EXHIBIT 2.11
FIRST OMNIBUS AMENDMENT TO
PARTICIPATION AGREEMENT, LEASE, AND
LOAN AGREEMENT
AMONG
TRANSOK GAS PROCESSING COMPANY,
AS THE LESSEE,
TRANSOK, INC.,
AS THE TRANSOK GUARANTOR,
CIBC INC.,
AS THE LESSOR
AND
CERTAIN FINANCIAL INSTITUTIONS,
AS THE LENDERS,
AND
CANADIAN IMPERIAL BANK OF COMMERCE,
AS ADMINISTRATIVE AGENT,
AND
BANK OF MONTREAL,
AS DOCUMENTATION AGENT
DATED AS OF DECEMBER 12, 1996
INDEX
Capitalized terms contained herein have the same meaning ascribed to
them in the Participation Agreement.
1. First Omnibus Amendment to Participation Agreement, Lease, and Loan
Agreement (including receipt therefor by Administrative Agent)
SCHEDULE I Lenders
SCHEDULE II Disclosure Schedule
SCHEDULE 2.2 Commitments
SCHEDULE 8.2 Notice Information
EXHIBIT 8.7 Subsidiaries and Material Subsidiaries
EXHIBIT A List of Guarantors
EXHIBIT A-1 Form of Consent and Acknowledgment of
Guaranties executed by Guarantors listed on
EXHIBIT A
EXHIBIT A-2 Form of Consent and Acknowledgment of Guaranty
executed by Tejas Transok Holding Company
EXHIBIT A-3 Form of Amendment to Transok Guaranty
EXHIBIT B-1 Form of Opinion of Texas counsel to Lessee and
the Guarantors
EXHIBIT B-2 Form of Opinion of Oklahoma counsel to Lessee
and the Transok
Guarantor
EXHIBIT C Form of Financial Condition Certificate of
Transok, Inc. and its Subsidiaries
EXHIBIT D Form of Amendment to Memorandum of Lease
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TAB DOCUMENTS
2. Consent and Acknowledgment of Guaranties executed by:
a. Transok Properties, Inc.
b. Transok Gas Company
c. Transok Gas Processing Company
d. Tejas Oklahoma Natural Gas, Inc.
e. Tejas and Transok Energy, Inc.
f. Tejas Newco Intrastate Company
g. Tejas Oklahoma Marketing Company
h. Tejas Oklahoma Newco, Inc.
i. Tejas Oklahoma Pipeline Services, L.L.C.
3. Consent and Acknowledgment of Guaranty executed by Tejas Transok
Holding Company
4. First Amendment to Transok Guaranty executed by Transok, Inc.
5. New A-Notes and B-Notes of Lessor payable to:
a. Bank of Nova Scotia
b. Credit Lyonnais
c. National Westminster Bank Plc
d. Sumitomo Bank
▇. ▇▇▇▇▇ Fargo Bank (Texas) N.A.
6. Receipt by Administrative Agent of existing A-Notes and B-Notes of
Lessor marked "exchanged" from:
a. Bank of Boston
b. Credit Lyonnais
c. National Westminster Bank Plc
▇. ▇▇▇▇▇ Fargo Bank (Texas) N.A.
7. Certificates of a Secretary or an Assistant Secretary and the
President or a Vice President for each of the Lessee and Guarantors
which is a party to a Loan Document together with:
i. Signatures and incumbency of officers
ii. Resolutions with respect to the transactions
iii. AND a certificate as to no amendments to, or attaching
amended, [Certificate] [Articles] of Incorporation, Partnership
Agreement, Membership Agreement, and By-Laws
a. Lessee
b. Transok, Inc.
c. Tejas Transok Holding Company
d. Transok Gas Company
e. Transok Properties, Inc.
f. Tejas Oklahoma Natural Gas, Inc.
g. Tejas and Transok Energy, Inc.
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TAB DOCUMENTS
h. Tejas Newco Intrastate Company
i. Tejas Oklahoma Marketing Company
j. Tejas Oklahoma Newco, Inc.
k. Tejas Oklahoma Pipeline Services, L.L.C.
8. Opinions of Counsel
▇. ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special Texas counsel for Lessee and
Guarantors b. Hall, Estill, Hardwick, Gable, Golden & ▇▇▇▇▇▇, special
Oklahoma counsel for Lessee and Guarantors
9. Certificate of Financial Condition from the chief financial officer of
Transok, Inc. together with all related financial statements, opinions
and other material documents containing information on which such
certificate is based
10. Satisfaction of conditions precedent under, and purchase of and
payment for the Notes under the Amended and Restated Secured Credit
Agreement
11. U.C.C.-3 Financing Statement Amendments with respect to Assignment of
Lease and Rents, attaching First Omnibus Amendment
12. Amendment to Memorandum of Lease
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FIRST OMNIBUS AMENDMENT
to
PARTICIPATION AGREEMENT, LEASE
and
LOAN AGREEMENT
dated as of December 12, 1996
among
TRANSOK GAS PROCESSING COMPANY, as Lessee,
TRANSOK, INC., as Transok Guarantor,
CIBC INC., as Lessor,
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY,
as Administrative Agent,
BANK OF MONTREAL, as Documentation Agent,
and
CERTAIN FINANCIAL INSTITUTIONS NAMED ON SCHEDULE I,
as Lenders,
ALL RIGHT, TITLE AND INTEREST OF LESSOR UNDER THIS FIRST OMNIBUS
AMENDMENT TO PARTICIPATION AGREEMENT, LEASE AND LOAN AGREEMENT (THIS
"AMENDMENT") AND THE PROPERTY SUBJECT HERETO HAVE BEEN ASSIGNED TO, AND ARE
SUBJECT TO A SECURITY INTEREST IN FAVOR OF, CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY, AS ADMINISTRATIVE AGENT ("ADMINISTRATIVE AGENT") UNDER THE
ASSIGNMENT OF LEASE AND RENTS DATED AS OF JUNE 6, 1996 (AS SUCH AGREEMENT MAY BE
AMENDED AND/OR SUPPLEMENTED TO THE EXTENT PERMITTED THEREBY) FOR THE BENEFIT OF
THE PARTICIPANTS REFERRED TO IN SUCH AGREEMENT. THIS AMENDMENT HAS BEEN EXECUTED
IN SEVERAL COUNTERPARTS. TO THE EXTENT THAT THIS AMENDMENT MAY CONSTITUTE
CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL CODE AS IN
EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AMENDMENT
MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART HEREOF
OTHER THAN THE "ORIGINAL EXECUTED COUNTERPART", WHICH SHALL BE IDENTIFIED AS THE
COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY THE ADMINISTRATIVE AGENT
ON OR FOLLOWING THE SIGNATURE PAGE THEREOF.
FIRST OMNIBUS AMENDMENT TO PARTICIPATION AGREEMENT,
LEASE AND LOAN AGREEMENT
This FIRST OMNIBUS AMENDMENT TO PARTICIPATION AGREEMENT, LEASE AND
LOAN AGREEMENT is made and entered into as of December 12, 1996 (this
"Amendment"), among TRANSOK GAS PROCESSING COMPANY, a Delaware corporation, as
Lessee, TRANSOK, INC., an Oklahoma corporation, as Transok Guarantor, CIBC INC.,
a Delaware corporation, as Lessor, CANADIAN IMPERIAL BANK OF COMMERCE, a bank
organized under the laws of Canada, acting through its New York Agency, not in
its individual capacity but solely as Administrative Agent, BANK OF MONTREAL, a
bank organized under the laws of Canada, acting through certain of its U.S.
branches or agencies, as Documentation Agent, and the various financial
institutions named on Schedule I hereto or as are or may from time to time
become parties hereto, as Lenders.
R E C I T A L S:
A. Transok Acquisition Corporation III, a Delaware corporation ("TAC
III"), as Lessee, and CIBC Inc., as Lessor, have entered into a Lease Agreement
dated as of June 6, 1996 (the "LEASE").
B. To finance a portion of the acquisition of the property subject to
the Lease, TAC III, as Lessee, Transok Acquisition Company, a Delaware
corporation ("TAC"), as Transok Guarantor, CIBC Inc., as Lessor, the
Administrative Agent, the Documentation Agent and the Lenders entered into a
Participation Agreement dated as of June 6, 1996 (the "PARTICIPATION AGREEMENT")
and the Lessor, the Administrative Agent, the Documentation Agent and the
Lenders entered into a Loan Agreement dated as of June 6, 1996 (the "LOAN
AGREEMENT").
C. TAC III has merged with and into the Lessee and the Lessee is the
surviving corporation.
D. TAC has merged with and into the Transok Guarantor and the Transok
Guarantor is the surviving corporation.
E. The Lessee, the Lessor, the Transok Guarantor, the Administrative
Agent, the Documentation Agent and the Lenders now desire to amend the
Participation Agreement, the Lease and the Loan Agreement as hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows (terms used but not defined
herein shall have the meaning provided in the Lease, the Loan Agreement and the
Participation Agreement, as the case may be):
A. MODIFICATIONS TO THE LEASE, THE LOAN AGREEMENT AND THE
PARTICIPATION AGREEMENT.
1. APPENDIX A to the Participation, Lease and Loan Agreement is
amended as follows:
(a) The definitions of "APPLICABLE MARGIN," "BORROWER,"
"CAPITALIZATION," "CREDIT AGREEMENT," "EURODOLLAR INTEREST RATE," "LEASE,"
"LESSEE," "LOAN AGREEMENT," "MATERIAL SUBSIDIARY," "PARTICIPATION AGREEMENT,"
"RSN," "TOTAL INTEREST EXPENSE" and "TRANSOK GUARANTOR" are amended and restated
to read as follows:
"APPLICABLE MARGIN" means at such time and from time to time
as the Leverage Ratio is in one of the following ranges, the
percentages per annum set forth opposite such Leverage Ratio
under the heading for the relevant type of Loan:
PERCENTAGE
LEVERAGE RATIO DOMESTIC LOAN EURODOLLAR LOAN
Range 1: Equal to or greater than 65% 0.250% 1.250%
Range 2: Less than 65% and
equal to or greater than 60% 0% 0.875%
Range 3: Less than 60% and
equal to or greater than 55% 0% 0.750%
Range 4: Less than 55% and
equal to or greater than 50% 0% 0.625%
Range 5: Less than 50% 0% 0.500%
PROVIDED, HOWEVER that during the period from the Amendment Effective Date
through and including December 30, 1997, at such times and from time to time as
the Leverage Ratio is in Range 2, 3, 4 or 5 as indicated above, the minimum
Applicable Margin with respect to Eurodollar Loans shall be 1.000%, unless the
ratio of EBITDA to Total Interest Expense calculated on June 30, 1997 or at any
time thereafter in accordance with Section 4.1.2(g) of the Transok Guaranty is
at least 2.50:1, in which case the Applicable Margin with respect to Eurodollar
Loans shall be calculated in accordance with the Leverage Ratio table above.
"BORROWER" means Transok, Inc., an Oklahoma corporation, successor by
merger to Transok Acquisition Company, a Delaware corporation, and its
successors and assigns.
"CAPITALIZATION" means the sum, at the time outstanding and without
duplication, of (i) Funded Debt plus (ii) Stockholders' Equity plus (iii)
Operating Lessor's Debt.
"CREDIT AGREEMENT" means the Amended and Restated Secured Credit
Agreement dated as of December 12, 1996, among the Transok Guarantor, certain
financial institutions, as the
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Lenders, Bank of Montreal, as Administrative Agent, and Canadian Imperial Bank
of Commerce, New York Agency, as Documentation Agent.
"EURODOLLAR INTEREST RATE" means, with respect to each Eurodollar Funded
Amount for any Eurodollar Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest integral multiple of the number of decimal points
displayed on Telerate Page 3750, or any successor or similar service, or if
neither such Telerate Page 3750 nor any successor or similar service is
available and such rate is determined using Reference Lenders, one one-hundredth
of one percent (1/100%)), equal to (i) the average of the offered quotations
appearing on Telerate Page 3750 (or if such Telerate Page shall not be
available, any successor or similar service as may be selected by the Agents and
the Lessee) as of 11:00 a.m., London time (or as soon thereafter as
practicable), two (2) Eurodollar Business Days prior to the beginning of such
Eurodollar Interest Period, and (ii) if neither such Telerate Page 3750 nor any
successor or similar service is available, then the quotient of (x) the
arithmetic average of the quotation by each Reference Lender (notified to the
Administrative Agent by such Reference Lender) of the rate of interest per annum
at which deposits in Dollars in immediately available funds are offered to such
Reference Lender two (2) Eurodollar Business Days prior to the beginning of such
Eurodollar Interest Period by prime banks in the interbank Eurodollar market as
at or about 9:00 a.m., Chicago time, for delivery on the first day of such
Eurodollar Interest Period, in each case for a period equal to such Eurodollar
Interest Period and in an amount equal to the proposed Eurodollar Funded Amount
of such Reference Lender to which such Eurodollar Interest Period relates,
divided by (y) the remainder of one (1) minus the decimal equivalent of the
applicable Eurocurrency Reserve Percentage. If on any occasion any Reference
Lender is unable, or for any reason fails, so to notify the Administrative Agent
by 10:00 a.m., Chicago time, two (2) Eurodollar Business Days before the first
day of such Eurodollar Interest Period, the applicable Eurodollar Interest Rate
shall be determined on the basis of each quotation furnished by those of the
Reference Lenders which so notify the Administrative Agent at or prior to said
10:00 a.m.
"LEASE" means the Lease Agreement dated as of June 6, 1996, between the
Lessor and the Lessee, as the same may be amended, extended, renewed,
supplemented, restated or otherwise modified from time to time.
"LESSEE" means Transok Gas Processing Company, a Delaware corporation,
successor by merger to Transok Acquisition Corporation III, a Delaware
corporation, in its capacity as lessor under the Lease and its permitted
successors and assigns.
"LOAN AGREEMENT" means the Loan Agreement dated as of June 6, 1996,
among the Lessor, the Agents and the Lenders, as the same may be amended,
restated, supplemented, renewed, extended or otherwise modified from time to
time.
"MATERIAL SUBSIDIARY" means (1) as of the date hereof the entities
identified as such on EXHIBIT 8.7 to the Participation Agreement and (2) any
Subsidiary of the Transok Guarantor having Consolidated Stockholders' Equity (as
defined in the Credit Agreement) in excess of $15,000,000, provided, that any
Subsidiary which becomes a Material Subsidiary of the type
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described in the foregoing clause shall remain a Material Subsidiary for
purposes of this Agreement even if it shall cease to have Consolidated
Stockholders' Equity in excess of $15,000,000 and provided further that the
following Subsidiaries shall not be a Material Subsidiary for purposes of the
Operative Documents: Tranpache Partnership, a Texas general partnership;
Downtown Plaza II, an Oklahoma general partnership; Southwest Gathering (East
Caddo), a joint venture governed by the Texas Uniform Partnership Act; Southwest
Joint Venture (West Caddo); Mistletoe Gathering System, a joint venture governed
by the Oklahoma Uniform Partnership Act; and ▇▇▇▇▇ ▇▇▇▇▇ Gas Gathering System, a
joint venture governed by the laws of Texas; and (3) any Subsidiary of the
Transok Guarantor that is designated by the Transok Guarantor in writing to the
Administrative Agent as a Material Subsidiary.
"PARTICIPATION AGREEMENT" means the Participation Agreement dated as of
June 6, 1996, among the Lessee, the Lessor, the Transok Guarantor, the Agents
and the Lenders, as the same may be amended, restated, supplemented, renewed,
extended or otherwise modified from time to time.
"RSN" means one or more revolving subordinated promissory notes from the
Transok Guarantor payable to the Holding Company or the Parent Company in the
form of Exhibit 9.3.3 to the Credit Agreement and shall include the Subordinated
Promissory Note (RSN) dated as of June 6, 1996 from the Transok Guarantor
payable to the Parent Company.
"TOTAL INTEREST EXPENSE" means with respect to any period for which a
determination thereof is to be made, the sum, without duplication, of (i) the
aggregate amount of all interest accrued (whether or not paid), on all
Indebtedness of the Transok Guarantor and its Subsidiaries on a consolidated
basis other than unpaid accrued interest on Subordinated Debt owed or owing by
the Transok Guarantor or any of its Subsidiaries to any Person, including
without limitation, the RSNs, plus (ii) the aggregate amount of all accrued
Fixed Rent (whether or not paid), plus (iii) the portion of any rental
obligation allocable to interest expense in accordance with GAAP.
"TRANSOK GUARANTOR" means Transok, Inc., an Oklahoma corporation, its
successors and assigns.
(b) The definition of "FUNDED DEBT" is amended by deleting the
phrase "the Transok Guarantor or any of its Subsidiaries" appearing in CLAUSE
(C) of such definition and substituting therefor the phrase "such Person."
(c) The definition of "GUARANTOR" is amended by deleting the
phrase "the Parent Company" appearing in the first line of such definition.
(d) The definition of "GUARANTY" or "GUARANTIES" is amended by
deleting the phrase "the Parent Company Guaranty" appearing in the first line of
such definition.
(e) The definition of "MATERIAL ADVERSE EFFECT" is amended by
deleting the phrase "the financial condition, operations, performance,
properties or prospects" and
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substituting therefor the phrase "the consolidated business condition (financial
or otherwise), operations, performance or properties."
(f) The definition of "OPERATING LESSOR'S DEBT" is amended by
deleting the phrase "at all times when the Lease is not a Capitalized Lease
Obligation" appearing in the second and third line of such definition.
(g) The definition of "PERMITTED INVESTMENT" is amended by
inserting the following at the end of such definition immediately before the
final period:
"(f) any certificate of deposit or bankers acceptance or time
deposits including Eurodollar time deposits, in each case
maturing not more than one year after such time, issued by
one or more local Oklahoma banks; provided, however, that
the aggregate at any time of all such investments
permitted by this clause (f) shall not exceed at any time
outstanding $10,000,000 in the aggregate"
(h) The definition of "SECURITY DOCUMENTS" is amended by deleting
the phrase "the Parent Company Guaranty" appearing in the second and third line
of such Section.
(i) The following definitions are added to Appendix A in
appropriate alphabetical order:
"ADJUSTED STOCKHOLDER'S EQUITY" means, as of the time any
determination thereof is to be made, the positive sum, if any, of
(i) Stockholder's Equity plus (ii) all Indebtedness of the
Transok Guarantor outstanding under the RSNs minus (iii) all
outstanding Indebtedness of the Transok Guarantor to the Parent
Company to the extent the Parent Company's source of funds for
such Indebtedness is unsecured credit lines which by their terms
require borrowing availability to be maintained under the Credit
Agreement to the extent of any outstanding Indebtedness under
such unsecured credit lines.
"AMENDMENT EFFECTIVE DATE" means the first Business Day to
occur on which all conditions to the effectiveness of the First
Omnibus Amendment to Participation Agreement, Lease and Loan
Agreement dated as of December 12, 1996, among the Lessee, the
Transok Guarantor, the Lessor, the Administrative Agent, the
Documentation Agent and the Lenders, set forth in Section C
thereof have been satisfied or waived by all Participants, which
will in no event be later than December 31, 1996.
"HOLDING COMPANY" means Tejas Transok Holding Company, a
Delaware corporation.
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"HYDROCARBONS" means collectively, natural gas, oil,
condensate and other liquid and gaseous hydrocarbons, including
natural gas or liquid products extracted from gas.
"LEVERAGE RATIO" means the ratio, expressed as a
percentage, of (a) the sum, without duplication of Funded Debt
(other than Indebtedness of the Transok Guarantor outstanding
under the RSNs) plus Operating Lessor's Debt to (b) the sum,
without duplication, of Adjusted Stockholder's Equity plus Funded
Debt plus Operating Lessor's Debt. The Transok Guarantor shall
give written notice promptly to the Administrative Agent of any
changes in the Leverage Ratio which result in a change to the
Applicable Margin, and the Administrative Agent shall advise each
Participant thereof promptly thereafter. For purposes of
determining the appropriate Leverage Ratio, figures of one-half
of one-tenth of one percent (.05%) or more shall be rounded
upwards to the nearest integral multiple of one-tenth of one
percent (.1%) and figures of less than one-half of one-tenth of
one percent (.05%) shall be rounded down to the nearest integral
multiple of one-tenth of one percent (.1%).
(j) The definition of "GUARANTY EVENT OF DEFAULT" is deleted in
its entirety.
(k) The definition of "PARENT COMPANY GUARANTY" is deleted in its
entirety.
2. Schedules I, II, 2.2 and 8.2 and Exhibit 8.7 to the Participation
Agreement are hereby amended and restated in their entirety to read as set forth
in Schedules I, II, 2.2 and 8.2 and Exhibit 8.7, respectively, hereto. All
references in any Operative Document to Schedule I, II, 2.2 or 8.2 or Exhibit
8.7 to the Participation Agreement shall be deemed to refer to Schedule I, II,
2.2 or 8.2 or Exhibit 8.7, respectively, hereto.
3. All references to the word "Borrower" in the Lease, the Loan
Agreement or the Participation Agreement are deleted and the phrase "Transok
Guarantor" is substituted therefor.
4. The Lease is amended as follows:
a. Section 10.3 of the Lease is amended by deleting the date "March
31" appearing in the seventh line of such Section and substituting therefor the
date "November 1."
b. Clause (f) of Article XVI of the Lease is amended by deleting the
phrase "or any Guaranty Event of Default."
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c. Clause (o) of Article XVI of the Lease is amended (a) by inserting
the phrase "and Liens of the type permitted by Sections 8.6(i), (iii) and (xv)
of the Credit Agreement" immediately after the phrase "Transok Guarantor"
appearing in the fourth line of such clause and (b) by inserting the phrase "or
as a result of any transactions permitted by Section 4.1.3 of the Transok
Guaranty" immediately after the phrase "Transok Guaranty" appearing in the last
line of such clause.
d. Clause (s) of Article XVI of the Lease is amended and restated in
its entirety to as follows:
"(s) [Intentionally Omitted]; or"
5. Section 7.5(i) of the Participation Agreement is amended by inserting
the phrase "or if any Participant does not agree to an amendment, modification,
waiver or consent," immediately following the phrase "SECTION 8.13" appearing in
the sixth line of such Section.
B. REPRESENTATIONS AND WARRANTIES. To induce the Lessor, the Lenders and
the Agents to enter into this Amendment, each of the Lessee and the Transok
Guarantor hereby reaffirms, as of the date hereof, its representations and
warranties contained in the Lease, the Participation Agreement and the Transok
Guaranty, as applicable (except to the extent such representations and
warranties relate solely to an earlier date and except that for purposes of this
SECTION B all references to the phrase "financial condition, operations, assets,
business, properties or prospects" in any such representation or warranty shall
be deemed to refer to the phrase "consolidated business condition (financial or
otherwise), operations, performance or properties" and the phrases "or
prospects" and "and prospects" shall be deemed to be deleted) and additionally,
represents and warrants as follows:
1. AUTHORIZATION; NO CONFLICT. The execution and delivery of this
Amendment and the other Operative Documents, and the performance by the
Lessee and each Guarantor of their respective Obligations under this
Amendment, the other Operative Documents and the Participation Agreement
and the Lease as amended by this Amendment, are within the Lessee's and
the Guarantors' corporate, limited liability company, or partnership
powers as the case may be, have been duly authorized by all necessary
corporate, limited liability company or partnership action, as the case
may be, have received all necessary governmental consents,
authorizations, orders and approvals (if any shall be required), and do
not and will not contravene or conflict with any provision (a) of Law,
(b) of the charter, bylaws, certificate of formation, limited liability
company agreement or partnership agreement of the Lessee or any other
Obligor, or (c) of any material agreement binding upon the Lessee or any
other Obligor or any of them.
2. VALIDITY AND BINDING NATURE. This Amendment is, and the other
Operative Documents when duly executed and delivered will be, legal,
valid and binding obligations of the Lessee and each other Obligor party
thereto enforceable against each of the Lessee and such other Obligors
in accordance with their respective terms subject as to
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enforcement only to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights
generally and general principles of equity.
3. EXCEPTED PERMITS. The Lessee has obtained all Excepted
Permits.
4. FINANCIAL STATEMENTS. (a) The audited consolidated financial
statements of Transok Guarantor, dated as of December 31, 1995, and the
related consolidated statements of earnings and cash flow of the Transok
Guarantor and its Subsidiaries, copies of which have been furnished to
each Participant, have been prepared in conformity with GAAP, and
present fairly the consolidated financial condition of the corporations
and other entities covered thereby as at the dates thereof and the
results of operations for the periods then ended.
(b) The unaudited financial statements of the Transok Guarantor
dated as of September 30, 1996, prepared on a consolidated and
consolidating basis signed by a duly authorized financial officer of the
Transok Guarantor and consisting of at least a balance sheet as at the
close of such quarter, statements of cash flows and statements of
earnings for such quarter, copies of which have been furnished to each
Participant, have been prepared in conformity with GAAP, and present
fairly the consolidated and consolidating financial condition of the
corporations and other entities covered thereby as at the dates thereof
and the results of operations for the periods then ended and since
September 30, 1996, there has been no material adverse change in the
consolidated business condition (financial or otherwise), operations,
performance or properties of, the Transok Guarantor and its Subsidiaries
(taken as a whole).
C. CONDITIONS TO THE EFFECTIVENESS. The effectiveness of this Amendment
is conditioned upon the following:
1. EXISTING NOTES. Receipt by the Administrative Agent (for
delivery to the Lessor) of those existing Notes of the Lessor in favor
of those Lenders whose Commitments have increased, decreased or
terminated as shown on SCHEDULE II, marked "exchanged";
2. NEW NOTES. Receipt by the Administrative Agent (for delivery
to each Lender whose Commitment has increased or decreased) of new
A-Notes and B-Notes, duly executed and delivered by the Lessor,
substantially in the form of Exhibit A and Exhibit B, respectively, to
the Loan Agreement, dated the Amendment Effective Date and with other
appropriate insertions as to payee and principal amount, payable to the
order of each Lender, respectively, in a maximum principal amount equal
to such Lender's Commitment as amended hereby;
3. THIS AMENDMENT. Receipt by the Administrative Agent of the
"original executed counterpart" of this Amendment fully executed by all
parties hereto;
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4. CERTIFICATE OF OFFICERS OF THE LESSEE AND THE GUARANTORS.
Receipt by the Agents of a certificate, in form and substance
satisfactory to the Agents, of a Secretary or an Assistant Secretary and
the President or a Vice President of the Lessee and each Guarantor,
together with certified copies of the articles of incorporation and
bylaws, certificate of formation and limited liability company
agreement, or the partnership agreement, as the case may be, and
signatures and incumbency of officers of the Lessee and the Guarantors
and resolutions with respect to the transactions contemplated herein;
provided that in lieu of delivering articles of incorporation, bylaws,
certificates of formation, limited liability company agreements or
partnership agreements for the Lessee and each Guarantor for which such
documents were provided to the Administrative Agent pursuant to the
Participation Agreement and which documents so provided have not
changed, such certificate may state that such documents were so
delivered and have not changed;
5. GUARANTIES. Receipt by the Agents of a consent,
acknowledgment, and agreement as to each of the Guaranties duly executed
by each Guarantor described in EXHIBIT A in substantially the form of
EXHIBIT A-1 and as to the Holding Company Guaranty duly executed by
Tejas Transok Holding Company in substantially the form of EXHIBIT A-2,
and an amendment to the Transok Guaranty duly executed by the Transok
Guarantor in substantially the form of EXHIBIT A-3;
6. OPINIONS OF COUNSEL. Receipt by the Agents of the following
opinions, each dated the Amendment Effective Date, substantially in the
form set forth in the Exhibit noted below, and containing such other
matters as the parties to whom they are addressed shall reasonably
request, shall have been delivered and addressed to each of the Lessor,
the Agents and the Lenders:
(a) the opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special
Texas counsel of the Lessee and the Guarantors (EXHIBIT
B-1); and
(b) the opinion of Hall, Estill, Hardwick, Gable,
Golden & ▇▇▇▇▇▇, special Oklahoma counsel for the Lessee and
the Transok Guarantor (EXHIBIT B-2).
7. CERTIFICATE OF FINANCIAL CONDITION. The Administrative Agent
shall have received a Certificate of Financial Condition from the chief
financial officer of the Transok Guarantor in substantially the form of
EXHIBIT C, (addressed to or otherwise in favor of the Agents, the Lessor
and each Lender);
8. MEMORANDUM OF LEASE. Receipt by the Administrative Agent
of an amendment to the Memorandum of Lease in substantially the form of
EXHIBIT D duly executed by the Lessor and the Lessee and in recordable
form;
-9-
9. LITIGATION. No action or proceeding shall have been instituted
or threatened nor shall any governmental action, suit, proceeding or
investigation be instituted or threatened before any Governmental
Authority, nor shall any order, judgment or decree have been issued or
proposed to be issued by any Governmental Authority, to set aside,
restrain, enjoin or prevent the performance of this Amendment or any
transaction contemplated hereby or by any other Operative Document or
any Operative Loan Document or which is reasonably likely to materially
adversely affect the Leased Property or the Easements or any transaction
contemplated by the Operative Documents and the Operative Loan Documents
or which could reasonably be expected to result in a Material Adverse
Effect;
10. NO EVENTS. (i) No Event of Default, Potential Event of
Default, Event of Loss or Event of Taking shall have occurred and be
continuing, and (ii) no action shall be pending or threatened by a
Governmental Authority to initiate a Condemnation or an Event of Taking;
11. PURCHASE OF NOTES UNDER CREDIT AGREEMENT. The conditions to
the initial Borrowing under the Credit Agreement shall have been
concurrently satisfied and the purchase of and payment for the Notes (as
defined in the Credit Agreement) so as to reallocate the commitments of
the Lender Parties under the Credit Agreement shall have been
concurrently consummated in accordance with the terms of the Credit
Agreement; and
12. ADDITIONAL DOCUMENTS. The Administrative Agent shall have
received such other approvals, certificates or documents as any Agent
may reasonably request to evidence satisfaction of the conditions set
forth in this SECTION C.
All documents executed or submitted pursuant hereto by or on behalf of
any Lessee or the Guarantor shall be satisfactory in form and substance to
Agents and their counsel.
D. REAFFIRMATION OF THE LEASE, THE PARTICIPATION AGREEMENT AND THE LOAN
AGREEMENT. This Amendment shall be considered an amendment to the Lease, the
Loan Agreement and the Participation Agreement and except as herein expressly
amended, each of the Lease, the Loan Agreement and the Participation Agreement
is hereby reaffirmed, ratified and approved in every respect. All references to
the Lease, the Loan Agreement or the Participation Agreement in any other
document, instrument, agreement or writing shall hereafter be deemed to refer to
the Lease, the Loan Agreement or the Participation Agreement, as applicable, as
amended hereby.
E. RELEASE OF PARENT COMPANY GUARANTY. Upon the Amendment Effective Date
the Parent Company shall be released from the obligations as guarantor under its
Guaranty dated as of June 6, 1996.
F. REALLOCATION OF COMMITMENTS AND FUNDED AMOUNTS. On the Amendment
Effective Date, the aggregate principal balance of the all Funded Amounts
outstanding under the
-10-
Participation Agreement is $125,000,000 (the "Prior Indebtedness") as shown on
SCHEDULE 2.2 hereto, and Lessee represents for itself and each Participant
represents and warrants for itself, that its outstanding Funded Amounts, if any,
under the Participation Agreement as of the Amendment Effective Date are as set
forth in the second column of SCHEDULE 2.2 hereto. Participants hereby sell,
assign, transfer and convey, and Participants (including, without limitation,
those Participants not previously a party to the Participation Agreement) hereby
purchase and accept so much of the Prior Indebtedness and all of the rights,
titles, benefits, interests, privileges, claims, liens, security interests, and
obligations existing and to exist (collectively the "INTERESTS") such that each
Participants' Commitment Percentage of the outstanding Funded Amounts and
Commitments under the Participation Agreement as amended and restated by this
Agreement shall be as set forth in SCHEDULE 2.2 hereto as of the Amendment
Effective Date. The foregoing assignment, transfer and conveyance are without
recourse to the Participants and without any warranties whatsoever as to title,
enforceability, collectibility, documentation or freedom from liens or
encumbrances, in whole or in part, other than the warranty by each Participant
that it has not sold, transferred, conveyed or encumbered such Interests. If as
a result thereof, a Participant's Commitment Percentage of the outstanding
Funded Amounts under the Participation Agreement as amended by this Amendment is
less than its outstanding Funded Amounts under the Participation Agreement on
the Amendment Effective Date, the difference set forth in the last column of
SCHEDULE 2.2 hereto shall be remitted to such Participant by the Administrative
Agent upon receipt of funds from the other Participants shown in the last column
of SCHEDULE 2.2 on the Amendment Effective Date. Each Participant so acquiring a
part of such outstanding loans and letter of credit reimbursement obligations
assumes its Commitment Percentage of the outstanding Funded Amounts,
Commitments, rights, titles, interests, privileges, claims, liens, security
interests, benefits and obligations under the Operative Documents. Participants
are proportionately released from the obligations assumed by Participants so
acquiring such obligations and, to that extent, the Participants so released
shall have no further obligation under the Participation Agreement, as amended
and restated hereby. The Borrower hereby represents and warrants that it has no
defenses, offsets or counterclaims to the Prior Indebtedness or its obligations
or rights under the Participation Agreement or the Operative Documents,
including, without limitation, the Interests being assigned pursuant to this
SECTION F. Each Participant confirms that it has received a copy of the Bank/CSW
Agreement and represents, warrants and agrees that it has acquired its Interests
subject in all respects to the terms and provisions of the Bank/CSW Agreement.
Any Funded Amounts outstanding under the Participation Agreement on the
Amendment Effective Date bearing interest at a Eurodollar Interest Rate shall be
deemed continued as a Funded Amount under this Amendment at such Eurodollar
Interest Rate and for the Interest Period with respect thereto under the
Participation Agreement.
G. MISCELLANEOUS PROVISIONS.
1. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original of this
Amendment and all of which will constitute but one and the same agreement.
-11-
2. SECTION CAPTIONS. Section captions in this Amendment are
inserted for convenience of reference only and shall not be considered a part of
this Amendment or the Lease or the Participation Agreement, or used in their
interpretation.
3. GOVERNING LAW. THIS AMENDMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
4. NOTICE. THIS WRITTEN AMENDMENT, THE LEASE, THE PARTICIPATION
AGREEMENT, THE LOAN AGREEMENT AND THE OTHER OPERATIVE DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
TRANSOK GAS PROCESSING COMPANY, as Lessee
By:
Name:
Title:
TRANSOK, INC., as Transok Guarantor
By:
Name:
Title:
CIBC INC., as Lessor and Lender
By:
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE, NEW
YORK AGENCY, as Administrative Agent
By:
Name:
Title:
-▇▇-
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, as Documentation Agent and
as Lender
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
BANKERS TRUST COMPANY
By:
Name:
Title:
BANQUE PARIBAS
By:
Name:
Title:
By:
Name:
Title:
-14-
CHRISTIANA BANK OG KREDITKASSE
By:
Name:
Title:
By:
Name:
Title:
CITIBANK N.A.
By:
Name:
Title:
CREDIT LYONNAIS
By:
Name:
Title:
CREDIT SUISSE
By:
Name:
Title:
By:
Name:
Title:
-▇▇-
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
By:
Name:
Title:
THE FUJI BANK, LIMITED
By:
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK
By:
Name:
Title:
LONG TERM CREDIT BANK OF JAPAN, LIMITED
By:
Name:
Title:
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇, N.A.
By:
Name:
Title:
NATIONAL WESTMINSTER BANK PLC.,
NEW YORK BRANCH
By:
Name:
Title:
NATIONAL WESTMINSTER BANK PLC.,
NASSAU BRANCH
By:
Name:
Title:
NATIONSBANK OF TEXAS
By:
Name:
Title:
-17-
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
Name:
Title:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
Name:
Title:
-▇▇-
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ AGENCY
By:
Name:
Title:
By:
Name:
Title:
▇▇▇▇▇ FARGO BANK (TEXAS) N.A.
By:
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
Name:
Title:
-19-
BANK OF TOKYO-MITSUBISHI, LTD.
By:
Name:
Title:
BANK OF NOVA SCOTIA, ATLANTA AGENCY
By:
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
Name:
Title:
By:
Name:
Title:
-20-
For purposes of selling, assigning, transferring and conveying its Interests,
the undersigned has caused this Agreement to be executed by its officer
thereunto duly authorized as of the date and year first above written.
BANK OF BOSTON
By:
Name:
Title:
-21-
SECTION 4.1(g)(ii)
EXCEPTED PERMITS
PERMITS ISSUED BY THE OKLAHOMA DEPARTMENT
OF ENVIRONMENTAL QUALITY TO TRANSOK, INC.*/
Air Permit No. 95-499-0
Air Permit No. 94-228-0
Air Permit No. 92-023-0
Air Permit No. 91-033-0
Air Permit No. 81-067-0
Air Permit No. 85-016-0 (PSD)
Air Permit No. 85-004-0
Air Permit No. 83-033-0
Air Permit No. R-93-18
Air Permit No. 93-071-0
Air Permit No. 91-071-0
Air Permit No. 93-051-0
Air Permit No. 93-015-0
Air Permit No. 95-302-0
Air Permit No. 94-084-0
Air Permit No. 90-137-0
Air Permit No. 88-046-0
Air Permit No. 84-004-0
and as more fully described in the attached three pages.
--------
*/ Except to the extent superceded in whole or part by a subsequent
Applicable Permit.
SECTION 4.1(h)
ENVIRONMENTAL MATTERS
1. Toxic Substances Control Act - Consent Decree, EPA Docket No.
TSCA-95-H-31, involving payment of $21,000 penalty for failure to file
1990 Inventory Update Reports for natural gas liquids produced by three
Transok gas processing plants.
2. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ET AL. VS. SHOCKER ENERGY INC., ET AL., 14th
Judicial District Court, Calcasieu Parish, Louisiana; Case No. 93-767.
3. All environmental matters disclosed in that certain draft Environmental
Assessment Report of the Transok Active and Inactive Gas Processing
Plants dated May 22, 1996, prepared by Pilko & Associates, Inc.
4. Also see Section 4.1(g)(ii) of the Disclosure Schedule.
