1
Exhibit (10)(k)
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________________________________________________________________________________
CREDIT AGREEMENT
among
ONEOK, INC.,
THE BANKS PARTY HERETO,
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
Dated as of August 20, 1993
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TABLE OF CONTENTS
Section 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2. THE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1 The Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.2 Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.3 Procedure for Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.4 Conversion and Continuation Elections . . . . . . . . . . . . . . . . . . . . . . 17
2.5 Limitation on Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.6 Reductions of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.7 Interest on the Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.8 Maturity of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.9 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.10 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(a) Arrangement Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(b) Commitment Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(c) Agency Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.11 Computation of Fees and Interest . . . . . . . . . . . . . . . . . . . . . . . . 20
2.12 Use of Proceeds of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.13 Extension of Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3. PAYMENTS IN GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.1 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.2 Payments by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.3 Payments on Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.4 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.5 Increased Costs and Reduction of Return . . . . . . . . . . . . . . . . . . . . . 25
3.6 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.7 Inability to Determine Rates . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.8 Payments by Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4. CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND EXTENSIONS OF CREDIT. . . . . . . . 27
4.1 Conditions of Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.2 Condition to Initial Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.3 Conditions to all Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.1 Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.2 Corporate Authorization; No Contravention . . . . . . . . . . . . . . . . . . . . 30
5.3 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.4 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.5 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.6 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.7 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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5.8 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . 31
5.9 Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.11 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.12 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.13 Regulated Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.14 No Burdensome Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.15 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.16 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.4 Preservation of Corporate Existence, Etc . . . . . . . . . . . . . . . . . . . . 36
6.5 Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.7 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.8 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.9 Inspection of Property and Books and Records . . . . . . . . . . . . . . . . . . 37
Section 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.1 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.2 Merger and Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.3 Acquisitions, Loans and Investments . . . . . . . . . . . . . . . . . . . . . . . 41
7.4 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.5 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.6 Limitation on Senior Funded Indebtedness . . . . . . . . . . . . . . . . . . . . 42
7.7 Change in Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.3 Rights Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.1 Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.3 Liability of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.4 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.6 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.8 Agent in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.9 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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10.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.6 Assignments, Participations etc. . . . . . . . . . . . . . . . . . . . . . . . . 51
10.7 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
10.8 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
10.9 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(a) General Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(b) Survival; Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.10 Marshalling; Payments Set Aside . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.11 Notification of Addresses, Lending Offices, Etc. . . . . . . . . . . . . . . . . 55
10.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
10.14 Governing Law and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 56
10.15 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
10.16 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.17 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
EXHIBITS
A Form of Notice of Borrowing
B Form of Notice of Conversion/Continuation
C Form of Notice of Assignment and Acceptance
SCHEDULES
1.1 Commitments
3 Addresses for Domestic and Offshore Lending Offices and Notices
5.7 ERISA Plans
5.11 Contingent Obligations
5.16 Subsidiaries
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ONEOK, Inc.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") is dated as of August 20,
1993 and is entered into by and among ONEOK, INC., a Delaware corporation (the
"Company"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(individually referred to herein as a "Bank" and collectively as the "Banks"),
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION as the agent for the
Banks (the "Agent").
WHEREAS, the Banks have agreed to make available to the Company a
revolving credit facility upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as follows:
Section 1. DEFINITIONS.
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the following
meanings:
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another Person
if the controlling Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of the other
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 the purposes of this
Agreement, be deemed to control such Person.
"Agent" means Bank of America National Trust and Savings
Association in its capacity as agent for the Banks hereunder, and any successor
agent.
"Agent-Related Persons" has the meaning specified in Section 9.3.
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"Aggregate Commitment" means the combined Commitments of the Banks.
"Agreement" means this Credit Agreement, as it may hereafter be
amended, supplemented, restated or otherwise modified from time to time.
"Assignee" has the meaning specified in Section 10.6.
"Availability Period" means the period from the Closing Date to but
excluding the Maturity Date.
"Bank" has the meaning assigned to that term in the introduction to
this Agreement.
"Bank of America" means Bank of America National Trust and Savings
Association in its capacity as a Bank.
"Base Rate" means a fluctuating rate per annum which is the higher
of (a) the Federal Funds Rate plus one-half of one percent (1/2%) per annum and
(b) the Reference Rate.
"Base Rate Loans" means Loans made by the Banks bearing interest at
rates determined by reference to the Base Rate.
"Borrowing" means a borrowing hereunder consisting of Loans made to
the Company on the same day by the Banks pursuant to Section 2.
"Borrowing Date" means the date a Borrowing is made.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or San Francisco 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 Laws."
"Closing Date" means the date on which this Agreement becomes
effective and all the conditions in Section 4.1 are satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means the commitment of each Bank to make Loans
pursuant to Section 2.1 in the amount set forth opposite
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the Bank's name in Schedule 1.1 under the heading "Commitment" (such amount as
the same may be reduced pursuant to Section 2.6, other appropriate provisions
herein or as a result of one or more assignments pursuant to Section 9.6).
"Company" means ONEOK, Inc., a Delaware corporation.
"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 billings recorded as
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 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.
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"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.
"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
convert a Base Rate Loan to a Offshore Rate Loan or a Offshore Rate Loan to a
Base Rate Loan.
"Default" means any event which, with the giving of notice, the
lapse of time, or both, would constitute an Event of Default.
"Dollars" means lawful money of the United States of America.
"Domestic Lending Office" means, with respect to each Bank, the
office of that Bank designated as such on Schedule 3 hereto or such other
office of the Bank as it may from time to time specify to the Company and the
Agent.
"Eligible Assignee" means a commercial bank.
"Environmental Claim" means all claims, however asserted, by any
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.
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"Environmental Laws" means all federal, state or local laws,
statutes, 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 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 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 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.
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"Event of Default" means any of the events set forth in Section 8.
"Exchange Act" means, at any time, the Securities Exchange Act of
1934, as amended from time to time, and any successor statute.
"Federal Funds Rate" means the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day of determination
(or if such day of determination is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transaction received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereof.
"Funded Indebtedness" means all recourse Indebtedness which by its
terms 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 the Company, whether or not such indebtedness is Funded
Indebtedness of such Subsidiary.
"GAAP" means generally accepted accounting principles set forth in
the 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 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
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government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Indebtedness" means and includes (i) all items which, in
accordance with GAAP, would be included on the liability side of a balance
sheet as at the date as of which Indebtedness is to be determined, excluding
capital stock, surplus, capital and earned surplus, surplus reserves which in
effect were appropriations of surplus or offsets to asset values (other than
all reserves in respect of obligations, the amount, applicability or validity
of which is at such date being contested in good faith) and deferred credits,
(ii) guarantees, endorsements and other contingent obligations in respect of,
or any obligations to purchase or otherwise acquire, Indebtedness of other
Persons, or to advance or supply funds for the purchase of payment of, or
otherwise to insure payment of, such Indebtedness, (iii) Indebtedness secured
by any Lien existing on property owned subject to such Lien whether or not the
Indebtedness secured thereby shall have been assumed, (iv) all proper accruals
for federal and other taxes based on or measured by income or profits, and (v)
all Indebtedness guaranteed, directly or indirectly, in any manner, or in
effect guaranteed or supported, directly or indirectly, through an agreement,
contingent or otherwise, (a) to purchase the Indebtedness, or (b) to purchase,
sell, transport, or lease (as lessee or lessor) property or to purchase or sell
services at prices or in amounts designed to enable the debtor to make payments
of the Indebtedness or to assure the owner of the Indebtedness against loss, or
(c) to supply funds to or in any other manner invest in the debtor; provided,
however, that such term shall not mean and include any Indebtedness in respect
of which moneys sufficient to pay and discharge the same in full (either on the
express date of maturity thereof or on such earlier date as such Indebtedness
may be duly called for redemption and payment) shall be deposited with a
depository, agency or trustee in trust for the payment thereof.
"Insolvency Proceeding" means (a) any case, action or proceeding
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, the last Business Day of each Interest Period applicable to such Loan;
with respect to any Base Rate Loan, the
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12
last Business Day of each calendar quarter and each date a Base Rate Loan is
converted into a Offshore Rate Loan; with respect to all Loans, the Maturity
Date; provided, however, that if any Interest Period for a 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.
"Lending Office" means, with respect to any Bank, the office or
offices of the Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office," as the case may be, under its name on
Schedule 3 hereto, or such other office or offices of the Bank as it may from
time to time specify to the Company and the Agent.
"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 Base Rate Loan or an Offshore Rate Loan
(collectively, the "Loans").
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13
"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 Banks to enforce the Obligations.
"Maturity Date" means August 18, 1994, unless extended pursuant to
Section 2.13.
"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.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit A annexed hereto with respect to a proposed Borrowing.
"Notice of Conversion/Continuation" means a notice given by the
Company to the Agent pursuant to Section 2.4, 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 Agent or the Banks or any of them under any Loan
Document.
"Offshore Applicable Margin" means, with respect to Offshore Rate
Loans (a) 0.375% per annum during any period when the aggregate principal
amount of Loans outstanding is less than $75,000,000, and (b) .50% per annum at
all other times. Any change in the Offshore Applicable Margin shall become
effective on the day when the aggregate outstanding principal amount of Loans
becomes more or less than $75,000,000.
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14
"Offshore Lending Office" means with respect to each Bank, the
office of such Bank designated as such on Schedule 3 hereto or such other
office of such Bank as such Bank may from time to time specify to the Company
and the Agent.
"Offshore Rate" means, for each Interest Period for any Offshore
Rate Loan, an interest rate per annum (rounded upward, if necessary, to the
nearest 1/100 of one percent determined pursuant to the following formula:
Offshore Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means the maximum reserve
percentage (expressed as a decimal, rounded upward, if necessary, to the
next 1/100 of one percent) in effect on the date IBOR for such Interest
Period is determined (whether or not applicable to any Bank) 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") having a term equal to such Interest Period; and
"IBOR" means the rate of interest per annum determined by the
Agent to be the arithmetic mean (rounded upward, if necessary, to the
nearest 1/100 of one percent) of the rates of interest per annum notified
to the Agent by Bank of America as the rate of interest at which dollar
deposits in an amount approximately equal to the amount of the Borrowing
to be made or continued as, or converted into, a Offshore Rate Loan by
Bank of America and having a maturity equal to such Interest Period would
be offered to major banks in the offshore dollar market at its request at
or about 10:00 a.m. (New York City Time) on the second Business Day
before the commencement of such Interest Period.
"Offshore Rate Loans" means Loans bearing interest at rates
determined by reference to the Offshore Rate.
"Operating Lease" means, as applied to any Person, any lease of
property (whether real, personal or mixed) which is not a lease that would, in
conformity with GAAP, be required to be accounted for as a capital lease on the
balance sheet of that Person and excluding, in the case of the Company or any
of its
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15
Subsidiaries, any such lease under which the Company or that Subsidiary is the
lessor.
"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(d).
"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
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 Bank the percentage set
forth opposite such Bank's name on Schedule 1.1 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.
"Reference Rate" means the rate of interest publicly announced from
time to time by Bank of America in San Francisco as its reference rate, as in
effect on such date of determination. The reference rate is set by Bank of
America based on 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. Bank of America may make loans at,
above or below the rate announced by it as its reference rate.
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16
"Reportable Event" means any of the events set forth in Section
4043(b) 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.
"Requisite Banks" means, as at any date of determination, (a) prior
to the termination of all Commitments, Banks having at least 66-2/3% of the
Commitments and (b) otherwise, Banks holding at least 66-2/3% of the aggregate
principal amount of Loans outstanding.
"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.
"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.
"Significant Subsidiary" means a Subsidiary which meets any of the
following conditions:
(i) The Company's and its other Subsidiaries' investments in and
advances to the Subsidiary exceed 10% of the total assets of the Company and
its Subsidiaries consolidated as of the end of the most recent fiscal year;
(ii) The Company's and its other Subsidiaries' proportionate share
of the total assets (after intercompany eliminations) of the Subsidiary exceeds
10% of the total assets of the Company and its Subsidiaries consolidated as of
the end of the most recently completed fiscal year; or
(iii) The Company's and its other Subsidiaries' equity in the
income from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle of the Subsidiary exceeds
10% of such income of the Company and its Subsidiaries consolidated for the
most recently completed fiscal year.
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17
"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) 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 (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 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),
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18
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 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
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19
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 tot he 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 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, association or other business
entity of which more than 50% of the total voting power of shares of stock
entitled to vote in the election of directors, managers or trustees 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.
"Transferee" has the meaning specified in Section 10.6(d).
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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.
Section 2. THE LOANS.
2.1 The Commitment. Each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make loans under its Commitment to the
Company (each such loan, a "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 Borrowing of
Loans, (i) the aggregate principal amount of each Bank's outstanding Loans
shall not exceed such Bank's Commitment and (ii) the aggregate principal amount
of all outstanding Loans shall not exceed the Aggregate Commitment. Within the
limits of each Bank's Commitment, and subject to the other terms and conditions
hereof, the Company may borrow under this Section 2.1, prepay pursuant to
Section 2.9 and reborrow pursuant to this Section 2.1.
2.2 Loan Accounts. The Loans made by each Bank shall be evidenced
by one or more loan accounts maintained by such Bank in the ordinary course of
business. The loan accounts maintained by each Bank shall be conclusive absent
error of the amount of the Loans made by the Banks 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.
2.3 Procedure for Borrowings.
(a) Each Borrowing shall be made upon irrevocable telephonic notice
by the Company followed immediately by written notice in the form of a Notice
of Borrowing (which telephonic notice must be received by the Agent (i) prior
to 8:30 a.m. (San Francisco time) two Business Days prior to the requested
Borrowing Date, in the case of Offshore Rate Loans; and (ii) prior to 8:30 a.m.
(San Francisco 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)
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the duration of the Interest Period applicable to Offshore Rate Loans included
in such notice. If the Notice of Borrowing 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 Notice of Borrowing, the Agent
shall notify each Bank of the proposed Borrowing. Each Bank shall make
available to the 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 National Trust and Savings Association, ABA No.
121-000-358, Attn: Global Agency No. 5596 For credit to: BANCONTROL Account No.
12331-15429, Reference: ONEOK, Inc. at the office of the Agent located at 1850
Gateway Boulevard, Concord, California 94520, no later than 11:00 a.m. (San
Francisco time) on the Borrowing Date. Upon satisfaction of the conditions set
forth in Section 4.2, the Agent shall make available to the Company on such
Borrowing Date the aggregate of the amounts (if any) so made available by the
Banks by causing an amount of same day funds equal to such aggregate amount (if
any) received by the Agent to be credited to the account of the Company at such
office of the Agent.
(c) Section 2.3(a) notwithstanding, if the Company shall not have
given a timely Notice of a Borrowing to be made on the last day of any Interest
Period for outstanding Loans, then unless the Agent shall have received notice
that the Company elects not to make a Borrowing on such day (such notice to
have been received at least two Business Days prior to such day) the Agent
shall be deemed to have received a Notice of Borrowing from the Company
requesting Base Rate Loans to be made on such day in an amount equal to the
amount of such outstanding Loans.
2.4 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
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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 Agent prior to 9:00 a.m. (San Francisco time) at least (i) two
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 Agent
will promptly notify each Bank thereof, or, if no timely notice is provided,
the Agent will promptly notify each Bank 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 Bank.
2.5 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.
2.6 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 Commitments; provided, that the Aggregate
Commitment, as reduced, shall at all times be equal to or exceed the sum of the
outstanding principal amount of all Loans. The Company shall give not less than
five Business Days' prior written notice to the Agent designating the date
(which shall be a Business Day) of
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such termination or reduction and the amount of any partial reduction. Promptly
after receipt of a notice of such termination or partial reduction, the Agent
shall notify each Bank 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
Bank's Pro Rata share of the Aggregate Commitment so reduced. Any partial
reduction shall be in an aggregate minimum amount of $5,000,000.
2.7 Interest on the Loans.
(a) Subject to Section 2.7(c), the 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 Offshore Applicable Margin, as the same may be adjusted pursuant
to the definition of Offshore Applicable Margin, or the Base Rate.
(b) Interest shall be payable in arrears on the Loans on each
Interest Payment Date applicable to that Loan.
(c) Any principal payments on the Loans not paid when due and, to
the extent permitted by applicable law, any interest payments on the Loans not
paid when due, in each case whether at stated maturity, by notice of
prepayment, by acceleration or otherwise, shall thereafter bear interest
payable upon demand at a rate which is equal to the Base Rate plus 2% per
annum.
2.8 Maturity of Loans. Each Loan shall mature and the Company shall
repay the unpaid principal amount of each Loan on the Maturity Date.
2.9 Voluntary Prepayments. The Company may, upon not less than one
Business Days' prior written or telephonic notice confirmed in writing to the
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 Agent (in the
case of a prepayment of a Offshore Rate Loan) (which notice the Agent will
promptly transmit to each Bank), 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 Banks 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 Agent.
All prepayments
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shall be applied to the payment of any interest that is due and payable at the
time of such prepayment before application to principal.
2.10 Fees.
(a) Arrangement Fee. The Company shall pay to Bank of America for
Bank of America's own account an arrangement fee in an amount and at the times
set forth in a letter agreement between the Company and Bank of America dated
the Closing Date.
(b) Commitment Fees. The Company shall pay to the Agent for the
account of each Bank a commitment fee on the average daily unused portion of
such Bank's Commitment, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon the daily utilization for that
calendar quarter as calculated by the Agent, equal to 15 basis points. Such
commitment 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 2.6, the
accrued commitment 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 commitment
fees provided in this Section shall accrue at all times after the Closing Date,
including at any time during which one or more conditions in Section 4 are not
met.
(c) Agency Fee. The Company shall pay to the Agent for the 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 Agent dated the Closing Date.
2.11 Computation of Fees and Interest. All computations of interest
payable in respect of Base Rate Loans and all fees 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 Offshore Rate Loans 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.
2.12 Use of Proceeds of Loans. The Company shall use the proceeds
of Loans for general corporate purposes.
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2.13 Extension of Maturity Date. The Company may request that the
Banks extend the Maturity Date for successive 364 day periods by notifying the
Banks in writing through the Agent not more than 45 days nor less than 30 days
prior to the Maturity Date, then in effect. The Agent shall promptly notify
each Bank 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
Banks. Each Bank 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 Agent of its decision not more than 20 days after receipt of such extension
request from the Agent. Failure by any Bank to notify the Agent of its decision
shall be deemed to be a rejection by such Bank of the extension request. If all
Banks 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 Bank or the 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 Bank and the Agent, such taxes
(including income taxes or franchise taxes) as are imposed on or measured by
each Bank's net income by the jurisdiction under the laws of which such Bank or
the Agent, as the case may be, is organized or maintains a Lending Office or
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 Bank and the Agent for the full amount of Taxes or Other Taxes
(including without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 3.1) paid by the Bank or the
Agent and any liability (including penalties, interest, additions to tax
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and expenses to the extent not resulting from the gross negligence or wilful
misconduct of a Bank or the 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 Bank or the 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
Bank or the 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 Bank or the Agent, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made; (ii) the
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 Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
(f) Each Bank 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 Bank
which becomes a party hereto pursuant to Section 10.6 after the Closing Date,
the date upon which the Bank becomes a party hereto) deliver to the Company
through the 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 Bank 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 Bank 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 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
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accurate and complete signed originals of Form 1001, in each case indicating
that the Bank 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 Bank and if the delivery of the same be lawful,
deliver to the Company through the Agent two accurate and complete original
signed copies of Form 4224 or Form 1001 in replacement for the forms previously
delivered by the Bank; 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 Bank'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 Bank for the account of any Lending Office of such Bank: (i) if the
obligation to pay such additional amounts would not have arisen but for a
failure by such Bank to comply with its obligations under Section 3.1(f) in
respect of such Lending Office; (ii) if such Bank 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 Bank 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 Bank 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 Bank 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 Bank to deliver any
forms or other documentation pursuant to Section 3.1(f)(iv), then the Company
shall, on demand of such Bank through the Agent, reimburse such Bank for any
costs and expenses (including expenses of outside legal counsel and the
allocated costs of in-house counsel) reasonably incurred by such Bank in the
preparation or delivery of such forms or other documentation.
(i) If the Company is required to pay additional amounts to any
Bank or the Agent pursuant to Section 3.1(d), then such Bank shall use its
reasonable best efforts (consistent with
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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 Bank is not otherwise
disadvantageous to such Bank.
(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. All payments of principal, interest
and fees hereunder shall be in the same day funds and delivered to the Agent
for credit to:
Bank of America National Trust
and Savings Association
ABA No. 121-000-358
Bancontrol Account No. 12331-15429
Reference: ONEOK, Inc.
1850 Gateway Boulevard
Concord, California 94520
for the account of the Banks not later than 10:00 A.M. (San Francisco time) on
the date due; funds received by the Agent after that time shall be deemed to
have been paid by the Company on the next succeeding Business Day.
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 Bank 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 Bank or its Lending Office
to make Offshore Rate Loans, then, on notice thereof by the Bank to the Company
through the Agent, the obligation of the Bank to make Offshore Rate Loans shall
be suspended until the Bank shall
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have notified the Agent and the Company that the circumstances giving rise to
such determination no longer exists.
(b) If a Bank shall determine that it is unlawful to maintain any
Offshore Rate Loan, the Company shall prepay in full all Offshore Rate Loans of
the Bank then outstanding, together with interest accrued thereon, either on
the last day of the Interest Period thereof if the Bank may lawfully continue
to maintain such Offshore Rate Loans to such day, or promptly, if the Bank may
not lawfully continue to maintain 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 Bank, in the amount of
such repayment, a Base Rate Loan.
(d) Before giving any notice to the Agent pursuant to this Section
3.4, the affected Bank 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 Bank, be
illegal or otherwise disadvantageous to the Bank.
3.5 Increased Costs and Reduction of Return. (a) If any Bank 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 Bank 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 Bank (with a copy of such demand to the
Agent), pay to such Bank, additional amounts as are sufficient to compensate
such Bank for such increased costs.
(b) If any Bank 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 Bank (or its
Lending Office) or any corporation controlling the Bank, 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
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Bank or any corporation controlling the Bank and (taking into consideration
such Bank's or such corporation's policies with respect to capital adequacy and
such Bank'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 Bank, the Company shall immediately pay to the Bank,
from time to time as specified by the Bank, additional amounts sufficient to
compensate the Bank for such increase.
3.6 Funding Losses. The Company agrees to reimburse each Bank and
to hold each Bank harmless from any loss or expense which the Bank 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 2.9; or (d) the prepayment of a
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 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 Bank of America advises the
Agent that it shall have determined 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 Banks advise the Agent that the Offshore Rate applicable for any
requested Interest Period does not adequately and fairly reflect the cost to
such Banks of funding an Offshore Rate Loan, the Agent shall forthwith give
notice of such determination to the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans, as the case
may be, hereunder shall be suspended until the Agent upon the instruction of
the Requisite Banks 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 Banks 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.
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3.8 Payments by Banks. Unless the Agent shall have received notice
from a Bank 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 Agent funding such Borrowing on such Borrowing Date) that such Bank will
not make available to the Agent for the account of the Company the amount of
that Bank's Loan, the Agent may assume that each Bank has made such amount
available to the Agent on the Borrowing date and the 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 Bank
shall not have made its full amount available to the Agent and the Agent in
such circumstances has made available to the Company such amount, that Bank
shall within two Business Days following the date of such Borrowing make such
amount available to the Agent, together with interest at the Federal Funds Rate
for each day during such period. A certificate of the Agent submitted to any
Bank 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
Agent shall constitute such Bank's Loan on the date of Borrowing for all
purposes of this Agreement. If such amount is not made available to the Agent
within two Business Days following the date of such Borrowing, the Agent shall
notify the Company of such failure to fund and, upon demand by the Agent, the
Company shall pay such amount to the Agent for the 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 Bank to make its
first Loan hereunder is subject to condition that the Agent shall have received
on or before the Closing Date all of the following, in form and substance
satisfactory to the Agent and its counsel and in sufficient copies for each
Bank:
(a) Credit Agreement. This Agreement executed by the Company and
each of the Banks.
(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,
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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. An opinion of Huffman, Arrington, Kihle,
Gaberino & Dunn, addressed to the Agent and the Banks.
(e) Payment of Fees. The Company shall have duly executed and
delivered the fee letters referred to in Sections 2.10(a) and (c) and shall
have paid all fees due and payable on the Closing Date arising under Section
2.10.
(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 August 31, 1992,
no Material Adverse Effect.
(g) Other Documents. Such other approvals, opinions or documents as
any Bank may reasonably request.
4.2 Condition to Initial Borrowing. The obligation of each Bank to
make its initial Loan hereunder is also subject to Agent's receipt of evidence,
in form and substance satisfactory to the Agent, that all extensions of credit
under the Credit Agreement dated as of September 29, 1989, as amended, among
the
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Company, the banks parties thereto and Bank of America National Trust and
Savings Association, as agent for such banks, have been fully and finally
repaid along with all fees and similar obligations with no further commitments
to extend credit or other obligations on the part of the banks thereunder.
4.3 Conditions to all Borrowings. The obligation of each Bank to
make, continue or convert any Loan hereunder (including its initial Loan) is
subject to the satisfaction of the following conditions precedent on the
relevant date:
(a) Notice of Borrowing. With respect to borrowings of Loans, the
Agent shall have received a Notice of Borrowing.
(b) Notice of Conversion/Continuation. With respect to conversions
or continuations of Loans, the 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 such Borrowing Date with the same effect as if
made on and as of such Borrowing Date.
(d) No Existing Default. No Default or Event of Default shall exist
or shall result from such Borrowing.
Each Borrowing by the Company hereunder shall constitute a representation and
warranty by the Company hereunder as of the date of each such Borrowing that
the conditions in this Section 4.3 have been satisfied.
Section 5. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
5.1 Corporate Existence and Power. The Company and each of its
Subsidiaries: (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; (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, 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.
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5.2 Corporate Authorization; No Contravention. The execution,
delivery and performance by the Company of this 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 certificate of
incorporation, 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 is necessary or required in connection with the
execution, delivery, performance or enforcement against the Company of the
Agreement or any other Loan Document or any other instrument or agreement
required hereunder 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 August 31, 1992 and in the Company's Quarterly
Reports on Form 10-Q for the quarters ending November 30, 1992, February 28,
1993 and May 31, 1993, 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.
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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
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 Sections 2.12. No portion of
the Loans will be used, directly or indirectly, (i) to purchase or carry Margin
Stock or (ii) to repay or otherwise refinance Indebtedness of the Company or
others incurred to purchase or carry Margin Stock, or (iii) to extend credit
for the purpose of purchasing or carrying any Margin Stock. No proceeds of any
Loans will be used to acquire any security in any transaction which is subject
to Section 13 or 14 of the Exchange Act.
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
interests in all its property, except for such defects in title as could not,
individually or in the 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.
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(a) The audited consolidated financial statements of financial
condition of the Company and its Subsidiaries dated August 31, 1992, and 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 of the Company and
its consolidated Subsidiaries as of the date thereof (including liabilities for
taxes and material commitments).
(b) Since August 31, 1992, there has been no Material Adverse
Effect.
(c) Schedule 5.11 sets forth all material contingent obligations of
the Company as of the Closing Date.
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 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. 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
$10,000,000 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 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.
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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 Bank shall
have any Commitment hereunder, or any Loan or other amount shall remain unpaid,
unless the Requisite Banks waive compliance in writing:
6.1 Financial Statements. The Company shall deliver to the Agent in
form and detail satisfactory to the Agent, with copies for each Bank:
(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.
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6.2 Certificates; Other Information. The Company shall furnish to
the Agent with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a) and (b) above, a 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 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 Sections 7.5 and 7.6;
(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 Agent, at the
request of any Bank, may reasonably request.
6.3 Notices. The Company shall promptly notify the Agent and each
Bank:
(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 $10,000,000 (or its equivalent in another
currency or
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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, 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 the
Company 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 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, as defined in Section 4043(b) of ERISA
and the regulations issued thereunder, 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
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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 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 existence and good standing under the laws of its State or
jurisdiction of incorporation (except for mergers permitted by Section 7.2);
(b) preserve and maintain in full force and effect all 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.
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.
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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 Agent or any Bank 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 Agent or
any Bank may visit and inspect at the expense of the
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Company such properties at any time during business hours and without advance
notice.
Section 7. NEGATIVE COVENANTS
The Company hereby covenants and agrees that, so long as any Bank
shall have any Commitment hereunder, or any Loan or other amount payable
hereunder shall remain unpaid, unless the Requisite Banks 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) 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;
(b) 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;
(c) Liens on assets acquired after the date of this Agreement,
provided, however, that such Liens existed at the time such assets were
acquired and were not created in anticipation thereof;
(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
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interests shall not in the aggregate exceed 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;
(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;
(i) Liens securing Indebtedness that the Company or a Subsidiary
has not assumed or become obligated to repay directly or contingently; and
(j) 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 convey, transfer or lease its properties and assets
substantially as an entirety (measured on a consolidated basis) to any Person,
and the Company shall not permit any Person to consolidate with or merge into
the Company or convey, transfer or lease its properties and assets
substantially as an entirety (measured on a consolidated basis) to the Company,
unless:
(a) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person,
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the corporation formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety shall be
a solvent corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia, and shall
expressly assume in writing the due and punctual payment of all Obligations and
the performance of every covenant of this Agreement on the part of the Company
to be performed or observed;
(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;
(c) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would become
subject to a Lien, which would not be permitted by this Agreement, the Company
or such successor corporation or Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Obligations equally and
ratably with all Indebtedness secured thereby; and
(d) the Company has delivered to the Agent a certificate signed by
a Responsible Officer and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease complies with this Section
7.2 and that all conditions precedent herein provided for relating to such
transaction have been complied with, 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
Agent and the Banks.
provided, however, that the Company shall not convey or transfer any assets to
a Subsidiary for the purpose of improving the credit position of such
Subsidiary in order to enable it to borrow money.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with this Section 7.2, the successor corporation formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Agreement with the
same effect as if such
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45
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease to another Person, the predecessor corporation
shall be relieved of all obligations and covenants under this Agreement.
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, 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, 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) 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) additional purchases of, or investments in, the stock of
Subsidiaries, joint ventures or the capital stock, assets, obligations or other
securities of, or interest in, other Persons which are engaged 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 or other natural gas-related businesses; provided that such
purchases or investments are not opposed by 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 $5,000,000 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 Banks) 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 Banks) liability of the Company or any ERISA Affiliate, or (iii) to
make a complete or partial withdrawal (within the meaning of ERISA Section
4201) from any
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46
Multiemployer Plan so as to result in any material (in the opinion of the
Requisite Banks) 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
Banks) 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 Banks) 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 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, 1991 would exceed the aggregate
amount of the consolidated net income of the Company and its Subsidiaries
accumulated after August 31, 1991 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
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 on which a
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47
report has been issued by a firm of certified or public accountants of
recognized national standing (which balance sheet as to which such a report has
been issued 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 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.
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 Loan
when due, or fails to pay any other 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
(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 10 days after written notice
thereof has been given to the Company by the Agent at the request of any Bank;
or
(e) The Company or any of its Subsidiaries (i) fails to make any
payment in respect of any Indebtedness when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) 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
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48
agreement or instrument relating to any such Indebtedness, 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) to cause such Indebtedness 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 fail 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
Banks shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or the PBGC (or any combination of the foregoing) which is
in the determination of the Requisite Banks, 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
$10,000,000 shall be rendered against the Company or
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49
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.
8.2 Remedies. If any Event of Default occurs, the Agent shall, at
the request of, or may, with the consent of, the Requisite Banks, (a) declare
the Commitment of each Bank to make Loans to be terminated, whereupon such
Commitments shall forthwith be terminated; (b) declare the unpaid principal
amount of all outstanding Loans, all interest accrued and unpaid thereon and
all other amounts payable hereunder to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Company; (c) exercise all rights and remedies
available to it under the Loan Documents or applicable law; provided, however,
that upon the occurrence of any event specified in Section 8.1(f) or 8.1(g)
above (in the case of such clause (g) upon the expiration of the 60 day period
mentioned therein), the obligation of each Bank to make Loans shall
automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable without further act of the Agent or any Bank.
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 AGENT
9.1 Appointment and Authorization. Each Bank hereby irrevocably
appoints, designates and authorizes the 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
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50
or in any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, 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 Agent.
9.2 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.3 Liability of Agent. None of the Agent, its Affiliates, or any
of their respective officers, directors, employees, 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 Banks 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, statement or other
document referred to or provided for in, or received by the 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 Bank 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 Agent.
(a) The 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 Agent. The
Agent shall be fully justified in failing or
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51
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 Banks
as it deems appropriate and, if it so requests, it shall first be indemnified
to its satisfaction by the Banks against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The 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 Banks and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Sections 4.1 and 4.2, each Bank 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 Bank unless an officer of the Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice from
the Bank prior to the initial Borrowing specifying its objection thereto and
either such objection shall not have been withdrawn by notice to the Agent to
that effect or the Bank shall not have made available to the Agent the Bank's
ratable portion of such Borrowing.
9.5 Notice of Default. The 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 Agent for the account of the Banks, unless the Agent shall have
received written notice from a Bank 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 Agent receives such a notice, the
Agent shall give notice thereof to the Banks. The Agent shall take such action
with respect to such Default or Event of Default as shall be requested by the
Requisite Banks; provided, however, that unless and until the Agent shall have
received any such request, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem advisable in the best interests of the
Banks.
9.6 Credit Decision. Each Bank expressly acknowledges that none of
the Agent-Related Persons has made any representation or warranty to it and
that no act by the 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 Agent to any Bank. Each Bank
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52
represents to the Agent that it has, independently and without reliance upon
the 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
Bank also represents that it will, independently and without reliance upon the
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 Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank 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 Banks 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 liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind whatsoever which may at any time
(including at any time following the repayment of the Loans) be imposed on,
incurred by or asserted against any such person in any way relating to or
arising out of this Agreement or any document contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any such person under or in connection with any of
the foregoing; provided, however, that no Bank shall be liable for the payment
to the Agent-Related Persons of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from such person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse the
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 Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether
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53
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 Agent is not reimbursed for such expenses by or on behalf of the
Company.
9.8 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 Agent hereunder and without notice to the Banks. With respect to its Loans,
Bank of America shall have the same rights and powers under this Agreement as
any other Bank and may exercise the same as though it were not the Agent, and
the terms "Bank" and "Banks" shall include Bank of America in its individual
capacity.
9.9 Successor Agent. The Agent may, and at the request of the
Requisite Banks shall, resign as Agent upon 30 days' notice to the Banks. If
the Agent shall resign as Agent under this Agreement, the Requisite Banks shall
appoint from among the Banks a successor agent for the Banks 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 Agent, the Agent may, but
shall not be obligated to, appoint after consulting with the Banks and the
Company, a successor agent from among the Banks. At end of such 30 days' notice
period any successor agent shall succeed to all the rights, powers and duties
of the retiring Agent and the term "Agent" shall mean such successor agent and
the retiring Agent's rights, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as 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 Agent under this
Agreement. Concurrently with giving a notice of resignation, the Agent may, in
its sole discretion, require that all payments to be made between the Company
and the Banks that were previously made to the Agent on behalf of the Company
or the Banks, as applicable, shall thereafter be made directly between the
Company and the Banks.
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 Banks, and then such waiver shall be effective only in the
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54
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 Banks do any of the following: (a) increase the
Commitment of any Bank or subject any Bank 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 which shall be required for the Banks or any of them to
take any action hereunder; (e) amend this Section 10.1; provided further, that
no amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to the Requisite Banks, affect the rights or duties of the
Agent under this Agreement.
10.2 Notices. Except for telephonic notices expressly required or
permitted by Sections 2.3 and 2.4, 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 3 hereto; if to any Bank, to its Domestic Lending
Office specified on Schedule 3 hereto; and if to the Agent, to its address
specified on Schedule 3 hereto; or, as to the Company or the 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 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 Agent.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent, any Bank 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.
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55
10.4 Costs and Expenses. The Company shall, whether or not the
transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Agent on demand for all reasonable costs
and expenses incurred in connection with the development, preparation,
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 Agent (and the reasonable allocated cost
of internal counsel) with respect thereto;
(b) pay or reimburse each Bank and the 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 Agent and to each of the Banks; and
(c) pay or reimburse the Agent on demand for all reasonable
appraisal, audit, search and filing fees, incurred or sustained by the 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 Bank.
10.6 Assignments, Participations etc.
(a) Any Bank may, with the written consent of the Agent and the
Company, which consent shall not be unreasonably withheld, at any time assign
and delegate to one or more Eligible Assignees and, with notice to the Agent,
but without the consent of the Agent, may assign to any of its wholly-owned
bank Affiliates (each an "Assignee") all or any part of the Loans or the
Commitment or any other rights or obligations of such Bank hereunder in a
minimum amount equal to the lesser of (i) such Bank's Commitment and (ii)
$10,000,000; provided, however, that the Commitment of any Bank after giving
effect to any assignment shall not be less than $10,000,000; provided, further,
that the Company and the Agent may continue to deal solely and directly
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56
with such Bank 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 Agent by such Bank and the
Assignee and (ii) such Bank and its Assignee shall have delivered to the
Company and the Agent a Notice of Commitment Assignment Notice and Acceptance
substantially in the form of Exhibit C ("Notice of Assignment and Acceptance");
and (iii) the processing fees of $5,000 shall have been paid to the Agent. Any
Bank 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 Bank from its obligations hereunder.
(b) From and after the date that the Agent notifies the assignor
Bank 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 Bank under the Loan Documents and (ii) the assignor Bank
shall, to the extent that rights and obligations hereunder have been assigned
by it pursuant to such 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 Bank
pro tanto.
(c) Any Bank may at any time sell to one or more banks or other
entities (a "Participant"), participating interests in any Loans, the
Commitment of that Bank or any other interest of that Bank hereunder; provided,
however, that (i) the Bank's obligations under this Agreement shall remain
unchanged, (ii) the Bank shall remain solely responsible for the performance of
such obligations, (iii) the Company and the Agent shall continue to deal solely
and directly with the Bank in connection with the Bank's rights and obligations
under this Agreement, and (iv) no Bank 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 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 Bank 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
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57
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 Bank under this Agreement.
(d) Each Bank agrees to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all non-public information
provided to it by the Company or any Subsidiary of the Company or by the 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 for any
purpose or in any manner other than pursuant to the terms contemplated by this
Agreement, except to the extent such information (i) was or becomes generally
available to the public other than as a result of a disclosure by the Bank, 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 Bank; provided, further, however, that
any Bank may disclose such information (A) at the request of any Bank
regulatory authority or in connection with an examination of such Bank 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 Bank conducts its
business; and (E) to such Bank's independent auditors and other professional
advisors who have agreed to keep such information confidential. Notwithstanding
the foregoing, the Company authorizes each Bank to disclose to any Participant
or Assignee (each, a "Transferee") and any prospective Transferee such
financial and other information in such Bank's possession concerning the
Company or its Subsidiaries which has been delivered to the Banks pursuant to
this Agreement or which has been delivered to the Banks by the Company in
connection with the Banks' credit evaluation of the Company prior to entering
into this Agreement; provided that such Transferee agrees in writing to such
Bank to keep such information confidential to the same extent required of the
Banks hereunder.
10.7 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists, each Bank 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 other indebtedness at any time owing
by such Bank 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
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58
Document and any Loan held by such Bank irrespective of whether or not the
Agent or such Bank shall have made demand under this Agreement or any Loan
Document and although such obligations may be contingent or unmatured. Each
Bank agrees promptly to notify the Company and the Agent after any such set-off
and application made by such Bank; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Bank under this Section 10.7 are in addition to the other rights
and remedies (including without limitation, other rights of set-off) which the
Bank may have.
10.8 Sharing of Payments, Etc. If, other than as provided in
Section 3.1, 3.5 or 3.6, any Bank shall obtain on account of the Loans made by
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 Loans obtained by all the Banks, such Bank shall forthwith
(i) notify the Agent of such fact (and the Agent will promptly notify the other
Banks), and (ii) purchase from the other Banks such participations in the Loans
made by them as shall be necessary to cause such purchasing Bank to share the
excess payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from the purchasing
Bank, such purchase shall to that extent be rescinded and each other Bank shall
repay to the purchasing Bank the purchase price paid thereto together with an
amount equal to such paying Bank's ratable share (according to the proportion
of (A) the amount of such paying Bank's required repayment to (B) the total
amount so recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the total amount so
recovered. The Company agrees that any Bank so purchasing a participation from
another Bank 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
Bank were the direct creditor of the Company in the amount of such
participation. The 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 Banks 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 Bank, the Agent and each of their respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified
Person") harmless from and against any and all liabilities, obligations,
losses,
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59
damages, penalties, actions, judgments, suits, costs, charges, expenses or
disbursements (including Attorney Costs) 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 Borrower's use of any Loan, or any investigation,
litigation or proceeding related thereto, whether or not the Agent or such
Lender is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided, that the Company shall have no obligation hereunder to
any Indemnified Person 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 Banks and the
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 Agent nor the
Banks shall be under any obligation to marshall 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
Agent or the Banks, or the Agent or the Banks 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 Notification of Addresses, Lending Offices, Etc. Each Bank
shall notify the Agent in writing of any changes in the address to which
notices to the Bank should be directed, of addresses of its Offshore Lending
Office and its Domestic Lending Office, of payment instructions in respect of
all payments to be made to it hereunder and of such other administrative
information as the Agent shall reasonably request.
10.12 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
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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
Agent.
10.13 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.
10.14 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES
FOR THE CENTRAL DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THOSE COURTS. EACH OF
THE COMPANY, THE AGENT AND THE BANKS 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 AGENT AND THE BANKS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
10.15 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE 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 BANKS AND THE 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.
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10.16 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire Agreement and understanding among the Company,
the Banks and the 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 letter referred in Section 2.11
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 Agent or the Banks.
10.17 Interpretation. This Agreement is the result of negotiations
between and has been reviewed by counsel to the Agent, the Company and other
parties, and is the product of all parties hereto. Accordingly, this Agreement
and the other Loan Documents shall not be construed against the Banks, the
Agent or the Company merely because of the Agent's, the Banks' or the Company's
involvement in the preparation of such documents and agreements.
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: J. D. NEAL
Title: VICE PRESIDENT
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: ALICE ZANE
Title: VICE PRESIDENT
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: MARK F. MILNER
Title: VICE PRESIDENT
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TEXAS COMMERCE BANK, N.A.
By: TIMOTHY E. PERRY
Title: VICE PRESIDENT
THE BANK OF NOVA SCOTIA
By: F.C.H. ASHBY
Title: SENIOR ASSISTANT AGENT
MELLON BANK, N.A.
By: A. GARY CHACE
Title: SENIOR VICE PRESIDENT
BANK OF OKLAHOMA, N.A.
By: JANE P. FAULKENBERRY
Title: VICE PRESIDENT
BANK IV OKLAHOMA N.A.
By: MIKE EARL
Title: SENIOR VICE PRESIDENT
BOATMEN'S FIRST NATIONAL
BANK OF OKLAHOMA
By: E. M. BEHNKEN
Title: VICE PRESIDENT
LIBERTY BANK & TRUST COMPANY
OF OKLAHOMA CITY, N.A.
By: LAURA CHRISTOFFERSON
Title: VICE PRESIDENT
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LIBERTY BANK & TRUST CO. OF
TULSA, N.A.
By: ROBERT D. MATTAX
Title: VICE PRESIDENT
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SCHEDULE 1.1
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
---- ---------- -----
Bank of America National Trust
and Savings Association $ 35,000,000 23.33%
Texas Commerce Bank, N.A. 25,000,000 16.67%
The Bank of Nova Scotia 20,000,000 13.33%
Mellon Bank, N.A. 20,000,000 13.33%
Bank of Oklahoma, N.A. 15,000,000 10.00%
Bank IV Oklahoma, N.A. 10,000,000 6.67%
Boatmen's First National Bank
of Oklahoma 10,000,000 6.67%
Liberty Bank & Trust Company
of Oklahoma City, N.A. 8,500,000 5.67%
Liberty Bank & Trust Co.
of Tulsa, N.A. 6,500,000 4.33%
------------ ------
TOTAL $150,000,000 100.00%
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SCHEDULE 3
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
ONEOK, INC.
1000 West Fifth Street
Tulsa, OK 74102-0871
Attention: Jim Kneale
Telephone: (918) 588-7922
Facsimile: (918) 588-7273
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
Bank of America National Trust
and Savings Association
Global Agency #5596
1455 Market Street, 12th Floor
San Francisco, California 94103
Attention: Alice Zane
Vice President
Telephone: (415) 622-4469
Facsimile: (415) 622-4894
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
Domestic and Offshore Lending Office:
275 South Valencia Ave.
Brea, CA 92621
Attention: Michael Diekmann
Telephone: (714) 961-7286
Facsimile: (714) 961-2501
TEXAS COMMERCE BANK, N.A.
Domestic and Offshore Rate Office:
5th Floor
2200 Ross Avenue
Dallas, TX 75201-2733
Attention: Cindy White
Telephone: (214) 922-2379
Facsimile: (214) 922-2783
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THE BANK OF NOVA SCOTIA
Domestic and Offshore Rate Office:
600 Peachtree Street N.E.
Suite 2700
Atlanta, GA 30308
Attention: Shannon Law
Telephone: (404) 877-1500
Facsimile: (404) 888-8998
MELLON BANK, N.A.
Domestic and Offshore Rate Office:
3 Mellon Bank Center
Room 2303
Pittsburg, PA 15259
Attention: Rose Covel
Loan Administration
Telephone: (412) 234-4748
Facsimile: (412) 236-2027
BANK OF OKLAHOMA, N.A.
Domestic and Offshore Rate Office:
One Williams Center
8th Floor
Tulsa, OK 74l92
Attention: Jane Faulkenberry
Telephone: (918) 588-6272
Facsimile: (918) 588-6880
BANK IV OKLAHOMA, N.A.
Domestic and Offshore Rate Office:
51 South Boulder Street
Tulsa, OK 74103
Attention: Michael D. Earl
Senior Vice President
Telephone: (918) 591-8310
Facsimile: (918) 591-8402
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Copy to:
51 South Boulder Street
Tulsa, OK 74103
Attention: Vicky Allen
Telephone: (918) 591-8355
Facsimile: (918) 591-8402
BOATMEN'S FIRST NATIONAL
BANK OF OKLAHOMA
Domestic and Offshore Rate Office:
10802 East 31st Street
Tulsa, OK 74147
Attention: Ed Behnken
Telephone: (918) 664-1300 ex. 221
Facsimile: (918) 665-0756
LIBERTY BANK & TRUST COMPANY
OF OKLAHOMA CITY, N.A.
Domestic and Offshore Rate Office:
100 North Broadway
Oklahoma City, OK 73102
Attention: Laura Christoferson
Telephone: (405) 231-6853
Facsimile: (405) 231-6788
LIBERTY BANK & TRUST CO. OF
TULSA, N.A.
Domestic and Offshore Rate Office:
4th Floor
15 East Fifth Street
Tulsa, OK 74103
Attention: Bob Mattax
Telephone: (918) 586-5179
Facsimile: (918) 586-5952
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68
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
Bank of America National Trust
and Savings Association
555 Flower Street, 10th Floor
Los Angeles, California 90071
Attention: Mark F. Milner
Telephone: (213) 228-6298
Facsimile: (213) 228-2641
TEXAS COMMERCE BANK, N.A.
5th Floor
2200 Ross Avenue
Dallas, TX 75201-2733
Attention: Timothy E. Perry
Telephone: (214) 922-2536
Facsimile: (214) 922-2783
THE BANK OF NOVA SCOTIA
600 Peachtree Street N.E.
Suite 2700
Atlanta, GA 30308
Attention: Shannon Law
Telephone: (404) 877-1500
Facsimile: (404) 888-8998
Copy to:
Bank of Nova Scotia
1100 Louisiana
Suite 3000
Houston, TX 77002
Attention: Cindy Deere
Telephone: (713) 752-0900
Facsimile: (713) 752-2425
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69
MELLON BANK, N.A.
One Mellon Bank Center
Room 4425
Pittsburg, PA 15258-0001
Attention: A. J. Sabatelle
Energy and Utilities Group
Telephone: (412) 236-2784
Facsimile: (412) 234-6375
BANK OF OKLAHOMA, N.A.
One Williams Center
8th Floor
Tulsa, OK 94l92
Attention: Jane Faulkenberry
Telephone: (918) 588-6272
Facsimile: (918) 588-6880
BANK IV OKLAHOMA, N.A.
51 South Boulder Street
Tulsa, OK 74103
Attention: Michael D. Earl
Senior Vice President
Telephone: (918) 591-8310
Facsimile: (918) 591-8402
Copy to:
51 South Boulder Street
Tulsa, OK 74103
Attention: Vicky Allen
Telephone: (918) 591-8355
Facsimile: (918) 591-8402
BOATMEN'S FIRST NATIONAL
BANK OF OKLAHOMA
10802 East 31st Street
Tulsa, OK 74147
Attention: Ed Behnken
Telephone: (918) 664-1300 ex. 221
Facsimile: (918) 665-0756
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70
LIBERTY BANK & TRUST COMPANY
OF OKLAHOMA CITY, N.A.
100 North Broadway
Oklahoma City, OK 73102
Attention: Laura Christoferson
Telephone: (405) 231-6853
Facsimile: (405) 231-6788
LIBERTY BANK & TRUST CO. OF
TULSA, N.A.
4th Floor
15 East Fifth Street
Tulsa, OK 74103
Attention: Bob Mattax
Telephone: (918) 586-5179
Facsimile: (918) 586-5952
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71
SCHEDULE 5.11
MATERIAL CONTINGENT OBLIGATIONS OF THE COMPANY
AS OF THE DATE OF CLOSING
NONE
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72
SCHEDULE 5.16
SUBSIDIARIES
Caney River Transmission Company
ONG Red Oak Transmission Company
ONG Sayre Storage Company
ONG Western, Inc.
TransTex Pipeline Company
OkTex Pipeline Company
ONEOK Services, Inc.
ONEOK Drilling Company
ONEOK Exploration Company
ONEOK Products Company
ONEOK Resources Company
ONEOK Leasing Company
ONEOK Parking Company
ONEOK Technology Company
ONEOK Gas Marketing Company
73
EXHIBIT A
FORM OF NOTICE OF COMMITTED BORROWING
TO: Bank of America National Trust
and Savings Association, as Agent
1455 Market Street, 12th Floor
San Francisco, California 94103
Attention: Alice Zane
Vice President
Telephone: (415) 622-4469
Facsimile: (415) 622-4894
Pursuant to Section 2.3 of that certain Credit Agreement dated
as of August __, 1993 (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., a Delaware corporation (the "Company"), the Banks named therein (the
"Banks") and Bank of America National Trust and Savings Association, as Agent
(the "Agent"), this represents the Company's request to borrow on
_______________ from the Banks, 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 Committed Loans are to be deposited in the Company's account
at the 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
borrowing.
DATED: ______________________
ONEOK, INC.
By ___________________________
Title ________________________
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74
EXHIBIT B
FORM OF NOTICE OF CONVERSION/CONTINUATION
TO: Bank of America National Trust
and Savings Association, as Agent
1455 Market Street, 12th Floor
San Francisco, California 94103
Attention: Alice Zane
Vice President
Telephone: (415) 622-4469
Facsimile: (415) 622-4894
1. Conversion Selection. Pursuant to Section 2.4 of that certain
Credit Agreement dated as of August __, 1993 (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., a Delaware corporation (the "Company"),
the Banks named therein (the "Banks") and Bank of America National Trust and
Savings Association, as Agent (the "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
__________, 19__, to (Offshore Rate) (Base Rate) Loans, as follows:
Interest Period
(Offshore
Dollar Amount Rate loans)
------------- ---------------
$____________ ________days
Maturing on ____, 19__
2. Continuation Selection (Offshore Rate Loans). Pursuant to
Section 2.4 of the Agreement, please continue $_______of existing Offshore Rate
Loans, the final day of the current Interest Period of which is __________,
19____, as follows:
Requested
Dollar Amount Interest Period
------------- ---------------
$___________ _______ days
Maturing on ____, 19__
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
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75
(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: ________________
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76
EXHIBIT C
FORM OF COMMITMENT ASSIGNMENT NOTICE
AND ACCEPTANCE
____________, ____
TO: Bank of America National Trust
and Savings Association, as Agent
1455 Market Street, 12th Floor
San Francisco, California 94103
Attention: Alice Zane
Vice President
Telephone: (415) 622-4469
Facsimile: (415) 622-4894
Reference is made to the Credit Agreement dated as of August _, 1993
(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 Banks
party thereto and Bank of America National Trust and Savings Association, as
Agent (the "Agent") for said Banks.
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 and all
outstanding Loans made by the Assignor). Before giving effect to such
assignment: the amount of the Assignor's Commitment is $_________ and the
aggregate principal amount of its outstanding Loans 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 and the Guaranties assigned to it as specified above, as fully and to
the same extent as if the Assignee were the Bank originally holding such
interest in the Credit Agreement.
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77
5. The following administrative details apply to the Assignee:
(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: _____________________
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Commitment Assignment Notice and Acceptance to be
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78
executed by their respective duly authorized officials, officers or 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 NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:___________________________
Title:
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