to the extent of finally collected unrestricted deposits of the
Borrower in U.S. dollars held by such Bank, by giving notice to the Agent and
such Bank directing such Bank to apply such deposits to such indebtedness. If
the amount of such deposits is insufficient to pay such indebtedness then due
and owing in full, the Borrower shall pay the balance of such insufficiency in
accordance with this Agreement.
Section 8.12 Confidentiality. Each Bank agrees that it will not
disclose without the prior consent of the Borrower (other than to employees,
auditors, accountants, counsel or other professional advisors of the Agent or
any Bank) any information with respect to the Borrower or its Subsidiaries,
(which term shall be deemed to include the WCG Subsidiaries for purposes of this
Section 8.12), which is furnished pursuant to this Agreement and which (i) the
Borrower in good faith considers to be confidential and (ii) is either clearly
marked confidential or is designated by the Borrower to the Agent or the Banks
in writing as confidential, provided that any Bank may disclose any such
information (a) as has become generally available to the public, (b) as may be
required or appropriate in any report, statement or testimony submitted to or
required by any municipal, state or Federal regulatory body having or claiming
to have jurisdiction over such Bank or submitted to or required by the Board of
Governors of the Federal Reserve System or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or elsewhere)
or their successors, (c) as may be required or appropriate in response to any
summons or subpoena in connection with any litigation, (d) in order to comply
with any law, order, regulation or ruling applicable to such Bank, (e) to the
prospective transferee or grantee in connection with any contemplated transfer
of any of the Commitments or Advances or any interest therein by such Bank or
the grant of an option to an SPC to fund any Advance, provided that such
prospective transferee executes an agreement with or for the benefit of the
Borrower containing provisions substantially identical to those contained in
this Section 8.12, and provided further that if the contemplated transfer is a
grant of a participation in a Note (and not an assignment), no such information
shall be authorized to be delivered to such participant pursuant to this clause
(e) except (i) such information delivered pursuant to Section 4.1(e) or Section
5.1(b) (other than paragraph (iv) thereof) and if the contemplated transfer is a
grant of an option to fund Advances to an SPC pursuant to Section 8.6(d), such
SPC may disclose, on a confidential bases, any non-public information relating
to Advances
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364-Day Credit Agreement
61
funded by it to any rating agency, commercial paper dealer or provider of any
surety, guaranty or credit or liquidity enhancement to such SPC, and (ii) if
prior notice of the delivery thereof is given to the Borrower, such information
as may be required by law or regulation to be delivered, (f) in connection with
the exercise of any remedy by such Bank following an Event of Default pertaining
to this Agreement, any of the Notes or any other document delivered in
connection herewith, (g) in connection with any litigation involving such Bank
pertaining to this Agreement, any of the Notes or any other document delivered
in connection herewith, (h) to any Bank or the Agent, or (i) to any affiliate of
any Bank, provided that such affiliate executes an agreement with or for the
benefit of the Borrower containing provisions substantially identical to those
contained in this Section 8.12.
Section 8.13 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE
CO-SYNDICATION AGENTS, THE DOCUMENTATION AGENT AND THE BANKS HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY NOTE OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 8.14 Miscellaneous. This Agreement shall become effective in
accordance with the first sentence of Section 8.6(a).
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364-Day Credit Agreement
62
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
S-1
364-Day Credit Agreement
63
AGENT:
CITIBANK, N.A., as Agent
By:
--------------------------------------
Authorized Officer
CO-SYNDICATION AGENTS:
THE CHASE MANHATTAN BANK, as Co-
Syndication Agent
By:
--------------------------------------
Authorized Officer
COMMERZBANK AG, as Co-Syndication Agent
By:
--------------------------------------
Authorized Officer
By:
--------------------------------------
Authorized Officer
DOCUMENTATION AGENT:
CREDIT LYONNAIS NEW YORK BRANCH, as
Documentation Agent
By:
--------------------------------------
Authorized Officer
S-2
364-Day Credit Agreement
64
BANKS:
CITIBANK, N.A.
By:
--------------------------------------
Authorized Officer
S-3
364-Day Credit Agreement
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:
--------------------------------------
Authorized Officer
S-4
364-Day Credit Agreement
66
BANK OF AMERICA, N.A.
By:
--------------------------------------
Authorized Officer
S-5
364-Day Credit Agreement
67
BANK ONE, NA (CHICAGO)
By:
--------------------------------------
Authorized Officer
S-6
364-Day Credit Agreement
68
THE CHASE MANHATTAN BANK
By:
--------------------------------------
Authorized Officer
S-7
364-Day Credit Agreement
69
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN
BRANCHES
By:
--------------------------------------
Authorized Officer
By:
--------------------------------------
Authorized Officer
S-8
364-Day Credit Agreement
70
CREDIT LYONNAIS NEW YORK BRANCH
By:
--------------------------------------
Authorized Officer
S-9
364-Day Credit Agreement
71
THE FUJI BANK, LIMITED
By:
--------------------------------------
Authorized Officer
S-10
364-Day Credit Agreement
72
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
S-11
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73
ABN AMRO BANK, N.V.
By:
--------------------------------------
Authorized Officer
By:
--------------------------------------
Authorized Officer
S-12
364-Day Credit Agreement
74
BANK OF MONTREAL
By:
--------------------------------------
Authorized Officer
S-13
364-Day Credit Agreement
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By:
--------------------------------------
Authorized Officer
S-14
364-Day Credit Agreement
76
BARCLAYS BANK PLC
By:
--------------------------------------
Authorized Officer
S-15
364-Day Credit Agreement
77
CIBC INC.
By:
--------------------------------------
Authorized Officer
S-16
364-Day Credit Agreement
78
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------------
Authorized Officer
By:
--------------------------------------
Authorized Officer
S-17
364-Day Credit Agreement
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By:
--------------------------------------
Authorized Officer
S-18
364-Day Credit Agreement
80
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By:
--------------------------------------
Authorized Officer
S-19
364-Day Credit Agreement
81
FLEET NATIONAL BANK
f/k/a Bank Boston, N.A.
By:
--------------------------------------
Authorized Officer
S-20
364-Day Credit Agreement
82
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
--------------------------------------
Authorized Officer
S-21
364-Day Credit Agreement
83
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By:
--------------------------------------
Authorized Officer
S-22
364-Day Credit Agreement
84
TORONTO DOMINION (TEXAS), INC.
By:
--------------------------------------
Authorized Officer
S-23
364-Day Credit Agreement
85
UBS AG, STAMFORD BRANCH
By:
--------------------------------------
Authorized Officer
By:
--------------------------------------
Authorized Officer
S-24
364-Day Credit Agreement
86
▇▇▇▇▇ FARGO BANK TEXAS, N.A.
By:
--------------------------------------
J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
Vice President
S-25
364-Day Credit Agreement
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ BRANCH
By:
--------------------------------------
Authorized Officer
By:
--------------------------------------
Authorized Officer
S-26
364-Day Credit Agreement
88
CREDIT AGRICOLE INDOSUEZ
By:
--------------------------------------
Authorized Officer
By:
--------------------------------------
Authorized Officer
S-27
364-Day Credit Agreement
89
SUNTRUST BANK
By:
--------------------------------------
Authorized Officer
By:
--------------------------------------
Authorized Officer
S-28
364-Day Credit Agreement
90
THE DAI-ICHI KANGYO BANK, LTD.
By:
--------------------------------------
Authorized Officer
S-29
364-Day Credit Agreement
91
ARAB BANKING CORPORATION (B.S.C.)
By:
--------------------------------------
Authorized Officer
S-30
364-Day Credit Agreement
▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH
By:
-------------------------------------
Authorized Officer
By:
-------------------------------------
Authorized Officer
S-31
364-Day Credit Agreement
93
BANK OF OKLAHOMA, N.A.
By:
-------------------------------------
Authorized Officer
S-32
364-Day Credit Agreement
94
BNP PARIBAS, HOUSTON AGENCY
By:
-------------------------------------
Authorized Officer
By:
-------------------------------------
Authorized Officer
S-33
364-Day Credit Agreement
95
DG BANK DEUTSCHE
GENNOSSENSCHAFTSBANK AG
By:
-------------------------------------
Authorized Officer
By:
-------------------------------------
Authorized Officer
S-34
364-Day Credit Agreement
96
KBC BANK N.V.
NEW YORK BRANCH
By:
-------------------------------------
Authorized Officer
S-35
364-Day Credit Agreement
97
THE SUMITOMO BANK, LIMITED
By:
-------------------------------------
Authorized Officer
S-36
364-Day Credit Agreement
98
COMMERCE BANK, N.A.
By:
-------------------------------------
Authorized Officer
S-37
364-Day Credit Agreement
99
RZB FINANCE LLC
By:
-------------------------------------
Authorized Officer
S-38
364-Day Credit Agreement
100
SCHEDULE I
APPLICABLE LENDING OFFICES
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
Citibank N.A. Citibank N.A. Citibank N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Notices: Notices:
Citibank, N.A. Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: None Telex: None
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Dept: Medium Term Finance Dept: Medium Term Finance
with copies to: with copies to:
Citicorp North America, Inc. Citicorp North America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 127001 Telex: 127001
(Attn. Route Code HOUAA) (Attn. Route Code HOUAA)
Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc. Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc.
Account Officer Account Officer
The Bank of Nova Scotia The Bank of Nova Scotia The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 30308 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 00542319 Telex: 00542319
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with copy to: with copy to:
1100 Louisiana, Suite 3000 1100 Louisiana, Suite 3000
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Attn:
Schedule I-1
364-Day Credit Agreement
101
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
Bank of America, N.A. Bank of America, N.A. Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
with copy to: with copy to:
Bank of America Bank of America
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇
Bank One, NA Bank One, NA Bank One, NA
(Chicago) 1 Bank ▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇, 10 IL 1 0634
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone:
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier:
Attn: Attn:
The Chase Manhattan Bank The Chase Manhattan Bank The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
Commerzbank AG, Commerzbank AG, Atlanta Agency Commerzbank AG, Atlanta Agency
New York and Grand ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇
Cayman Branches Suite 3500 Suite 3500
Atlanta, Georgia 30309 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Credit Lyonnais Credit Lyonnais New York Branch Credit Lyonnais New York Branch
New York Branch 1301 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Schedule I-2
364-Day Credit Agreement
102
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
The Fuji Bank, Limited The Fuji Bank, Limited The Fuji Bank, Limited
2 World Trade Center, 79th Floor 2 World Trade Center, 79th Floor
New York, New York 10048 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
National Westminster Bank National Westminster Bank PLC National Westminster Bank PLC
New York Branch Nassau Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10022 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇
with copies to: with copies to:
Greenwich NatWest Greenwich NatWest
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ABN AMRO Bank, N.V. ABN AMRO Bank, N.V. ABN AMRO Bank, N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 60604-1003 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Loan Administration Attn: Loan Administration
with copies to: with copies to:
ABN AMRO Bank, N.V. ABN AMRO Bank, N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 60604-1003 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bank of Montreal Bank of Montreal Bank of Montreal
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Keiko Kuze Attn: Keiko Kuze
Schedule I-3
364-Day Credit Agreement
103
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
The Bank of New York The Bank of New York The Bank of New York
One ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Barclays Bank PLC Barclays Bank PLC - New York Branch Barclays Bank PLC - New York Branch
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
CIBC Inc. CIBC Inc. CIBC Inc.
Two Paces West Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 30339 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to: with a copy to:
1600 ▇▇▇▇▇, Suite 3000 1600 Smith, Suite 3000
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇
Credit Suisse First Boston Credit Suisse First Boston Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Royal Bank of Canada Royal Bank of Canada, New York Royal Bank of Canada, New York
One ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Loan Processing Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Loan Processing
Schedule I-4
364-Day Credit Agreement
104
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
The Bank of Tokyo- The Bank of Tokyo - Mitsubishi, The Bank of Tokyo - Mitsubishi,
Mitsubishi, Ltd., Houston Ltd., Houston Agency Ltd., Houston Agency
Agency ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ 77002-5216 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇▇▇▇ Attn: ▇.▇. ▇▇▇▇▇▇▇▇
Fleet National Bank, Fleet National Bank Fleet National Bank
f/k/a BankBoston, N.A. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Loan Administrator Attn: ▇▇▇▇ ▇▇▇▇▇▇, Loan Administrator
Societe Generale, Societe Generale, Southwest Agency Societe Generale, Southwest Agency
Southwest Agency ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ Row Attn: ▇▇▇▇▇▇ Row
Industrial Bank of Japan Industrial Bank of Japan Trust Company Industrial Bank of Japan Trust Company
Trust Company 1251 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Toronto Dominion (Texas), Toronto Dominion (Texas), Inc. Toronto Dominion (Texas), Inc.
Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Swift Address: TDOMU S4H Swift Address: TDOMU S4H
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
UBS AG UBS AG, Stamford Branch UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ Fargo Bank ▇▇▇▇▇ Fargo Bank, ▇.▇. ▇▇▇▇▇ Fargo Bank, N.A.
Texas, N.A. ▇▇▇▇ ▇▇▇▇▇▇▇▇ 1740 Broadway
Denver, CO 80274 ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
Schedule I-5
364-Day Credit Agreement
105
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
SunTrust Bank SunTrust Bank SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇ 1929
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
Westdeutsche Landesbank Westdeutsche Landesbank Girozentrale, Westdeutsche Landesbank Girozentrale,
Girozentrale, New York New York Branch New York Branch
Branch 1211 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Attn:
Credit Agricole Indosuez Credit Agricole Indosuez Credit Agricole Indosuez
Texas Commerce Tower Texas Commerce Tower
600 ▇▇▇▇▇▇, Suite 2340 600 Travis, Suite 2340
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
The Dai-Ichi Kangyo The Dai-Ichi Kangyo Bank, Ltd. The Dai-Ichi Kangyo Bank, Ltd.
Bank, Ltd. One World Trade Center, 48th Floor One World Trade Center, 48th Floor
New York, New York 10048 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Arab Banking Corporation Arab Banking Corp. Arab Banking Corp. (Grand Cayman)
(B.S.C.) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇. ▇. ▇▇▇▇▇▇ Attn: ▇. ▇. ▇▇▇▇▇▇
Bank of China, New York Bank of China, New York Branch Bank of China, New York Branch
Branch ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ or Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ or
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇ ▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇ ▇▇▇
Telex: ITT 423635 Telex: ITT 423635
Attn: ▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇
Schedule I-6
364-Day Credit Agreement
106
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
Bank of Oklahoma, N.A. Bank of Oklahoma, N.A. Bank of Oklahoma, N.A.
One ▇▇▇▇▇▇▇▇ Center, 8th Floor One ▇▇▇▇▇▇▇▇ Center, 8th Floor
Tulsa, Oklahoma 74192 ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
BNP Paribas, BNP Paribas, Houston Agency BNP Paribas, Houston Agency
Houston Agency ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
DG Bank DG Bank DG Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
KBC Bank N.V., New York KBC Bank N.V., New York Branch KBC Bank N.V., New York Branch
Branch ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇/ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇/
Loan Administration Loan Administration
The Sumitomo Bank, The Sumitomo Bank, Limited The Sumitomo Bank, Limited
Limited ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telex: SUMBK 420515/SUMBK Telex: SUMBK 420515/SUMBK
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: with copies to:
The Sumitomo Bank, Limited The Sumitomo Bank, Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Commerce Bank, N.A. Commerce Bank, N.A. Commerce Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 17th Floor ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. Block Attn: ▇▇▇▇▇▇ ▇. Block
Schedule I-7
364-Day Credit Agreement
107
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
RZB Finance LLC RZB Finance LLC RZB Finance LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ 1133 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Schedule I-8
364-Day Credit Agreement
108
SCHEDULE II
BORROWER INFORMATION
Borrower Information for Notices
-------- -----------------------
The ▇▇▇▇▇▇▇▇ Companies, Inc. The ▇▇▇▇▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule II-1
364-Day Credit Agreement
109
SCHEDULE III
PERMITTED BORROWER LIENS
a) Any purchase money Lien created by the Borrower or any of its Subsidiaries
to secure all or part of the purchase price of any property (or to secure a
loan made to enable the Borrower or any of its Subsidiaries to acquire the
property secured by such Lien); provided that the principal amount of the
Debt secured by any such Lien, together with all other Debt secured by a
Lien on such property, shall not exceed the purchase price of the property
acquired.
b) Any Lien existing on any property at the time of the acquisition thereof by
the Borrower or any of its Subsidiaries, whether or not assumed by the
Borrower or any of its Subsidiaries, and any Lien on any property acquired
or constructed by the Borrower or any of its Subsidiaries and created not
later than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later; provided, however, that if assumed or created by the
Borrower or any of its Subsidiaries, the principal amount of the Debt
secured by such Lien, together with all other Debt secured by a Lien on
such property, shall not exceed the purchase price of the property acquired
and/or the cost of the property constructed.
c) Any Lien created or assumed by the Borrower or any of its Subsidiaries on
any contract for the sale of any product or service or any rights
thereunder or any proceeds therefrom, including accounts and other
receivables, related to the operation or use of any property acquired or
constructed by the Borrower or any of its Subsidiaries and created not
later than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later; provided, however, that the principal amount of the
Debt secured by such mortgage together with all other Debt secured by any
such contract, rights or property, shall not exceed the purchase price of
the property acquired and/or the cost of the property constructed.
d) Any Lien existing on any property of a Subsidiary of the Borrower at the
time it becomes a Subsidiary of the Borrower.
e) Any refunding or extension of maturity, in whole or in part, of any Lien
created or assumed in accordance with the provisions of paragraph (a), (b),
(c) or (d) above or (j) below; provided that the principal amount of the
Debt secured by such refunding Lien or extended Lien shall not exceed the
principal amount of the Debt secured by the Lien to be refunded or extended
outstanding at the time of such refunding or extension and that such
refunding Lien or extended Lien shall be limited to the same property that
secured the Lien so refunded or extended.
f) Mechanics' or materialmen's or other similar liens arising in the ordinary
course of business which are not more than 90 days past due or are being
contested in good faith by
Schedule III-1
364-Day Credit Agreement
110
appropriate proceedings or any Lien arising by reason of pledges or
deposits to secure payment of workmen's compensation or other insurance,
good faith deposits in connection with tenders or leases of real estate,
bids or contracts (other than contracts for the payment of money), in each
case to secure obligations of the Borrower or any of its Subsidiaries.
g) Deposits to secure public or statutory obligations, deposits to secure or
in lieu of surety, stay or appeal bonds and deposits as security for the
payment of taxes or assessments or other similar charges, in each case to
secure obligations of the Borrower or any of its Subsidiaries; provided,
however, that the aggregate amount of obligations secured by Liens
permitted by this paragraph (g) shall not exceed 10% of Consolidated
Tangible Net Worth of the Borrower.
h) Any Lien arising by reason of deposits with or the giving of any form of
security to any governmental agency or any body created or approved by law
or governmental regulation for any purpose at any time as required by law
or governmental regulation (i) as a condition to the transaction by the
Borrower or any of its Subsidiaries of any business or the exercise by the
Borrower or any of its Subsidiaries of any privilege or license, (ii) to
enable the Borrower or any of its Subsidiaries to maintain self-insurance
or to participate in any fund for liability on any insurance risks or (iii)
in connection with workmen's compensation, unemployment insurance, old age
pensions or other social security with respect to the Borrower or any of
its Subsidiaries to share in the privileges or benefits required for
companies participating in such arrangements.
i) Any Lien which is payable, both with respect to principal and interest,
solely out of the proceeds of oil, gas, coal or other minerals or timber to
be produced from the property subject thereto and to be sold or delivered
by the Borrower or any of its Subsidiaries, including any interest of the
character commonly referred to as a "production payment".
j) Any Lien created or assumed by a Subsidiary of the Borrower on oil, gas,
coal or other mineral or timber property, owned or leased by such
Subsidiary to secure loans to such Subsidiary for the purposes of
developing such properties, including any interest of the character
commonly referred to as a "production payment"; provided, however, that
neither the Borrower nor any other Subsidiary of the Borrower shall assume
or guarantee such loans or otherwise be liable in respect thereto.
k) Liens incurred in the ordinary course of business upon rights-of-way.
l) Undetermined mortgages and charges incidental to construction or
maintenance arising in the ordinary course of business which are not more
than 90 days past due or are being contested in good faith by appropriate
proceedings.
m) The right reserved to, or vested in, any municipality or governmental or
other public authority or railroad by the terms of any right, power,
franchise, grant, license, permit or
Schedule III-2
364-Day Credit Agreement
111
by any provision of law, to terminate or to require annual or other
periodic payments as a condition to the continuance of such right, power,
franchise, grant, license or permit.
n) The Lien of taxes and assessments which are not at the time delinquent.
o) The Lien of specified taxes and assessments which are delinquent but the
validity of which is being contested in good faith by the Borrower or any
of its Subsidiaries by appropriate proceedings and with respect to which
reserves in conformity with generally accepted accounting principles, if
required by such principles, have been provided on the books of the
Borrower or the relevant Subsidiary of the Borrower, as the case may be.
p) The Lien reserved in leases entered into in the ordinary course of business
for rent and for compliance with the terms of the lease in the case of real
property leasehold estates.
q) Defects and irregularities in the titles to any property (including
rights-of-way and easements) which are not material to the business,
assets, operations or financial condition of the Borrower and its
Subsidiaries considered as a whole.
r) Any Liens securing Debt neither assumed nor guaranteed by the Borrower or
any of its Subsidiaries nor on which any of them customarily pays interest,
existing upon real estate or rights in or relating to real estate
(including rights-of-way and easements) acquired by the Borrower or any of
its Subsidiaries, which Liens were not created in anticipation of such
acquisition and do not materially impair the use of such property for the
purposes for which it is held by the Borrower or such Subsidiary.
s) Easements, exceptions or reservations in any property of the Borrower or
any of its Subsidiaries granted or reserved in the ordinary course of
business for the purpose of pipelines, roads, telecommunication equipment
and cable, streets, alleys, highways, railroads, the removal of oil, gas,
coal or other minerals or timber, and other like purposes, or for the joint
or common use of real property, facilities and equipment, which do not
materially impair the use of such property for the purposes for which it is
held by the Borrower or such Subsidiary.
t) Rights reserved to or vested in any municipality or public authority to
control or regulate any property of the Borrower or any of its
Subsidiaries, or to use such property in any manner which does not
materially impair the use of such property for the purposes for which it is
held by the Borrower or such Subsidiary.
u) Any obligations or duties, affecting the property of the Borrower or any of
its Subsidiaries, to any municipality or public authority with respect to
any franchise, grant, license or permit.
v) The Liens of any judgments in an aggregate amount for the Borrower and all
of its Subsidiaries (i) not in excess of $5,000,000, the execution of which
has not been stayed
Schedule III-3
364-Day Credit Agreement
112
and (ii) not in excess of $25,000,000, the execution of which has been
stayed and which have been appealed and secured, if necessary and permitted
hereby, by the filing of an appeal bond.
w) Zoning laws and ordinances.
x) Any Lien on any office equipment, data processing equipment (including
computer and computer peripheral equipment), motor vehicles, aircraft,
marine vessels or similar transportation equipment.
y) Any Lien consisting of interests in receivables in connection with
agreements for sales of receivables of any kind by the Borrower or any of
its Subsidiaries for cash.
z) Any Lien not permitted by paragraphs (a) through (y) above or (aa) or (bb)
below securing Debt of the Borrower and its Subsidiaries or securing any
Debt of the Borrower and its Subsidiaries which constitutes a refunding or
extension of any such Debt if at the time of, and after giving effect to,
the creation or assumption of any such Lien, the sum of the aggregate of
all Debt of the Borrower and its Subsidiaries secured by all such Liens not
so permitted by paragraphs (a) through (y) above or (aa) or (bb) below plus
the amount of Attributable Obligations of the Borrower and its Subsidiaries
in respect of Sale and Lease-Back Transactions permitted by Section 5.2(j)
does not exceed 5% of the sum of (i) Consolidated Tangible Net Worth of the
Borrower plus (ii) Debt of the Borrower and its Subsidiaries on a
Consolidated basis.
aa) Any overriding royalties or other rights of Pacific Northwest Pipeline
Corporation, a Delaware corporation ("Pacific") and ▇▇▇▇▇▇▇▇ Petroleum
Company ("▇▇▇▇▇▇▇▇") or their respective successors in interest under a
contract dated January 9, 1953, as amended, between ▇▇▇▇▇▇▇▇ and Pacific,
to which the Borrower is successor in interest; and the obligations of the
Borrower to surrender, transfer, release or reassign the leases or
interests or rights to which said instruments relate under the conditions
and upon the occurrence of the events specified in said instruments.
bb) Any Lien created by the Borrower or any of its Subsidiaries on any contract
(or any rights thereunder or proceeds therefrom) providing for advances by
the Borrower or any of its Subsidiaries to finance gas exploration and
development, which Lien is created to secure only indebtedness incurred to
finance such advances.
Schedule III-4
364-Day Credit Agreement
113
SCHEDULE IV
COMMITMENTS
AS OF JULY 25, 2000
===============================================================================
BANKS COMMITMENT
-------------------------------------------------------------------------------
Bank of America, N.A. $72,604,166.67
-------------------------------------------------------------------------------
The Bank of Nova Scotia $72,604,166.67
-------------------------------------------------------------------------------
Bank One, NA $72,604,166.67
-------------------------------------------------------------------------------
The Chase Manhattan Bank $72,604,166.67
-------------------------------------------------------------------------------
Citibank, N.A. $72,604,166.67
-------------------------------------------------------------------------------
Commerzbank AG $72,604,166.67
-------------------------------------------------------------------------------
Credit Lyonnais $72,604,166.67
-------------------------------------------------------------------------------
The Fuji Bank, Limited $72,604,166.67
-------------------------------------------------------------------------------
National Westminster Bank PLC $72,604,166.67
-------------------------------------------------------------------------------
ABN Amro Bank N.V. $59,500,000.00
-------------------------------------------------------------------------------
Bank of Montreal $59,500,000.00
-------------------------------------------------------------------------------
The Bank of New York $59,500,000.00
-------------------------------------------------------------------------------
Barclays Bank PLC $59,500,000.00
-------------------------------------------------------------------------------
CIBC Inc. $59,500,000.00
-------------------------------------------------------------------------------
Credit Suisse First Boston $59,500,000.00
-------------------------------------------------------------------------------
Royal Bank of Canada $59,500,000.00
-------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi, Ltd. $50,291,666.67
-------------------------------------------------------------------------------
Fleet National Bank $50,291,666.67
-------------------------------------------------------------------------------
Societe Generale $50,291,666.67
-------------------------------------------------------------------------------
The Industrial Bank of Japan Trust Company $50,291,666.67
-------------------------------------------------------------------------------
Toronto Dominion (Texas), Inc. $50,291,666.67
-------------------------------------------------------------------------------
UBS AG, Stamford Branch $50,291,666.67
-------------------------------------------------------------------------------
▇▇▇▇▇ Fargo Bank Texas, N.A. $50,291,666.67
-------------------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale $50,291,666.67
-------------------------------------------------------------------------------
Credit Agricole Indosuez $27,979,166.67
-------------------------------------------------------------------------------
Suntrust Bank $27,979,166.67
-------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Ltd. $27,979,166.67
-------------------------------------------------------------------------------
Arab Banking Corporation (B.S.C.) $17,531,250.00
-------------------------------------------------------------------------------
Bank of China $17,531,250.00
-------------------------------------------------------------------------------
Bank of Oklahoma, N.A. $17,531,250.00
-------------------------------------------------------------------------------
BNP Paribas, Houston Agency $17,531,250.00
-------------------------------------------------------------------------------
DG Bank $17,531,250.00
-------------------------------------------------------------------------------
KBC Bank, N.V. $17,531,250.00
-------------------------------------------------------------------------------
The Sumitomo Bank, Limited $17,531,250.00
-------------------------------------------------------------------------------
Commerce Bank, N.A. $10,536,458.33
-------------------------------------------------------------------------------
RZB Finance LLC $10,536,458.33
===============================================================================
COMMITMENTS $1,700,000,000.00
===============================================================================
Schedule IV-1
364-Day Credit Agreement
114
SCHEDULE V
RATING CATEGORIES
Applicable
Rating Category S&P or Moody's ratings of the senior unsecured Applicable Commitment
of the Borrower long-term debt of the Borrower* Margin Fee Rate
--------------- ---------------------------------------------- ---------- ----------
One A or better by S&P or A2 or better by Moody's .500% .075%
Two A- by S&P or A3 by Moody's .625% .085%
Three BBB+ by S&P or Baa1 by Moody's .750% .095%
Four BBB by S&P or Baa2 by Moody's .875% .10%
Five BBB- by S&P and Baa3 by Moody's 1.125% .15%
Six BBB- by S&P or Baa3 by Moody's 1.500% .20%
Seven Borrower is Unrated or none of the above applies to 2.000% .25%
Borrower
*If split-rated, the higher rating will apply.
Schedule V-1
364-Day Credit Agreement
115
EXHIBIT A-1
A PROMISSORY NOTE
U.S. $ July , 2000
------------- ----
FOR VALUE RECEIVED, the undersigned, The ▇▇▇▇▇▇▇▇ Companies, Inc., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
____________________ (the "Bank"), for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on the Stated
Termination Date (as defined in the Credit Agreement referred to below), the
principal amount of $______________, or, if less, the aggregate principal amount
of the A Advances (as defined in the Credit Agreement referred to below) owed to
the Bank by the Borrower on such Stated Termination Date.
The Borrower promises to pay interest on the unpaid principal amount hereof
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement referred to below. Both
principal and interest are payable in lawful money of the United States of
America to Citibank, N.A., as Agent, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, in same day funds.
This A Promissory Note is one of the A Notes referred to in, and is subject
to and entitled to the benefits of that certain Credit Agreement, dated as of
July 25, 2000 (as amended or otherwise modified from time to time, the "Credit
Agreement"), by and among the Borrower, the Bank, certain other financial
institutions parties thereto, The Chase Manhattan Bank and Commerzbank AG, as
Co-Syndication Agents, Credit Lyonnais New York Branch, as Documentation Agent,
and Citibank, N.A., as Agent for the Bank and such other financial institutions.
The Credit Agreement provides, among other things, for (i) the making of
advances to the Borrower from time to time pursuant to Section 2.1 of the Credit
Agreement in an aggregate outstanding amount not to exceed at any time the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from each such advance owed to the Bank being evidenced by this A Promissory
Note, (ii) acceleration of the maturity hereof upon the happening of certain
stated events and (iii) prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified. Capitalized
terms used herein which are not defined herein and are defined in the Credit
Agreement are used herein as therein defined.
The Borrower hereby waives presentment, demand, protest, notice of intent
to accelerate, notice of acceleration and any other notice of any kind, except
as provided in the Credit Agreement. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
Exhibit A-1-1
364-Day Credit Agreement
116
This A Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
Exhibit A-1-2
364-Day Credit Agreement
117
ADVANCES AND PAYMENTS OF PRINCIPAL
===================================================================================================
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL
DATE ADVANCE OR PREPAID BALANCE NOTATION MADE BY
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Exhibit A-1-3
364-Day Credit Agreement
118
EXHIBIT A-2
B PROMISSORY NOTE
U.S. $__________________ Dated: ____________, _____
FOR VALUE RECEIVED, the undersigned, The ▇▇▇▇▇▇▇▇ Companies, Inc., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
____________________ (the "Bank"), for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on _________, the
principal amount of _____________ U.S. Dollars ($______________).
The Borrower promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: ______% per annum (calculated on the basis
of a year of _____ days for the actual number of
days elapsed).
Interest Payment
Date or Dates: ___________________
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, for the account of the Bank at
the office of Citibank, N.A., at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in
same day funds.
This B Promissory Note is one of the B Notes referred to in, and is
entitled to the benefits of that certain Credit Agreement, dated as of July 25,
2000 (as amended or otherwise modified from time to time, the "Credit
Agreement"), by and among the Borrower, the Bank, certain other financial
institutions parties thereto, The Chase Manhattan Bank and Commerzbank AG, as
Co-Syndication Agents, Credit Lyonnais New York Branch, as Documentation Agent,
and Citibank, N.A., as Agent for the Bank and such other financial institutions.
The Credit Agreement contains, among other things, provisions for acceleration
of the maturity hereof upon the happening of certain stated events. Capitalized
terms used herein which are not defined herein and are defined in the Credit
Agreement are used herein as therein defined.
The Borrower hereby waives presentment, demand, protest, notice of intent
to accelerate, notice of acceleration and any other notice of any kind, except
as provided in the Credit Agreement. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
Exhibit A-2-1
364-Day Credit Agreement
119
This B Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Exhibit A-2-2
364-Day Credit Agreement
120
EXHIBIT B-1
NOTICE OF A BORROWING
[Date]
Citibank, N.A., as Agent
for the Banks parties to the Credit
Agreement referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
The undersigned, The ▇▇▇▇▇▇▇▇ Companies, Inc. (the "Borrower"), (a) refers
to that certain Credit Agreement, dated as of July 25, 2000 (as amended or
otherwise modified from time to time, the "Credit Agreement"; the terms defined
therein and not defined herein being used herein as therein defined), by and
among the undersigned, certain Banks parties thereto, The Chase Manhattan Bank
and Commerzbank AG, as Co-Syndication Agents, Credit Lyonnais New York Branch,
as Documentation Agent, and Citibank, N.A., as Agent for such Banks; (b) hereby
gives you notice, irrevocably, pursuant to Section 2.2 of the Credit Agreement
that the undersigned hereby requests an A Borrowing under the Credit Agreement
and (c) in that connection sets forth below the information relating to such A
Borrowing (the "Proposed A Borrowing") as required by Section 2.2 (a) of the
Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is ______________,
19____.
(ii) The Type of A Advances comprising the Proposed A Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is
$__________________.
[(iv) The Interest Period for each A Advance made as part of the Proposed A
Borrowing is ______ months.]
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed A Borrowing:
(a) the representations and warranties contained in Section 4.1 of the
Credit Agreement as to the Borrower and its Subsidiaries are correct
on and as of the date of the Proposed A Borrowing, before and after
giving effect to the Proposed A Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed A Borrowing or from the application of the proceeds
therefrom, which constitutes an
Exhibit B-1-1
364-Day Credit Agreement
121
Citibank, N.A., as Agent
_________________, _____
Page 2
Event of Default or which would constitute an Event of Default but
for the requirement that notice be given or time elapse or both;
(c) the senior unsecured debt of the Borrower is rated _____ by S&P and
____ by ▇▇▇▇▇'▇; and
(d) after giving effect to the Proposed A Borrowing and all other
Borrowings which have been requested on or prior to the date of the
Proposed A Borrowing but which have not been made prior to such date,
the aggregate principal amount of all Advances will not exceed the
aggregate of the Commitments of the Banks to the Borrower (computed
without regard to any B Reduction).
Very truly yours,
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
cc: Citicorp North America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc.
Account Officer
Exhibit B-1-2
364-Day Credit Agreement
122
EXHIBIT B-2
NOTICE OF B BORROWING
[Date]
Citibank, N.A., as Agent
for the Banks parties to the
Credit Agreement referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
The undersigned, The ▇▇▇▇▇▇▇▇ Companies, Inc. (the "Borrower"), (a) refers
to that certain Credit Agreement, dated as of July 25, 2000 (as amended or
otherwise modified from time to time, the "Credit Agreement"; the terms defined
therein and not defined herein being used herein as therein defined), by and
among the undersigned, certain Banks parties thereto, The Chase Manhattan Bank
and Commerzbank AG, as Co-Syndication Agents, Credit Lyonnais New York Branch,
as Documentation Agent, and Citibank, N.A., as Agent for such Banks; (b) hereby
gives you notice, irrevocably, pursuant to Section 2.16 of the Credit Agreement
that the undersigned hereby requests a B Borrowing under the Credit Agreement
and (c) in that connection sets forth the terms on which such B Borrowing (the
"Proposed B Borrowing") is requested to be made:
(A) Date of B Borrowing
----------------------------
(B) Amount of B Borrowing
----------------------------
(C) Maturity Date
----------------------------
(D) Interest Rate Basis
----------------------------
(E) Interest Payment Date(s)
----------------------------
(F) Prepayment Permitted [Yes/No] [Conditions]
(G)
-------------------- ----------------------------
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed B Borrowing:
(a) the representations and warranties contained in Section 4.1 of the
Credit Agreement as to the Borrower and its Subsidiaries are correct
on and as of the date of the Proposed B Borrowing, before and after
giving effect to the Proposed B Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed B Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both;
Exhibit B-2-1
364-Day Credit Agreement
123
(c) following the making of the Proposed B Borrowing and all other
Borrowings to be made on the same day under the Credit
Agreement, the aggregate principal amount of all Advances of
the Banks to the Borrower then outstanding will not exceed the
aggregate amount of the Commitments of the Banks to the
Borrower (computed without regard to any B Reduction); and
(d) after giving effect to the Proposed B Borrowing and all other
Borrowings which have been requested on or prior to the date
of the Proposed B Borrowing but which have not been made prior
to such date, the aggregate principal amount of all Advances
will not exceed the aggregate of the Commitments of the Banks.
The undersigned hereby confirms that the Proposed B Borrowing is to be
made available to it in accordance with Section 2.16(a)(v) of the Credit
Agreement.
Very truly yours,
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
cc: Citicorp North America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc.
Account Officer
364-Day Credit Agreement
Exhibit ▇-▇ - ▇
▇▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ One ▇▇▇▇▇▇▇▇ Center
Senior Vice President and ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
General Counsel 918/573-2480
July 25, 2000
To each of the Banks parties to the Credit Agreement dated as of July 25, 2000,
by and among the Borrower, the Banks parties thereto and Citibank, N.A., as
Agent for the Banks
Ladies and Gentlemen:
I am General Counsel of The ▇▇▇▇▇▇▇▇ Companies, Inc. (the "Borrower")
and have acted as counsel to the Borrower in connection with the U.S.
$1,700,000,000 Credit Agreement dated July 25, 2000, by and among the Borrower,
the Banks parties thereto, and Citibank, N.A., as Agent for the Banks (the
"Agreement"). This opinion is furnished to you at the request of the Borrower
pursuant to Section 3.1(d) of the Agreement. Terms defined in the Agreement not
otherwise defined herein are used herein as therein defined.
In connection with the opinions expressed herein, I, or attorneys
reporting to me, have examined and relied upon copies of the following
documents:
(a) the Agreement, including all exhibits, (a) schedules, and
attachments thereto, and any Notes issued pursuant thereto;
(b) a Certificate of the Secretary of State of the (b) State of
Delaware dated July 25, 2000, attesting to the continued
corporate existence and good standing of the Borrower in that
State; and
(c) the Certificate of Incorporation and By-Laws of the Borrower,
and all amendments thereto.
Those documents identified in items (a) through (c) above are
collectively referred to herein as the "Transaction Documents." In connection
with this opinion, I or other attorneys acting under my supervision have (i)
investigated such questions of law, (ii) examined such corporate documents and
records of the Borrower and certificates of public officials, and (iii) received
such information from officers and representatives of the Borrower and made such
investigations as I or other attorneys under my supervision have deemed
necessary or appropriate for the purposes of this opinion. I have not, nor have
other attorneys under my supervision, conducted independent investigations or
inquiries to determine the existence of matters, actions, proceedings, items,
documents, facts, judgments, decrees, franchises,
364-Day Credit Agreement
Exhibit C - 1
125
July 25, 2000
Page 2
certificates, permits, or the like and have made no independent search of the
records of any court, arbitrator, or governmental authority affecting any
Person, and no inference as to my knowledge thereof shall be drawn from the fact
of my representation of any party or otherwise.
In rendering the opinions herein, I have assumed without independent
verification (i) the genuineness of all signatures of the Banks and the Agent,
(ii) the capacity of the signing officers of each of the Banks and the Agent,
(iii) the authenticity of all documents submitted to me as original and the
conformity with the authentic originals of all documents submitted to me as
copies, and (iv) the due execution and delivery, pursuant to due authorization,
of the Agreement by the Banks and the Agent and the enforceability of the
Agreement against the Banks and the Agent.
Based upon and subject to the foregoing and the other qualifications,
limitations, and assumptions set forth below and upon such other matters as I
have deemed appropriate, I am of the opinion that:
1. The Borrower is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
Delaware.
2. The execution, delivery, and performance by the Borrower of
the Agreement and any Notes and the consummation of the
transactions contemplated by the Agreement are (a) within the
Borrower's corporate powers, (b) will not contravene (i) the
Certificate of Incorporation or By-Laws of the Borrower, (ii)
any law, rule, or regulation applicable to the Borrower
(including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), or (iii) any
contractual or legal restriction, and (d) will not result in
or require the creation or imposition of any Lien prohibited
by the Agreement.
3. The Agreement and any Notes have been duly authorized,
executed, and delivered to the Agent by the Borrower.
4. No authorization, approval, or other action by, and no notice
to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery, and
performance by the Borrower of the Agreement or the
consummation of the transactions contemplated by the
Agreement, except, in the case of such performance, for such
authorizations, approvals, actions, notices, and filings which
have been made or obtained.
5. The Agreement and the Notes, if any, when executed and
delivered, will constitute legal, valid, and binding
obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms.
364-Day Credit Agreement
Exhibit C - 2
126
July 25, 2000
Page 3
6. Except as set forth in the Public Filings, to my knowledge
there are no pending or overtly threatened actions or
proceedings against the Borrower or any of its Subsidiaries
before any court, governmental agency, or arbitrator that
purport to affect the legality, validity, binding effect, or
enforceability of the Agreement or the Notes, if any, that
would reasonably be expected to have a materially adverse
effect upon the financial condition or operations of the
Borrower and its Subsidiaries, taken as a whole.
7. The Borrower is not an "investment company" or company
"controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended. The Borrower
is not a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or
of a "subsidiary company" of a "holding company," or a "public
utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
8. In any action or proceeding arising out of or relating to the
Agreement or any of the Notes in any court of the State of
Oklahoma or in any Federal court sitting in the State of
Oklahoma, assuming (i) proper venue, jurisdiction, and a full
and proper presentation of the issues and the law to the
court, (ii) such action or proceeding is not dismissed on the
basis of an inconvenient forum, and (iii) that the court
properly applies Oklahoma law, such court would (a) recognize
and give effect to the provisions of the Agreement and the
Notes that set forth the governing law, and (b) construe the
Agreement and the Notes in accordance with the internal laws
of the State of New York. Subject to the foregoing and without
limiting the generality thereof, a court of the State of
Oklahoma or a Federal court sitting in the State of Oklahoma
would apply the usury law of the State of New York, and would
not apply the usury law of the State of Oklahoma, to the
Agreement and the Notes. However, if a court were to hold that
the Agreement or any of the Notes are governed by or to be
construed in accordance with the laws of the State of
Oklahoma, the Agreement and the Notes when executed,
delivered, and funded, would be, under the laws of the State
of Oklahoma, legal, valid, and binding obligations of the
Borrower signatory thereto and enforceable against the
Borrower in accordance with their respective terms.
The opinions expressed in this letter are subject to the following
additional qualifications and limitations:
A. My opinion in paragraph 1 with respect to the incorporation
and good standing of the Borrower is based solely on a
Certificate, dated as of July 25, 2000, from the Secretary of
State of the State of Delaware, certifying as to such matters.
364-Day Credit Agreement
Exhibit C - 3
127
July 25, 2000
Page 4
B. My opinions in paragraph 5 and my opinion in the last sentence
of paragraph 8 above are subject, insofar as enforceability is
concerned, to the effect of any applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium,
or similar law affecting creditors' rights and remedies
generally.
C. My opinion in paragraph 5 and my opinion in the last sentence
of paragraph 8 above are subject, insofar as enforceability is
concerned, to the effect of general principles of equity
including principles of commercial reasonableness, good faith,
and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
D. I express no opinion with respect to the enforceability of any
of the following: (i) indemnification provisions to the extent
the same are violative of federal or state securities laws,
rules, or regulations, or of public policy, (ii) clauses
waiving right to trial by jury, exculpation clauses, or
clauses granting offset rights to the Banks or against any
deposits or in respect of matured claims, (iii) clauses
relating to recovery of attorneys' fees in connection with the
enforcement of obligations, (iv) clauses relating to release
of unmatured claims and integration clauses to the effect that
no representation was made other than as appears in the
Agreement, (v) clauses purporting to waive unmatured rights,
representations, warranties, or affirmative or negative
covenants to the extent such representations, warranties, or
covenants can be construed to be independent clauses which
purport to be legal, valid, binding, and enforceable by
themselves, as distinguished from being clauses that trigger
an event of default, and severability and similar clauses, and
(vi) clauses that incorporate by reference a document or
instrument or agreement not in existence on the date hereof to
the extent that any such document, instrument, or agreement is
the basis of an effort to enforce the Agreement, insofar as
any of the foregoing are contained in the Agreement.
E. I express no opinion as to the effect on the opinions herein
stated of compliance or non-compliance by any Bank with any
applicable state, federal, or other laws or regulations
applying only to banks, or the legal or regulatory status of
any Bank.
F. My opinion in paragraph 5 and my opinion in paragraph 8 above
assumes (i) application of New York law would not be found to
be contrary to a fundamental policy of a state with a
materially greater interest in determining the question
presented and the laws of which would govern in absence of an
effective choice of law, (ii) Citibank, N.A. has a place of
business located in the State of New York, and (iii) the
Borrower is required to perform a part of its obligations
under the Agreement, such as delivery of payment, in the State
of New York.
364-Day Credit Agreement
Exhibit C - 4
128
July 25, 2000
Page 5
G. Qualification of any statement or opinion herein by the use of
the words "to my knowledge" means that during the course of
representation in connection with the transactions
contemplated by the Agreement, no information has come to the
attention of me or attorneys reporting to me that would give
me or such attorneys current actual knowledge of the existence
of facts or matters so qualified. I have not undertaken any
investigation to determine the existence of facts, and no
inference as to my knowledge thereof shall be drawn from the
fact of the representation by me or attorneys reporting to me
of any party or otherwise.
I am admitted to practice law in the States of Oklahoma and New York,
and, accordingly, the opinions expressed herein are based upon and limited
exclusively to the laws of the States of Oklahoma and New York, the General
Corporation Law of the State of Delaware and the laws of the United States of
America insofar as any of such laws are applicable. I render no opinion with
respect to any other laws.
364-Day Credit Agreement
Exhibit C - 5
129
This opinion letter is solely for the benefit of the Banks and the
Agent, their respective successors, assigns, participants, and other transferees
and counsel for the Persons referred to in this sentence, in consummating the
transaction contemplated by the Agreement, and may not be used or relied upon
by, quoted, transmitted to, or filed with any other Person or for any other
purpose whatsoever without in each instance my prior written consent. This
opinion speaks as of its date, and I undertake no, and hereby expressly disclaim
any, duty to advise you as to any changes of fact or law coming to my attention
after the date hereof.
Very truly yours,
▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
364-Day Credit Agreement
Exhibit C - 6
130
EXHIBIT D
[FORM OF OPINION]
July ___, 2000
To each of the Banks party to the
Credit Agreement described below,
The Chase Manhattan Bank and
Commerzbank AG, as Co-Syndication
Agents, Credit Lyonnais New York Branch,
as Documentation Agent and
Citibank, N.A., as Agent
Ladies and Gentlemen:
We have acted as special counsel to Citibank, N.A., acting for itself
and as Agent, in connection with the preparation, execution and delivery of the
Credit Agreement, dated as of July ___ , 2000 (the "Credit Agreement"), by and
among The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware corporation (the "Borrower"), and
each of you. Terms defined in the Credit Agreement are used herein as therein
defined.
In that connection, we have examined the following documents:
(1) Counterparts of the Credit Agreement, executed by the
Agent, the Co-Syndication Agents, the Documentation Agent and the
Borrower, respectively.
(2) The documents furnished by the Borrower pursuant to
Section 3.1 of the Credit Agreement and listed on Annex A hereto,
including the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ("Opinion").
In our examination of the documents referred to above, we have assumed
(i) the authenticity of all such documents submitted to us as originals, (ii)
the genuineness of all signatures and (iii) the conformity to the originals of
all such documents submitted to us as copies. We have also assumed the accuracy
of all matters set forth in the certificates referred to on Annex A hereto and
assumed that the Borrower, the Banks, the Co-Syndication Agents, the
Documentation Agent and the Agent have duly executed and delivered, with all
necessary power and authority (corporate and otherwise), the Credit Agreement
and that the Borrower has duly executed and delivered, with all necessary power
and authority (corporate and otherwise), the respective A Notes. We have also
assumed that (i) no Bank has requested that the opinion required by Section
3.1(d) of the Credit Agreement contain any matter not contained in the form of
opinion set forth as Exhibit C to the Credit Agreement, (ii) no Bank other than
those Banks listed in item (1) of Annex A has requested that an A Note be
delivered to it and (iii) the Agent
364-Day Credit Agreement
Exhibit D - 1
131
has satisfactory evidence that principal and interest on all loans and advances
outstanding (if any) and all accrued fees and other obligations owed by The
▇▇▇▇▇▇▇▇ Companies, Inc. ("TWC") pursuant to the Second Amended and Restated
Credit Agreement dated as of January 24, 2000 among TWC, the financial
institutions party thereto and Citibank, N.A., as agent for such institutions
have been paid in full.
Based upon the foregoing examination of documents and assumptions and
upon such other investigation as we have deemed necessary, we are of the opinion
that the Opinion and the other documents referred to in item (2) above are
substantially responsive to the requirements of the Credit Agreement.
This opinion (i) is furnished solely for the benefit of the Banks, the
Co-Syndication Agents, the Documentation Agent, the Agent, their respective
successors, assigns, participants and other transferees and solely in connection
with the transactions described above and (ii) may not be relied upon by, or
communicated to, any other Person or for any other purpose, nor may it be
quoted, circulated or published or made public, in whole or in part, or
furnished, without our prior written consent, to any Person. This opinion is
rendered as of the date hereof, and we express no opinion as to, and disclaim
any undertaking or obligation to update this opinion in respect of changes in
laws or interpretations thereof or in circumstances or events that occur
subsequent to this date.
Very truly yours,
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
364-Day Credit Agreement
Exhibit D - 2
132
ANNEX A
(1) A Notes dated July ___, 2000 of the Borrower payable to the order of
the following Banks:
[list banks requesting A Notes]
(2) Certified copies of resolutions of the Board of Directors of the
Borrower pertaining to the Credit Agreement and the Notes.
(3) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying (a) the names and the signatures of officers of the
Borrower authorized to sign the Credit Agreement and the Notes of the
Borrower and (b) copies of the Certificate of Incorporation and Bylaws
of the Borrower.
(4) The opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, Esq., substantially in the form of
Exhibit C to the Credit Agreement.
(5) A certificate of an officer of the Borrower stating the respective
ratings by each of S&P and ▇▇▇▇▇'▇ of the senior unsecured long-term
debt of the Borrower as in effect on July ___, 2000.
364-Day Credit Agreement
Exhibit D - 3
133
EXHIBIT E
INVESTMENTS DESCRIBED IN PARAGRAPH 5.2(e)
OF THE CREDIT AGREEMENT
Loan Agreement dated as of September 8, 1999 between ▇▇▇▇▇▇▇▇ Communications,
Inc., as Borrower, and The ▇▇▇▇▇▇▇▇ Companies, Inc., as Lender, filed as Exhibit
10.57 to WCG's Form 10-K/A for the fiscal year ended December 31, 1999.
Various immaterial intercompany receivables between TWC or its Subsidiaries and
the WCG Subsidiaries for services rendered, which are settled on a reasonably
prompt basis. Services are rendered to the WCG Subsidiaries by TWC or its
Subsidiaries pursuant to certain intercompany services agreements, all of which
are filed as exhibits to WCG's Form 10-K/A for the fiscal year ended December
31, 1999.
As of July 25, 2000, TWC's investment in WCG consists of 395,434,965 shares of
Class B common stock.
364-Day Credit Agreement
Exhibit E - 1
134
EXHIBIT F
TRANSFER AGREEMENT
This Transfer Agreement, dated as of ___________________ (this
"Agreement"), is made by and among (a) The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware
corporation ("Borrower"); (b) Citibank, N.A., as Agent for the banks party to
that certain Credit Agreement, dated as of July 25, 2000 (as may be amended from
time to time, the "Credit Agreement"), by and among the Borrower, The Chase
Manhattan Bank and Commerzbank AG, as Co-Syndication Agents, Credit Lyonnais New
York Branch, as Documentation Agent, such Agent and such banks; (c)
___________________ ("Assignor") and (d) _______________ ("Assignee"). In
consideration of the mutual covenants herein contained, the parties hereto agree
as set forth herein.
1. Transfer. Pursuant to the last sentence of Section 8.6(a) of the
Credit Agreement, Assignor hereby assigns to Assignee (without representation or
warranty to Assignee and without Assignee having recourse against Assignor as a
result of such assignment), and Assignee hereby assumes, a constant ____% of
each of the Assignor's Commitments (such term used throughout this Agreement
without giving effect to any B Reduction) to the Borrower under the Credit
Agreement, such assignment from Assignor to Assignee being [all of Assignor's
Commitments to the Borrower][$___________ of Assignor's $____________ Commitment
to the Borrower] (the amount of such Commitment to the Borrower so assigned is
called the "Assigned Portion" of such Commitment). [The Assignee is already a
Bank under the Credit Agreement with a Commitment of $___________ to the
Borrower prior to the assumption contemplated hereby.] [The Assignee is hereby
approved by the Agent [and the Borrower] for purposes of the assignment and
assumption contemplated hereby.] As contemplated by such Section 8.6, it is
hereby agreed that:
(i) the Assignor is hereby released from all of its obligations
under the Credit Agreement with respect to or arising as a
result of the Assigned Portions of its Commitment assigned
hereby;
(ii) the Assignee hereby becomes obligated for the Assigned
Portions of such Commitment and all other obligations of the
Assignor (including, without limitation, obligations to the
Agent under Section 7.5 of the Credit Agreement or otherwise)
under the Credit Agreement with respect to or arising as a
result of the Assigned Portions of such Commitments;
(iii) the Assignee is hereby assigned the right to vote or consent
under the Credit Agreement and the other rights and
obligations of the Assignor under the Credit Agreement, in
each case to the extent of the Assigned Portions of such
Commitment;
(iv) The Borrower, contemporaneously with its execution and
delivery hereof, will deliver, in replacement of the A Note of
the Assignor currently outstanding [(and in replacement of
Assignee's existing $___________ A Note)] (a) to the
364-Day Credit Agreement
Exhibit F - 1
135
Assignee, a new A Note in the amount of $____________ [(and
the Assignee agrees to cancel and return to the Borrower, with
reasonable promptness following such delivery, the A Note of
the Assignee being replaced thereby)], (b) to the Assignor, a
new A Note in the amount of $____________ (and the Assignor
agrees to cancel and return to the Borrower, with reasonable
promptness following delivery of such new A Note, the A Note
of the Assignor being replaced thereby), and (c) to the Agent,
photocopies of all such new A Notes and of all such canceled A
Notes;
[(v) inasmuch as there are currently no outstanding A Advances, no
transfer of A Advances is hereby made];
[(vi) $__________ of the Assignor's outstanding A Advances to the
Borrower are hereby transferred to the Assignee, which amounts
represent [the aggregate amount of all of the Assignor's
outstanding A Advances to the Borrower respectively,] [the
amount of the assigned portions of the outstanding A Advances
of the Assignor to the Borrower being hereby assigned to
Assignee a portion of each such A Advance with the assigned
portion of each such A Advance being equal to the amount of
such A Advance multiplied by a fraction, the numerator of
which is the amount of the Assignor's Commitments assumed
hereby by the Assignee and the denominator of which is the
amount of the Assignor's Commitments (without giving effect to
any B Reduction) immediately prior to such assumption]; [and]
(vii) the Assignee hereby confirms that it is a party to the Credit
Agreement as a Bank and agrees that after giving effect to
this Agreement its Commitments will be $_______________ to the
Borrower; [and]
(viii) the Assignee hereby specifies the following offices as its
Applicable Lending Offices under the Credit Agreement:
Domestic Eurodollar
Lending Office Lending Office
Attention: Attention:
------------- -------------
Telephone: Telephone:
------------- -------------
Telecopy: Telecopy:
-------------- --------------
Answerback: Answerback:
------------ ------------
[(ix) the Assignee hereby specifies the following as its address for
notices and communications under the Credit Agreement:
364-Day Credit Agreement
Exhibit F - 2
136
[Assignee]
-------------
Attention:
-------------
Telephone:
-------------
Telecopy:
--------------
Answerback: ]
------------
2. Miscellaneous.
2.1 Amendments, Etc. This Agreement shall not be amended,
waived or otherwise modified except in writing executed by the parties hereto.
2.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
2.3 Definitions. Capitalized terms used herein which are
defined in the Credit Agreement and not defined herein are used herein as
defined in the Credit Agreement.
2.4 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
2.5 Effective Date. This Agreement shall be effective as of
the date first above written for purposes of computation of commitment fees
under the Credit Agreement and for all other relevant purposes.
2.6 Assignee Credit Decision. The Assignee acknowledges that
it has, independently and without reliance upon the Agent or any other Bank and
based on such financial statements and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. The Assignee also acknowledges that it will, independently
and without reliance upon the 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 credit decisions in taking or not taking action under any Note, the
Credit Agreement or this Agreement.
2.7 Indemnity. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses (including
without limitation reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
performance or non-performance of obligations assumed by Assignee under this
Agreement.
364-Day Credit Agreement
Exhibit F - 3
137
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
[NAME OF ASSIGNEE] THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
[NAME OF ASSIGNOR] CITIBANK, N.A., AS AGENT
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
364-Day Credit Agreement
Exhibit F - 4
