EXHIBIT 10.1
FIRST AMENDMENT AND EXTENSION OF
364-DAY REVOLVING CREDIT AGREEMENT
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THIS AMENDMENT AND EXTENSION OF 364-DAY REVOLVING CREDIT AGREEMENT (this
"Amendment and Extension") is effective as of the Effective Date (as defined
herein), among ONEOK, INC., an Oklahoma corporation (the "Company"), BANK OF
AMERICA, N.A., as Administrative Agent for the Lenders (the "Administrative
Agent") and as a Lender, Letter of Credit Issuing Lender and Swing Line Lender,
and the Lenders.
RECITALS
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WHEREAS, the Company, the Administrative Agent and certain financial
institutions (including the Administrative Agent, the "Lenders") are parties to
that certain $850,000,000 364-Day Revolving Credit Agreement dated as of June
28, 2001 (the "Credit Agreement");
WHEREAS, the Maturity Date (as therein defined) of the Credit Agreement is
June 27, 2002;
WHEREAS, the undersigned Lenders desire to make certain amendments to the
Credit Agreement and extend the Maturity Date of the Credit Agreement;
NOW THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto agree as follows:
Paragraph 1. Definitions. Unless otherwise defined in this Amendment and
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Extension, capitalized terms used herein shall have the meaning set forth in the
Credit Agreement.
Paragraph 2. Amendment of certain definitions in the Credit Agreement.
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(a) Effective as of the Effective Date, the definition of "Applicable
Amount" contained in Section 1.1 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"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 Moody's and
S&P, respectively, applicable on such date to the Index Debt (hereinafter
defined):
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Pricing Level Applicable Amount (in basis points per annum)
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Rating of Applicable Margin for
Index Debt Facility Fee Offshore Rate Loans Utilization Fee Letter of Credit
Fee
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A+ or higher by S&P and A1 or 7.5 bps 22.5 bps 10.0 bps 22.5 bps
higher by Moody's
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A by S&P and A2 by Moody's 8.0 bps 27.0 bps 10.0 bps 27.0 bps
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A- by S&P and A3 by Moody's 9.5 bps 40.5 bps 10.0 bps 40.5 bps
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BBB+ by S&P and Baa1 by 11.0 bps 64.0 bps 12.5 bps 64.0 bps
Moody's
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BBB by S&P and Baa2 by Moody's 13.5 bps 74.0 bps 12.5 bps 74.0 bps
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BBB- by S&P and Baa3 by 17.5 bps 82.5 bps 25.0 bps 82.5 bps
Moody's
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Lower than BBB- by S&P and 25.0 bps 125.0 bps 25.0 bps 125.0 bps
Baa3 by Moody's or unrated
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For purposes of the foregoing, (i) if either Moody's or S&P shall
not have in effect a rating for the Index Debt (other than by reason
of the circumstances referred to in the last sentence of this
definition), then such rating agency shall be deemed to have
established a rating in the lowest of the categories above; (ii) if
the ratings established or deemed to have been established by Moody's
and S&P for the Index Debt shall fall within different categories
which are one level apart, the Applicable Amount shall be based on the
lower of the two ratings, and if the ratings shall fall within
different categories which are more than one level apart, the
Applicable Amount shall be based on the level that is one level higher
than the lower of the two ratings; and (iii) if the ratings
established or deemed to have been established by Moody's and S&P for
the Index Debt shall be changed (other than as a result of a change in
the rating system of Moody's or S&P), such change shall be effective
as of the date on which it is first announced by the applicable rating
agency. "Index Debt" means senior, unsecured, long-term indebtedness
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for borrowed money of the Company that is not guaranteed by any other
Person or subject to any other credit enhancement. Each change in the
Applicable Amount shall apply during the period commencing on the
effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the rating
system of Moody's or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt
obligations, the Company and the 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.
(b) Effective as of the Effective Date, the definition of
"Material Adverse Effect" contained in Section 1.1 of the Credit
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Agreement is hereby amended in its entirety to read as follows:
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"Material Adverse Effect" means (i) a material adverse effect upon the
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business, operations, properties, assets, business prospects or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a
whole; provided however, a downgrade by S&P and/or Moody's of their
respective rating of the Company's Index Debt shall not, in and of itself,
be deemed to be a Material Adverse Effect, but for purposes of clarity in
interpreting the foregoing, it is agreed that the event, change,
circumstance or condition that causes such downgrade (or an announcement of
a potential downgrade or a review for possible ratings change) of the
Company's Index Debt rating, and the effect or change caused by such
downgrade (or an announcement of a potential downgrade or a review for
possible ratings change) of the Company's Index Debt rating, will be
considered in whether there has been a Material Adverse Effect; provided
further the fact that the Company is unable to issue Indebtedness in the
commercial paper market due to market conditions generally affecting the
commercial paper market shall not, in and of itself, be deemed to be a
Material Adverse Effect; or (ii) a material impairment of the ability of
the Company to perform the Obligations or of the Lenders to enforce the
Obligations.
Paragraph 3. Amendment to Section 2.14 of the Credit Agreement. Effective
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as of the Effective Date, Section 2.14 of the Credit Agreement is hereby amended
in its entirety to read as follows:
2.14 Use of Proceeds of Loans. The Company may use the proceeds of
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Loans to provide liquidity for commercial paper, for working capital,
capital expenditures, acquisitions, mergers, and other general corporate
purposes not in contravention of any Requirement of Law or of any Loan
Document; provided however, (i) no portion of the proceeds of any Loan
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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, (ii) no portion of the
proceeds of any Loan shall be used in connection with the purchase,
redemption, retirement or other acquisition, either directly or indirectly,
of any shares of capital stock of the Company of any class, and (iii) no
portion of the proceeds of any Loan shall be used to repay, reduce,
exercise any call or re-purchase or purchase option with respect to any
Indebtedness of the Company or of any Subsidiary of the Company or be used
to deposit or place any amounts with a trustee or any other Person for the
purpose of covenant defeasance, cancellation, or to in any way, release the
Company or any Subsidiary of the Company from any obligations under any
indenture, note agreement, purchase agreement or other agreement pursuant
to which Indebtedness is incurred. Solely for the purposes of this Section
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2.14, the term "Indebtedness" shall not include commercial paper issued by
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the Company the proceeds of which were not used in a manner that would be a
prohibited use of the proceeds of Loans pursuant to subsections (ii) or
(iii) this Section 2.14.
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Paragraph 4. Extension. Effective as of the Effective Date, the definition
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of "Maturity Date" in Section 1.1 of the Credit Agreement is amended and
restated in its entirety to read as follows:
"Maturity Date" shall mean the earlier of (i) September 30, 2002; (ii)
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the date that the Company purchases any common or preferred shares of the
Company owned by Western Resources, Inc., Westar Industries, Inc., and/or
an affiliate of Western Resources, Inc. or Westar Industries, Inc.; and
(iii) in the event the Company or any Subsidiary of the Company enters into
a loan agreement or credit agreement providing for extensions of credit to
the Company or any Subsidiary, the effective date of such agreement; unless
the Commitments are sooner terminated pursuant to Section 8.2 or any other
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provision of this Credit Agreement; provided however, in the case that
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regulatory approvals are required for the Company to purchase the shares
referred to in paragraph
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(ii) of this definition, in the event that all Lenders subsequently agree
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in writing, the Maturity Date may be extended to November 29, 2002,
provided however, nothing in this Agreement shall obligate any Lenders to
agree to such extension.
Paragraph 5. Effective Date. This Amendment and Extension shall be
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effective on June 27, 2002 (the "Effective Date") if the Administrative Agent
shall have received counterparts of this Amendment and Extension, executed by
the Company and the Lenders, and the following, each in form and substance
satisfactory to the Administrative Agent:
(a) a certificate of the Secretary or an Assistant Secretary of the
Company certifying as to board resolutions authorizing the transactions
contemplated hereby;
(b) a certificate of a Responsible Officer of the Company certifying
that the representations and warranties contained in Paragraph 7 of this
Amendment and Extension are true and correct as of the Effective Date;
(c) an incumbency certificate establishing the identity and verifying
the authority and capacity of the officer executing this Amendment and
Extension;
(d) a good standing certificate of the Company from the Secretary of
State of Oklahoma as of a recent date;
(e) a legal opinion of Gable & Gotwals;
(f) a legal opinion of Locke Liddell & Sapp LLP; and
(g) payment of the amendment and extension fee as separately agreed
upon in writing in the amounts so specified, and payment of expenses
pursuant to Paragraph 8, to the extent invoiced to date.
Paragraph 6. Acknowledgment and Ratification. As a material inducement to
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the Lenders to execute and deliver this Amendment and Extension, the Company
acknowledges and agrees that the execution, delivery, and performance of this
Amendment and Extension shall in no way release, diminish, impair, reduce, or
otherwise affect the obligations of the Company under the Credit Agreement,
which Credit Agreement shall remain in full force and effect, and all rights
thereunder are hereby ratified and confirmed.
Paragraph 7. Representations and Warranties. As a material inducement to
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the Lenders to execute and deliver this Amendment and Extension, the Company
represents and warrants to the Lenders that as of the date of execution of this
Amendment and Extension and as of the Effective Date:
(a) (i) all representations and warranties in the Credit Agreement are
true and correct in all material respects as though made on the date
hereof, except to the extent that any of them speak to a different specific
date, and (ii) no Default or Event of Default exists;
(b) the execution, delivery and performance by the Company of the
Amendment and Extension have been duly authorized by all necessary
corporate action, and do not and will not contravene the terms of any of
the Company's organizational documents or any Requirement of Law or any
indenture or loan or credit agreement or any other material agreement or
instrument to which the Company is a party or by which it is bound or to
which it or its properties are subject;
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(c) no authorizations, approvals or consents of, and no filings or
registrations with, any Governmental Authority or any other person are
necessary for the execution, delivery or performance by the Company of this
Amendment and Extension or for the validity or enforceability thereof,
other than routine informational filings with the SEC and/or other
Governmental Authorities; and
(d) this Amendment and Extension constitutes the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by equitable principles
relating to enforceability, and by judicial discretion regarding the
enforcement of or any applicable laws affecting remedies (whether
considered in a court of law or a proceeding in equity).
Paragraph 8. Expenses. The Company shall pay all costs, fees, and expenses
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paid or incurred by the Administrative Agent incident to this Amendment and
Extension, including, without limitation, the fees and expenses of the
Administrative Agent's counsel in connection with the negotiation, preparation,
delivery, and execution of this Amendment and Extension and any related
documents
Paragraph 9. Miscellaneous. Unless stated otherwise, (a) the singular
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number includes the plural and vice versa and words of any gender include each
other gender, in each case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) if any part of this Amendment and
Extension is for any reason found to be unenforceable, all other portions of it
nevertheless remain enforceable, and (d) this Amendment and Extension may be
executed in any number of counterparts with the same effect as if all
signatories had signed the same document, and all of those counterparts must be
construed together to constitute the same document.
Paragraph 10. Governing Law. This Amendment and Extension shall be
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governed by the laws of the State of Texas and applicable laws of the United
States.
Paragraph 11. Parties. This Amendment and Extension binds and inures to
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the benefit of the Company, the Administrative Agent and the Lenders, and their
respective successors and assigns.
Paragraph 12. Further Assurances. The parties hereto each agree to execute
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from time to time such further documents as may be necessary to implement the
terms of this Amendment and Extension.
Paragraph 13. ENTIRE AGREEMENT. THIS AMENDMENT AND EXTENSION REPRESENTS
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THE FINAL AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS
AMENDMENT AND EXTENSION 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 RELATING TO THIS SUBJECT MATTER.
The parties hereto have executed this Amendment and Extension in multiple
counterparts to be effective as of the Effective Date.
Remainder of Page Intentionally Blank.
Signature Pages to Follow.
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IN WITNESS WHEREOF, the parties have caused this Amendment and
Extension 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/ Jim Kneale
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Name: Jim Kneale
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Title: Senior Vice President,
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Treasurer and Chief Financial
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Officer (Principal Financial
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Officer)
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Signature Page to
Amendment and Extension of Oneok 364-Day Revolving Credit Agreement
BANK OF AMERICA, N.A.,
as Administrative Agent, and as a Lender,
Issuing Lender and Swing Line Lender
By: /s/
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Name:
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Title:
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Signature Page to
Amendment and Extension of Oneok 364-Day Revolving Credit Agreement
BANK ONE, NA, as a Lender
By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
FIRST UNION NATIONAL BANK, as a
Lender
By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
ABN AMRO BANK N.V., as a Lender
By: /s/
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Name:
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Title:
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By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
FLEET NATIONAL BANK, as a Lender
By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
SUNTRUST BANK, as a Lender
By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
as a Lender
By: /s/
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Name:
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Title:
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By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
BANK OF OKLAHOMA, N.A., as a Lender
By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
CITIBANK, N.A., as a Lender
By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
UBS AG, STAMFORD BRANCH, as a Lender
By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
UMB BANK, n.a., as a Lender
By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: /s/
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Name:
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Title:
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By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT
ARVEST BANK (formerly known as
WESTAR BANK), as a Lender
By: /s/
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Name:
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Title:
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SIGNATURE PAGE TO
AMENDMENT AND EXTENSION OF ONEOK 364-DAY REVOLVING CREDIT AGREEMENT