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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
August 25, 1998
Date of Report (Date of earliest event reported)
ONEOK, Inc.
(Exact name of registrant as specified in its charter)
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Oklahoma 1-2572 73-1520922
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
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100 West Fifth Street; Tulsa, OK
(Address of principal executive offices)
74103
(Zip code)
(918) 588-7000
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
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Items 1 - 4. Not Applicable.
Item 5. Other Events.
ONEOK, Inc. (the Company) signed a short-term credit agreement
with Bank of America.
Item 6. Not Applicable
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
Exhibit
No. Description
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1.a Credit agreement between ONEOK, Inc. and Bank of America dated
August 12, 1998.
Items 8 - 9. Not Applicable
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized, on this 25th of August, 1998.
ONEOK Inc.
By: /s/ Jerry D. Neal
-------------------------------
Vice President, Chief Financial
Officer, and Treasurer
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INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT
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99.1a Credit agreement between Oneok, Inc. and Bank of America
dated August 12, 1998.
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EXHIBIT 99.1(a)
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AMENDED AND RESTATED
CREDIT AGREEMENT
among
ONEOK, INC.,
THE BANKS PARTY HERETO,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
BANKONE, OKLAHOMA, N.A,
as Documentation Agent,
and
BANCAMERICA ROBERTSON STEVENS
as Arranger
Dated as of August 12, 1998
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TABLE OF CONTENTS
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Section 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2. THE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.1 The Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2 Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.3 Procedure for Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.4 Conversion and Continuation Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.5 Limitation on Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.6 Reductions of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.7 Interest on the Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.8 Maturity of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.9 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.10 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Arrangement Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(b) Facility Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(c) Agency Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.11 Computation of Fees and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.12 Use of Proceeds of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.13 Extension of Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3. PAYMENTS IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.2 Payments by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.3 Payments on Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.4 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.5 Increased Costs and Reduction of Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.6 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.7 Inability to Determine Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.8 Payments by Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4. CONDITIONS TO EFFECTIVENESS OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.1 Conditions of Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.2 Condition to Initial Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.3 Conditions to all Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.1 Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.2 Corporate Authorization; No Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.3 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.4 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.5 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.6 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.7 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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5.8 Use of Proceeds; Margin Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.9 Title to Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.11 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.12 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.13 Regulated Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.14 No Burdensome Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.15 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.16 Full Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.17 Year 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.4 Preservation of Corporate Existence, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.5 Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.7 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.8 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.9 Inspection of Property and Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.1 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.2 Merger and Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.3 Acquisitions, Loans and Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.4 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.5 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.6 Limitation on Senior Funded Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.7 Change in Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
8.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.3 Rights Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 9. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.1 Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.3 Liability of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.4 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.6 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.8 Agent in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.9 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.10 Documentation Agent, Co-Agent and Arranger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
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10.1 Amendments and Waivers; Extension of Availability Period . . . . . . . . . . . . . . . . . . . . . . . . . 53
10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
10.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
10.4 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
10.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.6 Assignments, Participations etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.7 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.8 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.9 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(a) General Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(b) Survival; Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.10 Marshalling; Payments Set Aside . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.11 Notification of Addresses, Lending Offices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.14 Governing Law and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.15 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.16 Purchasing and Selling of Commitments and Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.17 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.18 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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EXHIBITS
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A Form of Notice of Committed Borrowing
B Form of Notice of Conversion/Continuation
C Form of Notice of Commitment Assignment and Acceptance
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SCHEDULES
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1.1 Commitments
3 Addresses for Domestic and Offshore Lending Offices and Notices
5.11 Contingent Obligations
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ONEOK, INC.
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is
made and dated as of August 12, 1998 by and among ONEOK, INC., a Delaware
corporation (the "Company"), the financial institutions (collectively, the
"Banks") signatory hereto, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent (the "Agent"), and amends and restates that certain
Credit Agreement ("Prior Agreement") dated as of August 20, 1993, among the
Company, the banks signatory thereto and the Agent, as amended by a First
Amendment dated as of August 18, 1994, a Second Amendment dated as of August
17, 1995, a Third Amendment dated as of August 15, 1996 and a Fourth Amendment
dated as of August 13, 1997 and supplemented by an Assumption Agreement dated
as of November 26, 1997 relating to merger activity of the Company.
RECITALS
The Company has requested that the Prior Agreement be
amended and restated, and the Banks and the Agent are willing to do so on the
terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereby agree
that the Prior Agreement shall be amended and restated to read in its entirety,
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
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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 administrative agent for the Banks hereunder,
and any successor administrative agent.
"Agent-Related Persons" has the meaning specified in Section
9.3.
"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.
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"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 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
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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.
"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) a financial institution
organized under the laws of the United States, or any state
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<PAGE> 9
thereof, and having a combined capital and surplus of at least $100,000,000;
(b) a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of any such country, and having a combined capital and
surplus of at least $100,000,000, provided that such bank is acting through a
branch or agency located in the United States; or (c) another 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.
"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.
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<PAGE> 10
"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.
"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.
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<PAGE> 11
"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 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
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<PAGE> 12
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 last Business Day of each
calendar quarter; 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
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<PAGE> 13
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").
"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.
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<PAGE> 14
"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 11, 1999, 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, 0.19% per annum.
"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 to the nearest
1/100 of one percent) determined pursuant to the following formula:
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<PAGE> 15
Offshore Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means the maximum
reserve percentage (expressed as a decimal, rounded upward 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 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 interbank market at their request at or about 10:00 a.m. (New
York City Time) two Business Days 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 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(c).
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<PAGE> 16
"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.
"Prior Agreement" means the Prior Agreement defined in the
introductory paragraph of this Agreement.
"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.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, a withdrawal from a
Plan described in Section 4063 of ERISA, or a cessation of operations described
in Section 4062(e) of ERISA.
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<PAGE> 17
"Requisite Banks" means, as at any date of determination, (a)
prior to the termination of all Commitments, Banks having at least 51% of the
Commitments, and (b) otherwise, Banks holding at least 51% 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.
"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
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<PAGE> 18
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), except securities which are subordinate and junior in
right of payment to the payment of Superior Indebtedness; and
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<PAGE> 19
(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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<PAGE> 20
or supplement to, any Superior Indebtedness or any instrument or agreement
relating thereto, without the prior written consent of the holder or holders of
all Superior Indebtedness at the time outstanding.
(v) No present or future holder of Superior Indebtedness
shall be prejudiced in his right to enforce subordination of Subordinated
Indebtedness by any act or failure to act on the part of the Company. The
foregoing provisions as to subordination are solely for the purpose of defining
the relative rights of the holders of Superior Indebtedness, on the one hand,
and the holders of Subordinated Indebtedness, on the other hand, and none of
such provisions shall impair, as between the Company and any holders of
Subordinated Indebtedness, the obligation of the Company, which is
unconditional and absolute, to pay to the holders of Subordinated Indebtedness
the principal thereof, and the interest and premium, if any, thereon in
accordance with its terms, nor shall any such provisions prevent any holder of
Subordinated Indebtedness from exercising all remedies otherwise permitted by
applicable law or under the terms of such Subordinated Indebtedness upon
default thereunder, subject to the rights under the foregoing provisions of
holders of Superior Indebtedness to receive for application in payment thereof
any payment or distribution of any kind or character, whether in cash or
property or securities, or by set-off 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) three 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
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<PAGE> 22
$1,000,000 in excess thereof; (ii) the requested Borrowing Date, which shall be
a Business Day; (iii) whether the Borrowing is to be comprised of Offshore Rate
Loans or Base Rate Loans; and (iv) the duration of the Interest Period
applicable to Offshore Rate Loans included in such notice. If the 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
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excess thereof) into Base Rate Loans; or (iii) elect to continue, on the last
day of the Interest Period therefor, any Offshore Rate Loans (or any part
thereof in an amount not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof); provided, that if the aggregate amount of
Offshore Rate Loans shall have been reduced, by payment, prepayment, or
conversion of part thereof to be less than $5,000,000, Offshore Rate Loans
shall automatically convert into Base Rate Loans, and on and after such date
the right of the Company to continue such Loans as Offshore Rate Loans shall
terminate.
(b) Each conversion or continuation shall be made upon
irrevocable telephonic notice by the Company followed immediately by written
notice in the form of a Notice of Conversion/ Continuation (which telephonic
notice must be received by the Agent prior to 8:30 a.m. (San Francisco time) at
least (i) three Business Days in advance of the conversion or continuation
date, if the Loans are to be converted into or continued as Offshore Rate
Loans; and (ii) one Business Day in advance of the conversion or continuation
date, if the Loans are to be converted into Base Rate Loans), specifying: (A)
the proposed conversion or continuation date; (B) the aggregate amount of Loans
to be converted or continued; (C) the nature of the proposed conversion or
continuation; and (D) the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Loans, the Company has failed to select a new
Interest Period to be applicable thereto, or if any Event of Default shall then
exist, the Company shall be deemed to have elected to convert such Offshore
Rate Loans into Base Rate Loans effective as of the expiration date of such
current Interest Period.
(d) Upon receipt of a Notice of Conversion/ Continuation,
the 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.
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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 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
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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 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) Facility Fees. The Company shall pay to the Agent a
facility fee on the Aggregate Commitment, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter, equal to 0.06% per
annum to be distributed to each Bank in accordance with its Pro Rata Share.
Such facility fee shall accrue from the Closing Date to the Maturity Date and
shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter and on the Maturity Date; provided that, in connection with
any reduction or termination of Commitments pursuant to Section 2.6, the
accrued facility fee calculated for the period ending on such date shall also
be paid on the date of such reduction or termination, with the next succeeding
quarterly payment being calculated on the basis of the period from the
reduction or termination date to such quarterly payment date. The facility
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
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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.
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 60 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").
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(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 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
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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 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
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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 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.
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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 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.
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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 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
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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.
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
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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, 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
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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 Gable & Gotwals,
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, 1997, no Material Adverse Effect.
(g) Repayment of Outgoing Selling Banks. Evidence of
repayment to Mellon Bank, N.A., PNC Bank, National Association and American
National Bank & Trust Company of Shawnee of all principal and interest due to
them in connection with the Prior Agreement.
(h) 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 the execution of
this Agreement by each bank which is a party to the Prior Agreement as of this
date.
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.
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(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.
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,
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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, 1997 and in the Company's
Quarterly Reports on Form 10-Q for the quarters ending November 30, 1997,
February 28, 1998 and May 31, 1998, as filed with the Securities and Exchange
Commission, there are no actions, suits, proceedings, claims or disputes
pending, or to the best knowledge of the Company, threatened or contemplated at
law, in equity, in arbitration or before any Governmental Authority, against
the Company, or its Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement, or any Loan Document, or
any of the transactions contemplated hereby or thereby; or (b) if determined
adversely to the Company, or its Subsidiaries, might have a Material Adverse
Effect. No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery and performance of this Agreement
or any other Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
5.6 No Default. No Default or Event of Default exists or
would result from the incurring of obligations by the Company under this
Agreement or 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,
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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.
(a) The audited consolidated financial statements of
financial condition of the Company and its Subsidiaries dated August 31, 1997,
and the related consolidated statements of
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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, 1997, 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.
5.17 Year 2000. The Company has developed and implemented a
comprehensive, detailed program to address on a timely basis the "Year 2000
problem" (that is, the risk that computer applications used by the Company may
be unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999) and reasonably
anticipates that it will on a timely basis successfully resolve the Year 2000
problem for all material computer applications used by it. The Company, on the
basis of inquiry made, believes that each supplier, vendor and customer of the
Company that is of material importance to the financial well-being of the
Company will also successfully resolve on a timely basis the Year 2000 problem
for all of its material computer applications.
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:
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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.
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:
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(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 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
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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 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.
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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.
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.
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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 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;
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(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 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;
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(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 10% 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, 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
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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, the foregoing shall not be deemed to restrict or preclude
the merger or consolidation of any Subsidiary with or into the Company or any
other Subsidiary, or the conveyance, transfer or lease of the properties and
assets of any Subsidiary substantially as an entirety (measured on a
consolidated basis) to any other Subsidiary, if the requirements of subsection
7.2(a), (b), and (c) shall have been met, and 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, shall have been delivered to the Agent in
sufficient copies for each Bank, provided, further, 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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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
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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 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
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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
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
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(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 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 fails to pay, or admit in writing its inability to pay,
its debts as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course substantially as it is conducted on the Closing
Date; (iii) commences any Insolvency Proceeding or files any petition or answer
in any Insolvency Proceeding; (iv) acquiesces in the appointment of a receiver,
trustee, custodian or liquidator for itself or a substantial portion of its
property, assets or business or effects a plan or other arrangement with its
creditors; (v) admits the material allegations of a petition filed against it
in any Insolvency Proceeding, or (vi) takes any action to effectuate any of the
foregoing; or
(g) Any involuntary Insolvency Proceeding is commenced or
filed against the Company or any Subsidiary or any writ, judgment, warrant of
attachment, execution or similar process, is issued or levied against a
substantial part of the Company's or any of its Subsidiaries' assets and any
such proceedings or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing or levy; or
(h) An event or condition specified in Section 7.4 shall
occur or exist with respect to any Plan or Multiemployer
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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 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.
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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 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
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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 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
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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 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
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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 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
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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.
9.10 Documentation Agent, Co-Agent and Arranger. No entity
listed as a Documentation Agent or Co-Agent on the cover hereof shall have any
duties or responsibilities hereunder except in its capacity as a Bank. No
entity appearing on the cover hereof as an Arranger shall have any duties or
responsibilities hereunder.
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
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
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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.
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;
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(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 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
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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 Notice of Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents. The
Commitment allocated to each Assignee shall reduce the Commitment of the
assigning 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 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.
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(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 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
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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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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.
59
<PAGE> 64
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 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
60
<PAGE> 65
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.16 Purchasing and Selling of Commitments and Loans. On
the date of this Agreement, certain Banks (the "Buying Banks") hereby agree to
purchase without recourse, and certain Banks (the "Selling Banks") hereby agree
to sell without recourse, such an interest (with respect to the Prior
Agreement) in the Aggregate Commitment and the outstanding Loans (under the
Prior Agreement) as is required (together with the increase in the Aggregate
Commitment provided for in Schedule 1.1) to give each Bank its share of the
Aggregate Commitment and Loans in this Agreement indicated on Schedule 1.1
hereto.
Each Selling Bank represents and warrants to each Buying Bank
that it is the legal and beneficial owner of the Commitment and Loans being
assigned by it and that the same are free and clear of any adverse claim.
Other than as provided above, no Selling Bank makes any representation or
warranty and assumes no responsibility with respect to the Commitments, the
Loans, this Agreement or any other instrument or document furnished pursuant
thereto, the financial condition of the Company, or the performance or
observance by the Company hereunder. The Company agrees to pay on demand
directly to any Selling Bank any costs of the type set forth in Section 3.6 of
the Agreement incurred by such Selling Bank in respect of any portion of its
Loans being assigned hereunder. The Company and the Agent hereby consent to
such assignments.
By signing below, each Buying Bank not heretofore a Bank under
the Prior Agreement agrees to be a party to, and be bound by the terms of, this
Agreement as a "Bank" hereunder. From and after the date hereof, and upon
repayment to them of all principal and interest due to them in connection with
the Prior Agreement, Mellon Bank, N.A., PNC Bank, National Association and
American National Bank & Trust Company of Shawnee (which were parties to the
Prior Agreement) shall have no Commitments under this Agreement and shall no
longer be parties to this Agreement.
10.17 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
61
<PAGE> 66
understandings of such persons, verbal or written, relating to the subject
matter hereof and thereof except for the fee letters referred to in Section
2.10 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.
10.18 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.
62
<PAGE> 67
ONEOK, INC.
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By:
Name:
Title:
BANKONE, OKLAHOMA, N.A. (formerly
known as BANKONE, OKLAHOMA CITY
and successor by merger to LIBERTY
BANK AND TRUST COMPANY OF OKLAHOMA
CITY, N.A. and LIBERTY BANK AND
TRUST COMPANY OF TULSA, NATIONAL
ASSOCIATION)
By:
Name:
Title:
63
<PAGE> 68
CHASE BANK OF TEXAS, N.A. (formerly
known as TEXAS COMMERCE BANK,
NATIONAL ASSOCIATION)
By:
Name:
Title:
NATIONSBANK, N.A. (successor
by merger to NATIONSBANK OF
TEXAS, N.A.)
By:
Name:
Title:
SUNTRUST BANK, ATLANTA
By:
Name:
Title:
By:
Name:
Title:
BANK OF OKLAHOMA, N.A.
By:
Name:
Title:
UMB BANK, N.A.
By:
Name:
Title:
COMMERCE BANK, N.A.
By:
Name:
Title:
64
<PAGE> 69
WESTAR BANK OF BARTLESVILLE
By:
Name:
Title:
CITIZENS BANK OF LAWTON
By:
Name:
Title:
THE STILLWATER NATIONAL BANK
AND TRUST COMPANY
By:
Name:
Title:
MELLON BANK, N.A. (as a Selling
Bank for purposes of Section 10.16
only)
By:
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
(as a Selling Bank for purposes
of Section 10.16 only)
By:
Name:
Title:
AMERICAN NATIONAL BANK & TRUST
COMPANY OF SHAWNEE (as a Selling
Bank for purposes of Section 10.16
only)
By:
Name:
Title:
65
<PAGE> 70
SCHEDULE 1.1
COMMITMENTS AND PRO RATA SHARES
<TABLE>
<CAPTION>
PRO RATA
BANK COMMITMENT SHARE __
---- ---------- ------
<S> <C> <C>
Bank of America National Trust
and Savings Association $ 36,750,000 18.37500000%
BankOne, Oklahoma, N.A. $ 36,750,000 18.37500000%
Chase Bank of Texas, N.A. $ 25,000,000 12.50000000%
NationsBank, N.A. $ 25,000,000 12.50000000%
SunTrust Bank, Atlanta $ 25,000,000 12.50000000%
Bank of Oklahoma, N.A. $ 20,000,000 10.00000000%
UMB Bank, N.A. $ 15,000,000 7.50000000%
Commerce Bank, N.A. $ 10,000,000 5.00000000%
WestStar Bank of Bartlesville $ 4,500,000 2.25000000%
Citizens Bank of Lawton $ 1,000,000 0.50000000%
The Stillwater National Bank and
Trust Company $ 1,000,000 0.50000000%
Total $200,000,000 100.00000000%
</TABLE>
1
<PAGE> 71
SCHEDULE 3
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
J. D. Neal
Vice President and Chief Financial Officer
ONEOK, Inc.
100 West Fifth Street
Tulsa, Oklahoma 74102-0871
Phone: (918) 588-7914
Fax: (918) 588-7960
Daryl Patterson
Credit Manager
Bank of America National Trust and
Savings Association
Three Allen Center, Suite 4558
333 Clay Street
Houston, TX 77002-4103
Phone: (713) 651-4950
Fax: (713) 651-4808
Claudette Strickland
Assistant Vice President
Bank of America National Trust and
Savings Association
1850 Gateway Blvd., 3rd Floor
Concord, CA 94520-3282
Phone: (925) 675-7483
Fax: (925) 603-8208
Ula Bernstine
BankOne, Oklahoma, N.A.
500 Throckmorton
6th Floor Parking Garage
Forth Woth, TX 76102
Phone: (817) 884-4535
Fax: (817) 884-4651
David G. Page
Senior Vice President
BankOne, Oklahoma, N.A.
15 East Fifth Street
Tulsa, OK 74103
Phone: (918) 586-5430
Fax: (918) 586-5474
1
<PAGE> 72
Donna German
Managing Director
Chase Bank of Texas, N.A.
Structured Finance and Global Oil & Gas
2200 Ross Avenue, 3rd Floor
Dallas, TX 75201
Phone: (214) 965-2540
Fax: (214) 965-2389
Curtis L. Anderson
NationsBank, N.A.
Sixty Fourth Floor
901 Main Street
Dallas, TX 75202
Phone: (214) 508-1290
Fax: (214) 508-3943
Todd C. Davis
SunTrust Bank, Atlanta
25 Park Place, MC 120
Atlanta, GA 30303
Phone: (404) 658-4917
Fax: (404) 827-6270
Elisabeth F. Blue
Vice President
Bank of Oklahoma, N.A.
Eighth Floor
One Williams Center
Tulsa, OK 74172
Phone: (918) 588-6077
Fax: (918) 588-6880
David A. Proffitt
Senior Vice President
UMB Bank, N.A.
Commercial Loan Dept.
1010 Grand Blvd.
Kansas City, MO 64106
Phone: (816) 860-7935
Fax: (816) 860-7143
2
<PAGE> 73
Jeffrey Fahler
Commerce Bank, N.A.
1000 Walnut Street, 17th Floor
Kansas City, MO 64106
Phone: (816) 234-7247
Fax: (816) 234-7290
Charles Baxter
WestStar Bank of Bartlesville
100 Southeast Frank Phillips Blvd.
Bartlesville, OK 74003
(P.O. Box 999
Bartlesville, OK 74005-0999)
Phone: (918) 337-3226
Fax: (918) 337-3506
Dan Torbett
Citizens Bank of Lawton
1420 W. Lee Boulevard
Lawton, OK 73505
Phone: (580) 250-4146
Fax: (580) 250-4212
David W. Pitts
The Stillwater National
Bank and Trust Company
608 South Main Street
Stillwater, OK 74076
Phone: (405) 372-2230, Ext. 1825
Fax: (405) 742-1820
3
<PAGE> 74
SCHEDULE 5.11
MATERIAL CONTINGENT OBLIGATIONS OF THE
COMPANY AS OF THE DATE OF
CLOSING
NONE
<PAGE> 75
EXHIBIT A
FORM OF NOTICE OF COMMITTED BORROWING
TO: Bank of America National Trust
and Savings Association, as Agent
Agency Administrative Services, #5596
1850 Gateway Boulevard
Concord, California 94520
Attention: Josie Flores
Vice President/ATM
Telephone: (925) 675-8374
Facsimile: (925) 675-8500
COPY TO: Bank of America National Trust
And Savings Association
Three Allen Center Suite 4550
333 Clay Street
Houston, Texas 77002-4103
Attention: Pamela K. Rodgers
Assistant Vice President
Telephone: (713) 651-4880
Facsimile: (713) 651-4841
Pursuant to Section 2.3 of that certain Amended and Restated
Credit Agreement dated as of August 12, 1998 (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
1
<PAGE> 76
(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
2
<PAGE> 77
EXHIBIT B
FORM OF NOTICE OF CONVERSION/CONTINUATION
TO: Bank of America National Trust
and Savings Association, as Agent
Agency Administrative Services, #5596
1850 Gateway Boulevard
Concord, California 94520
Attention: Josie Flores
Vice President/ATM
Telephone: (925) 675-8374
Facsimile: (925) 675-8500
COPY TO: Bank of America National Trust
And Savings Association
Three Allen Center Suite 4550
333 Clay Street
Houston, Texas 77002-4103
Attention: Pamela K. Rodgers
Assistant Vice President
Telephone: (713) 651-4880
Facsimile: (713) 651-4841
1. Conversion Selection. Pursuant to Section 2.4 of that certain
Amended and Restated Credit Agreement dated as of August 12, 1998 (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__
1
<PAGE> 78
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
(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:
----------------------------------------
2
<PAGE> 79
EXHIBIT C
FORM OF COMMITMENT ASSIGNMENT NOTICE
AND ACCEPTANCE
____________,
TO: Bank of America National Trust
and Savings Association, as Agent
Agency Management Services, #5596
1850 Gateway Boulevard
Concord, California 94520
Attention: Josie Flores
Vice President/ATM
Telephone: (925) 675-8395
Facsimile: (925) 675-8500
COPY TO: Bank of America National Trust
And Savings Association
Three Allen Center Suite 4550
333 Clay Street
Houston, Texas 77002-4103
Attention: Pamela K. Rodgers
Assistant Vice President
Telephone: (713) 651-4880
Facsimile: (713) 651-4841
Reference is made to the Amended and Restated Credit Agreement dated
as of August 12, 1998 (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 $_______.
1
<PAGE> 80
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.
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):
--------------------------------
2
<PAGE> 81
(D) Payment Instructions:
Account No.:
----------------------------------------
At:
--------------------------------
--------------------------------
--------------------------------
Ref.:
---------------------------------------------
Attention:
---------------------------------------------
3
<PAGE> 82
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Commitment Assignment Notice and Acceptance to be executed by their respective
duly authorized officials, officers or 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:
4
