EXHIBIT (10)
________________________________________________________________________________
$850,000,000
364-DAY CREDIT AGREEMENT
among
ONEOK, INC.,
BANK OF AMERICA, N.A.
as Administrative Agent and as a Lender,
Letter of Credit Issuer and Swing Line Lender,
BANK ONE, NA
and
FIRST UNION NATIONAL BANK,
Co-Syndication Agents,
ABN AMRO BANK N.V.,
and
FLEET NATIONAL BANK
Co-Documentation Agents,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Dated as of June 28, 2001
________________________________________________________________________________
BANC OF AMERICA SECURITIES LLC,
Sole Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
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Section 1. DEFINITIONS............................................................. 1
1.1 Certain Defined Terms........................................................ 1
1.2 Other Definitional Provisions................................................ 16
Section 2. THE LOANS............................................................... 16
2.1 Revolving Loans.............................................................. 16
2.2 Swing Line................................................................... 16
2.3 Loan Accounts................................................................ 17
2.4 Letters of Credit............................................................ 18
2.5 Procedure for Borrowings..................................................... 22
2.6 Conversion and Continuation Elections........................................ 23
2.7 Limitation on Interest Periods............................................... 23
2.8 Reductions of Commitments.................................................... 24
2.9 Interest on the Loans........................................................ 24
2.10 Maturity of Loans.......................................................... 24
2.11 Voluntary Prepayments...................................................... 24
2.12 Fees....................................................................... 25
(a) Arrangement Fee............................................................ 25
(b) Facility Fee............................................................... 25
(c) Utilization Fee............................................................ 25
(d) Letter of Credit Fees...................................................... 25
(e) Agency Fee................................................................. 26
2.13 Computation of Fees and Interest............................................. 26
2.14 Use of Proceeds of Loans..................................................... 26
2.15 Funding Sources.............................................................. 26
2.16 Extension of Maturity Date................................................... 26
Section 3. PAYMENTS IN GENERAL..................................................... 26
3.1 Taxes........................................................................ 26
3.2 Payments by the Company...................................................... 28
3.3 Payments on Non-Business Days................................................ 29
3.4 Illegality................................................................... 29
3.5 Increased Costs and Reduction of Return...................................... 30
3.6 Funding Losses............................................................... 30
3.7 Inability to Determine Rates................................................. 31
3.8 Payments by Banks............................................................ 31
Section 4. CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND EXTENSIONS OF CREDIT....... 31
4.1 Conditions of Closing........................................................ 31
4.2 Conditions to all Extensions of Credit....................................... 33
Section 5. REPRESENTATIONS AND WARRANTIES.......................................... 33
5.1 Corporate Existence and Power................................................ 33
5.2 Corporate Authorization; No Contravention.................................... 33
5.3 Governmental Authorization................................................... 33
5.4 Binding Effect............................................................... 34
5.5 Litigation................................................................... 34
5.6 No Default................................................................... 34
5.7 ERISA Compliance............................................................. 34
5.8 Use of Proceeds; Margin Regulations.......................................... 34
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5.9 Title to Properties.......................................................... 34
5.10 Taxes...................................................................... 35
5.11 Financial Condition........................................................ 35
5.12 Environmental Matters...................................................... 35
5.13 Regulated Entities......................................................... 35
5.14 No Burdensome Restrictions................................................. 36
5.15 Insurance.................................................................. 36
5.16 Full Disclosure............................................................ 36
Section 6. AFFIRMATIVE COVENANTS.................................................. 36
6.1 Financial Statements......................................................... 36
6.2 Certificates; Other Information.............................................. 36
6.3 Notices...................................................................... 37
6.4 Preservation of Corporate Existence, Etc..................................... 38
6.5 Maintenance of Property...................................................... 39
6.6 Insurance.................................................................... 39
6.7 Payment of Obligations....................................................... 39
6.8 Compliance with Laws......................................................... 39
6.9 Inspection of Property and Books and Records................................. 39
6.10 Compliance with ERISA...................................................... 39
6.11 Environmental Laws......................................................... 40
6.13 Further Assurances......................................................... 40
Section 7. NEGATIVE COVENANTS..................................................... 40
7.1 Limitation on Liens.......................................................... 40
7.2 Merger and Sale of Assets.................................................... 41
7.3 Acquisitions, Loans and Investments.......................................... 42
7.4 Compliance with ERISA........................................................ 42
7.5 Restricted Payments.......................................................... 42
7.6 Limitation on Senior Funded Indebtedness..................................... 43
7.7 Change in Business........................................................... 43
7.8 Transactions with Affiliates................................................. 43
Section 8. EVENTS OF DEFAULT...................................................... 43
8.1 Events of Default............................................................ 43
8.2 Remedies..................................................................... 45
8.3 Rights Not Exclusive......................................................... 46
Section 9. THE ADMINISTRATIVE AGENT............................................... 46
9.1 Appointment and Authorization................................................ 46
9.2 Delegation of Duties......................................................... 46
9.3 Liability of Administrative Agent............................................ 46
9.4 Reliance by Administrative Agent............................................. 47
9.5 Notice of Default............................................................ 47
9.6 Credit Decision.............................................................. 48
9.7 Indemnification.............................................................. 48
9.8 Administrative Agent in Individual Capacity.................................. 48
9.9 Successor Agent.............................................................. 49
9.10 Lead Arranger and Book Manager; Agents..................................... 49
Section 10. MISCELLANEOUS.......................................................... 49
10.1 Amendments and Waivers; Extension of Availability Period................... 49
10.2 Notices.................................................................... 50
10.3 No Waiver; Cumulative Remedies............................................. 50
10.4 Costs and Expenses......................................................... 50
10.5 Successors and Assigns..................................................... 51
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10.6 Assignments, Participations etc............................................. 51
10.7 Set-off..................................................................... 52
10.8 Sharing of Payments, Etc.................................................... 53
10.9 Indemnity................................................................... 53
(a) General Indemnity........................................................... 53
(b) Survival; Defense........................................................... 54
10.10 Marshalling; Payments Set Aside............................................. 54
10.11 Addresses for Notices....................................................... 54
10.12 Maximum Rate................................................................ 54
10.13 Counterparts................................................................ 55
10.14 No Third Parties Benefited.................................................. 55
10.15 Severability................................................................ 55
10.16 Governing Law and Jurisdiction.............................................. 55
10.17 Waiver of Jury Trial........................................................ 56
10.18 Entire Agreement............................................................ 56
10.19 Interpretation.............................................................. 56
10.20 Survival.................................................................... 57
EXHIBITS
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A Form of Request for Extension of Credit
B Form of Notice of Conversion/Continuation
C-1 Form of Revolving Loan Promissory Note
C-2 Form of Swing Loan Promissory Note
D Form of Opinion of Counsel
E Form of Notice of Commitment Assignment and Acceptance
SCHEDULES
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1 Commitments
2 Addresses for Company and Administrative Agent Notices
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ONEOK, INC.
364-DAY CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Agreement") is made and dated as of June 28,
2001 by and among ONEOK, INC., an Oklahoma corporation (the "Company"), the
financial institutions from time to time party to this Agreement (collectively,
the "Lenders"), and BANK OF AMERICA, N.A., as Administrative Agent and as a
Lender, Letter of Credit Issuing Lender and Swing Line Lender, Bank One, NA and
First Union National Bank, Co-Syndication Agents and as Lenders, and Fleet
National Bank and ABN Amro Bank N.V., Co-Documentation Agents and as Lenders.
RECITAL
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The Company has requested that Lenders make available a revolving credit
facility with letter of credit subfacility and swing line facility, and the
Lenders, Issuing Lender and Administrative Agent are willing to do so on the
terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
Section 1. DEFINITIONS.
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1.1 Certain Defined Terms. The following terms used in this
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Agreement shall have the following meanings:
"Affiliate" means, as to any Person, any other Person which, directly
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or indirectly, is in Control of, is Controlled by, or is under common Control
with, such Person.
"Administrative Agent" means Bank of America, N.A. in its capacity as
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administrative agent for the Lenders hereunder, and any successor administrative
agent.
"Agent-Related Persons" has the meaning specified in Section 9.3.
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"Aggregate Commitment" means the combined Commitments of the Lenders.
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"Agreement" means this Credit Agreement, as it may hereafter be
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amended, supplemented, restated or otherwise modified from time to time.
"Applicable Amount" means, for any day, with respect to outstanding
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Loans of the Types referred to below, and the facility fees, utilization fees
and letter of credit fees referred to below, as the case may be, the per annum
amount set forth below under the caption "Facility Fee", "Applicable Margin for
Offshore Rate Loans", "Utilization Fee" or "Letter of Credit Fee", as the case
may be, based upon the ratings by ▇▇▇▇▇'▇ and S&P, respectively, applicable on
such date to the Index Debt (hereinafter defined):
=========================================================================================================
Pricing Level Applicable Amount (in basis points per annum)
=========================================================================================================
Rating of Applicable Margin for
Index Debt Facility Fee Offshore Rate Loans Utilization Fee Letter of
Credit Fee
=========================================================================================================
A+ or higher by S&P 6.5 bps 23.5 bps 10.0 bps 23.5 bps
and A1 or higher by
▇▇▇▇▇'▇
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A by S&P and A2 by 7.0 bps 28.0 bps 10.0 bps 28.0 bps
▇▇▇▇▇'▇
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A- by S&P and A3 by 7.5 bps 32.5 bps 10.0 bps 32.5 bps
▇▇▇▇▇'▇
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BBB+ by S&P and Baa1 10.0 bps 45.0 bps 12.5 bps 45.0 bps
by ▇▇▇▇▇'▇
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BBB by S&P and Baa2 12.5 bps 50.0 bps 12.5 bps 50.0 bps
by ▇▇▇▇▇'▇
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BBB- by S&P and Baa3 15.0 bps 60.0 bps 15.0 bps 60.0 bps
by ▇▇▇▇▇'▇
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Lower than BBB- by 20.0 bps 80.0 bps 17.5 bps 80.0 bps
S&P and Baa3 by
▇▇▇▇▇'▇
=========================================================================================================
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall not have
in effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established a rating in the lowest of the categories
above; (ii) if the ratings established or deemed to have been established by
▇▇▇▇▇'▇ and S&P for the Index Debt shall fall within different categories, the
Applicable Amount shall be based on the higher of the two ratings; and (iii) if
the ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P
for the Index Debt shall be changed (other than as a result of a change in the
rating system of ▇▇▇▇▇'▇ or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. "Index Debt"
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means senior, unsecured, long-term indebtedness for borrowed money of the
Company that is not guaranteed by any other Person or subject to any other
credit enhancement. Each change in the Applicable Amount shall apply during the
period commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of ▇▇▇▇▇'▇ or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Company
and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Amount shall be determined by reference to the rating most recently
in effect prior to such change or cessation.
"Arranger" means Bank of America Securities LLC, in its capacity as
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lead arranger and book manager.
"Assignee" has the meaning specified in Section 10.6.
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"Availability Period" means the period from the Closing Date to but
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excluding the Maturity Date.
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"Lenders" has the meaning assigned to that term in the introduction to
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this Agreement. References to the "Lenders" shall include Bank of America,
including in its capacity as Issuing Lender and in its capacity as Swing Line
Lender; for purposes of clarification only, to the extent that Bank of America
may have any rights or obligations in addition to those of the Lenders due to
its status as Issuing Lender or Swing Line Lender, its status as such will be
specifically referenced.
"Bank of America" means Bank of America, N.A.
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"Base Rate" means for any day a fluctuating rate per annum equal to
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the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the interest
rate in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors, including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loans" means Loans made by the Lenders bearing interest at
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rates determined by reference to the Base Rate.
"Borrowing" means a borrowing hereunder consisting of Loans made to
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the Company on the same day by the Lenders pursuant to Section 2.
"Borrowing Date" means the date a Borrowing is made.
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"Business Day" means any day other than a Saturday, Sunday or other
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day on which commercial banks in New York City or Dallas, Texas are authorized
or required by law to close and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which dealings are carried on in the
London interbank market.
"CERCLA" has the meaning specified in the definition of "Environmental
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Laws."
"Change in Control" means (a) the acquisition of ownership, directly
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or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder) of shares representing more than 40% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Company; (b) occupation of a majority of the seats (other
than vacant seats) on the board of directors of the Company by Persons who were
neither (i) nominated by the board of directors of the Company nor (ii)
appointed by directors so nominated; or (c) the acquisition of direct or
indirect Control of the Company by any Person or group; provided, however, that
the acquisition of equity interest in the Company by Western Resources, Inc. in
an amount representing up to 45% of the aggregate equity interest and/or up to
45% of the aggregate voting power represented by the issued and outstanding
capital stock of the Company shall not constitute a Change of Control.
"Closing Date" means June 28, 2001.
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"Code" means the Internal Revenue Code of 1986, as amended.
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"Commitment" means the commitment of each Lender to make Extensions of
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Credit in the amount set forth opposite the Lender's name in Schedule 1 under
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the heading "Commitment" (such amount as the same may be reduced pursuant to
Section 2.8, other appropriate provisions herein or as a result of one or more
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assignments pursuant to Section 10.6).
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"Company" means ONEOK, Inc., an Oklahoma corporation.
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"Consolidated Capitalization" of the Company and its Subsidiaries
---------------------------
means the aggregate of:
(i) Funded Indebtedness,
(ii) capital stock,
(iii) retained earnings, and
(iv) premium on capital stock and other capital surplus
all as shown by a consolidated balance sheet. For purposes of this definition,
in determining retained earnings there shall be deducted any amounts included in
the accounts of the Company and its Subsidiaries for goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles.
"Consolidated Net Tangible Assets" means (i) the total amount of
--------------------------------
assets (less applicable reserves and other properly deductible items) which
under GAAP would be included on a consolidated balance sheet of the Company and
its Subsidiaries after deducting therefrom (a) all current liabilities,
provided, however, that there shall not be deducted ▇▇▇▇▇▇▇▇ recorded as
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revenues deferred pending the outcome of rate proceedings (less applicable
income taxes thereon), if and to the extent the obligation to refund the same
shall not have been finally determined, (b) appropriate allowance for minority
interests in common stocks of Subsidiaries and (c) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, which in each case under GAAP would be included on such
consolidated balance sheet, less (ii) the amount which would be so included on
such consolidated balance sheet for investments (less applicable reserves) made
in Subsidiaries.
"Consolidated Senior Funded Indebtedness" means the Senior Funded
---------------------------------------
Indebtedness appearing on a consolidated balance sheet of the Company and its
Subsidiaries.
"Consolidated Subsidiaries" means at any date any Subsidiary or other
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entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such financial statements were prepared
as of such date.
"Contractual Obligation", as applied to any Person, means any
----------------------
provision of any security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Without limitation, any director, executive officer or beneficial owner of 10%
or more of the equity of a Person shall for
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the purposes of this Agreement, be deemed to control such Person. "Controlling"
-----------
and "Controlled" have meanings correlative thereto.
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"Controlled Group" means the Company and all Persons (whether or not
----------------
incorporated) under common control or treated as a single employer with the
Company or any of its Subsidiaries pursuant to Section 414(b), (c), (m) or (o)
of the Code.
"Conversion Date" means any date on which the Company elects to
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convert a Base Rate Loan to an Offshore Rate Loan or an Offshore Rate Loan to a
Base Rate Loan.
"Default" means any event which, with the giving of notice, the lapse
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of time, or both, would constitute an Event of Default.
"Dollars" means lawful money of the United States of America.
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"Environmental Claim" means all claims, however asserted, by any
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Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in or from property,
whether or not owned by the Company, or (b) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local laws, statutes,
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common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters; including the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Clean Air Act, the Federal Water Pollution Control Act of 1972,
the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
Act, the Toxic Substances Control Act, the Emergency Planning and Community
Right-to-Know Act.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
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any regulation promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) under common control with the Company or any Subsidiary of the
Company within the meaning of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a Qualified
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Plan or a Multiemployer Plan; (b) a withdrawal by any member of the Controlled
Group from a Qualified Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA); (c) a complete or partial withdrawal by any member of the Controlled
Group from a Multiemployer Plan; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination under Section 4041
or 4041A of ERISA or the commencement of proceedings
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by the PBGC to terminate a Qualified Plan or Multiemployer Plan subject to Title
IV of ERISA; (e) a failure to make required contributions to a Qualified Plan or
Multiemployer Plan; (f) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Qualified Plan or Multiemployer
Plan; (g) the imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any
member of the Controlled Group; (h) an application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code with
respect to any Qualified Plan; (i) any member of the Controlled Group engages in
or otherwise becomes liable for a non-exempt prohibited transaction; or (j) a
violation of the applicable requirements of Section 404 or 405 of ERISA or the
exclusive benefit rule under Section 401(a) of the Code by any fiduciary with
respect to any Qualified Plan for which the Company or any of its Subsidiaries
may be directly or indirectly liable.
"Event of Default" means any of the events set forth in Section 8.
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"Exchange Act" means, at any time, the Securities Exchange Act of
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1934, as amended from time to time, and any successor statute.
"Existing Credit Facility" means the credit facility evidenced by the
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Credit Agreement dated as of June 30, 2000, by and among the Company,
Administrative Agent, Bank One, N.A., as Syndication Agent, First Union National
Bank, as Documentation Agent, and the financial institutions party thereto.
"Extension of Credit" means (a) the Borrowing of Loans, (b) the
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conversion or continuation of any Loans, or (c) any Letter of Credit Action
which has the effect of issuing a Letter of Credit, increasing the amount of any
Letter of Credit, extending the maturity of any Letter of Credit or making any
material modification to any Letter of Credit or the reimbursement of drawings
thereunder.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
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upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to Bank of America on such day on
such transactions as determined by Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System or any successor thereof.
"Funded Indebtedness" means all Indebtedness which by its terms
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matures more than one year from the date of determination thereof, and any
Indebtedness maturing within one year from such date which is renewable or
extendible at the option of the obligor to a date beyond one year from such
date, including any Indebtedness renewable or extendible (whether or not
theretofore renewed or extended) under, or payable from the proceeds of other
Indebtedness which may be incurred pursuant to the provisions of, any revolving
credit agreement or other similar agreement; provided, however, that any
Indebtedness of a Subsidiary for which the Company is contingently liable in the
manner provided in the definition of Indebtedness shall be deemed to be Funded
Indebtedness of
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the Company, whether or not such indebtedness is Funded Indebtedness of such
Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
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opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any state or
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other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, as to any Person, any (a) guaranty by
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that Person of Indebtedness of, or other obligation payable or performable by,
any other Person or (b) assurance, agreement, letter of responsibility, letter
of awareness, undertaking or arrangement given by that Person to an obligee of
any other Person with respect to the payment or performance of an obligation by,
or the financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such
obligation or any collateral security therefor, any agreement to provide funds
(by means of loans, capital contributions or otherwise) to such other Person,
any agreement to support the solvency or level of any balance sheet item of such
other Person or any "keep-well" or other arrangement of whatever nature given
for the purpose of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; provided, however, that the term
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Guaranty Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, covered by such
Guaranty Obligation or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the Person in good
faith.
"Indebtedness" means as to any Person at a particular time, all items
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which would, in conformity with GAAP, be classified as liabilities on a balance
sheet of such Person as at such time (excluding trade and other accounts payable
in the ordinary course of business in accordance with customary trade terms and
which are not overdue for a period of more than 60 days and excluding deferred
taxes), but in any event including:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) any direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), banker's
acceptances, bank guaranties, surety bonds and similar instruments;
(c) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or
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other title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse;
(d) lease payment obligations under capital leases or Synthetic
Lease Obligations; and
(e) all Guaranty Obligations of such Person in respect of any of the
foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person except for customary exceptions
acceptable to the Requisite Lenders.
"Indemnified Liabilities" has the meaning set forth in Section
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10.9(a).
"Insolvency Proceeding" means (a) any case, action or proceeding
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before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors or other, similar
arrangement; in each case (a) and (b) under U.S. Federal, State or foreign law.
"Interest Payment Date" means, with respect to any Offshore Rate Loan,
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the last Business Day of each Interest Period applicable to such Loan; with
respect to any Base Rate Loan (other than a Swing Line Loan), the last Business
Day of each calendar quarter; with respect to all Loans, the Maturity Date;
provided, however, that if any Interest Period for an Offshore Rate Loan exceeds
-------- -------
three months, interest shall also be paid on the date which falls three, six and
nine months after the beginning of such Interest Period.
"Interest Period" means, with respect to any Offshore Rate Loan, the
---------------
period commencing on the Business Day the Offshore Rate Loan is disbursed or
continued or on the date on which a Loan is converted into a Offshore Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by
the Company in its Notice of Borrowing or Notice of Conversion/ Continuation;
provided that:
--------
(i) if any Interest Period pertaining to an Offshore Rate Loan
would otherwise end on a day which is not a Business Day, that Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period; and
(iii) no Interest Period applicable to any Loan or portion
thereof shall extend beyond the Maturity Date.
"Investment" shall have the meaning set forth in Section 7.3.
---------- -----------
-8-
"Issuing Lender" means Bank of America, or any successor issuing
--------------
lender hereunder.
"Lending Office" means, with respect to any Lender, the office or
--------------
offices of the Lender specified as its "Domestic Address" or "Eurodollar
Address," as the case may be, on the Administrative Details Reply Form submitted
to Administrative Agent in connection with this Agreement, or such other office
or offices of the Lender as it may from time to time specify to the Company and
the Administrative Agent.
"Letter of Credit" means any letter of credit issued or outstanding
----------------
hereunder.
"Letter of Credit Action" means the issuance, supplement, amendment,
-----------------------
renewal, extension, modification or other action relating to a Letter of Credit.
"Letter of Credit Application" means an application for a Letter of
----------------------------
Credit Action as shall at any time be in use by Issuing Lender.
"Letter of Credit Cash Collateral Account" means a blocked deposit
----------------------------------------
account at Bank of America with respect to which the Company hereby pledges and
grants a security interest in and lien on such account to Administrative Agent
for and on behalf of the Lenders as security for Letter of Credit Usage and with
respect to which the Company agrees to execute and deliver from time to time
such documentation as Administrative Agent may reasonably request to further
assure and confirm such security interest.
"Letter of Credit Commitment" means an amount equal to the lesser of
---------------------------
(a) $100,000,000 and (b) the Aggregate Commitment.
"Letter of Credit Usage" means, as at any date of determination, the
----------------------
aggregate undrawn face amount of outstanding Letters of Credit plus the
aggregate amount of all drawings under the Letters of Credit honored by Issuing
Lender and not reimbursed to Issuing Lender by the Company or converted into
Loans.
"Lien" means any lien, mortgage, pledge, security interest, charge or
----
encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give any kind
of security interest).
"Loan" means a Revolving Loan or a Swing Line Loan (collectively, the
----
"Loans").
"Loan Documents" means this Agreement and all documents and
--------------
instruments delivered from time to time in connection therewith.
"Margin Stock" has the meaning assigned to the term "Margin Stock" in
------------
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"Material Adverse Effect" means (i) a material adverse effect upon the
-----------------------
business, operations, properties, assets, business prospects or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a whole,
or (ii) a material impairment of the ability of the Company to perform the
Obligations or of the Lenders to enforce the Obligations.
-9-
"Maturity Date" means June 27, 2002, unless extended pursuant to
-------------
Section 2.16.
------------
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
-------
"Multiemployer Plan" means a "multiemployer plan" as defined in
------------------
Section 4001(a)(3) of ERISA which is maintained for employees of the Company or
any ERISA Affiliate of the Company.
"Notes" means the Revolving Notes and the Swing Loan Notes.
-----
"Notice of Conversion/Continuation" means a notice given by the
---------------------------------
Company to the Administrative Agent pursuant to Section 2.6, in substantially
-----------
the form of Exhibit B annexed hereto.
---------
"Notice of Lien" means any "notice of lien" or similar document
--------------
intended to be filed or recorded with any court, registry, recorder's office,
central filing office or Governmental Authority for the purpose of evidencing,
creating, perfecting or preserving the priority of a Lien securing obligations
owing to a Governmental Authority.
"Obligations" means all obligations of every nature of the Company
-----------
from time to time owed to the Administrative Agent or the Lenders or any of them
under any Loan Document.
"Offshore Rate" means, for each Interest Period for any Offshore Rate
-------------
Loan, an interest rate per annum (rounded upward to the nearest 1/100 of one
percent) determined by the Administrative Agent pursuant to the following
formula:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where LIBOR means, for such Interest Period:
(a) the rate per annum (rounded upward to the nearest 1/100 of one
percent) equal to the rate determined by Administrative Agent to be the
offered rate that appears on the page of the Telerate Screen that displays
an average British Bankers Association Interest Settlement Rate (such page
currently being page number 3750) for deposits in dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(b) in the event the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall cease
to be available, the rate per annum (rounded upward to the nearest 1/100 of
one percent) equal to the rate determined by Administrative Agent to be the
offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in
dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
-10-
(c) in the event the rates referenced in the preceding subsections
(a) and (b) are not available, the rate per annum determined by
Administrative Agent as the rate of interest at which dollar deposits (for
delivery on the first day of such Interest Period) in same day funds in the
approximate amount of the applicable Offshore Rate Loan and with a term
equivalent to such Interest Period would be offered by its London Branch to
major banks in the offshore dollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period; and
"Eurodollar Reserve Percentage" means, for any day during any
-----------------------------
Interest Period, the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100 of one percent) in effect on such day
(whether or not applicable to any Lender) under regulations issued from
time to time by the Federal Reserve Board for determining the maximum
reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency Liabilities"). Such reserve
percentages shall include those imposed pursuant to Regulation D of the
Federal Reserve Board. Offshore Rate Loans shall be deemed to constitute
Eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
The Offshore Rate for each outstanding Offshore Rate Loan shall be
adjusted automatically as of the effective date of any change in the Eurodollar
Reserve Percentage.
"Offshore Rate Loans" means Loans bearing interest at rates determined
-------------------
by reference to the Offshore Rate.
"Other Taxes" has the meaning specified in subsection 3.1(b).
----------- -----------------
"Outstanding Obligations" means, as of any date, and giving effect to
-----------------------
making any Extensions of Credit requested on such date and all payments,
repayments and prepayments made on such date, the sum of (a) the aggregate
outstanding principal amount of all Loans, and (b) all Letter of Credit Usage.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Participant" has the meaning specified in Section 10.6(c).
----------- ---------------
"Permitted Liens" has the meaning specified in Section 7.1.
--------------- -----------
"Person" means any individual, partnership, limited liability company,
------
corporation (including a business trust), joint stock company, joint venture,
trust, bank, trust company, unincorporated association or other entity or a
government or any agency or political subdivision thereof.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
----
ERISA) which the Company or any member of the Controlled Group sponsors or
-11-
maintains or to which the Company or member of the Controlled Group makes or is
obligated to make contributions, and includes any Multiemployer Plan or
Qualified Plan.
"Pro Rata Share" means with respect to each Lender the percentage set
--------------
forth opposite such Lender's name on Schedule 1 hereto.
----------
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
--------------
ERISA) intended to be tax-qualified under Section 401(a) of the Code and which
any member of the Controlled Group sponsors, maintains, or to which it makes or
is obligated to make contributions, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding period covering at least five (5) plan years,
but excluding any Multiemployer Plan.
"Reportable Event" means any of the events set forth in Section
----------------
4043(c) of ERISA or the regulations thereunder, a withdrawal from a Plan
described in Section 4063 of ERISA, or a cessation of operations described in
Section 4062(e) of ERISA.
"Request for Extension of Credit" means a written request
-------------------------------
substantially in the form of Exhibit A duly completed and signed by a
---------
Responsible Officer. In the case of a request for a new or amended Letter of
Credit, the written Letter of Credit Application shall be deemed to be the
Request for Extension of Credit.
"Requisite Lenders" means, as at any date of determination, (a) prior
-----------------
to the termination of all Commitments, Lenders having more than 50% of the
Aggregate Commitment, and (b) if the Commitments have then been terminated and
there are Loans and/or Letter of Credit Usage outstanding, Lenders holding Loans
and Letter of Credit Usage aggregating more than 50% of the aggregate
outstanding principal amount of Loans and Letter of Credit Usage.
"Requirement of Law" means, as to any Person, any law (statutory or
------------------
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Responsible Officer" means the Chief Financial Officer, the Chief
-------------------
Accounting Officer, any Vice President, the Treasurer or any Assistant Treasurer
of the Company.
"Revolving Loan" has the meaning specified in Section 2.1. Revolving
-------------- -----------
Loans may be either Base Rate Loans or Offshore Rate Loans.
"Revolving Note" means a promissory note in substantially the form of
--------------
Exhibit C-1 hereto, including any amendment, modification, renewal or
-----------
replacement thereof.
"S&P" means Standard & Poor's Ratings Group.
---
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, and any successor statute.
"Senior Funded Indebtedness" means Funded Indebtedness other than
--------------------------
Subordinated Indebtedness.
-12-
"Subordinated Indebtedness" means unsecured Indebtedness of the
-------------------------
Company for borrowed money which by its terms matures more than one year from
the date of creation thereof and is issued under an instrument or instruments
which contains substantially the following provisions with respect to the
subordination of such indebtedness (hereinafter in this paragraph called
"Subordinated Indebtedness") to the Obligations (and to other Indebtedness for
money borrowed by the Company, if so provided), the Obligations and such other
indebtedness for borrowed money, if any, being hereinafter in this definition
called "Superior Indebtedness":
(i) The Subordinated Indebtedness shall be subordinated and
junior in right of payment, to the extent and in the manner hereinafter set
forth, to the Superior Indebtedness:
(a) In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization or other
similar proceedings in connection therewith, relative to the Company or to
its creditors, as such, or to its property, or in the event of any
proceeding for voluntary liquidation, dissolution or other winding up of
the Company, whether or not involving insolvency or bankruptcy, then the
holders of Superior Indebtedness shall be entitled to receive payment in
full of all principal, premium and interest on all Superior Indebtedness
(including interest accruing after the date of commencement of any such
proceedings at the rate applicable to such Superior Indebtedness, whether
or not such interest is an allowable claim in any such proceeding) before
the holders of Subordinated Indebtedness shall be entitled to receive any
payment on account of principal, premium or interest on Subordinated
Indebtedness, and to that end (but subject to the power of a court of
competent jurisdiction to make other equitable provisions reflecting the
rights conferred by these provisions upon Superior Indebtedness and the
holders thereof with respect to Subordinated Indebtedness and the holders
thereof by a lawful plan of reorganization under applicable bankruptcy law)
the holders of Superior Indebtedness shall be entitled to receive for
application in payment thereof (including interest accruing after the date
of commencement of any such proceedings at the rate applicable to such
Superior Indebtedness, whether or not such interest is an allowable claim
in any such proceeding) and payment or distribution of any kind or
character, whether in cash or property or securities or by set-off or
otherwise, which may be payable or deliverable in any such proceedings in
respect of Subordinated Indebtedness (including any such payment or
distribution which may be payable or deliverable by reason of the
provisions of any indebtedness of the Company which is subordinate and
junior in right of payment to the Subordinated Indebtedness), except
securities which are subordinate and junior in right of payment to the
payment of Superior Indebtedness; and
(b) In the event that any Subordinated Indebtedness is
declared due and payable before its expressed maturity because of the
occurrence of a default thereunder (under circumstances when the provisions
of the foregoing clause (a) shall not be applicable), the holders of
Superior Indebtedness outstanding, at the time such Subordinated
Indebtedness so becomes due and payable because of such occurrence of a
default thereunder, shall be entitled to receive payment in full of all
principal of, and interest and premium, if any, on all Superior
Indebtedness before the holders of Subordinated Indebtedness are entitled
to receive any payment on
-13-
account of the principal of, and interest and premium, if any, on, the
Subordinated Indebtedness.
(ii) No payment or prepayment, directly or indirectly, on
account of the principal of, or interest and premium, if any, on, the
Subordinated Indebtedness shall be made (in cash or property or securities,
or by set-off or otherwise), and no holder of Subordinated Indebtedness
shall be entitled to demand or receive any such payment or prepayment (a)
unless all amounts then due for principal, interest and premium, if any, on
all Superior Indebtedness have been paid in full in cash, or (b) if, at the
time of such payment or prepayment or immediately after giving effect
thereto, there shall have occurred any event of default under any Superior
Indebtedness or under any agreement pursuant to which any Superior
Indebtedness is issued.
(iii) Subject to the payment in full of Superior Indebtedness,
holders of the Subordinated Indebtedness shall be subrogated to the rights
of the holders of Superior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Superior
Indebtedness until the Subordinated Indebtedness shall be paid in full and
no payments or distributions to the holders of the Superior Indebtedness by
or on behalf of the Company from the proceeds that would otherwise be
payable to the holders of the Subordinated Indebtedness or by or on behalf
of the holders of the Subordinated Indebtedness shall, as between the
Company and the holders of Subordinated Indebtedness, be deemed to be a
payment by the Company to or on account of the Superior Indebtedness.
(iv) These provisions with respect to subordination cannot be
amended, modified or waived without the prior written consent of the holder
or holders of all Superior Indebtedness at the time outstanding, and the
subordination effected hereby shall not be affected by any amendment or
modification of, or addition or supplement to, any Superior Indebtedness or
any instrument or agreement relating thereto, without the prior written
consent of the holder or holders of all Superior Indebtedness at the time
outstanding.
(v) No present or future holder of Superior Indebtedness shall
be prejudiced in his right to enforce subordination of Subordinated
Indebtedness by any act or failure to act on the part of the Company. The
foregoing provisions as to subordination are solely for the purpose of
defining the relative rights of the holders of Superior Indebtedness, on
the one hand, and the holders of Subordinated Indebtedness, on the other
hand, and none of such provisions shall impair, as between the Company and
any holders of Subordinated Indebtedness, the obligation of the Company,
which is unconditional and absolute, to pay to the holders of Subordinated
Indebtedness the principal thereof, and the interest and premium, if any,
thereon in accordance with its terms, nor shall any such provisions prevent
any holder of Subordinated Indebtedness from exercising all remedies
otherwise permitted by applicable law or under the terms of such
Subordinated Indebtedness upon default thereunder, subject to the rights
under the foregoing provisions of holders of Superior Indebtedness to
receive for application in payment thereof any payment or distribution of
any kind or character, whether in cash or property or securities, or by
set-off
-14-
or otherwise, which may be payable or deliverable to the holders of
Subordinated Indebtedness.
(vi) The Company agrees, for the benefit of the holders of
Superior Indebtedness, that in the event any Subordinated Indebtedness is
declared due and payable before its expressed maturity because of the
occurrence of any event of default thereunder or otherwise, (a) the Company
will give prompt notice in writing of such happening to the holders of
Superior Indebtedness, and (b) all Superior Indebtedness shall forthwith
become immediately due and payable upon demand, regardless of the expressed
maturity thereof.
"Subsidiary" means any corporation, partnership, joint venture,
----------
association, limited liability company or other business entity of which more
than 50% of the total voting power of shares of stock or other interests having
ordinary voting power for the election of directors, managers, trustees or other
governing body thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the other Subsidiaries of that
Person or a combination thereof.
"Swing Commitment" means an amount equal to the lesser of (a)
----------------
$25,000,000 and (b) the Aggregate Commitment.
"Swing Line" means the revolving line of credit established by Swing
----------
Line Lender in favor of the Company pursuant to Section 2.2.
-----------
"Swing Line Lender" means Bank of America, or any successor swing line
-----------------
lender hereunder.
"Swing Line Loan" means a loan made by Swing Line Lender to the
---------------
Company under the Swing Line.
"Swing Loan Note" means a promissory note in substantially the form of
---------------
Exhibit C-2 hereto, including any amendment, modification, renewal or
-----------
replacement thereof.
"Synthetic Lease" means each arrangement, however described, under
---------------
which the obligor accounts for its interest in the property covered thereby
under GAAP as lessee of a lease which is not a capital lease and accounts for
its interest in the property covered thereby for Federal income tax purposes as
the owner.
"Synthetic Lease Obligation" means, as to any Person with respect to
--------------------------
any Synthetic Lease at any time of determination, the amount of the liability of
such Person in respect of such Synthetic Lease that would (if such lease was
required to be classified and accounted for as a capital lease on a balance
sheet of such Person in accordance with GAAP) be required to be capitalized on
the balance sheet of such Person at such time.
"Taxes" has the meaning specified in subsection 3.1(a).
----- -----------------
"Transferee" has the meaning specified in Section 10.6(e).
---------- ---------------
"Type" of Loan means (a) a Base Rate Loan, (b) an Offshore Rate Loan,
----
or (c) a Swing Line Loan.
-15-
1.2 Other Definitional Provisions. References to "Sections" shall be
-----------------------------
to Sections of this Agreement unless otherwise specifically provided. Any of
the terms defined in Section 1.1 may, unless the context otherwise requires, be
-----------
used in the singular or the plural depending on the reference. The word
"including" when used herein is not intended to be exclusive and means
----------
"including, without limitation."
Section 2. THE LOANS.
---------
2.1 Revolving Loans. Each Lender severally agrees, on the terms and
---------------
conditions hereinafter set forth, to make loans under its Commitment to the
Company (each such loan, a "Revolving Loan") from time to time on any Business
Day during the Availability Period, in an aggregate amount not to exceed at any
time its Commitment; provided, however, that, after giving effect to any
-------- -------
Extension of Credit, Outstanding Obligations of all Lenders shall not exceed the
Aggregate Commitment; and provided further, that (i) the aggregate principal
-------- -------
amount of Revolving Loans of any Lender, plus (ii) the aggregate principal
----
amount of such Lender's participation in the Swing Line Loans, plus (iii) the
----
participation of such Lender in Letter of Credit Usage, shall not at any time
exceed such Lender's Commitment. Within the limits of each Lender's Commitment,
and subject to the other terms and conditions hereof, the Company may borrow
under this Section 2.1, prepay pursuant to Section 2.11 and reborrow pursuant to
----------- ------------
this Section 2.1.
-----------
2.2 Swing Line.
----------
(a) Subject to the terms and conditions set forth in this Agreement,
Swing Line Lender agrees to make Swing Line Loans on any Business Day during the
Availability Period in such amounts as the Company may from time to time
request; provided, however, that (i) after giving effect to such Swing Line
-------- ------- ----
Loan, the Swing Line Loans shall not exceed the Swing Commitment, (ii) the
Outstanding Obligations of all Lenders shall not exceed the Aggregate Commitment
at any time; provided, further, that Swing Line Lender may terminate or suspend
-------- -------
the Swing Line at any time and from time to time in its sole discretion upon at
least 24 hours prior notice to Company. Within the limits of Swing Line
Lender's Swing Commitment, and subject to the other terms and conditions hereof,
Company may borrow, repay and reborrow under this Section. Unless notified to
the contrary by Swing Line Lender, Borrowings under the Swing Line may be made
in amounts which are integral multiples of $100,000 ("integral amount") upon
---------------
irrevocable telephonic notice to Swing Line Lender followed by a written notice
to Swing Line Lender (with a copy to the Administrative Agent) not later than
12:00 noon Dallas time. Each such request for a Swing Line Loan shall
constitute a representation and warranty by Borrower that the conditions set
forth in Sections 4.2(c) and (d) are satisfied. Promptly after receipt of such
--------------- ---
request, Swing Line Lender shall obtain telephonic verification from the
Administrative Agent that there is availability for such Swing Line Loan under
the Commitments. Each repayment of a Swing Line Loan shall be made to the
Administrative Agent for the account of the Swing Line Lender in an amount which
is an integral multiple of the integral amount by payment or debit at a demand
deposit account at Bank of America. All payments received after 12:00 noon
Dallas time shall be deemed received on the next succeeding Business Day.
(b) Swing Line Loans shall bear interest at the Base Rate, payable on
the dates set forth in Section 2.2(c) or as otherwise may be specified by Swing
Line Lender and, in any event, on the Maturity Date. Interest on Swing Line
Loans shall be payable upon demand of Swing Line Lender. The interest payable
on Swing Line Loans is solely for the account of Swing Line Lender.
-16-
(c) The Swing Line Loans, together with interest thereon, shall be
payable on the earliest of (i) the fifth Business Day after it is made, (ii) the
Maturity Date and (iii) upon demand made by Swing Line Lender.
(d) Unless the Company has made other arrangements satisfactory to
Swing Line Lender in Swing Line Lender's sole discretion, if the principal
amount of Swing Line Loans exceeds $5,000,000 for three consecutive Business
Days, then on the next Business Day, the Company shall repay Swing Line Loans in
a principal amount necessary to reduce the Swing Line Loans below such amount to
the Administrative Agent at the Administrative Agent's Office not later than
10:00 A.M. (Dallas time). The Company shall also pay accrued interest on any
principal amount so repaid. The Administrative Agent shall remit such amount to
Swing Line Lender, which Swing Line Lender shall then apply to the Swing Line
Loans by such amount.
(e) If the Company fails to timely make any principal or interest
payment required pursuant to subsections (b), (c) or (d) above, the
Administrative Agent shall promptly notify each Lender of its Pro Rata Share of
such amount. Each Lender shall make funds in an amount equal to its Pro Rata
Share of such amount available to the Administrative Agent at the Administrative
Agent's Office not later than 10:00 A.M. (Dallas time) on the following Business
Day. The obligation of each Lender to make such payment shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of Default
or any other occurrence or event. Any such payment shall not relieve or
otherwise impair the obligation of the Company to repay Swing Line Lender for
any amount of Swing Line Loans, together with interest as provided herein.
(f) If the conditions precedent set forth in Section 4 can be
---------
satisfied (except for the giving of a Request for Extension of Credit) on any
date the Company is obligated to make, but fails to make, a repayment of Swing
Line Loans, the funding by the Lenders pursuant to subsection (e) above shall be
deemed to be part of a Borrowing of Loans which are Base Rate Loans (without
regard to the minimum amount therefor) requested by the Company. If the
conditions precedent set forth in Section 4 cannot be satisfied on the date the
---------
Company is obligated to make, but fails to make, such payment, the funding by
the Lenders pursuant to subsection (e) above shall be deemed to be a funding by
each Lender of its participation in such Swing Line Loans, and such funds shall
be payable by the Company upon demand and shall bear interest at the rate set
forth in Section 2.9(c), and each Lender making such funding shall thereupon
--------------
acquire a pro rata participation, to the extent of such payment, in the claim of
Swing Line Lender against the Company in respect of such payment and shall
share, in accordance with that pro rata participation, in any payment made by
the Company with respect to such claim.
2.3 Loan Accounts. The Loans made by each Lender shall be evidenced
-------------
by one or more loan accounts maintained by such Lender in the ordinary course of
business. Upon the request of any Lender made through the Administrative Agent,
such Lender's Loans may be evidenced by one or more Notes, instead of or in
addition to Loan accounts. Each such Lender may attach schedules to its Note(s)
and endorse thereon the date, amount and maturity of its Loans and payments with
respect thereto. Such loan accounts, records or Notes shall be conclusive
absent error of the amount of the Loans made by the Lenders to the Company and
the interest and payments thereon. Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Company hereunder to pay any amount owing with respect to the Loans.
-17-
2.4 Letters of Credit.
-----------------
(a) The Letter of Credit Commitment. Subject to the terms and
-------------------------------
conditions hereof, at any time and from time to time from the Closing Date
through the date that is 30 days prior to the Maturity Date, the Issuing Lender
shall take such Letter of Credit Actions under the Commitments as the Company
may request; provided, however, that (i) the Outstanding Obligations of each
Lender shall not exceed such Lender's Commitment and the Outstanding Obligations
of all Lenders shall not exceed the Aggregate Commitment at any time, (ii) the
aggregate outstanding Letter of Credit Usage shall not exceed the Letter of
Credit Commitment at any time, (iii) each Letter of Credit Action shall be in a
form acceptable to Issuing Lender and shall not violate any policies of Issuing
Lender, and (iv) the Issuing Lender shall not issue Letters of Credit that have
automatic extension or renewal provisions ("evergreen" Letters of Credit)
without the consent of all the Lenders. Each Letter of Credit will be a
nontransferable standby letter of credit to support payment and/or performance
obligations of the Company or one of its Subsidiaries. No Letter of Credit
shall expire more than 364 days after the date of issuance. If any Letter of
Credit is to remain outstanding after the Maturity Date, the Company shall, not
later than seven days prior to the Maturity Date, deposit cash in an amount
equal to one hundred and two percent (102%) of such Letter of Credit Usage in a
Letter of Credit Cash Collateral Account. The Issuing Lender shall be under no
obligation to issue any Letter of Credit if any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Lender from issuing such Letter of Credit, or any
Requirement of Law applicable to the Issuing Lender or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing
Lender refrain from, the issuance of letters of credit generally or such Letter
of Credit in particular or shall impose upon the Issuing Lender with respect to
such Letter of Credit any restriction, reserve or capital requirement (for which
the Issuing Lender is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Issuing Lender any unreimbursed loss,
cost or expense which was not applicable on the Closing Date and which the
Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it.
(b) Requesting Letter of Credit Actions. The Company may irrevocably
-----------------------------------
request a Letter of Credit Action by delivering a Letter of Credit Application
therefor to Issuing Lender, with a copy to the Administrative Agent (who shall
notify the Lenders), not later than 8:30 a.m. (Dallas time) on the date which is
five Business Days prior to the date of the requested action therefor. Unless
Administrative Agent notifies Issuing Lender that such Letter of Credit Action
is not permitted hereunder or Issuing Lender determines that such Letter of
Credit Action is contrary to any Requirement of Law or policies of Issuing
Lender or does not otherwise conform to the requirements of this Agreement,
Issuing Lender shall effect such Letter of Credit Action. This Agreement shall
control in the event of any conflict with any Letter of Credit Application.
Upon the issuance of a Letter of Credit, each Lender shall be deemed to have
purchased a pro rata participation in such Letter of Credit from Issuing Lender
in an amount equal to that Lender's Pro Rata Share.
(c) Reimbursement of Payments Under Letters of Credit. The Company
-------------------------------------------------
shall reimburse Issuing Lender through Administrative Agent for any payment that
Issuing Lender makes under a Letter of Credit on or before the date of such
payment; provided, however, that if, during the Availability Period, the
conditions precedent set forth in Section 4 can be satisfied, the Company may
---------
request a Borrowing of Loans to reimburse Issuing Lender for such payment on or
before the date thereof by complying with Section
-------
-18-
2.1, or the Company may allow a deemed Borrowing of Loans which are Base Rate
---
Loans to take place on such payment date pursuant to subsection (e) below.
(d) Funding by Lenders When Issuing Lender Not Reimbursed. If the
-----------------------------------------------------
Company fails to timely make the payment required pursuant to subsection (c)
above, Issuing Lender shall notify Administrative Agent of such fact and the
amount of such unreimbursed payment. Administrative Agent shall promptly notify
each Lender of its Pro Rata Share of such amount. Each Lender shall make funds
in an amount equal its Pro Rata Share of such amount available to Administrative
Agent at Administrative Agent's Office on the Business Day specified by
Administrative Agent. The obligation of each Lender to so reimburse Issuing
Lender shall be absolute and unconditional and shall not be affected by the
occurrence of an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of the
Company to reimburse Issuing Lender for the amount of any payment made by
Issuing Lender under any Letter of Credit, together with interest as provided
herein.
(e) Nature of Lenders' Funding. If the conditions precedent set forth
--------------------------
in Section 4 can be satisfied (except for the giving of a Request for Extension
---------
of Credit) on the date the Company is obligated to make, but fails to make, a
reimbursement of a payment under a Letter of Credit, the funding by Lenders
pursuant to subsection (d) above shall be deemed to be part of a Borrowing of
Loans which are Base Rate Loans (without regard to the minimum amount therefor)
requested by the Company. If the conditions precedent set forth in Section 4
---------
cannot be satisfied on the date the Company is obligated to make, but fails to
make, a reimbursement of a payment under a Letter of Credit, the funding by
Lenders pursuant to subsection (d) above shall be deemed to be a funding by each
Lender of its participation in such Letter of Credit, and such funds shall be
payable by the Company upon demand and shall bear interest at a rate which is
equal to the Base Rate plus the Applicable Amount, if any, plus 2% per annum,
---- ----
and each Lender making such funding shall thereupon acquire a pro rata
participation, to the extent of such reimbursement, in the claim of Issuing
Lender against the Company in respect of such payment and shall share, in
accordance with that pro rata participation, in any payment made by the Company
with respect to such claim.
(f) Obligations Absolute. The obligation of the Company to pay to
--------------------
Issuing Lender the amount of any payment made by Issuing Lender under any Letter
of Credit shall be absolute, unconditional, and irrevocable. Without limiting
the foregoing, the Company's obligation shall not be affected by any of the
following circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to departure
from the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which the Company may have at any time against Issuing Lender,
Administrative Agent or any Lender, any beneficiary of the Letter of Credit
(or any persons or entities for whom any such beneficiary may be acting) or
any other Person, whether in connection with the Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto, or any
unrelated transactions;
-19-
(iv) any demand, statement, or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever so long as any such document appeared
to comply with the terms of the Letter of Credit;
(v) payment by Issuing Lender in good faith under the Letter
of Credit against presentation of a draft or any accompanying document
which does not strictly comply with the terms of the Letter of Credit; or
any payment made by Issuing Lender under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of any Letter of
Credit, including any arising in connection with any Insolvency Proceeding;
(vi) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
(vii) any error in the transmission of any message relating to a
Letter of Credit not caused by Issuing Lender, or any delay or interruption
in any such message;
(viii) any error, neglect or default of any correspondent of
Issuing Lender in connection with a Letter of Credit;
(ix) any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of Issuing Lender;
(x) so long as Issuing Lender in good faith determines that
the document appears to comply with the terms of the Letter of Credit, the
form, accuracy, genuineness or legal effect of any contract or document
referred to in any document submitted to Issuing Lender in connection with
a Letter of Credit; and
(xi) where Issuing Lender has acted in good faith and any other
circumstances whatsoever.
In addition, the Company will promptly examine a copy of each Letter of
Credit and amendments thereto delivered to it and, in the event of any claim of
noncompliance with the Company's instructions or other irregularity, the Company
will immediately notify Issuing Lender in writing. The Company shall be
conclusively deemed to have waived any such claim against Issuing Lender and its
correspondents unless such notice is given as aforesaid.
(g) Role of Issuing Lender. Each Lender and the Company agree that,
----------------------
in paying any drawing under a Letter of Credit, Issuing Lender shall not have
any responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No Agent-Related Person
(as such term is defined in Section 9.3) nor any of the respective
-----------
correspondents, participants or assignees of Issuing Lender shall be liable to
-20-
any Lender for any action taken or omitted in connection herewith at the request
or with the approval of Lenders or the Requisite Lenders, as applicable; any
action taken or omitted in the absence of gross negligence or willful
misconduct; or the due execution, effectiveness, validity or enforceability of
any document or instrument related to any Letter of Credit. The Company hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however, that this
-------- -------
assumption is not intended to, and shall not, preclude the Company's pursuing
such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement. No Agent-Related Person, nor any of the
respective correspondents, participants or assignees of Issuing Lender, shall be
liable or responsible for any of the matters described in subsection (f) above.
In furtherance and not in limitation of the foregoing, Issuing Lender may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and Issuing Lender shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(h) Applicability of International Standby Practices 1998. Unless
-----------------------------------------------------
otherwise expressly agreed by Issuing Lender and the Company when a Letter of
Credit is issued, the rules of the "International Standby Practices 1998" or
such later revision as may be published by the Institute of International
Banking Law and Practice, subject to applicable laws, shall be deemed a part of
this Section and shall apply to such Letter of Credit.
(i) Issuance Fee and Documentary and Processing Charges Payable to
--------------------------------------------------------------
Issuing Lender. Concurrently with the issuance of each Letter of Credit, the
--------------
Company shall pay a letter of credit issuance fee to Issuing Lender, for the
sole account of Issuing Lender, equal to the aggregate stated amount for each
Letter of Credit times 10.0 basis points per annum for the stated duration
-----
thereof. In addition, the Company shall pay directly to Issuing Lender for its
sole account its customary documentary and processing charges in accordance with
its standard schedule, as from time to time in effect, for any amendment or
other occurrence relating to a Letter of Credit. Such fee and charges are
nonrefundable.
(j) Letter of Credit Cash Collateral Account.
----------------------------------------
(i) The Company hereby pledges and grants a security interest
in and lien on the Letter of Credit Cash Collateral Account and all funds, cash
and instruments at any time on deposit or held therein to the Administrative
Agent for and on behalf of the Lenders as security for the Obligations. The
Letter of Credit Cash Collateral Account shall be under the exclusive dominion
and control of the Administrative Agent. The Administrative Agent may, at any
time or from time to time, without notice to the Company, apply funds then held
in the Letter of Credit Cash Collateral Account to the payment of Obligations in
respect of Letters of Credit and other amounts owed under this Agreement.
(ii) The rate of interest earned on the Letter of Credit Cash
Collateral Account shall be comparable to the rates paid by Bank of America on
other similar accounts as in effect time to time; provided, however, that Bank
of America shall not be obligated to pay interest on said account during the
continuation of a Default or Event of Default.
-21-
(iii) At all times after a deposit is required in the Letter of
Credit Cash Collateral Account pursuant to Section 2.4(a) or Section 8.2(b), the
-------------- --------------
amount required to be on deposit in the Letter of Credit Cash Collateral Account
shall at all times equal not less than one hundred and two percent (102%) of the
Letter of Credit Usage. Such amount shall remain on deposit in the Letter of
Credit Cash Collateral Account until expiration or termination of all Letters of
Credit and payment of all Obligations, at which time it shall be paid to the
Company. There shall be no release of funds from the Letter of Credit Cash
Collateral Account at any time during the continuance of a Default or an Event
of Default.
(iv) The Company agrees that it will not sell or otherwise
dispose of any interest in the Letter of Credit Cash Collateral Account or any
funds held therein, or create or permit to exist any Lien upon said account or
any funds held therein other than the Lien hereby created.
(v) The Company agrees to pay to Bank of America all customary
fees, costs and expenses which Bank of America incurs in connection with opening
and maintaining the Letter of Credit Cash Collateral Account.
2.5 Procedure for Borrowings.
------------------------
(a) Each Borrowing of Revolving Loans shall be made upon irrevocable
telephonic notice by the Company followed immediately by written notice in the
form of a Request for Extension of Credit (which telephonic notice must be
received by the Administrative Agent (i) prior to 8:30 a.m. (Dallas time) three
Business Days prior to the requested Borrowing Date, in the case of Offshore
Rate Loans; and (ii) prior to 8:30 a.m. (Dallas time) on the requested Borrowing
Date, in the case of Base Rate Loans), specifying: (i) the amount of the
Borrowing, which shall be in an aggregate minimum principal amount of $5,000,000
and any multiple of $1,000,000 in excess thereof; (ii) the requested Borrowing
Date, which shall be a Business Day; (iii) whether the Borrowing is to be
comprised of Offshore Rate Loans or Base Rate Loans; and (iv) the duration of
the Interest Period applicable to Offshore Rate Loans included in such notice.
If the Request for Extension of Credit shall fail to specify the duration of the
Interest Period for any Borrowing comprised of Offshore Rate Loans, such
Interest Period shall be one month (but not beyond the Maturity Date).
(b) Promptly after receipt of a Request for Extension of Credit, the
Administrative Agent shall notify each Lender of the proposed Borrowing. Each
Lender shall make available to the Administrative Agent its Pro Rata Share of
the amount (if any) by which the principal amount of the proposed Borrowing
exceeds the principal amount of the Loans (if any) maturing on the Borrowing
Date, in same day funds, by remitting such funds to: Bank of America, N.A., ABA
No. ▇▇▇▇▇▇▇▇▇, Attn: Corporate Loan Funds, For credit to: Credit Account No.
1292000883, Reference: ONEOK, Inc. at the office of the Administrative Agent
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, no later than 11:00 a.m.
(Dallas time) on the Borrowing Date. Upon satisfaction of the conditions set
forth in Section 4.2, the Administrative Agent shall make available to the
-----------
Company on such Borrowing Date the aggregate of the amounts (if any) so made
available by the Lenders by causing an amount of same day funds equal to such
aggregate amount (if any) received by the Administrative Agent to be credited to
the account of the Company at such office of the Administrative Agent.
(c) Section 2.5(a) notwithstanding, if the Company shall not have
--------------
given a timely Request for Extension of Credit to be made on the last day of any
Interest Period for outstanding Loans, then unless the Administrative Agent
shall have received notice
-22-
that the Company elects not to make a Borrowing on such day the Administrative
Agent shall be deemed to have received a Request for Extension of Credit from
the Company requesting Base Rate Loans to be made on such day in an amount equal
to the amount of such outstanding Loans.
(d) The failure of any Lender to make any Loan on any date shall not
relieve any other Lender of any obligation to make a Loan on such date, but no
Lender shall be responsible for the failure of any other Lender to so make its
Loan.
2.6 Conversion and Continuation Elections.
-------------------------------------
(a) The Company may (i) elect to convert on any Business Day, any
Base Rate Loans (or any part thereof in an amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof) into Offshore Rate Loans;
(ii) elect to convert on the last day of the Interest Period therefor, any
Offshore Rate Loans (or any part thereof in an amount not less than $5,000,000
or an integral multiple of $1,000,000 in excess thereof) into Base Rate Loans;
or (iii) elect to continue, on the last day of the Interest Period therefor, any
Offshore Rate Loans (or any part thereof in an amount not less than $5,000,000
or an integral multiple of $1,000,000 in excess thereof); provided, that if the
--------
aggregate amount of Offshore Rate Loans shall have been reduced, by payment,
prepayment, or conversion of part thereof to be less than $5,000,000, Offshore
Rate Loans shall automatically convert into Base Rate Loans, and on and after
such date the right of the Company to continue such Loans as Offshore Rate Loans
shall terminate.
(b) Each conversion or continuation shall be made upon irrevocable
telephonic notice by the Company followed immediately by written notice in the
form of a Notice of Conversion/Continuation (which telephonic notice must be
received by the Administrative Agent prior to 8:30 a.m. (Dallas time) at least
(i) three Business Days in advance of the conversion or continuation date, if
the Loans are to be converted into or continued as Offshore Rate Loans; and (ii)
one Business Day in advance of the conversion or continuation date, if the Loans
are to be converted into Base Rate Loans), specifying: (A) the proposed
conversion or continuation date; (B) the aggregate amount of Loans to be
converted or continued; (C) the nature of the proposed conversion or
continuation; and (D) the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to select a new Interest Period to
be applicable thereto, or if any Event of Default shall then exist, the Company
shall be deemed to have elected to convert such Offshore Rate Loans into Base
Rate Loans effective as of the expiration date of such current Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Administrative Agent will promptly notify each Lender thereof, or, if no timely
notice is provided, the Administrative Agent will promptly notify each Lender of
the details of any automatic conversion. All conversions and continuations
shall be made pro rata according to the respective outstanding principal amounts
of the Loans with respect to which the notice was given held by each Lender.
2.7 Limitation on Interest Periods. Notwithstanding any other
------------------------------
provision contained in this Agreement, after giving effect to any Borrowing or
conversion or continuation of any Loans, there shall not be more than six
different Interest Periods for Offshore Rate Loans in effect.
-23-
2.8 Reductions of Commitments. The Company shall have the right, at
-------------------------
any time and from time to time, to terminate in whole or permanently reduce in
part, without premium or penalty, the unutilized portion of the Commitments in
excess of the Swing Line Loans plus the Letter of Credit Usage; provided, that
--------
the Aggregate Commitment, as reduced, shall at all times be equal to or exceed
the Outstanding Obligations at such time. The Company shall give not less than
five Business Days' prior written notice to the Administrative Agent designating
the date (which shall be a Business Day) of such termination or reduction and
the amount of any partial reduction. Promptly after receipt of a notice of such
termination or partial reduction, the Administrative Agent shall notify each
Lender of the proposed termination or reduction. Such termination or partial
reduction of the Commitments shall be effective on the date specified in the
Company's notice and shall terminate or reduce each Lender's Pro Rata share of
the Aggregate Commitment so reduced. Any partial reduction shall be in an
aggregate minimum amount of $5,000,000. Once reduced in accordance with this
Section 2.8, the Commitments may not be increased.
-----------
2.9 Interest on the Loans.
---------------------
(a) Subject to Section 2.9(c), the Loans (other than Swing Line
--------------
Loans) shall bear interest on the unpaid principal amount thereof from the
Borrowing Date to maturity (whether by acceleration or otherwise) at a rate per
annum equal to either the Offshore Rate plus the Applicable Amount, as the same
may be adjusted pursuant to the definition of Applicable Amount, or the Base
Rate plus the Applicable Amount, if any.
----
(b) Interest shall be payable in arrears on the Loans (other than
Swing Line Loans) on each Interest Payment Date applicable to that Loan.
(c) Notwithstanding subsection (a) of this Section, while any Event
--------------
of Default exists or after acceleration, the Company shall pay interest on the
principal amount of all outstanding Loans (including the Swing Line Loans) at a
rate which is equal to the Base Rate plus the Applicable Amount, if any, plus 2%
---- ----
per annum, with respect to Base Rate Loans, or the Offshore Rate plus the
----
Applicable Amount plus 2% per annum with respect to Offshore Rate Loans, or the
----
Base Rate plus 2% per annum with respect to Swing Line Loans, in each case to
----
the fullest extent permitted by applicable laws.
2.10 Maturity of Loans. Each Loan shall mature and the Company shall
-----------------
repay the unpaid principal amount of each Loan on the Maturity Date.
2.11 Voluntary Prepayments.
---------------------
(a) The Company may, upon not less than one Business Days' prior
written or telephonic notice confirmed in writing to the Administrative Agent
(in the case of a prepayment of a Base Rate Loan) or three Business Days' prior
written or telephonic notice confirmed in writing to the Administrative Agent
(in the case of a prepayment of an Offshore Rate Loan) (which notice the
Administrative Agent will promptly transmit to each Lender), at any time and
from time to time prepay any Loans in whole or in part in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess of that
amount; provided that in the event of any such prepayment of any Offshore Rate
--------
Loans, the Company shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 3.6. If such notice of prepayment does not specify
-----------
how such prepayment shall be applied, it shall be applied first to Base Rate
Loans to the full extent thereof before application to Offshore Rate Loans, as
determined by the Administrative
-24-
Agent. Any prepayment of an Offshore Rate Loan shall be accompanied by payment
of all accrued, unpaid interest thereon.
(b) If for any reason the Outstanding Obligations exceed the
Aggregate Commitment as in effect or as reduced or because of any limitation set
forth in this Agreement or otherwise, the Company shall immediately prepay Loans
and/or deposit cash in a Letter of Credit Cash Collateral Account in an
aggregate amount equal to such excess.
2.12 Fees.
----
(a) Arrangement Fee. The Company shall pay to the Arranger for its
---------------
own account an arrangement fee in an amount and at the times set forth in the
letter agreement between the Company and Bank of America executed in connection
herewith.
(b) Facility Fee. The Company shall pay to the Administrative Agent
------------
for the account of each Lender pro rata according to its Pro Rata Share a
facility fee equal to the facility fee set forth in the definition of Applicable
Amount times the Aggregate Commitment, computed on a quarterly basis in arrears
-----
on the last Business Day of each calendar quarter. If there is any change in
the Applicable Amount during any quarter, the Aggregate Commitment shall be
multiplied by the Applicable Amount separately for each period that such
Applicable Amount was in effect during such quarter. Such facility fee shall
accrue from the Closing Date to the Maturity Date and shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter and on
the Maturity Date; provided that, in connection with any reduction or
termination of Commitments pursuant to Section 2.8, the accrued facility fee
-----------
calculated for the period ending on such date shall also be paid on the date of
such reduction or termination, with the next succeeding quarterly payment being
calculated on the basis of the period from the reduction or termination date to
such quarterly payment date. The facility fee provided in this Section shall
accrue at all times from the Closing Date, including at any time during which
one or more conditions in Section 4 are not met.
---------
(c) Utilization Fee. The Company shall pay to the Administrative
---------------
Agent for the account of each Lender pro rata according to its Pro Rata Share a
utilization fee equal to the utilization fee set forth in the definition of
Applicable Amount times the Outstanding Obligations, for each day during the
-----
term hereof that the Outstanding Obligations exceeds 33% of the Aggregate
Commitment. If there is any change in the Applicable Amount during any quarter,
the Outstanding Obligations shall be computed and multiplied by the Applicable
Amount separately for each period that such Applicable Amount was in effect
during such quarter. Such utilization fee shall accrue from the Closing Date to
the Maturity Date and shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter and on the Maturity Date.
(d) Letter of Credit Fees. The Company shall pay to the
---------------------
Administrative Agent for the account of each Lender pro rata according to its
Pro Rata Share a letter of credit fee with respect to each Letter of Credit,
equal to the letter of credit fee set forth in the definition of Applicable
Amount multiplied by the daily maximum amount available to be drawn on such
outstanding Letter of Credit. Such fee shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter during which such
Letter of Credit is outstanding, and on the Maturity Date (or such later date
upon which such Letter of Credit shall expire). If there is any change in the
Applicable Amount during any quarter, the daily maximum amount available to be
drawn on such Letter of Credit shall be multiplied by the Applicable Amount
separately for each period that such Applicable Amount was in effect during such
quarter.
-25-
(e) Agency Fee. The Company shall pay to the Administrative Agent for
----------
the Administrative Agent's own account an agency fee in the amount and at the
times set forth in a letter agreement between the Company and the Administrative
Agent executed in connection herewith.
2.13 Computation of Fees and Interest. All computations of interest
--------------------------------
payable in respect of Base Rate Loans shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All computations
of interest payable in respect of all other Types of Loans and all fees shall be
made on the basis of a 360 day year and actual days elapsed, which results in
more interest being paid than if computed on the basis of a 365-day year.
Interest and fees shall accrue during each period during which interest or such
fees are computed from the first day thereof to the last day thereof.
2.14 Use of Proceeds of Loans. The Company may use the proceeds of
------------------------
Loans to repay other Indebtedness of the Company or a Subsidiary of the Company,
to provide liquidity for commercial paper, for working capital, capital
expenditures, acquisitions, mergers, and other general corporate purposes not in
contravention of any Requirement of Law or of any Loan Document. No portion of
the proceeds of any Loan shall be used in connection with the acquisition of a
voting interest of five percent or more in any Person if such acquisition is
opposed by the board of directors or management of such Person.
2.15 Funding Sources. Nothing in this Agreement shall be deemed to
---------------
obligate any Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
2.16 Extension of Maturity Date. The Company may request that the
--------------------------
Lenders extend the Maturity Date for successive 364 day periods by notifying the
Lenders in writing through the Administrative Agent not more than 45 days nor
less than 30 days prior to the Maturity Date, then in effect. The
Administrative Agent shall promptly notify each Lender of such an extension
request. Thereupon, the parties hereto shall commence good faith negotiations
as to the terms and conditions of the proposed extension which shall include a
full credit assessment of the Company by the Lenders. Each Lender shall have
the right to consent to or reject such extension request in the exercise of its
sole and absolute discretion and shall notify the Administrative Agent of its
decision not more than 30 days nor less then 20 days prior to the Maturity Date
then in effect. Failure by any Lender to notify the Administrative Agent of its
decision shall be deemed to be a rejection by such Lender of the extension
request. If all Lenders consent to such extension, the Maturity Date shall be
extended for 364 days from the then current Maturity Date.
Section 3. PAYMENTS IN GENERAL.
-------------------
3.1 Taxes.
-----
(a) Subject to Section 3.1(g), any and all payments by the Company to
--------------
each Lender or the Administrative Agent under this Agreement shall be made free
and clear of, and without deduction or withholding for, any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Administrative Agent, such taxes (including income taxes or franchise taxes) as
are imposed on or measured by each Lender's net income by the jurisdiction under
the laws of which such Lender or the Administrative Agent, as the case may be,
is organized or maintains a Lending Office or
-26-
any political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes").
(b) In addition, the Company shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Subject to Section 3.1(g), the Company shall indemnify and hold
--------------
harmless each Lender and the Administrative Agent for the full amount of Taxes
or Other Taxes (including without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 3.1) paid by the
-----------
Lender or the Administrative Agent and any liability (including penalties,
interest, additions to tax and expenses to the extent not resulting from the
gross negligence or willful misconduct of a Lender or the Administrative Agent)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payment under this indemnification
shall be made within 30 days from the date the Lender or the Administrative
Agent makes written demand therefor.
(d) If the Company shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, then, subject to Section 3.1(g): (i) the sum
--------------
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.1) such Lender or the Administrative Agent, as the case may be,
-----------
receives an amount equal to the sum it would have received had no such
deductions been made; (ii) the Company shall make such deductions, and (iii) the
Company shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.
(e) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes, the Company shall furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Administrative Agent.
(f) Each Lender which is a foreign Person (i.e., a Person other than
a United States Person for United States Federal income tax purposes) agrees
that: (i) it shall, no later than the Closing Date (or, in the case of a Lender
which becomes a party hereto pursuant to Section 10.6 after the Closing Date,
------------
the date upon which the Lender becomes a party hereto) deliver to the Company
through the Administrative Agent: (A) if any Lending Office is located in the
United States, two accurate and complete signed originals of Internal Revenue
Service Form 4224 or any successor thereto ("Form 4224"), and (B) if any Lending
Office is located outside the United States, two accurate and complete signed
originals of Internal Revenue Service Form 1001 or any successor thereto ("Form
1001"), in each case indicating that the Lender is on the date of delivery
thereof entitled to receive payments of principal, interest and fees for the
account of such Lending Office or Offices under this Agreement free from
withholding of United States Federal income tax; (ii) if at any time the Lender
changes its Lending Office or Offices or selects an additional Lending Office as
herein provided, it shall with reasonable promptness deliver to the Company
through the Administrative Agent in replacement for, or in addition to, the
forms previously delivered by it hereunder: (A) if such changed or additional
Lending Office is located in the United States, two accurate and complete signed
originals of Form 4224; or (B) otherwise, two accurate and complete signed
-27-
originals of Form 1001, in each case indicating that the Lender is on the date
of delivery thereof entitled to receive payments of principal, interest and fees
for the account of such changed or additional Lending Office under this
Agreement free from withholding of United States Federal income tax; (iii) it
shall, before or promptly after the occurrence of any event (including the
passing of time but excluding any event mentioned in (ii) above) requiring a
change in the most recent Form 4224 or Form 1001 previously delivered by such
Lender and if the delivery of the same be lawful, deliver to the Company through
the Administrative Agent two accurate and complete original signed copies of
Form 4224 or Form 1001 in replacement for the forms previously delivered by the
Lender; and (iv) it shall, promptly upon the Company's reasonable request to
that effect, deliver to the Company such other forms or similar documentation as
may be required from time to time by any applicable law, treaty, rule or
regulation in order to establish such Lender's tax status for withholding
purposes.
(g) The Company will not be required to pay any additional amounts in
respect of United States Federal income tax pursuant to Section 3.1(d) to any
--------------
Lender for the account of any Lending Office of such Lender: (i) if the
obligation to pay such additional amounts would not have arisen but for a
failure by such Lender to comply with its obligations under Section 3.1(f) in
--------------
respect of such Lending Office; (ii) if such Lender shall have delivered to the
Company a Form 4224 in respect of such Lending Office pursuant to Section
-------
3.1(f)(i)(A), and such Lender shall not at any time be entitled to exemption
------------
from deduction or withholding of United States Federal income tax in respect of
payments by the Company hereunder for the account of such Lending Office after
the date of delivery of such Form 4224; or (iii) if the Lender shall have
delivered to the Company a Form 1001 in respect of such Lending Office pursuant
to Section 3.1(f)(i)(B), and such Lender shall not at any time be entitled to
--------------------
exemption from deduction or withholding of United States Federal income tax in
respect of payments by the Company hereunder for the account of such Lending
Office after the date of delivery of such Form 1001.
(h) If, at any time, the Company requests any Lender to deliver any
forms or other documentation pursuant to Section 3.1(f)(iv), then the Company
------------------
shall, on demand of such Lender through the Administrative Agent, reimburse such
Lender for any costs and expenses (including expenses of outside legal counsel
and the allocated costs of in-house counsel) reasonably incurred by such Lender
in the preparation or delivery of such forms or other documentation.
(i) If the Company is required to pay additional amounts to any
Lender or the Administrative Agent pursuant to Section 3.1(d), then such Lender
--------------
shall use its reasonable best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter accrue
if such change in the judgment of such Lender is not otherwise disadvantageous
to such Lender.
(j) The agreements and obligations of the Company contained in this
Section 3.1 shall survive the payment in full of all other Obligations.
-----------
3.2 Payments by the Company.
-----------------------
(a) All payments of principal, interest and fees hereunder shall be
made without set-off, recoupment or counterclaim, and shall be in the same day
funds and delivered to the Administrative Agent for credit to:
-▇▇-
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
ABA No. ▇▇▇▇▇▇▇▇▇
Credit Account No. 1292000883
Reference: ONEOK, Inc.
Attn: Corporate Loan Funds
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
for the account of the Lenders not later than 10:00 A.M. (Dallas time) on the
date due; funds received by the Administrative Agent after that time shall be
deemed to have been paid by the Company on the next succeeding Business Day and
all applicable interest or fees shall continue to accrue.
(b) Except as otherwise provided in Section 2.4(c) with respect to
--------------
the Company reimbursing drawings under Letters of Credit, unless the Company has
notified the Administrative Agent prior to the date any payment to be made by it
is due, that it does not intend to remit such payment, Administrative Agent may,
in its discretion, assume that the Company has timely remitted such payment and
may, in its discretion and in reliance thereon, make available such payment to
the Person entitled thereto. If such payment was not in fact remitted to
Administrative Agent in immediately available funds, then each Lender shall
forthwith on demand repay to Administrative Agent the amount of such assumed
payment made available to such Lender, together with interest thereon in respect
of each day from and including the date such amount was made available by
Administrative Agent to such Lender to the date such amount is repaid to
Administrative Agent at the Federal Funds Rate.
3.3 Payments on Non-Business Days. Whenever any payment to be made
-----------------------------
hereunder shall be stated to be due on a day which is not a Business Day, the
payment shall be made on the next succeeding Business Day and such extension of
time shall be included in the computation of the payment of the interest
hereunder; provided that, in the event that the day on which payment relating to
--------
a Offshore Rate Loan is due is not a Business Day but is a day of the month
after which no further Business Day occurs in that month, then the due date
thereof shall be the next preceding Business Day and such shortening of time
shall be excluded in the computation of the payment of the interest hereunder.
3.4 Illegality.
----------
(a) If any Lender shall determine that the introduction of any
Requirement of Law or any change in or in the interpretation or administration
thereof has made it unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for any Lender or its Lending Office
to make Offshore Rate Loans, then, on notice thereof by the Lender to the
Company through the Administrative Agent, the obligation of the Lender to make
Offshore Rate Loans shall be suspended until the Lender shall have notified the
Administrative Agent and the Company that the circumstances giving rise to such
determination no longer exists.
(b) If a Lender shall determine that it is unlawful to maintain any
Offshore Rate Loan, the Company shall prepay in full all Offshore Rate Loans of
the Lender then outstanding, together with interest accrued thereon, either on
the last day of the Interest Period thereof if the Lender may lawfully continue
to maintain such Offshore Rate Loans to such day, or promptly, if the Lender may
not lawfully continue to maintain
-29-
such Offshore Rate Loans, together with any amounts required to be paid in
connection therewith pursuant to Section 3.6.
-----------
(c) If the Company is required to prepay any Offshore Rate Loans
immediately as provided in Section 3.4(b), then concurrently with such
--------------
prepayment, the Company shall borrow from the affected Lender, in the amount of
such repayment, a Base Rate Loan.
(d) Before giving any notice to the Administrative Agent pursuant to
this Section 3.4, the affected Lender shall designate a different Lending Office
-----------
with respect to its Offshore Rate Loans if such designation will avoid the need
for giving such notice or making such demand and will not, in the judgment of
the Lender, be illegal or otherwise disadvantageous to the Lender.
3.5 Increased Costs and Reduction of Return.
---------------------------------------
(a) If any Lender shall determine that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law),
there shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining any Offshore Rate Loans, then the Company shall
be liable for, and shall from time to time, upon demand therefor by such Lender
(with a copy of such demand to the Administrative Agent), pay to such Lender,
additional amounts as are sufficient to compensate such Lender for such
increased costs.
(b) If any Lender shall have determined that the introduction of any
applicable law, rule, regulation or guideline regarding capital adequacy, or any
change therein or any change in the interpretation or administration thereof by
any central bank or other Governmental Authority charged with the interpretation
or administration thereof, or compliance by the Lender (or its Lending Office)
or any corporation controlling the Lender, with any request, guideline or
directive regarding capital adequacy (whether or not having the force of law) of
any such central bank or other authority, affects or would affect the amount of
capital required or expected to be maintained by the Lender or any corporation
controlling the Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its obligation under this Agreement, then, upon
demand of such Lender, the Company shall immediately pay to the Lender, from
time to time as specified by the Lender, additional amounts sufficient to
compensate the Lender for such increase.
3.6 Funding Losses. The Company agrees to reimburse each Lender and
--------------
to hold each Lender harmless from any loss or expense which the Lender may
sustain or incur as a consequence of: (a) the failure of the Company to make
any payment or prepayment of principal of any Offshore Rate Loan (including
payments made after any acceleration thereof); (b) the failure of the Company to
borrow, continue or convert a Loan after the Company has given (or is deemed to
have given) a Notice of Borrowing or a Notice of Conversion/Continuation; (c)
the failure of the Company to make any prepayment after the Company has given a
notice in accordance with Section 2.11; or (d) the prepayment of an Offshore
------------
Rate Loan on a day which is not the last day of the Interest Period with respect
thereto; including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans
-30-
hereunder or from fees payable to terminate the deposits from which such funds
were obtained. This covenant shall survive the payment in full of all other
Obligations.
3.7 Inability to Determine Rates. If the Administrative Agent
----------------------------
determines that for any reason adequate and reasonable means do not exist for
ascertaining the Offshore Rate for any requested Interest Period with respect to
a proposed Offshore Rate Loan, or if the Requisite Lenders advise the
Administrative Agent that the Offshore Rate applicable for any requested
Interest Period does not adequately and fairly reflect the cost to such Lenders
of funding an Offshore Rate Loan, the Administrative Agent shall forthwith give
notice of such determination to the Company and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Offshore Rate Loans, as the case
may be, hereunder shall be suspended until the Administrative Agent upon the
instruction of the Requisite Lenders revokes such notice in writing. Upon
receipt of such notice, the Company may revoke any Notice of Borrowing or Notice
of Conversion/Continuation then submitted by it. If the Company does not revoke
such notice with respect to Loans, the Lenders shall make, convert or continue
the Loans, as proposed by the Company, in the amount specified in the applicable
notice submitted by the Company, but such Loans shall be made, converted or
continued as Base Rate Loans instead of Offshore Rate Loans.
3.8 Payments by Lenders. Unless the Administrative Agent shall have
-------------------
received notice from a Lender at least one Business Day prior to the date of any
proposed Borrowing (or, with respect to Borrowings comprised of Base Rate Loans,
prior to the Administrative Agent funding such Borrowing on such Borrowing Date)
that such Lender will not make available to the Administrative Agent for the
account of the Company the amount of that Lender's Pro Rata Share of the Loan,
the Administrative Agent may assume that each Lender has made such amount
available to the Administrative Agent on the Borrowing Date and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a corresponding amount.
If and to the extent any Lender shall not have made its full amount available to
the Administrative Agent and the Administrative Agent in such circumstances has
made available to the Company such amount, that Lender shall within two Business
Days following the date of such Borrowing make such amount available to the
Administrative Agent, together with interest at the Federal Funds Rate for each
day during such period. A certificate of the Administrative Agent submitted to
any Lender with respect to amounts owing under this Section 3.8 shall be
-----------
conclusive, absent manifest error. If such amount is so made available, such
payment to the Administrative Agent shall constitute such Lender's Loan on the
date of Borrowing for all purposes of this Agreement. If such amount is not
made available to the Administrative Agent within two Business Days following
the date of such Borrowing, the Administrative Agent shall notify the Company of
such failure to fund and, upon demand by the Administrative Agent, the Company
shall pay such amount to the Administrative Agent for the Administrative Agent's
account, together with interest thereon for each day elapsed since the date of
such Borrowing, at a rate per annum equal to the interest rate applicable at the
time to such Loan.
Section 4. CONDITIONS TO EFFECTIVENESS OF AGREEMENT
----------------------------------------
AND EXTENSIONS OF CREDIT.
------------------------
4.1 Conditions of Closing. The obligation of each Lender to make its
---------------------
first Extension of Credit hereunder is subject to condition that the
Administrative Agent shall have received on or before the Closing Date all of
the following, in form and substance satisfactory to the Administrative Agent,
the Arranger and each Lender and their respective counsel and in sufficient
copies for each Lender:
-31-
(a) Credit Agreement and Notes. This Agreement executed by the
--------------------------
Company and each of the Lenders, and Notes executed by the Company in favor of
each Lender requesting a Note.
(b) Resolutions; Incumbency.
-----------------------
(i) Copies of the resolutions of the board of directors of the
Company approving and authorizing the execution, delivery and performance
by the Company of this Agreement, the other Loan Documents to be delivered
hereunder and authorizing the borrowing of the Loans, certified as of the
Closing Date by the Secretary or an Assistant Secretary of the Company; and
(ii) A certificate of the Secretary or Assistant Secretary of the
Company, certifying the names and true signatures of the officers of the
Company authorized to execute and deliver, as applicable, this Agreement,
and all other Loan Documents to be delivered hereunder.
(c) Articles of Incorporation; By-laws and Good Standing. Each of the
----------------------------------------------------
following documents:
(i) the articles or certificate of incorporation of the Company
as in effect on the Closing Date, certified by the Secretary of State of
the State of incorporation of the Company as of a recent date and by the
Secretary or Assistant Secretary of the Company as of the Closing Date and
the bylaws of the Company as in effect on the Closing Date, certified by
the Secretary or Assistant Secretary of the Company as of the Closing Date;
and
(ii) a good standing certificate for the Company from the
Secretary of State of its state of incorporation and each state where the
Company is qualified to do business as a foreign corporation as of a recent
date.
(d) Legal Opinion. Legal opinions dated as of the Closing Date,
-------------
addressed to the Administrative Agent and the Lenders, from ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel to the Company, in the form of Exhibit D attached hereto, and from
---------
▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, special counsel to the Administrative Agent.
(e) Payment of Fees. The Company shall have duly executed and
---------------
delivered the fee letters referred to in Sections 2.12(a) and (e) and shall have
------------------------
paid all fees due and payable on the Closing Date arising under Section 2.12.
------------
(f) Certificate. A certificate signed by a Responsible Officer, dated
-----------
as of the Closing Date, stating that: (i) the representations and warranties
contained in Section 5 are true and correct on and as of such date, as though
---------
made on and as of such date; (ii) no Default or Event of Default exists on the
Closing Date; and (iii) there has occurred since December 31, 2000, no Material
Adverse Effect.
(g) Termination of Existing Credit Facility. The Existing Credit
---------------------------------------
Facility shall have terminated.
(h) Other Documents. Such other approvals, opinions or documents as
---------------
any Lender may reasonably request.
-32-
4.2 Conditions to all Extensions of Credit. The obligation of each
--------------------------------------
Lender to make, continue or convert any Extension of Credit hereunder (including
its initial Loan) is subject to the satisfaction of the following conditions
precedent on the relevant date:
(a) Request for Extension of Credit. With respect to borrowings of
-------------------------------
Loans, the Administrative Agent shall have received a Request for Extension of
Credit.
(b) Notice of Conversion/Continuation. With respect to conversions or
---------------------------------
continuations of Loans, the Administrative Agent shall have received a Notice of
Conversion/Continuation.
(c) Continuation of Representations and Warranties. The
----------------------------------------------
representations and warranties made by the Company contained in Section 5 shall
---------
be true and correct on and as of the date of such Extension of Credit with the
same effect as if made on and as of such date.
(d) No Existing Default. No Default or Event of Default shall exist
-------------------
or shall result from such Extension of Credit.
Each Extension of Credit to the Company hereunder shall constitute a
representation and warranty by the Company hereunder as of the date of each such
Extension of Credit that the conditions in this Section 4.2 have been satisfied.
-----------
Section 5. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Company represents and warrants to the Administrative Agent and
each Lender that:
5.1 Corporate Existence and Power. The Company and each of its
-----------------------------
Subsidiaries: (a) is a corporation, partnership or limited liability company
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization; (b) has the power and
authority and all governmental licenses, authorizations, consents and approvals
to own its assets, carry on its business and to execute, deliver and perform its
obligations under the Loan Documents; (c) is duly qualified as a foreign
corporation or limited liability company, licensed and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification; and (d) is
in material compliance with all Requirements of Law.
5.2 Corporate Authorization; No Contravention. The execution,
-----------------------------------------
delivery and performance by the Company of this Agreement and by the Company of
any other Loan Document have been duly authorized by all necessary corporate,
partnership or limited liability company action and do not and will not: (a)
contravene the terms of the Company's certificate of incorporation or bylaws, or
other organization document; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any indenture, agreement,
lease, instrument, Contractual Obligation, injunction, order, decree or
undertaking to which the Company is a party; or (c) violate any material
Requirement of Law.
5.3 Governmental Authorization. No approval, consent, exemption,
--------------------------
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery,
-33-
performance or enforcement against the Company of the Agreement or against the
Company of any other Loan Document or any other instrument or agreement required
hereunder or thereunder to be made by the Company.
5.4 Binding Effect. This Agreement and each other Loan Document to
--------------
which the Company is a party constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
5.5 Litigation. Except as disclosed in the Company's Annual Report
----------
on Form 10-K for the year ending December 31, 2000, in the Company's Quarterly
Report on Form 10-Q for the quarterly period ending March 31, 2001, and in the
Company's Form S-3 and Forms 8-K filed subsequent to December 31, 2000, all as
filed with the Securities and Exchange Commission, there are no actions, suits,
proceedings, claims or disputes pending, or to the best knowledge of the
Company, threatened or contemplated at law, in equity, in arbitration or before
any Governmental Authority, against the Company, or its Subsidiaries or any of
their respective properties which: (a) purport to affect or pertain to this
Agreement, or any Loan Document, or any of the transactions contemplated hereby
or thereby; or (b) if determined adversely to the Company, or its Subsidiaries,
might have a Material Adverse Effect. No injunction, writ, temporary
restraining order or any order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the execution,
delivery and performance of this Agreement or any other Loan Document, or
directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
5.6 No Default. No Default or Event of Default exists or would
----------
result from the incurring of obligations by the Company under this Agreement or
by the Company under any other Loan Document. Neither the Company, nor any of
its Subsidiaries, is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, could have a reasonable likelihood of having a Material Adverse
Effect.
5.7 ERISA Compliance. Each of the Company and the ERISA Affiliates
----------------
has fulfilled its obligations under the minimum funding standards of ERISA and
the Code with respect to each Plan and are in compliance with all material
respects with the presently applicable provisions of ERISA and the Code, and
have not incurred any liability to the PBGC or any Plan or Multiemployer Plan.
5.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans
-----------------------------------
shall be used solely for the purposes set forth in Section 2.14. No part of the
------------
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the regulations of the Federal
Reserve Board, including Regulations U and X. Not more than 25% of the assets
subject to the restrictions of Section 7.1 will at any time consist of Margin
-----------
Stock. If reasonably requested by any Lender or the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each Lender a statement to
the foregoing effect in conformity with the requirements of FR Form U-1 referred
to in said Regulation U.
5.9 Title to Properties. The Company and each of its Subsidiaries
-------------------
has good record and marketable title in fee simple to or valid leasehold or
easement interests in all its property, except for such defects in title as
could not, individually or in the
-34-
aggregate, have a Material Adverse Effect. The property is free and clear of all
Liens or rights of others, except Permitted Liens.
5.10 Taxes. The Company and its Subsidiaries have filed all Federal
-----
and other material tax returns and reports required to be filed and have paid
all Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP and no Notice of Lien has been filed or recorded. There is
no proposed tax assessment against the Company or any of its Subsidiaries which
would, if the assessment were made, have a Material Adverse Effect.
5.11 Financial Condition.
-------------------
(a) The audited consolidated financial statements of financial
condition of the Company and its Subsidiaries dated December 31, 2000, and the
unaudited consolidated financial statements of the Company and its Subsidiaries
dated March 31, 2001, and in each case the related consolidated statements of
operations, stockholders' equity and cash flows for the fiscal year ended on
that date: (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; (ii) are complete, accurate and fairly present the financial condition
of the Company and its Subsidiaries as of the date thereof and results of
operations for the period covered thereby; and (iii) show all material
Indebtedness and other liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries as of the date thereof (including liabilities for
taxes and material commitments).
(b) Reference is hereby made to Section 5.5 of this Agreement for
disclosure of litigation against the Company.
(c) Since December 31, 2000, there has been no Material Adverse
Effect.
5.12 Environmental Matters. The operations of the Company and each of
---------------------
its Subsidiaries comply in all material respects with all Environmental Laws.
The Company and each of its Subsidiaries has obtained all material licenses,
permits, authorizations and registrations required under any Environmental Law
("Environmental Permits") necessary for its operations, and all such
Environmental Permits are in good standing, and the Company and each of its
Subsidiaries is in compliance with all terms and conditions of such
Environmental Permits. Except as disclosed in the Company's Quarterly Report on
Form 10-Q for the quarterly period ending March 31, 2001 and the Company's
Annual Report on Form 10-K for the year ending December 31, 2000, there are no
conditions or circumstances which may give rise to any Environmental Claim
arising from the operations of the Company or its Subsidiaries, including
Environmental Claims associated with any operations of the Company or its
Subsidiaries with a potential liability in excess of $25,000,000 in the
aggregate. Without limiting the generality of the foregoing, the Company and
its Subsidiaries have notified all of their employees of the existence, if any,
of any health hazard arising from the conditions of their employment and have
met all notification requirements under Title III of CERCLA or any other
Environmental Law.
5.13 Regulated Entities. None of the Company, any Person controlling
------------------
the Company, or any Subsidiaries of the Company, is (a) an "Investment Company"
within the meaning of the Investment Company Act of 1940; or (b) subject to
regulation under the
-35-
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code or any other Federal or
state statute or regulation limiting its ability to incur Indebtedness.
5.14 No Burdensome Restrictions. Neither the Company, nor any of its
--------------------------
Subsidiaries is a party to or bound by any Contractual Obligation or subject to
any charter or corporate restriction or any Requirement of Law which could
reasonably be expected to have a Material Adverse Effect.
5.15 Insurance. The properties of the Company and its Subsidiaries
---------
are insured with financially sound and reputable insurance companies or self-
insured, in such amounts, with such deductibles and covering such risks as is
customarily carried on by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary operates.
5.16 Full Disclosure. None of the representations or warranties made
---------------
by the Company or any of its Subsidiaries in the Loan Documents as of the date
of such representations and warranties, and none of the statements contained in
each exhibit, report, statement or certificate furnished by or on behalf of the
Company or any of its Subsidiaries in connection with the Loan Documents,
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, not misleading.
Section 6. AFFIRMATIVE COVENANTS.
---------------------
The Company covenants and agrees that, so long as any Lender shall
have any Commitment hereunder, or any Loan or other amount payable hereunder
shall remain unpaid, or any Letter of Credit shall remain outstanding, unless
the Requisite Lenders waive compliance in writing:
6.1 Financial Statements. The Company shall deliver to the
--------------------
Administrative Agent in form and detail satisfactory to the Administrative
Agent, with copies for each Lender:
(a) as soon as available, but not later than 120 days after the end
of each fiscal year of the Company, a copy of the Company's Annual Report on
Form 10-K filed with the Securities and Exchange Commission, together with the
Company's annual stockholders' report; and
(b) as soon as available, but not later than 60 days after the end of
each of the first three fiscal quarters of each year a copy of the Company's
Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission,
together with the Company's interim stockholders' report.
6.2 Certificates; Other Information. The Company shall furnish to
-------------------------------
the Administrative Agent with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a) and (b) above, a certificate (a "Compliance
--------------- ---
Certificate") of a Responsible Officer (i) stating that, to the best of such
officer's knowledge, the Company, during such period, has observed or performed
all of its covenants and other agreements, and satisfied every condition
contained in this Agreement to be observed, performed or
-36-
satisfied by it, and that such officer has obtained no knowledge of any Default
or Event of Default except as specified in such certificate, and (ii) showing in
detail the calculations supporting such statement in respect of Section 7.5;
-----------
(b) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Company shall have filed with the Securities and Exchange
Commission; and
(c) from time to time such additional information regarding the
financial position or business of the Company or any of its Subsidiaries
(including, without limitation, any Plan or Multiemployer Plan and any reports
or other information required to be filed under ERISA) as the Administrative
Agent, at the request of any Lender, may reasonably request.
6.3 Notices. The Company shall promptly notify the Administrative
-------
Agent and each Lender:
(a) of the occurrence of any Default or Event of Default and of the
occurrence or existence of any event or circumstance that foreseeably will
become a Default or Event of Default and the action which the Company is taking
or proposes to take with respect thereto;
(b) of any (i) breach or non-performance of, or any default under any
Contractual Obligation of the Company or any of its Subsidiaries which could
result in a Material Adverse Effect; or (ii) dispute, litigation, investigation,
proceeding or suspension which may exist at any time between the Company or any
of its Subsidiaries and any Governmental Authority which could result in a
Material Adverse Effect;
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary (i) in which
the amount of damages claimed is $50,000,000 (or its equivalent in another
currency or currencies) or more, (ii) in which injunctive or similar relief is
sought and which, if adversely determined, could have a Material Adverse Effect,
or (iii) in which the relief sought is an injunction or other stay of the
performance of this Agreement or any Loan Document or the operations of the
Company or any of its Subsidiaries;
(d) upon, but in no event later than ten days after, a Responsible
Officer becoming aware of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against
the Company or any Subsidiary or any of their properties pursuant to any
applicable Environmental Laws, (ii) all other Environmental Claims, and (iii)
any environmental or similar condition on any real property adjoining or in the
vicinity of the property of the Company or any Subsidiary that could reasonably
be anticipated to cause such property or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of such
property under any Environmental Laws which, in the case of each of clauses (i),
(ii) and (iii) could have a Material Adverse Effect;
(e) as soon as possible, and in any event within ten days after a
Responsible Officer knows or has reason to know that any of the events or
conditions specified below with respect to any Plan or Multiemployer Plan have
occurred or exist, a statement signed by a senior financial officer of the
Company setting forth details respecting such event or condition and the action,
if any, which the Company or its ERISA
-37-
Affiliate proposes to take with respect thereto (and a copy of any report or
notice required to be filed with or given to PBGC by the Company or an ERISA
Affiliate with respect to such event or condition):
(i) any Reportable Event with respect to a Plan, as to which
PBGC has not by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of Section
302 of ERISA shall be a reportable event regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a notice of
intent to terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or any ERISA Affiliate
of a notice from a Multiemployer Plan that such action has been taken by
PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company or any
ERISA Affiliate under Section 4201 or 4204 of ERISA from a Multiemployer
Plan, or the receipt by the Company or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA; and
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Company or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days, or
an action is taken by any such fiduciary under Section 4219(c)(5) of ERISA;
and
(f) promptly upon a Responsible Officer becoming aware of any
Material Adverse Effect, notice thereof.
Each notice pursuant to this Section shall be accompanied by a written
statement by a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Company proposes to
take with respect thereto.
6.4 Preservation of Corporate Existence, Etc. The Company shall and
----------------------------------------
cause each of its Subsidiaries to: (a) preserve and maintain in full force and
effect its corporate, partnership or limited liability company existence and
good standing under the laws of its State or jurisdiction of incorporation or
organization (except for mergers permitted by Section 7.2); (b) preserve and
-----------
maintain in full force and effect all material rights, privileges,
qualifications, permits, licenses and franchises necessary or desirable in the
normal conduct of its business (measured on a consolidated basis) except in
connection with transactions permitted by Section 7.2; (c) use its reasonable
-----------
efforts, in the ordinary course and consistent with past practice, to preserve
its business organization and preserve the goodwill and business of the
customers, suppliers and others having business relations with it; and (d)
preserve or renew all of its registered trademarks, trade names and service
marks, the non-preservation of which could have a Material Adverse Effect.
-38-
6.5 Maintenance of Property. The Company shall maintain, and shall
-----------------------
cause each of its Subsidiaries to maintain, and preserve all its property which
is used or useful in its business in good working order and condition, ordinary
wear and tear excepted. The Company shall use the standard of care typical in
the industry in the operation of its facilities.
6.6 Insurance. The Company shall self-insure or maintain, and shall
---------
cause each Subsidiary to self-insure or to maintain, with financially sound and
reputable insurers, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons,
including workers' compensation insurance, public liability and property and
casualty insurance.
6.7 Payment of Obligations. The Company shall, and shall cause its
----------------------
Subsidiaries to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including: (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary; (b) all lawful claims which, if
unpaid, might by law become a Lien upon its property; and (c) all Indebtedness
as and when due and payable.
6.8 Compliance with Laws. The Company shall comply, and shall cause
--------------------
each of its Subsidiaries to comply, in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over it or
its business (including the Federal Fair Labor Standards Act), except such as
may be contested in good faith or as to which a bona fide dispute may exist.
6.9 Inspection of Property and Books and Records. The Company shall
--------------------------------------------
maintain and shall cause each of its Subsidiaries to maintain, proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Company and such Subsidiaries.
The Company will permit, and will cause each of its subsidiaries to permit,
representatives of the Administrative Agent or any Lender to visit and inspect
any of their respective properties, to examine their respective corporate,
financial and operating records and make copies thereof or abstracts therefrom,
and to discuss their respective affairs, finances and accounts with their
respective directors, officers employees and independent public accountants, all
at the expense of the Company and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Company; provided, however, when an Event of Default
-------- -------
exists the Administrative Agent or any Lender may visit and inspect at the
expense of the Company such properties at any time during business hours and
without advance notice.
6.10 Compliance with ERISA. The Company shall, and shall cause each
---------------------
of its ERISA Affiliates to: (a) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law; (b) cause each Plan which is qualified under Section
401(a) of the Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code.
-39-
6.11 Environmental Laws. The Company shall, and shall cause each
------------------
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, except to the extent that noncompliance
could not reasonably be expected to have a Material Adverse Effect.
6.12 Further Assurances. The Company shall execute and deliver all
------------------
such further instruments, and perform such other acts, as Administrative Agent
or Requisite Lenders may determine are reasonably necessary to effectuate the
intent of the Loan Documents.
Section 7. NEGATIVE COVENANTS.
------------------
The Company hereby covenants and agrees that, so long as any Lender
shall have any Commitment hereunder, or any Loan or other amount payable
hereunder shall remain unpaid, unless the Requisite Lenders waive compliance in
writing:
7.1 Limitation on Liens. The Company shall not, nor shall it permit
-------------------
any of its Subsidiaries to, directly or indirectly, make, create, incur, assume
or suffer to exist any Lien upon or with respect to any part of its property or
assets, whether now owned or hereafter acquired, or offer or agree to do so,
other than the following ("Permitted Liens"):
(a) Liens created under this Agreement;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings;
(c) Liens (other than any Lien imposed by ERISA) on the property of
the Company or any of its Subsidiaries incurred, or pledges or deposits
required, in connection with workmen's compensation, unemployment insurance and
other social security legislation;
(d) Liens securing taxes that remain payable without penalty or which
are being contested in good faith by appropriate proceedings where collection
thereof is stayed; provided that the Company has set aside on its books reserves
--------
with respect to such taxes (segregated to the extent required by GAAP) deemed by
it to be adequate;
(e) Purchase money security interests on any property acquired or
held by the Company in the ordinary course of business securing Indebtedness
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring such property; provided that any such Lien attaches to such property
--------
concurrently with or within 90 days after the acquisition thereof and provided
that the principal amount of the Indebtedness secured by any such purchase money
security interests shall not in the aggregate exceed 2.5% of the Consolidated
Capitalization of the Company and its Subsidiaries;
(f) Any right which any municipal or governmental body or agency may
have by virtue of any franchise, license, contract or status to purchase or
designate a purchaser of, or order the sale of, any property of the Company upon
payment of reasonable compensation therefor or to terminate any franchise,
license or other rights or to regulate the property and business of the Company;
-40-
(g) Any liens, neither assumed by the Company nor on which it
customarily pays interest, existing upon real estate or rights in or relating to
real estate acquired by the Company for sub-station, measuring station,
regulating station, gas purification station, compressor station, transmission
line, distribution line or right-of-way purposes;
(h) Easements or reservations in any property of the Company for the
purpose of roads, pipe lines, gas transmission and distribution lines, electric
light and power transmission and distribution lines, water mains and other like
purposes, and zoning ordinances, regulations and restrictions which do not
impair the use of such property in the operation of the business of the Company;
and
(i) Liens not otherwise permitted by this Section 7.1 if at the time
-----------
of, and after giving effect to, the creation or assumption of any such Lien, the
aggregate of all obligations of the Company secured by any Liens not otherwise
permitted hereby does not exceed 5% of the Consolidated Capitalization of the
Company and its Subsidiaries.
7.2 Merger and Sale of Assets. The Company shall not, nor shall it
-------------------------
permit any of its Subsidiaries to, consolidate with or merge into any other
corporation or entity, or convey, transfer or lease all or substantially all of
the properties and assets of the Borrower and its Subsidiaries (measured on a
consolidated basis) to any Person, except that a Subsidiary may merge or
consolidate with another Subsidiary or with the Company, and a Subsidiary may
convey, transfer or lease its properties to another Subsidiary or to the
Company, and the Company or any of its Subsidiaries may consolidate or merge
with another corporation or entity, and a Person may consolidate with or merge
into the Company or any of its Subsidiaries, provided that:
(a) after giving effect to any interim merger(s) consummated pursuant
to the terms of the merger agreement in a transaction or series of transactions
occurring substantially simultaneously with the merger with the Company or any
of its Subsidiaries, (i) if the merger involves a Subsidiary but does not
involve the Company, a Subsidiary shall be the ultimate surviving entity, and
(ii) if the merger involves the Company, the Company shall be the ultimate
surviving entity, and in each such case the surviving entity shall be after the
merger a solvent corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia;
(b) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default or Default shall
have happened and be continuing; and
(c) if the merger or consolidation involves the Company, the Company
has delivered to the Administrative Agent a certificate signed by a Responsible
Officer and an opinion of counsel, each stating that such consolidation or
merger complies with this Section 7.2 and such certificate shall additionally
-----------
state that, in the opinion of the board of directors of the Company, the
transaction is in the interest of the Company and not disadvantageous to the
Administrative Agent and the Lenders;
provided, however, that the Company shall not convey or transfer any assets to a
Subsidiary solely for the purpose of improving the credit position of such
Subsidiary in order to enable it to borrow money.
-41-
7.3 Acquisitions, Loans and Investments. The Company shall not,
-----------------------------------
directly or indirectly, purchase or acquire, or permit any of its Subsidiaries
to purchase or acquire (including an acquisition by merger), or make any
commitment therefor, any capital stock, equity interest, assets, obligations or
other securities of or any interest in, any Person, or make any advance, loan,
extension of credit or capital contribution to or any other investment in, any
Person including, without limitation, any Affiliates of the Company (an
"Investment" or "Investments"), except for:
----------- -----------
(a) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(b) advances, loans or other extensions of credit by the Company to
any of its wholly-owned Subsidiaries or by any of its wholly-owned Subsidiaries
to another of its wholly-owned Subsidiaries of the Company in the ordinary
course of business;
(c) purchases of, or investments in, the capital stock, equity
interest, assets, obligations or other securities of, or interest in,
Subsidiaries, joint ventures or other Persons, in each case which are engaged
principally in the business of the purchasing, gathering, compression,
transportation, distribution, marketing, or storage of natural gas and
compressed natural gas, the exploration or production of natural gas or oil or
the processing of natural gas liquids, the underground piping of natural gas
distribution systems, other natural gas-related businesses, or the generation
and marketing of electricity; provided that such purchases or investments are
--------
not opposed by the board of directors or management of such Person; and
(d) Transactions not otherwise permitted by this Section 7.3 if at
-----------
the time of, and after giving effect to, such extensions of credit and
investments, the aggregate book value of all such extensions of credit and
investments not otherwise permitted hereby does not exceed $100,000,000 in the
aggregate.
7.4 Compliance with ERISA. The Company shall not directly or
---------------------
indirectly and shall not permit any ERISA Affiliate directly or indirectly (i)
to terminate, any Plan subject to Title IV of ERISA so as to result in any
material (in the opinion of the Requisite Lenders) liability to the Company or
any ERISA Affiliate, (ii) to permit to exist any ERISA Event or any other event
or condition, which presents the risk of a material (in the opinion of the
Requisite Lenders) liability of the Company or any ERISA Affiliate, (iii) to
make a complete or partial withdrawal (within the meaning of ERISA Section 4201)
from any Multiemployer Plan so as to result in any material (in the opinion of
the Requisite Lenders) liability to the Company or any ERISA Affiliate, (iv) to
enter into any new Plan or modify any existing Plan so as to increase its
obligations thereunder except in the ordinary course of business consistent with
past practice which could result in any material (in the opinion of the
Requisite Lenders) liability to the Company or any ERISA Affiliate, or (v)
permit the present value of all nonforfeitable accrued benefits under each Plan
(using the actuarial assumptions utilized by the PBGC upon termination of a
Plan) materially (in the opinion of the Requisite Lenders) to exceed the fair
market value of Plan assets allocable to such benefits, all determined as of the
most recent valuation date for each such Plan.
7.5 Restricted Payments. The Company covenants that it will not (a)
-------------------
declare or pay any dividend (other than dividends payable in common stock of the
Company) or make any other distribution on any shares of capital stock of the
Company of any class or (b) purchase, redeem or otherwise acquire or retire for
value, either directly or
-42-
indirectly (other than in exchange for or from the proceeds of other shares of
capital stock of the Company), any shares of capital stock of the Company of any
class, if the aggregate amount so declared, paid, distributed or expended after
August 31, 1998 would exceed the aggregate amount of the consolidated net income
of the Company and its Subsidiaries accumulated after August 31, 1998 plus
$125,000,000; provided, however, that the Company may declare or pay dividends
-------- -------
or make other distributions on any class or series of preferred stock of the
Company and may purchase or retire for a consideration any shares thereof to the
extent required to comply with any sinking or purchase fund established
therefor, but all amounts so declared, paid, distributed or expended shall be
included in all subsequent computations pursuant to this Section 7.5. The term
-----------
"stock" as used in this Section 7.5 shall include warrants, rights and options
-----------
to purchase stock.
7.6 Limitation on Senior Funded Indebtedness. The Company shall not,
----------------------------------------
and shall not permit any of its Subsidiaries to, create, make, incur, assume,
issue or guarantee, directly or indirectly, any Senior Funded Indebtedness
unless the Consolidated Net Tangible Assets of the Company shall be at least
equal to 150% of Consolidated Senior Funded Indebtedness, after giving effect to
the receipt and application of the proceeds of any such Senior Funded
Indebtedness proposed to be created, made, incurred, assumed, issued or
guaranteed, all as shown by the consolidated balance sheet of the Company and
its Subsidiaries as of a date not more than 90 days prior to the proposed
transaction (but giving effect thereto), prepared as hereinafter provided. Said
balance sheet shall be prepared by the Company on the basis of the latest
available consolidated balance sheet of the Company and its Subsidiaries
certified by a firm of certified or public accountants of recognized national
standing (which shall be as of a date not more than twelve months prior to the
date of such consolidated balance sheet), adjusted to reflect the proposed
transaction on a pro forma basis as well as to reflect transactions which shall
have occurred between the date of said certified balance sheet and the date of
said balance sheet.
7.7 Change in Business. The Company shall not, and shall not permit
------------------
any of its Subsidiaries to, engage in any material line of business
substantially different from those lines of business carried on by it on the
date hereof.
7.8 Transactions with Affiliates. The Company shall not, and shall
----------------------------
not permit any of its Subsidiaries to, enter into any transaction of any kind
with any Affiliate of the Company other than arm's-length transactions with
Affiliates that are otherwise permitted hereunder.
Section 8. EVENTS OF DEFAULT.
-----------------
8.1 Events of Default. Any of the following events shall constitute
-----------------
an "Event of Default":
(a) The Company fails to pay any amount of principal of any Extension
of Credit when due, or fails to pay any interest, fees or any other amount
payable hereunder or pursuant to any other Loan Document within five days of
when due; or
(b) Any representation or warranty by the Company or any of its
Subsidiaries herein, in any Loan Document or which is contained in any
certificate, document or financial or other statement furnished at any time
under this Agreement, or in or under any Loan Document, shall prove to have been
incorrect in any material respect on or as of the date made or deemed made; or
-43-
(c) The Company fails to perform or observe any term, covenant or
agreement contained in Section 6.3(a), 6.3(f), 6.9, or 7; or
---------------------------- -
(d) The Company fails to perform or observe any other term or
covenant contained in this Agreement or in any Loan Document (other than those
covered by Section 8.1(a) or 8.1(c) above) for 15 days after written notice
-------------- ------
thereof has been given to the Company by the Administrative Agent at the request
of any Lender; or
(e) The Company or any of its Subsidiaries (i) fails to make any
payment in respect of any Indebtedness having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$50,000,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) or fails to make any payment in respect of
net obligations under swap contracts or other derivative instruments ("swap
contracts") of more than $50,000,000 in the aggregate when due, and such failure
continues after the applicable grace or notice period, if any, specified in the
document relating thereto on the date of such failure; or (ii) fails to perform
or observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness or swap contracts, and such failure continues after the applicable
grace or notice period, if any, specified in the document relating thereto on
the date of such failure if the effect of such failure, event or condition is to
cause, or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries), or counterparty to such swap
contracts, to cause such Indebtedness or obligation to be declared to be due and
payable prior to its stated maturity, or any contingent obligation to become
payable or cash collateral in respect thereof to be demanded; or
(f) The Company or any of its Subsidiaries (i) becomes insolvent or
generally fails to pay, or admit in writing its inability to pay, its debts as
they become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) voluntarily ceases to conduct its business in the
ordinary course substantially as it is conducted on the Closing Date; (iii)
commences any Insolvency Proceeding or files any petition or answer in any
Insolvency Proceeding; (iv) acquiesces in the appointment of a receiver,
trustee, custodian or liquidator for itself or a substantial portion of its
property, assets or business or effects a plan or other arrangement with its
creditors; (v) admits the material allegations of a petition filed against it in
any Insolvency Proceeding, or (vi) takes any action to effectuate any of the
foregoing; or
(g) Any involuntary Insolvency Proceeding is commenced or filed
against the Company or any Subsidiary or any writ, judgment, warrant of
attachment, execution or similar process, is issued or levied against a
substantial part of the Company's or any of its Subsidiaries' assets and any
such proceedings or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing or levy; or
(h) An event or condition specified in Section 7.4 shall occur or
-----------
exist with respect to any Plan or Multiemployer Plan and, as a result of such
event or condition, together with all other such events or conditions, the
Company or any ERISA Affiliate shall incur or in the opinion of the Requisite
Lenders shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or the PBGC (or any combination of the
-44-
foregoing) which is in the determination of the Requisite Lenders, material in
relation to the consolidated financial position of the Company and the
Consolidated Subsidiaries; or
(i) A judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Company or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed for a period of 10
days; or any non-monetary judgment, order or decree shall be rendered against
the Company or any of its Subsidiaries which does or could be expected to have a
Material Adverse Effect, and either (i) enforcement proceedings shall have been
commenced by any Person upon such judgment or order or (ii) there shall be any
period of ten consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(j) A Material Adverse Effect shall occur; or
(k) A Change of Control shall occur; or
(l) Any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement of all Lenders or satisfaction in
full of all the Obligations, ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect; or Borrower denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document.
8.2 Remedies. Without limiting any other rights or remedies of the
--------
Administrative Agent or the Lenders provided for elsewhere in this Agreement, or
the other Loan Documents, or by applicable law, or in equity, or otherwise:
(a) the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 8.1(f) or (g): (i)
-------------- ---
the Requisite Lenders may request Administrative Agent to, and Administrative
Agent thereupon shall, terminate the Commitments and/or declare all or any part
of the unpaid principal of all Loans, all interest accrued and unpaid thereon
and all other amounts payable under the Loan Documents to be forthwith due and
payable, whereupon the same shall become and be forthwith due and payable,
without protest, presentment, notice of dishonor, notice of intention to
accelerate, notice of acceleration, demand or further notice of any kind, all of
which are expressly waived by the Company; and (ii) Issuing Lender may, with the
approval of Administrative Agent on behalf of the Requisite Lenders, demand
immediate payment by the Company of an amount equal to the aggregate amount of
all outstanding Letters of Credit Usage to be held in a Letter of Credit Cash
Collateral Account.
(b) Upon the occurrence of any Event of Default described in Section
-------
8.1(f) or (g): (i) the Commitments and all other obligations of Administrative
------ ---
Agent, the Issuing Lender or the Lenders shall automatically terminate without
notice to or demand upon the Company, which are expressly waived by the Company;
(ii) the unpaid principal of all Loans, all interest accrued and unpaid thereon
and all other amounts payable under the Loan Documents shall be forthwith due
and payable, without protest, presentment, notice of dishonor, notice of
intention to accelerate, notice of acceleration, demand or further notice of any
kind, all of which are expressly waived by the Company; and (iii) an amount
equal to one hundred and two percent (102%) of the aggregate amount of all
outstanding Letters of Credit Usage shall be immediately due and payable to
Issuing Lender without notice to or demand upon the Company, which are expressly
waived by the Company, to be held in a Letter of Credit Cash Collateral Account.
-45-
8.3 Rights Not Exclusive. The rights provided for in this Agreement
--------------------
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement.
Section 9. THE ADMINISTRATIVE AGENT.
------------------------
9.1 Appointment and Authorization.
-----------------------------
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) Issuing Lender shall act on behalf of Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time and except for so long as the Administrative Agent may agree at the request
of the Requisite Lenders to act for such Issuing Lender with respect thereto;
provided, however, that Issuing Lender shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Section 9 with
---------
respect to any acts taken or omissions suffered by Issuing Lender in connection
with Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "the Administrative Agent" as used in this
Section 9 included Issuing Lender with respect to such acts or omissions, and
---------
(ii) as additionally provided in this Agreement with respect to Issuing Lender.
9.2 Delegation of Duties. The Administrative Agent may execute any
--------------------
of its duties under this Agreement or any other Loan Document by or through
administrative agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any administrative agent or attorney-in-fact that it selects with reasonable
care.
9.3 Liability of Administrative Agent. None of the Administrative
---------------------------------
Agent, its Affiliates, or any of their respective officers, directors,
employees, administrative agents, or attorneys-in-fact (collectively, the
"Agent-Related Persons") shall (i) be liable for any action taken or omitted to
be taken by any of them under or in connection with this Agreement (except for
its own gross negligence or willful misconduct) or (ii) be responsible in any
manner to any of the Lenders for any recital, statement, representation or
warranty made by the Company or any Subsidiary of the Company or any officer
thereof contained in this Agreement or in any other Loan Document, or in any
certificate, report,
-46-
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Company or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Company or any of its Subsidiaries.
9.4 Reliance by Administrative Agent.
--------------------------------
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, telecopy, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the
Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Requisite Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Requisite
Lenders and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Sections 4.1 and 4.2, each Lender shall be deemed to have consented
------------ ---
to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lender unless an officer of the Administrative Agent
responsible for the transactions contemplated by the Loan Documents shall have
received notice from the Lender prior to the initial Extension of Credit
specifying its objection thereto and either such objection shall not have been
withdrawn by notice to the Administrative Agent to that effect or the Lender
shall not have made available to the Administrative Agent the Lender's ratable
portion of such Extension of Credit.
9.5 Notice of Default. The Administrative Agent shall not be deemed
-----------------
to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees payable to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender
or the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the Administrative Agent
shall give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
requested by the Requisite Lenders; provided, however, that unless and until the
-------- -------
Administrative Agent shall have received any such request, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with
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respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
9.6 Credit Decision. Each Lender expressly acknowledges that none of
---------------
the Agent-Related Persons has made any representation or warranty to it and that
no act by the Administrative Agent hereinafter taken, including any review of
the affairs of the Company and its Subsidiaries shall be deemed to constitute
any representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries and
made its own decision to enter into this Agreement and extend credit to the
Company hereunder. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Company which may come into the possession of any of the Agent-Related Persons.
9.7 Indemnification. The Lenders agree to indemnify the Agent-
---------------
Related Persons (to the extent not reimbursed by or on behalf of the Company and
without limiting the obligation of the Company to do so), ratably according to
the respective amounts of their outstanding Loans, or, if no Loans are
outstanding, their Commitment, from and against any and all Indemnified
Liabilities (including any such Indemnified Liabilities attributable to the
ordinary, sole or contributory negligence of the Agent-Related Persons, but
excluding any Indemnified Liabilities resulting solely from such Agent-Related
Person's gross negligence or willful misconduct). Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent promptly upon
demand for its ratable share of any costs or out-of-pocket expenses (including
fees and expenses of counsel and the allocated cost of in-house counsel)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Company. The undertakings in this Section 9.7 shall survive
-----------
payment of all other Obligations and the resignation of the Administrative
Agent.
9.8 Administrative Agent in Individual Capacity. Bank of America and
-------------------------------------------
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from and generally engage in any kind of business with the
Company and its Subsidiaries and Affiliates as though Bank of America were not
the Administrative Agent hereunder and without notice to the Lenders. With
respect to its Loans, Bank of America shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the terms "Lender" and "Lenders" shall
include Bank of America in its individual capacity.
-48-
9.9 Successor Agent. The Administrative Agent may resign as
---------------
Administrative Agent upon 30 days' notice to the Lenders. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, the Requisite
Lenders shall appoint from among the Lenders a successor agent for the Lenders
which successor agent shall be approved by the Company. If no successor Agent
is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may, but shall not be obligated
to, appoint after consulting with the Lenders and the Company, a successor agent
from among the Lenders. At end of such 30 days' notice period any successor
agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor agent and the retiring Administrative Agent's rights, powers and
duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 9 and Sections 10.4 and 10.5 shall inure to its
--------- ------------- ----
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. Concurrently with giving a notice of
resignation, the Administrative Agent may, in its sole discretion, require that
all payments to be made between the Company and the Lenders that were previously
made to the Administrative Agent on behalf of the Company or the Lenders, as
applicable, shall thereafter be made directly between the Company and the
Lenders. If no successor agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative Agent's notice
of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of Administrative Agent hereunder until such time, if any, as the
Requisite Lenders appoint a successor agent as provided for above.
9.10 Lead Arranger and Book Manager; Agents. No entity appearing on
--------------------------------------
the cover hereof or named herein as a co-syndication agent, co-documentation
agent, managing agent, co-agent, Lead Arranger or Book Manager shall have any
duties or responsibilities hereunder other than those applicable to all the
Lenders as such.
Section 10. MISCELLANEOUS.
-------------
10.1 Amendments and Waivers; Extension of Availability Period. (a)
--------------------------------------------------------
No amendment or waiver of any provision of this Agreement or any other Loan
Document and no consent with respect to any departure by the Company therefrom,
shall be effective unless the same shall be in writing and signed by the
Requisite Lenders (and the Company, as to any amendment), and then such waiver
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such waiver, amendment, or consent
-------- -------
shall, unless in writing and signed by all the Lenders (and the Company, as to
any amendment) do any of the following: (a) increase the Commitment of any
Lender or subject any Lender to any additional obligations; (b) postpone or
delay any date fixed for any payment of principal, interest, fees or other
amounts due hereunder or under any Loan Document; (c) reduce the principal of,
or the rate of interest specified herein on any Loan, or of any fees or other
amounts payable hereunder or under any Loan Document; (d) change the Pro Rata
Share of the Commitments or of the aggregate unpaid principal amount of the
Loans or Letter of Credit Usage which shall be required for the Lenders or any
of them to take any action hereunder; (e) permit the release of cash collateral
or amend any of the terms of this Agreement pertaining to the requirement to
provide cash collateral in respect of Letters of Credit; or (f) amend this
Section 10.1; provided further, that no amendment, waiver or consent shall,
------------ -------- -------
unless in writing and signed by the Administrative Agent in addition to the
Requisite Lenders, affect the rights or duties of the Administrative Agent under
this Agreement; provided further, that no amendment, waiver or consent shall,
-------- -------
unless in writing and signed by Swing Line Lender in
-49-
addition to the Requisite Lenders or all the Lenders, as the case may be, affect
the rights or duties of Swing Line Lender under any Loan Document; provided,
--------
further, that no amendment, waiver or consent shall, unless in writing and
-------
signed by Issuing Lender in addition to the Requisite Lenders or all Lenders, as
the case may be, affect the rights or duties of Issuing Lender under any Loan
Document relating to Letters of Credit.
10.2 Notices. Except for telephonic notices expressly required or
-------
permitted by Sections 2.2 and 2.5, all notices, requests and other
------------ ---
communications provided for hereunder shall be in writing (including
telegraphic, telex, facsimile transmission or cable communication) and mailed,
telegraphed, telexed, transmitted or delivered, if to the Company to its address
specified on Schedule 2 hereto; if to any Lender, to its address specified on
----------
its signature page hereto; and if to the Administrative Agent, to its address
specified on Schedule 2 hereto; or, as to the Company or the Administrative
----------
Agent, to such other address as shall be designated by such party in a written
notice to the other parties, and as to each other party at such other address as
shall be designated by such party in a written notice to the Company and the
Administrative Agent. All such notices and communications shall be effective
when delivered for overnight delivery, delivered to the telegraph company,
transmitted by telecopier and confirmed by telephone, transmitted by telex and
confirmed by telex answerback or delivered to the cable company, as applicable,
or if delivered, upon delivery, except that written and telephonic notices
pursuant to Section 2 or 3 shall not be effective until received by the
--------- -
Administrative Agent.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Administrative Agent, any Lender or the
Company, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.
10.4 Costs and Expenses. The Company shall, whether or not the
------------------
transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Administrative Agent and the Arranger on
demand for all reasonable costs and expenses incurred in connection with the
development, due diligence, preparation, syndication, delivery, administration
and execution of, and any amendment, supplement, waiver or modification to, this
Agreement, any Loan Document and any other documents prepared in connection
herewith or therewith, and the consummation of the transactions contemplated
hereby and thereby, including the reasonable costs and expenses of counsel to
the Administrative Agent and the Arranger (and the reasonable allocated cost of
internal counsel) with respect thereto;
(b) pay or reimburse each Lender and the Administrative Agent on
demand for all reasonable costs and expenses incurred by them in connection with
the enforcement or preservation of any rights (including in connection with any
"workout" or restructuring regarding the Loans) under this Agreement, any Loan
Document, and any such other documents, including reasonable fees and out-of-
pocket expenses of counsel (and the reasonable allocated cost of internal
counsel) to the Administrative Agent and to each of the Lenders; and
(c) pay or reimburse the Administrative Agent on demand for all
reasonable appraisal, audit, search and filing fees, incurred or sustained by
the
-50-
Administrative Agent in connection with the matters referred to under paragraphs
(a) and (b) above.
10.5 Successors and Assigns. The provisions of this Agreement shall
----------------------
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
10.6 Assignments, Participations etc.
--------------------------------
(a) Any Lender may, with the written consent of the Administrative
Agent and the Company (provided, however that no consent of the Company shall be
required during the existence of an Event of Default), which consent shall not
be unreasonably withheld, at any time assign and delegate to one or more
financial institutions and, with notice to the Administrative Agent, but without
the consent of the Administrative Agent, may assign to any of its Affiliates
(each an "Assignee") all or any part of the Loans or the Commitment or any other
rights or obligations of such Lender hereunder in a minimum amount equal to the
lesser of (i) such Lender's Commitment and (ii) $10,000,000; provided, however,
-------- -------
that the Commitment of any Lender after giving effect to any assignment shall
not be less than $10,000,000; provided, further, that the Company and the
-------- -------
Administrative Agent may continue to deal solely and directly with such Lender
in connection with the interests so assigned to an Assignee until (i) written
notice of such assignment, together with payment instructions, addresses and
related information with respect to the Assignee, shall have been given to the
Company and the Administrative Agent by such Lender and the Assignee and (ii)
such Lender and its Assignee shall have delivered to the Company and the
Administrative Agent a Notice of Commitment Assignment and Acceptance
substantially in the form of Exhibit E ("Notice of Assignment and Acceptance");
---------
and (iii) the processing fees of $3,500 shall have been paid to the
Administrative Agent in connection with such assignment (including, but not
limited to, an assignment by a Lender to another Lender or an Affiliate). Any
Lender may at any time assign all or any portion of its rights under this
Agreement to a Federal Reserve Bank. No such assignment shall release the
transferor Lender from its obligations hereunder.
(b) From and after the date that the Administrative Agent notifies
the assignor Lender and the Assignee that it has received the Notice of
Assignment and Acceptance, (i) the Assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Notice of Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Notice of Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Loan Documents. The
Commitment allocated to each Assignee shall reduce the Commitment of the
assigning Lender pro tanto.
--- -----
(c) Any Lender may at any time sell to one or more lenders or other
entities (a "Participant"), participating interests in any Loans, the Commitment
of that Lender or any other interest of that Lender hereunder; provided,
--------
however, that (i) the Lender's obligations under this Agreement shall remain
-------
unchanged, (ii) the Lender shall remain solely responsible for the performance
of such obligations, (iii) the Company and the Administrative Agent shall
continue to deal solely and directly with the Lender in connection with the
Lender's rights and obligations under this Agreement, and (iv) no Lender shall
transfer or grant any participating interest under which the Participant shall
have rights to approve any amendment to, or any consent or waiver with respect
to this
-51-
Agreement except to the extent such amendment, consent or waiver would require
unanimous consent as described in the first proviso to Section 10.1. In the case
----- ------- ------------
of any such participation, the Participant shall not have any rights under this
Agreement, or any of the other Loan Documents, and all amounts payable by the
Company hereunder shall be determined as if such Lender had not sold such
participation, except that if amounts outstanding under this Agreement are due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement.
(d) Any Lender may at any time pledge its Note or any other
instrument evidencing its rights as a Lender under this Agreement to a Federal
Reserve Bank, but no such pledge shall release that Lender from its obligations
hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder
absent foreclosure of such pledge.
(e) Each Lender agrees (1) to maintain the confidentiality of all
non-public "forward-looking" or forecasting financial information provided to it
by the Company or any Subsidiary of the Company or by the Administrative Agent
on such Company's or Subsidiary's behalf in connection with this Agreement and
not to distribute such information except to its employees on a "need to know
basis", and (2) to take normal and reasonable precautions and exercise due care
to maintain the confidentiality of all other non-public information provided to
it by the Company or any Subsidiary of the Company or by the Administrative
Agent on such Company's or Subsidiary's behalf in connection with this Agreement
and neither it nor any of its Affiliates shall use any such information
described in the foregoing clauses (1) or (2) for any purpose or in any manner
other than pursuant to the terms contemplated by this Agreement, except to the
extent such information described in the foregoing clauses (1) or (2) (i) was or
becomes generally available to the public other than as a result of a disclosure
by the Lender, or (ii) was or becomes available on a non-confidential basis from
a source other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company known to the Lender; provided,
--------
further, however, that any Lender may disclose such information (A) at the
-------
request of any Lender regulatory authority or in connection with an examination
of such Lender by any such authority; (B) pursuant to subpoena or other court
process; (C) when required to do so in accordance with the provisions of any
applicable law; (D) at the express direction of any other agency of any State of
the United States of America or of any other jurisdiction in which such Lender
conducts its business; and (E) to such Lender's independent auditors and other
professional advisors who have agreed to keep such information confidential.
Notwithstanding the foregoing, the Company authorizes each Lender to disclose to
any Participant or Assignee (each, a "Transferee") and any prospective
Transferee such financial and other information in such Lender's possession
concerning the Company or its Subsidiaries which has been delivered to the
Lenders pursuant to this Agreement or which has been delivered to the Lenders by
the Company in connection with the Lenders' credit evaluation of the Company
prior to entering into this Agreement; provided that such Transferee agrees in
--------
writing to such Lender to keep such information confidential to the same extent
required of the Lenders hereunder.
10.7 Set-off. In addition to any rights and remedies of the Lenders
-------
provided by law, if an Event of Default exists, each Lender is authorized at any
time and from time to time, without prior notice to the Company, any such notice
being waived by the Company to the fullest extent permitted by law, to set-off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and
-52-
other indebtedness at any time owing by such Lender to or for the credit or the
account of the Company against any and all Obligations of the Company now or
hereafter existing under this Agreement or any other Loan Document and any Loan
held by such Lender irrespective of whether or not the Administrative Agent or
such Lender shall have made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Lender agrees
promptly to notify the Company and the Administrative Agent after any such set-
off and application made by such Lender; provided, however, that the failure to
-------- -------
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender under this Section 10.7 are in addition to the other
------------
rights and remedies (including without limitation, other rights of set-off)
which the Lender may have.
10.8 Sharing of Payments, Etc. If, other than as provided in Section
------------------------- -------
3.1, 3.5 or 3.6, any Lender shall obtain on account of the Obligations owed to
-------- ---
it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) (a) in excess of its Pro Rata Share of payments
on account of the Obligations owed to all the Lenders, such Lender shall
forthwith (i) notify the Administrative Agent of such fact (and the
Administrative Agent will promptly notify the other Lenders), and (ii) purchase
from the other Lenders such participations in the Obligations held by them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
-------- -------
excess payment is thereafter recovered from the purchasing Lender, such purchase
shall to that extent be rescinded and each other Lender shall repay to the
purchasing Lender the purchase price paid thereto together with an amount equal
to such paying Lender's ratable share (according to the proportion of (A) the
amount of such paying Lender's required repayment to (B) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Company agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 10.8 may, to the fullest extent permitted by
------------
law, exercise all its rights of payment (including the right of set-off, but
subject to Section 10.7) with respect to such participation as fully as if such
------------
Lender were the direct creditor of the Company in the amount of such
participation. The Administrative Agent shall keep records (which shall be
conclusive and binding in the absence of manifest error), of participations
purchased pursuant to this Section 10.8 and shall in each case notify the
------------
Lenders following any such purchases.
10.9 Indemnity. Whether or not the transactions contemplated hereby
---------
shall be consummated:
(a) General Indemnity. The Company shall pay, indemnify, and hold
-----------------
each Lender, the Arranger, the Administrative Agent and each of their respective
Affiliates, officers, directors, employees, counsel, agents and attorneys-in-
fact (each, an "Indemnified Person") harmless from and against any and all
------------------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses or disbursements (including the reasonable costs and
expenses of counsel to each Indemnified Person (and the reasonable allocated
cost of internal counsel)) of any kind or nature whatsoever in connection with
or arising out of or as a result of this Agreement or any other Loan Document or
the Company's use of any Loan, or any investigation, litigation or proceeding
related thereto, whether or not the Administrative Agent or such Lender is a
party thereto (all the foregoing, collectively, the "Indemnified Liabilities"),
-----------------------
INCLUDING ANY INDEMNIFIED LIABILITIES ATTRIBUTABLE TO THE ORDINARY, SOLE OR
CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNIFIED PERSON; provided, that the Company
--------
shall have no obligation hereunder to any Indemnified Person
-53-
with respect to Indemnified Liabilities arising from the gross negligence or
willful misconduct of such Indemnified Person.
(b) Survival; Defense. The obligations in this Section 10.9 shall
----------------- ------------
survive payment of all other Obligations. At the election of any Indemnified
Person, the Company shall defend such Indemnified Person using legal counsel
reasonably satisfactory to such Indemnified Person in such Person's sole
discretion, at the sole cost and expense of the Company, and the Lenders and the
Administrative Agent shall cooperate with the reasonable requests of such
counsel. All amounts owing under this Section 10.9 shall be paid within 30 days
------------
after demand.
10.10 Marshalling; Payments Set Aside. Neither the Administrative
-------------------------------
Agent nor the Lenders shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in
favor of the Company or any other Person or against or in payment of any or all
of the Obligations. To the extent that the Company makes a payment or payments
to the Administrative Agent or the Lenders, or the Administrative Agent or the
Lenders enforce their Liens or exercise their rights of set-off, and such
payment or payments or the proceeds of such enforcement or set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to a trustee, receiver or any other party in
connection with any Insolvency Proceeding, or otherwise, then to the extent of
such recovery the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such enforcement or set-off had not occurred.
10.11 Addresses for Notices. Each Lender shall notify the
----------------------
Administrative Agent in writing of any changes in the address to which notices
to the Lender should be directed or the address of its Lending Office, of
payment instructions in respect of all payments to be made to it hereunder and
of such other administrative information as the Administrative Agent shall
reasonably request.
10.12 Maximum Rate. It is the intention of the parties hereto to
------------
comply strictly with applicable usury laws, if any; accordingly, notwithstanding
any provision to the contrary contained herein or in any fee letter or other
Loan Document or any other document otherwise relating hereto, in no event shall
this Agreement or any Note or such documents require or permit the payment,
taking, reserving, receiving, collection or charging of any sums constituting
interest under applicable laws which exceed the maximum amount permitted by such
laws. If any such excess interest is called for, contracted for, charged,
taken, reserved, or received in connection with any Loan or in any fee letter or
other Loan Document, or in any communication by the Administrative Agent, any
Lender or any other person to the Company or any other person, or in the event
all or part of the principal or interest of any Loan shall be prepaid or
accelerated, so that under any of such circumstances or under any other
circumstance whatsoever the amount of interest contracted for, charged, taken,
reserved, or received on the amount of principal actually outstanding from time
to time under this Agreement or any Note shall exceed the maximum amount of
interest permitted by applicable usury laws, then in any such event it is agreed
as follows: (i) the provisions of this paragraph shall govern and control, (ii)
neither the Company nor any other person or entity now or hereafter liable for
the payment of any Loan shall be obligated to pay the amount of such interest to
the extent such interest is in excess of the maximum amount of interest
permitted by applicable usury laws, (iii) any such excess which is or has been
received notwithstanding this paragraph shall be credited against the then
unpaid principal balance of the Loans or, if the Loans have been or would be
paid in full by such credit, refunded to the Company, and (iv) the provisions of
this Agreement, the Notes and the other Loan Documents, and any
-54-
communication to the Company, shall immediately be deemed reformed and such
excess interest reduced, without the necessity of executing any other document,
to the maximum lawful rate allowed under applicable laws as now or hereafter
construed by courts having jurisdiction hereof or thereof. Without limiting the
foregoing, all calculations of the rate of interest contracted for, charged,
collected, taken, reserved, or received in connection herewith which are made
for the purpose of determining whether such rate exceeds the maximum lawful rate
shall be made to the extent permitted by applicable laws by amortizing,
prorating, allocating and spreading during the period of the full term of the
Loans, including all prior and subsequent renewals and extensions, all interest
at any time contracted for, charged, taken, collected, reserved, or received.
The terms of this paragraph shall be deemed to be incorporated in every Loan
Document and communication relating to this Agreement, the Loans and the Notes.
To the extent that the interest rate laws of the State of Texas are
applicable to the Loans, the applicable interest rate ceiling is the weekly
ceiling (formerly the indicated rate ceiling) determined in accordance with Tex.
Rev. Civ. Stat., Title 79, Article 5069-1D.003, also codified at Texas Finance
Code, Section 303.301 (formerly Article 5069-1.04 (a)(1)), and, to the extent
that this Agreement is deemed an open end account as such term is defined in
Tex. Rev. Civ. Stat., Title 79, Article 5069-1B.002(14), also codified at Texas
Finance Code Section 301.001(3) (formerly Article 5069-1.01(f)), the Lenders
retain the right to modify the interest rate in accordance with applicable law.
The parties agree that Texas Finance Code, Chapter 346 (formerly Tex. Rev.
Civ. Stat., Title 79, Chapter 15), which regulates certain revolving loan
accounts and revolving triparty accounts, shall not apply to any revolving loan
accounts created under this Agreement or the Notes or maintained in connection
therewith.
10.13 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement in any number of separate counterparts, each of
which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent.
10.14 No Third Parties Benefited. This Agreement is made for the
--------------------------
purpose of defining and setting forth certain obligations, rights and duties of
the Company, Administrative Agent and Lenders in connection with the Loans, and
is made for the sole benefit of the Company, Administrative Agent and Lenders,
and Administrative Agent's and Lenders' successors and assigns. Except as
provided in Sections 10.4 and 10.9, no other Person shall have any rights of any
------------- ----
nature hereunder or by reason hereof.
10.15 Severability. The illegality or unenforceability of any
------------
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
10.16 Governing Law and Jurisdiction.
------------------------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS OF THAT STATE) AND APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
-55-
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN THE COURTS OF THE ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR
THE SOUTHERN DISTRICT OF TEXAS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THOSE COURTS. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE COMPANY, THE ADMINISTRATIVE
AGENT AND THE LENDERS FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
IT AT ITS ADDRESS SPECIFIED PURSUANT TO SECTION 10.2 HEREOF. EACH OF THE
------------
COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
--------------------
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT
AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY TEXAS LAW.
10.17 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND THE
--------------------
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.18 Entire Agreement. This Agreement, together with the other Loan
----------------
Documents, embodies the entire Agreement and understanding among the Company,
the Lenders and the Administrative Agent and supersedes all prior or
contemporaneous Agreements and understandings of such persons, verbal or
written, relating to the subject matter hereof and thereof except for the fee
letters referred to in Section 2.12 and any prior arrangements made with respect
------------
to the payment by the Company of (or any indemnification for) any fees, costs or
expenses payable to or incurred (or to be incurred) by or on behalf of the
Administrative Agent or the Lenders.
10.19 Interpretation. This Agreement is the result of negotiations
--------------
between and has been reviewed by counsel to the Administrative Agent, the
Company and other parties, and is the product of all parties hereto.
Accordingly, this Agreement and the other
-56-
Loan Documents shall not be construed against the Lenders, the Administrative
Agent or the Company merely because of the Administrative Agent's, the Lenders'
or the Company's involvement in the preparation of such documents and
agreements.
10.20 Survival. In the event that any Letter of Credit remains
--------
outstanding after the Maturity Date, then, notwithstanding the termination of
the Commitments, the repayment of all outstanding Loans, and the
collateralization of such Letters of Credit by means of one or more deposits to
a Letter of Credit Cash Collateral Account, the provisions of this Agreement
(other than Section 7) shall remain in force and effect for so long as any such
---------
Letter of Credit remains outstanding or any amount payable by or other
obligation of the Company in respect of such Letter of Credit remains unpaid or
unperformed. This Section 10.20 shall be cumulative with and in addition to any
-------------
other provision of this Agreement providing for survival of any representation,
warranty, covenant or undertaking of any party.
THIS WRITTEN LOAN AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS
EXECUTED IN CONNECTION HEREWITH, REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
-57-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
ONEOK, INC.
By: /s/▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
& Chief Financial Officer
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
BANK OF AMERICA, N.A.,
as Administrative Agent, and as a Lender,
Issuing Lender and Swing Line Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
BANK ONE, NA
By: /s/ ▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address for Notices:
-------------------
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Driver
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
-------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. - ▇▇/▇▇/ ▇▇▇▇▇
▇▇ 1183
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chanue ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Assistant Vice President
Address for Notices:
-------------------
ABN Amro Bank N.V.
Three Riverway, Suite 1700
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address for Notices:
-------------------
Fleet National Bank
100 Federal Street, MADE 10008A
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ ▇▇▇▇▇ ▇. Edge
----------------------------
Name: ▇▇▇▇▇ ▇. Edge
Title: Director
Address for Notices:
-------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
10/th/ Floor, M/C 1929
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
-------------------
▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: Associate Director
Address for Notices:
--------------------
____________________________
____________________________
____________________________
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(credit)/▇▇▇▇ ▇▇▇▇▇ (Loan
Admin.)
Telephone: ▇▇▇-▇▇▇-▇▇▇▇/
212-852-6113
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
BANK OF OKLAHOMA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. Been
--------------------------
Name: ▇▇▇▇▇▇ ▇. Been
Title: Vice President
Address for Notices:
-------------------
Bank of Oklahoma, NA
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. Been
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Address for Notices:
--------------------
▇ ▇▇▇▇'▇ ▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
UBS AG, STAMFORD BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Associate Director
Banking Products
Services, US
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Associate Director
Banking Products
Services, US
Address for Notices:
-------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇/▇▇/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vladmira Holeckova
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
BANK HAPOALIM B.M.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
-------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
UMB BANK, n.a.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
-------------------
P.O. Box 419226
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇ Read
--------------------------
Name: ▇▇▇▇▇ Read
Title: Vice President
Address for Notices:
-------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
15/th/ floor
▇▇▇ ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
Energy Capital Services
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
WESTAR BANK
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address for Notices:
-------------------
WestStar Bank
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO ONEOK, INC. CREDIT AGREEMENT]
SCHEDULE 1
----------
COMMITMENTS AND PRO RATA SHARES
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
Total
Lender Commitment Pro Rata Share
---------------------------------------------------------------------------------------
Administrative Agent
Bank of America $ 81,500,000 9.588235294%
Co-Syndication Agents
Bank One, NA $ 81,000,000 9.529411765%
First Union National Bank $ 81,000,000 9.529411765%
Co-Documentation Agents
ABN AMRO Bank N.V. $ 81,000,000 9.529411765%
Fleet National Bank $ 81,000,000 9.529411765%
Managing Agents
SunTrust Bank $ 75,000,000 8.823529412%
The Royal Bank of Scotland PLC $ 75,000,000 8.823529412%
Westdeutsche Landesbank $ 75,000,000 8.823529412%
Co-Agents
Citibank, N.A. $ 50,000,000 5.882352941%
Bank of Oklahoma, N.A. $ 50,000,000 5.882352941%
UBS AG, Stamford Branch $ 50,000,000 5.882352941%
Other Lenders
Bank Hapoalim B.M. $ 25,000,000 2.941176471%
Union Bank of California, N.A. $ 25,000,000 2.941176471%
UMB Bank, n.a. $ 15,000,000 1.764705882%
Westar Bank $ 4,500,000 0.529411765%
$850,000,000 100%
Schedule 1 - Page 1
SCHEDULE 2
----------
COMPANY AND ADMINISTRATIVE AGENT ADDRESSES FOR NOTICES
COMPANY
-------
ONEOK, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President, Chief Financial Officer and Treasurer
Phone:(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ADMINISTRATIVE AGENT
--------------------
Notices (other than Requests for Extensions of Credit):
Bank of America, N.A.
Three ▇▇▇▇▇ Center, Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
Phone:(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Requests for Extensions of Credit:
Bank of America, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Officer
Phone:(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America, N.A.
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Phone:(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 2 - Page 1
EXHIBIT A
---------
FORM OF REQUEST FOR EXTENSION OF CREDIT
---------------------------------------
TO: Bank of America, N.A., as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO: Bank of America, N.A.
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Pursuant to Section 2.5 of that certain $850,000,000 Credit Agreement
dated as of June 28, 2001 (as from time to time amended, extended, restated,
modified or supplemented, the "Credit Agreement;" capitalized terms used herein
shall have the meanings assigned to them in the Credit Agreement), among ONEOK,
Inc., an Oklahoma corporation (the "Company"), the Lenders named therein (the
"Lenders") and Bank of America, N.A., as Administrative Agent (the
"Administrative Agent"), this represents the Company's request to borrow on
__________ from the Lenders, according to their respective Pro Rata Share,
$___________ as [Base Rate] [Offshore Rate] Loans. [The initial Interest period
-----------
for such Offshore Rate is requested to be a __________-month period]. The
proceeds of such Loans are to be deposited in the Company's account at the
Administrative Agent.
The undersigned Responsible Officer hereby certifies that:
(a) the representations and warranties of the Company contained in
the Credit Agreement are true, correct and complete in all material respects on
and as of the date hereof to the same extent as though made on and as of the
date hereof; and
(b) no Default or Event of Default has occurred and is continuing
under the Credit Agreement or will result from the proposed Extension of Credit.
DATED:________________
ONEOK, INC.
By_______________________________
Title____________________________
Exhibit A - Page 1
EXHIBIT B
---------
FORM OF NOTICE OF CONVERSION/CONTINUATION
-----------------------------------------
TO: Bank of America, N.A., as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO: Bank of America, N.A.
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
1. Conversion Selection. Pursuant to Section 2.6 of that certain
--------------------
$850,000,000 Credit Agreement dated as of June 28, 2001 (as from time to time
amended, extended, restated, modified or supplemented, the "Credit Agreement;"
capitalized terms used herein shall have the meanings assigned to them in the
Credit Agreement), among ONEOK, Inc., an Oklahoma corporation (the "Company"),
the Lenders named therein (the "Lenders") and Bank of America, N.A., as
Administrative Agent (the "Administrative Agent"), this represents the Company's
request to convert $________of existing [Base Rate] [Offshore Rate] Loans, the
final day of the current Interest Period (if applicable) of which is __________,
20__, to [Offshore Rate] [Base Rate] Loans, as follows:
Interest Period
(Offshore
Dollar Amount Rate loans)
------------- -----------
$____________ ________ days
Maturing on __________, 20__
2. Continuation Selection (Offshore Rate Loans). Pursuant to Section 2.5
----------------------
of the Agreement, please continue $__________ of existing Offshore Rate Loans,
the final day of the current Interest Period of which is __________, 20____, as
follows:
Requested
Dollar Amount Interest Period
------------- ---------------
$___________ ______ days
Maturing on __________, 20__
Exhibit B - Page 1
The undersigned Responsible Officer hereby certifies that:
(a) the representations and warranties of the Company contained in
the Credit Agreement are true, correct and complete in all material respects on
and as of the date hereof to the same extent as though made on and as of the
date hereof; and
(b) no Default or Event of Default has occurred and is continuing
under the Credit Agreement or will result from the proposed conversion or
continuation.
Unless otherwise defined herein, capitalized terms used herein have the
meanings assigned to them in the Agreement.
ONEOK, INC.
By_________________________________
Name:______________________________
Title:_____________________________
Exhibit B - Page 2
EXHIBIT C-1
-----------
FORM OF REVOLVING LOAN PROMISSORY NOTE
U.S. $_________________ Dated:________,_____
FOR VALUE RECEIVED, the undersigned, ONEOK, INC., an Oklahoma corporation
(the "Borrower"), HEREBY PROMISES TO PAY to the order of _______________________
(the "Lender"), for the account of its applicable lending office, on the
Maturity Date (as defined in the Credit Agreement referred to below), the
principal amount of $______________, or, if less, the aggregate principal amount
of the Revolving Loans (as defined in the Credit Agreement referred to below)
owed to the Lender by the Borrower on such Maturity Date.
The Borrower promises to pay interest on the unpaid principal amount hereof
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement referred to below. Both
principal and interest are payable in lawful money of the United States of
America to Bank of America, N.A., as Administrative Agent, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Corporate Loan Funds, in same day funds. Each
Revolving Loan owed to the Lender by the Borrower, and all payments made on
account of principal thereof, may be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and is subject to
and entitled to the benefits of, the Credit Agreement dated as of June 28, 2001
(as amended or otherwise modified from time to time, the "Credit Agreement")
among the Borrower, the Lender, certain other lenders parties thereto and Bank
of America, N.A. as Administrative Agent for the Lender and such other lenders.
The Credit Agreement, among other things, (i) provides for the making of
Revolving Loans to the Borrower from time to time pursuant to Section 2.1 of the
Credit Agreement in an aggregate outstanding amount not to exceed at any time
the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such advance owed to the Lender being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified. Capitalized terms used herein which are not
defined herein and are defined in the Credit Agreement are used herein as
therein defined.
The Borrower hereby waives presentment, demand, protest, notice of
dishonor, notice of intent to accelerate, notice of acceleration and any other
notice of any kind, except as provided in the Credit Agreement. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.
Exhibit C-1 - Page 1
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Texas (without regard to principles of conflicts
of laws of that State) and applicable laws of the United States of America.
ONEOK, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
Exhibit C-1 - Page 2
EXHIBIT C-2
-----------
FORM OF SWING LOAN PROMISSORY NOTE
U.S. $25,000,000.00 Dated:__________, ____
FOR VALUE RECEIVED, the undersigned, ONEOK, INC., an Oklahoma corporation
(the "Borrower"), HEREBY PROMISES TO PAY to the order of BANK OF AMERICA, N.A.
(the "Bank"), for the account of its applicable lending office, on the Maturity
Date (as defined in the Credit Agreement referred to below), the principal
amount of $25,000,000.00, or, if less, the aggregate principal amount of the
Swing Line Loans (as defined in the Credit Agreement referred to below) owed to
the Bank by the Borrower on such Maturity Date.
The Borrower promises to pay interest on the unpaid principal amount hereof
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement referred to below. Both
principal and interest are payable in lawful money of the United States of
America to Bank of America, N.A., as Administrative Agent, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Corporate Loan Funds, in same day funds. Each
Swing Line Loan owed to the Bank by the Borrower, and all payments made on
account of principal thereof, may be recorded by the Bank and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and is subject to
and entitled to the benefits of, the Credit Agreement dated as of June 28, 2001
(as amended or otherwise modified from time to time, the "Credit Agreement")
among the Borrower, the Bank, certain other banks parties thereto and Bank of
America, N.A. as Administrative Agent for the Bank and such other banks. The
Credit Agreement, among other things, (i) provides for the making of Swing Line
Loans to the Borrower from time to time pursuant to Section 2.2 of the Credit
Agreement in an aggregate outstanding amount not to exceed at any time the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from each such advance owed to the Bank being evidenced by this Promissory Note,
and (ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. Capitalized terms used herein which are not defined herein
and are defined in the Credit Agreement are used herein as therein defined.
The Borrower hereby waives presentment, demand, protest, notice of
dishonor, notice of intent to accelerate, notice of acceleration and any other
notice of any kind, except as provided in the Credit Agreement. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.
Exhibit C-2 - Page 1
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Texas (without regard to principles of conflicts
of laws of that State) and applicable laws of the United States of America.
ONEOK, INC.
By:_____________________________
Name:___________________________
Title:__________________________
Exhibit C-2 - Page 2
EXHIBIT D
---------
FORM OF OPINION OF COUNSEL
June __, 2001
To: Each of the Lenders, parties to the Credit Agreement, as hereinafter
defined, and Bank of America, N.A., as Administrative Agent and as a
Lender, Letter of Credit Issuing Lender and Swing Line Lender
Ladies and Gentlemen:
We have acted as counsel to ONEOK, Inc., an Oklahoma corporation (the
"Company"), in connection with the Credit Agreement, dated as of June 28, 2001,
(the "Credit Agreement") among the Company, the financial institutions who are
parties thereto (collectively the "Lenders") and Bank of America, N.A., as
Administrative Agent (the "Agent"), and as a Lender, Letter of Credit Issuing
Lender and Swing Line Lender. This opinion is being given to you pursuant to
Section 4.1(d) of the Credit Agreement. Terms used herein which are defined in
the Credit Agreement shall have the respective meanings set forth in the Credit
Agreement unless otherwise defined herein.
In connection with this opinion, we have examined the following documents:
a. An executed copy of the Credit Agreement;
b. The Certificate of Incorporation of the Company, and all amendments
thereto (the "Company's Charter");
c. The by-laws of the Company and all amendments thereto (the "Company's
Bylaws"); and
d. The other documents furnished by or on behalf of the Company pursuant
to Section 4.1 of the Credit Agreement.
We have also examined originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, agreements and other instruments,
and of certificates of comparable documents of public officials and of officers
and representatives of the Company as we have deemed relevant and necessary as
the basis for the opinions hereinafter set forth. In our examination of the
documents referred to above, we have assumed the due authorization, execution
and delivery of each document referred to above by all parties thereto other
than the Company, the authenticity of all documents submitted to us as original
documents, and the conformity to original documents of all documents submitted
to us as copies thereof.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the opinion that:
1. The Company and each of its Subsidiaries: (a) is a corporation, limited
liability company, limited partnership or general partnership duly
organized, validly existing and in good
Exhibit D - Page 1
standing under the laws of the jurisdiction of its incorporation or
organization; (b) has the power and authority and, to the best of our
knowledge, all material governmental licenses, authorizations, consents and
approvals to own its assets, carry on its business and to execute, deliver
and perform its obligations under the Loan Documents; (c) is duly qualified
as a foreign corporation, limited liability company or limited partnership
licensed and in good standing under the laws of each jurisdiction where
failure to do so would have a Material Adverse Effect; and (d) is in
material compliance with all material Requirements of Law.
2. The execution, delivery and performance by the Company of the Credit
Agreement and any other Loan Document have been duly authorized by all
necessary corporate action and do not and will not: (a) contravene the
terms of the Company's Charter, the Company's Bylaws or other organization
documents; (b) conflict with or result in any breach of contravention of,
or the creation of any Lien under, any material indenture, agreement,
lease, instrument, Contractual Obligation, injunction, order, decree or
undertaking to which the Company is a party; or (c) violate any material
Requirement of Law. The Credit Agreement and the other Loan Documents have
been duly executed and delivered by the Company.
3. No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery, performance or
enforcement against the Company of the Credit Agreement or any other Loan
Document or any other instrument or agreement required hereto to be made by
the Company, or any Extension of Credit thereunder.
4. If the laws of the State of Oklahoma were to be applied to the Credit
Agreement and the other Loan Documents, notwithstanding the provisions of
the Credit Agreement and the other Loan Documents providing for such
documents to be governed by the laws of the State of Texas (except as
otherwise specifically provided therein), the Credit Agreement and each
other Loan Document to which the Company is a party constitute the legal,
valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability including certain remedial provisions
of the Credit Agreement and Loan Documents which may be limited or rendered
unenforceable under the laws, if applicable, of Oklahoma which may affect
the availability of specific remedies provided therein, but such
limitations do not in our opinion render the Credit Agreement or the Loan
Documents invalid as a whole nor interfere with the practical realization
of the benefits intended by the Credit Agreement and Loan Documents;
provided, however, that we render no opinion as to the enforceability under
Oklahoma law of any provision of the Credit Agreement or any other Loan
Document providing for a party's waiver of a right to jury trial or its
submission to jurisdiction and venue outside Oklahoma.
5. As long as the interest charged under the Credit Agreement and Notes does
not exceed 45% per annum calculated according to the actuarial method, the
Extensions of Credit, as evidenced by the Credit Agreement and the other
Loan Documents, are not usurious under applicable usury laws of the State
of Oklahoma.
6. We believe that the choice of law provision set forth in the Credit
Agreement and the other Loan Documents wherein the parties agree that the
laws of the State of Texas shall
Exhibit D - Page 2
govern and control the terms of the Credit Agreement and the other Loan
Documents (except as otherwise specifically provided therein) should be
enforceable choice of law under the laws of the State of Oklahoma except to
the extent that this choice of law would conflict with the public policy of
the State of Oklahoma. You should be aware that this opinion is limited by
the fact that no Oklahoma case since statehood has considered this direct
issue and a contrary decision could be entered by an Oklahoma Court. In
reaching the foregoing opinion, we have assumed, with your permission, that
the signature pages to the Credit Agreement and other Loan Documents were
delivered to the Administrative Agent in Texas, that all requests for
Extensions of Credit will be made to the Administrative Agent's office in
Texas, and that all payments by the Company will be made at the
Administrative Agent's office in Texas.
7. To the best of our knowledge, except as disclosed in the Company's Annual
Report on Form 10-K for the year ending December 31, 2000, in the Company's
Quarterly Report on Form 10-Q for the quarterly period ending March 30,
2001, and in the Company's Form S-3 and Form 8-K's filed subsequent to
December 31, 2000, all as filed with the Securities and Exchange
Commission, there are no material actions, suits, proceedings, claims or
disputes pending, threatened or contemplated at law, in equity, in
arbitration or before any Governmental Authority, against the Company, or
its Subsidiaries or any of their respective properties which (a) purport to
affect or pertain to the Credit Agreement, or any other Loan Document, or
any of the transactions contemplated hereto or thereby; or (b) if
determined adversely to the Company, or its Subsidiaries, might have a
Material Adverse Effect. To the best of our knowledge, no injunction, writ,
temporary restraining order or any order of any nature has been issued by
any court or other Governmental Authority purporting to enjoin or restrain
the execution, delivery and performance of the Credit Agreement or any
other Loan Document, or directing that the transactions provided for herein
or therein not be consummated as herein or therein provided.
8. To the best of our knowledge, the Company and each of its Subsidiaries has
obtained all material licenses, permits, authorizations and registrations
required under any Environmental Law ("Environmental Permits") where
failure to do so would have a Material Adverse Effect, and all such
Environmental Permits are in good standing, and the Company and each of its
Subsidiaries is in material compliance with all terms and conditions of
such Environmental Permits.
9. Neither the Company, any Person controlling the Company, nor any
Subsidiaries of the Company, is (a) an "Investment Company" within the
meaning of the Investment Company Act of 1940; or (b) subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power
Act, the Interstate Commerce Act, any state public utilities code or any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness.
10. Neither the Company, nor any of its Subsidiaries is a party to or bound by
any Contractual Obligation or subject to any charter or corporate
restriction or any Requirement of Law which could reasonably be expected to
have a Material Adverse Effect on the Company.
11. The consummation of the transaction contemplated by the Credit Agreement
and the other Loan Documents, and the Extending of Credit thereunder, will
not violate Regulations U or X of the Federal Reserve Board.
Exhibit D - Page 3
The foregoing opinions are subject to the following qualification:
The qualification of any opinion herein by the use of the words "to the
best of our knowledge" means that during the course of representation as
described in this opinion letter, no information has come to the attention
of the attorneys in this firm involved in the transaction described in or
contemplated by the Loan Documents which would give such attorneys current
actual knowledge of the existence of the matters so qualified. Except as
specifically noted in this opinion, we have not (i) made any independent
review or special investigation concerning any agreements, instruments,
encumbrances, orders, judgments, or decrees by which the Company may be
specifically bound, or (except with respect to the general application of
Oklahoma laws, rules and regulations) any laws, rules or other regulations
by which the Company may be bound; (ii) made any independent investigation
as to the existence of any litigation, tax claims, actions, suits,
investigations or disputes, if any, pending or threatened against the
Company; or (iii) made any other independent investigation of factual
matters.
Our opinions expressed above are limited to the current status of the laws
of the State of Oklahoma and the Federal laws of the United States of America,
except that for purposes of our opinion in paragraph 3, the Term "Governmental
Authority" includes Governmental Authorities in the states of Texas, Kansas, and
Oklahoma, and we undertake no responsibility to update or supplement this
opinion in response to subsequent changes in the law or future events affecting
the transactions contemplated by the Credit Agreement and Loan Documents. This
opinion is not to be used, circulated, relied upon or referred to in connection
with any transaction other than the transaction evidenced by the Credit
Agreement and Loan Documents or by any persons not expressly mentioned herein.
We acknowledge that the Administrative Agent and the Lenders are relying on the
opinions expressed herein in agreeing to extend credit under the terms of the
Credit Agreement and the other Loan Documents, and that ▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
is relying on the opinions expressed herein in rendering certain opinions to the
Administrative Agent and the Lenders. We hereby consent to reliance by the
Administrative Agent and the Lenders, now or hereafter parties to the Credit
Agreement, and ▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P. on the opinions expressed herein.
Very truly yours,
▇▇▇▇▇ & ▇▇▇▇▇▇▇
By_____________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
cc: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice President and General Counsel
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President, Treasurer and Chief Financial
Officer
bc: ▇▇▇▇ ▇▇▇▇▇▇▇
Exhibit D - Page 4
EXHIBIT E
---------
FORM OF COMMITMENT ASSIGNMENT NOTICE
------------------------------------
AND ACCEPTANCE
--------------
_______________, _____
TO: Bank of America, N.A.
Three ▇▇▇▇▇ Center Suite 4550
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is made to the $850,000,000 Credit Agreement dated as of June 28,
2001 (as from time to time amended, extended, restated, modified or
supplemented, the "Credit Agreement;" capitalized terms used herein shall have
the meanings assigned to them in the Credit Agreement) among ONEOK, Inc.,
certain Lenders party thereto and Bank of America, N.A., as Administrative Agent
(the "Administrative Agent") for said Lenders.
1. We hereby give you notice of, and request your consent to, the
assignment by _________________ (the "Assignor") to _______________ (the
"Assignee") of _____% of the right, title and interest of the Assignor in and to
the Credit Agreement (including without limitation the right, title and interest
of the Assignor in and to the Commitment of the Assignor, all outstanding Loans
made by the Assignor, and outstanding Letter of Credit Usage). Before giving
effect to such assignment: the amount of the Assignor's Commitment is
$__________; the aggregate principal amount of its outstanding Loans is
$___________; and the aggregate face amount of Letter of Credit Usage is
$__________.
2. The Assignee hereby represents and warrants that it has complied with
the requirements of Section 10.6(a) of the Credit Agreement in connection with
this assignment.
3. The Assignee agrees that, upon receiving your consent to such
assignment and from and after ________________, the Assignee will be bound by
the terms of the Credit Agreement, with respect to the interest in the Credit
Agreement assigned to it as specified above, as fully and to the same extent as
if the Assignee were the Lender originally holding such interest in the Credit
Agreement.
4. The following administrative details apply to the Assignee:
Exhibit E - Page 1
(A) Offshore Lending Office:
Assignee name:_______________________
Address:_____________________________
Attention:___________________________
Telephone: (_)______________________
Telecopier: (_)______________________
Telex (Answerback):_____________
(B) Domestic Lending Office:
Assignee name:_______________________
Address:_____________________________
Attention:___________________________
Telephone: (_)______________________
Telecopier: (_)______________________
Telex (Answerback):_____________
(C) Notice Address:
Assignee name:_______________________
Address:_____________________________
Attention:___________________________
Telephone: (_)______________________
Telecopier: (_)______________________
Telex (Answerback):_____________
(D) Payment Instructions:
Account No.:_________________________
At: ________________________
________________________
________________________
Ref.:________________________________
Attention:___________________________
Exhibit E - Page 2
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Commitment Assignment Notice and Acceptance to be executed by their respective
duly authorized officials, officers or administrative agents as of the date
first above mentioned.
Very truly yours,
[Name of Assignor]
By________________________________
Title:____________________________
[Name of Assignee]
By________________________________
Title:____________________________
We hereby consent to the
foregoing assignment.
ONEOK, INC.
By___________________________________
Title:_______________________________
BANK OF AMERICA, N.A.,
as Administrative Agent
By___________________________________
Title:_______________________________
Exhibit E - Page 3