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EXHIBT 4.17
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CREDIT AGREEMENT
dated as of January 26, 1998
among
SONAT INC.,
THE BANKS NAMED HEREIN,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent,
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Syndication Agent
and
SUNTRUST BANK, ATLANTA,
as Documentation Agent
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TABLE OF CONTENTS
Article Page
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I. LOANS................................................................... 1
Section 1.01 Syndicated Loans...................................... 1
Section 1.02 Money Market Loans.................................... 1
Section 1.03 Swingline Commitment.................................. 4
Section 1.04 Change of Commitments................................. 5
Section 1.05 Borrowings of Syndicated Loans........................ 6
Section 1.06 Several Commitments; Remedies Independent............. 8
Section 1.07 Availability of Funds................................. 8
Section 1.08 Borrowings of Swingline Loans......................... 8
Section 1.09 Lending Offices....................................... 9
Section 1.10 Notes................................................. 9
II. PAYMENTS, INTEREST AND CERTAIN FEES..................................... 10
Section 2.01 Repayment of Loans.................................... 10
Section 2.02 Interest.............................................. 10
Section 2.03 Interest Periods...................................... 11
Section 2.04 Prepayments........................................... 11
Section 2.05 Payments, etc......................................... 12
Section 2.06 Pro Rata Treatment; Sharing........................... 13
Section 2.07 Computations.......................................... 14
Section 2.08 Facility Fee.......................................... 14
Section 2.09 Administration Fee.................................... 14
III. PROVISIONS RELATING TO FIXED RATE LOANS................................. 14
Section 3.01 Additional Costs...................................... 14
Section 3.02 Limitation on Types of Loans.......................... 17
Section 3.03 Illegality............................................ 17
Section 3.04 Treatment of Affected Loans........................... 17
Section 3.05 Compensation.......................................... 18
Section 3.06 Survival.............................................. 18
IV. CONDITIONS.............................................................. 18
Section 4.01 Conditions to Effectiveness........................... 18
Section 4.02 Conditions Precedent to Loans......................... 19
V. COVENANTS............................................................... 20
Section 5.01 Financial Statements.................................. 20
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Article Page
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Section 5.02 Access to Books and Inspection........................ 21
Section 5.03 Litigation............................................ 21
Section 5.04 Maintenance of Existence.............................. 21
Section 5.05 Merger; Sale of Assets................................ 21
Section 5.06 Default; Investment Rating............................ 22
Section 5.07 ERISA................................................. 22
Section 5.08 Liens................................................. 23
Section 5.09 Total Indebtedness to Consolidated Capitalization..... 24
Section 5.10 Certain Existing Credit Lines......................... 24
Section 5.11 Insurance............................................. 24
Section 5.12 Maintenance of Properties............................. 24
Section 5.13 Public Utility Holding Company Act.................... 24
VI. REPRESENTATIONS AND WARRANTIES.......................................... 24
Section 6.01 Corporate Existence and Powers........................ 24
Section 6.02 Corporate Authority, etc.............................. 25
Section 6.03 Financial Condition................................... 25
Section 6.04 Litigation............................................ 25
Section 6.05 Taxes................................................. 26
Section 6.06 Approvals............................................. 26
Section 6.07 ERISA................................................. 26
Section 6.08 Margin Regulations.................................... 26
Section 6.09 Certain Subsidiaries.................................. 26
Section 6.10 Investment Company Act................................ 26
Section 6.11 Environmental Laws.................................... 26
VII. EVENTS OF DEFAULT....................................................... 27
VIII. MISCELLANEOUS........................................................... 29
Section 8.01 Waiver................................................ 29
Section 8.02 Notices and Delivery of Documents..................... 29
Section 8.03 Governing Law......................................... 29
Section 8.04 Offsets, etc.......................................... 29
Section 8.05 Disposition of Loans.................................. 29
Section 8.06 Expenses.............................................. 30
Section 8.07 Amendments, Waivers, etc.............................. 30
Section 8.08 Definitions........................................... 31
Section 8.09 Successors and Assigns................................ 31
Section 8.10 Counterparts.......................................... 32
IX. THE AGENTS................................................................... 32
Section 9.01 Appointment, Power and Immunities..................... 32
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Article Page
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Section 9.02 Reliance by Agents.................................... 33
Section 9.03 Default............................................... 33
Section 9.04 Rights as a Lender.................................... 33
Section 9.05 Indemnification....................................... 34
Section 9.06 Reports............................................... 34
Section 9.07 Non-Reliance on Agents and Other Banks................ 34
Section 9.08 Failure to Act........................................ 35
Section 9.09 Resignation or Removal of Agents...................... 35
Section 9.10 Documentation Agent................................... 35
SCHEDULE 1 Definitions
SCHEDULE 2 Lending Offices and/or Addresses for Notices
SCHEDULE 3 Commitments
EXHIBIT A-1 Form of Note for Syndicated Loans
EXHIBIT A-2 Form of Note for Money Market Loans
EXHIBIT A-3 Form of Note for Swingline Loans
EXHIBIT B Form of Opinion of Counsel to the Company
EXHIBIT C Form of Opinion of Special New York
Counsel to the Banks
EXHIBIT D Form of Money Market Quote Request
EXHIBIT E Form of Money Market Quote
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CREDIT AGREEMENT dated as of January 26, 1998 among SONAT
INC., a Delaware corporation (the "Company"); the undersigned banks (each herein
called a "Bank"); and THE CHASE MANHATTAN BANK, as Administrative Agent, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Syndication Agent and SUNTRUST BANK,
ATLANTA, as Documentation Agent (in such capacities, each such agent being
herein called an "Agent" and collectively the "Agents").
The Company has requested the Banks to extend credit to the
Company for the general corporate purposes of the Company. The Banks are
prepared to do so on the terms hereof.
Accordingly, the Company, each Bank and the Agents hereby
agree as follows:
I. LOANS
Section 1.01 Syndicated Loans. Each Bank severally agrees, on
the terms of this Agreement, to make loans to the Company in Dollars during the
period from and including the date hereof to but not including the Commitment
Termination Date in an aggregate principal amount at any one time outstanding up
to but not exceeding the amount of such Bank's Commitment as then in effect.
Subject to the terms of this Agreement, during such period the Company may
borrow, repay and reborrow the amount of the Commitments; provided that the sum
of (i) the aggregate principal amount of all Money Market Loans, plus (ii) the
aggregate principal amount of all Syndicated Loans plus (iii) the aggregate
principal amount of all Swingline Loans, at any one time outstanding shall not
exceed the aggregate amount of the Commitments at such time except that,
notwithstanding the foregoing, Money Market Loans outstanding at the time of any
termination or reduction of the Commitments pursuant to Section 1.04 hereof need
not be prepaid on account of this proviso.
Section 1.02 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans, the Company
may, as set forth in this Section 1.02, request the Banks to make offers to make
Money Market Loans to the Company in Dollars. The Banks may, but shall have no
obligation to, make such offers and the Company may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
1.02. Money Market Loans shall be Set Rate Loans, provided that:
(i) there may be no more than fifteen different
Interest Periods for both Syndicated Loans (other than Domestic Loans)
and Money Market Loans outstanding at the same time (for which purpose
Interest Periods described in different lettered clauses of the
definition of the term "Interest Period" in Section 2.03 hereof shall
be deemed to be different Interest Periods even if they are
coterminous); and
(ii) the sum of (x) aggregate principal amount of
all Money Market Loans, plus (y) the aggregate principal amount of all
Syndicated Loans plus (z) the aggregate principal amount of all
Swingline Loans, at any one time outstanding shall not
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exceed the aggregate amount of the Commitments at such time except
that, notwithstanding the foregoing, Money Market Loans outstanding at
the time of any termination or reduction of the Commitments pursuant to
Section 1.04 hereof need not be prepaid on account of this proviso.
(b) When the Company wishes to request offers to make Money
Market Loans, it shall give each Bank notice (a "Money Market Quote Request") so
as to be received no later than 11:00 a.m. New York time on the Business Day
next preceding the date of borrowing proposed therein or such other time and
date as the Company and the Majority Banks may agree. The Company may request
offers to make Money Market Loans for up to three different Interest Periods in
a single notice (for which purpose Interest Periods in different lettered
clauses of the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous); provided that the
request for each separate Interest Period shall be deemed to be a separate Money
Market Quote Request for a separate borrowing (a "Money Market Borrowing"). Each
such notice shall be substantially in the form of Exhibit D hereto and shall
specify as to each Money Market Borrowing:
(i) the proposed date of such borrowing, which
shall be a Business Day;
(ii) the aggregate amount of such Money Market
Borrowing, which shall be at least $25,000,000 (or in larger multiples
of $5,000,000) but shall not cause the limits specified in Section 1.02
hereof to be violated (without giving effect to any other Money Market
Borrowing subject to a simultaneous Money Market Quote Request);
(iii) the duration of the Interest Period
applicable thereto; and
(iv) the date on which the Money Market Quotes
are to be submitted if it is before the proposed date of borrowing (the
date on which such Money Market Quotes are to be submitted is called
the "Quotation Date").
Except as otherwise provided in this Section 1.02, no Money Market Quote Request
shall be given within five Business Days (or such other number of days as the
Company and the Majority Banks may agree) of any other Money Market Quote
Request.
(c) (i) Each Bank may submit one or more Money
Market Quotes, each containing an offer to make a Money Market Loan in response
to any Money Market Quote Request; provided that, if the Company's request under
Section 1.02(b) hereof specified more than one Interest Period, such Bank may
make a single submission containing one or more Money Market Quotes for each
such Interest Period. Each Money Market Quote must be submitted to the Company
not later than 10:00 a.m. New York time on the Quotation Date or such other time
and date as the Company and the Majority Banks may agree. Subject to Section
3.02(b), Section 3.03, Section 4.02 and Article VII hereof, any Money Market
Quote so made shall be irrevocable except with the written consent of the
Company.
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(ii) Each Money Market Quote shall be
substantially in the form of Exhibit E hereto and shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
shall be at least $5,000,000 or a larger multiple of
$1,000,000; provided that the aggregate principal amount of
all Money Market Loans for which a Bank submits Money Market
Quotes (x) may be greater or less than the Commitment of such
Bank but (y) may not exceed the principal amount of the Money
Market Borrowing for a particular Interest Period for which
offers were requested;
(C) the rate of interest per annum (rounded upwards,
if necessary, to the nearest 1/10,000th of 1%) offered for
each Money Market Loan (the "Money Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Company, no Money Market Quote shall contain
qualifying, conditional or similar language or propose terms other than or in
addition to those set forth in the applicable Money Market Quote Request and, in
particular, no Money Market Quote may be conditioned upon acceptance by the
Company of all (or some specified minimum) of the principal amount of the Money
Market Loan for which such Money Market Quote is being made.
(d) Not later than 11:30 a.m. New York time on the Quotation
Date or such other time and date as the Company and the Majority Banks may
agree, the Company shall notify each Bank of its acceptance or nonacceptance of
the offers so notified to it pursuant to Section 1.02(c)(i) hereof (and the
failure of the Company to give such notice by such time shall constitute
nonacceptance). In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period that are accepted.
The Company may accept any Money Market Quote in whole or in part (provided that
any Money Market Quote accepted in part shall be at least $5,000,000 or in
larger multiples of $1,000,000); provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the aggregate principal amount of each Money
Market Borrowing shall be at least $25,000,000 (or in larger multiples
of $5,000,000) but shall not cause the limits specified in Section 1.02
hereof to be violated;
(iii) acceptance of offers may be made only in ascending
order of Money Market Rates, in each case commencing with the lowest
rate so offered; and
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(iv) the Company may not accept any offer that
fails to comply with Section 1.02(c)(ii) hereof or otherwise fails to
comply with the requirements of this Agreement (including, without
limitation, Section 1.02(a) hereof).
If offers are made by two or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Company among such Banks as nearly as possible (in multiples of $1,000,000)
in proportion to the aggregate principal amount of such offers. Determinations
by the Company of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error. Promptly after the acceptance by the Company of any
Money Market Quote, the Company shall give Chase notice of the principal amount
of each Money Market Loan to be made pursuant to such Money Market Quote, the
rate of interest per annum and the duration of the Interest Period applicable
thereto and the name of the Bank making such Loan.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted shall, not later than 1:00 p.m. New York time on the date
specified for the making of such Loan, make the amount of such Loan available to
Chase at account number 323-506909 maintained by Chase with The Chase Manhattan
Bank at its Principal Office in immediately available funds, for account of the
Company. The amount so received by Chase shall, subject to the terms and
conditions of this Agreement, be made available to the Company on such date by
depositing the same, in immediately available funds, in an account of the
Company maintained with The Chase Manhattan Bank at its Principal Office
designated by the Company.
(g) The amount of any Money Market Loan made by any Bank shall
not constitute a utilization of such Bank's Commitment.
Section 1.03 Swingline Commitment. Subject to the terms and
conditions hereof, the Swingline Bank agrees to make a portion of the credit
otherwise available to the Company under the Commitments by making swingline
loans ("Swingline Loans") in Dollars to the Company during the period from and
including the date hereof to but not including the Commitment Termination Date;
provided that (a) the aggregate principal amount of Swingline Loans outstanding
at any time shall not exceed the Swingline Commitment then in effect, (b) the
aggregate principal amount of Swingline Loans plus the aggregate principal
amount of Syndicated Loans made by the Swingline Bank outstanding at any time
shall not exceed the Swingline Bank's Commitment then in effect, and (c) the
Company shall not request, and the Swingline Bank shall not make, any Swingline
Loan if, after giving effect to the making of such Swingline Loan, the sum of
(i) the aggregate principal amount of all Money Market Loans, plus (ii) the
aggregate principal amount of all Syndicated Loans plus (iii) the aggregate
principal amount of all Swingline Loans, at any one time outstanding shall
exceed the aggregate amount of the Commitments at such time except that,
notwithstanding the foregoing, Money Market Loans outstanding at the time of any
termination or reduction of the Commitments pursuant to Section 1.04 hereof need
not be prepaid on account of this proviso. During such period, the Company may
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use the Swingline Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof.
Section 1.04 Change of Commitments.
(a) The Company shall have the right at any time or from time
to time upon not less than three Business Days' prior notice to Chase
(specifying the date and the aggregate amount of each such reduction or
termination) to terminate in whole, or to reduce in part, (i) the aggregate
unused amount of the Commitments (and, in accordance with Section 1.02(g)
hereof, outstanding Money Market Loans shall not constitute a utilization of the
Commitments) and/or (ii) the aggregate unused amount of the Swingline
Commitment. Each such reduction of the Commitments shall be in an aggregate
amount of at least $25,000,000 and a multiple of $1,000,000 and each such
reduction of the Swingline Commitment shall be in an aggregate amount of at
least $5,000,000 and a multiple of $1,000,000. Chase shall promptly notify each
Bank of its proportionate share and the date of each such reduction.
(b) If either (i) during any period of 12 consecutive months,
individuals who were directors of the Company at the beginning of such period
cease to constitute a majority of the board of directors of the Company (except
for changes due to the retirement or death of any such individuals) or (ii) any
Person (or group of Persons which has an agreement, arrangement or understanding
for the purpose of acquiring the shares of the Company) shall acquire, directly
or indirectly, beneficial ownership or control of more than 50% of the then
outstanding voting shares of the Company (either such event being hereinafter
referred to as a "Change in Control"), then each Bank (through Chase) may, by
notice to the Company not later than the date 20 Business Days after the Company
shall have notified the Agents of any such Change in Control, reduce the
Commitment of such Bank in an amount equal to the unused amount of such Bank's
Commitment (and, in accordance with Section 1.02(g) hereof, outstanding Money
Market Loans shall not constitute a utilization of such Bank's Commitment) and
the Swingline Bank, by such notice, may reduce the Swingline Commitment in an
amount equal to the unused amount thereof. The Company agrees, as soon as it
shall become known to one of its senior officers, to notify the Agents of any
such Change in Control (and Chase shall promptly notify the Banks thereof), but
the failure to so notify shall not preclude any Bank from reducing the unused
amount of such Bank's Commitment as aforesaid.
(c) Provided that no Default shall have occurred and be
continuing, the Company may at any time terminate the Commitment of any Bank
(and, in the case of the Swingline Bank, the Swingline Commitment) that has
claimed any compensation under Section 3.01(a) or Section 3.01(c) hereof at any
time during the preceding one-month period, in whole but not in part, by (i)
giving Chase (which shall promptly notify such Bank) not less than five Business
Days' prior notice thereof, which notice shall be irrevocable and effective only
upon receipt by Chase and shall specify the identity of such Bank and the
effective date of such termination, and (ii) paying to such Bank (and there
shall become due and payable) on such date the outstanding principal amount of
all Loans made by such Bank, interest on such principal amount accrued to such
date, any amounts payable to such Bank pursuant to Article III hereof in
connection therewith and all other amounts owing to such Bank by the Company
hereunder (provided that
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the obligations of the Company under Article III and Section 8.06 hereof to such
Bank shall survive such termination).
(d) Provided that no Default shall have occurred and be
continuing, the Company may at any time replace any Bank that has claimed any
compensation under Section 3.01(a) or Section 3.01(c) hereof at any time during
the preceding one-month period, in whole but not in part, by giving Chase not
less than five Business Days' prior notice (and Chase shall promptly notify such
Bank), that it intends to replace such Bank with one or more banks (which may
include any other Bank under this Agreement) selected by the Company and
acceptable to Chase (which shall not unreasonably withhold its consent). Any
such replacement shall be accomplished pursuant to documentation in form and
substance satisfactory to Chase. Upon the effective date of any replacement
under this Section 1.04(d) (and as a condition thereto), the Company shall repay
to the Bank being replaced the principal of and interest on each Loan then
outstanding from such Bank together with all other amounts owing to such Bank
hereunder and such replacement bank (or banks, as the case may be) shall make a
loan (or loans) to the Company in the (aggregate) principal amount of each such
Loan so repaid which loan (or loans) shall be of the same type and have the same
maturity and interest rate as the respective Loan so repaid), whereupon such
replacement bank (or banks) shall become a "Bank" (or "Banks") for all purposes
of this Agreement having a Commitment (or Commitments in the aggregate) (and, in
the case of the Swingline Bank, the Swingline Commitment) in the amount of such
Bank being replaced and such loan (or loans) shall be deemed a Loan (or Loans)
hereunder.
(e) The Swingline Bank may terminate in its sole discretion
the Swingline Commitment by giving the Company written notice thereof at least
30 days in advance of the date of such termination.
(f) The Commitments (and, in the case of the Swingline Bank,
the Swingline Commitment) once terminated or reduced may not be reinstated,
except that the Swingline Commitment may be reinstated by agreement of the
Swingline Bank and the Company.
Section 1.05 Borrowings of Syndicated Loans.
(a) Each Syndicated Loan shall be either a Domestic Loan or
Eurodollar Loan. Syndicated Loans on the occasion of any borrowing thereof
hereunder may be Domestic Loans or Eurodollar Loans (each a "type" of Loan) or
any combination thereof; provided that there may be no more than ten Interest
Periods for Eurodollar Loans outstanding at the same time; and provided,
further, that there may be no more than fifteen different Interest Periods for
both Eurodollar Loans and Money Market Loans outstanding at the same time (for
which purpose Interest Periods described in different lettered clauses of the
definition of the term "Interest Period" in Section 2.03 hereof shall be deemed
to be different Interest Periods even if they are coterminous).
(b) The Company shall give Chase (which shall promptly notify
the Banks) notice of each borrowing hereunder of Syndicated Loans, which notice
shall be irrevocable and effective only upon receipt by Chase, shall specify
with respect to the Syndicated Loans to be borrowed (i) the aggregate amount
(which shall be at least $10,000,000 or a multiple of
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$1,000,000 in excess thereof), (ii) the type or types of Loans to be borrowed
and the aggregate amount of each type, (iii) the date of such borrowing (which
shall be a Business Day), and (iv) (in the case of Eurodollar Loans) the
duration of the Interest Period therefor and shall be given not later than 11:00
a.m. New York time, in the case of Domestic Loans, on the same day as the date
of such borrowing and, in the case of Eurodollar Loans, on the day which is not
less than three Business Days prior to the date of such borrowing.
(c) If at any time during which Syndicated Loans are
outstanding under this Agreement the Company shall fail to give a notice of the
type referred to in Section 1.05(b) or otherwise to advise Chase in writing by
11:00 a.m. New York time on the day which is not less than one Business Day
prior to the maturity date of any such Syndicated Loans that it does not intend
to reborrow an amount at least equal to the aggregate amount of such Syndicated
Loans (or, if less, the aggregate amount of the Commitments) on such maturity
date, the Company shall be deemed to have given on such first Business Day
preceding such maturity date a notice of borrowing hereunder for Domestic Loans
to be made on such date in an amount equal to the lesser of (i) the aggregate
principal amount of the Syndicated Loans which are maturing on such date or (ii)
the aggregate amount of the Commitments to be outstanding on such date (after
giving effect to any reductions of the Commitments to be effected on such date),
and Chase shall notify the Banks of such borrowing.
(d) Subject to Chase's receipt or deemed receipt of a notice
of borrowing as provided in Section 1.05(b) or Section 1.05(c) hereof and to
Chase's receipt of notice from the Swingline Bank of the outstanding principal
amount of the Swingline Loans as of the Swingline Business Day next preceding
the date of such notice of borrowing, Chase shall give each Bank not less than
three Business Days' prior notice (with respect to each borrowing of Eurodollar
Loans) or same-day notice by noon (with respect to each borrowing of Domestic
Loans), as the case may be, of each such borrowing specifying (i) the aggregate
amount to be borrowed, (ii) the date of borrowing, (iii) the type or types of
Loans to be borrowed, (iv) in the case of any Fixed Rate Loans to be borrowed,
the duration of the Interest Period therefor and (v) such Bank's pro rata
portion thereof. Each Bank's (other than the Swingline Bank's) pro rata portion
of each Syndicated Loan shall equal a fraction, the numerator of which shall be
the amount of such Bank's Commitment as of the date the notice of borrowing is
given for such Syndicated Loan and the denominator of which shall be (i) the
aggregate Commitments of all Banks as of the date such notice of borrowing is
given minus (ii) the outstanding principal amount of the Swingline Loans as of
the next preceding Swingline Business Day. The Swingline Bank's pro rata portion
of each Syndicated Loan shall equal a fraction, the numerator of which shall be
(i) the amount of the Swingline Bank's Commitment as of the date the notice of
borrowing is given with respect to such Syndicated Loan minus (ii) the
outstanding principal amount of the Swingline Loans as of the next preceding
Swingline Business Day and the denominator of which shall be (i) the aggregate
Commitment of all Banks as of the date such notice of borrowing is given minus
(ii) the outstanding principal amount of the Swingline Loans as of the next
preceding Swingline Business Day. From and including the date that notice of a
borrowing of a Syndicated Loan is given to but excluding the date that such
Syndicated Loan is made, the principal amount of such Syndicated Loan required
to be made by the Swingline Bank shall be deemed to be outstanding for purposes
of clause (b) of Section 1.03.
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(e) Not later than 1:00 p.m. New York time on the date
specified for each borrowing of Syndicated Loans, each Bank shall make available
to Chase, at account number 323-506909 maintained by The Chase Manhattan Bank at
its Principal Office in immediately available funds the amount of the Syndicated
Loan or Syndicated Loans to be made by it on such date, for account of the
Company. The amount so received by Chase shall, subject to the terms and
conditions of this Agreement, be made available to the Company on such date by
depositing the same, in immediately available funds, in an account of the
Company maintained with The Chase Manhattan Bank at its Principal Office
designated by the Company. If any Bank shall (i) be obligated but fail to make
available the amount of the Syndicated Loan to be made by it on the date
specified for a borrowing hereunder and (ii) have any Syndicated Loans which are
maturing on such date, such maturing Syndicated Loans shall automatically be
extended in an amount equal to (but not in excess of) the amount of the
Syndicated Loan to be made and in the type and for the Interest Period of such
Loan to be made (and such Loan which would otherwise mature on such date shall
not be considered to be past due hereunder).
Section 1.06 Several Commitments; Remedies Independent. The
failure of any Bank to make any Loan to be made by it shall not relieve any
other Bank of its obligation to make its Loan on such date, but neither any
other Bank nor any Agent shall be responsible for such failure. The amounts
payable at any time by the Company hereunder and under the Notes to each Bank
shall be a separate and independent debt and each Bank shall be entitled to
protect and enforce its rights arising out of this Agreement and the Notes, and
it shall not be necessary for any other Bank or any Agent to consent to, or to
be joined as an additional party in, any proceedings for such purposes.
Section 1.07 Availability of Funds. Unless Chase shall have
been notified by a Bank prior to the date of any borrowing hereunder that such
Bank does not intend to make available to Chase such Bank's Loans to be made on
such day, Chase may assume that such Bank has made the amount of such Loans to
be made available to Chase on such date and Chase may in reliance upon such
assumption (but shall not be required to) make available to the Company a
corresponding amount. If such proceeds are not in fact made available to Chase
by such Bank, Chase shall be entitled to recover such corresponding amount on
demand from such Bank (or, if such Bank fails to pay such corresponding amount
forthwith upon such demand, from the Company) together with interest thereon in
respect of each day during the period commencing on the date such corresponding
amount was made available to the Company and ending on (but excluding) the date
Chase recovers such corresponding amount at a rate per annum equal to the
Federal Funds Rate for such day (or if such day is not a Business Day, the next
preceding Business Day).
Section 1.08 Borrowings of Swingline Loans. (a) If on any
Swingline Business Day prior to the Commitment Termination Date the aggregate
disbursements authorized by the Company and made from the Swingline Account
exceed the aggregate cash on hand and deposits received in the Swingline Account
on such Swingline Business Day, the Swingline Bank shall make a Swingline Loan
to the Company in an amount equal to such excess (subject to the provisions of
Section 1.03 hereof), unless otherwise instructed by the Company. Each Swingline
Loan shall be credited to the Swingline Account as of the date made. The
outstanding Swingline
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Loans shall bear interest at such rate per annum as the Company and the
Swingline Bank shall agree. Accrued interest on the outstanding Swingline Loans
shall be paid on each date on which the outstanding Swingline Loans are paid in
full and on the first Swingline Business Day of each month if there are any
outstanding Swingline Loans on the Swingline Business Day next preceding such
day. The Company shall have the right to prepay the outstanding Swingline Loans,
in whole or in part, at any time. All payments with respect to Swingline Loans
shall be made at the Lending Office of the Swingline Bank. Upon request of the
Company made on any Swingline Business Day, the Swingline Bank shall give Chase
notice as promptly as practicable but in any event by no later than 11:00 a.m.
New York time on the next Swingline Business Day of the outstanding principal
amount of the Swingline Loans as of the close of business on the Swingline
Business Day next preceding the date that such notice is given to Chase.
(b) In the case of any of the Events of Default specified in
paragraphs A through I of Article VII hereof, (i) the Swingline Bank may, by
notice to the Company, terminate the Swingline Commitment hereunder and it shall
thereupon terminate, and (ii) the Swingline Bank may, by notice to the Company,
declare the outstanding Swingline Loans and Swingline Note and all other
obligations of the Company thereunder to be due and payable, whereupon the same
shall become forthwith due and payable, without further protest, presentment,
notice or demand, all of which are expressly waived by the Company. In case of
any of the Events of Default specified in paragraph J or K of Article VII
hereof, without any notice to the Company or any act by the Swingline Bank, the
Swingline Commitment hereunder shall terminate forthwith and the principal of
and interest accrued on the outstanding Swingline Loans and the Swingline Note
and all other obligations of the Company thereunder shall become and be due and
payable.
Section 1.09 Lending Offices. The Loans of each type made by
each Bank shall be made and maintained at such Bank's Applicable Lending Office
for Loans of such type.
Section 1.10 Notes.
(a) The Syndicated Loans made by each Bank shall be evidenced
by a single promissory note (a "Syndicated Note") of the Company substantially
in the form of Exhibit A-1 hereto, dated the Effective Date, payable to such
Bank in a principal amount equal to the amount of its Commitment as originally
in effect and otherwise duly completed. The date, amount, type, interest rate
and maturity date of each Syndicated Loan made by each Bank to the Company, and
each payment made on account of the principal thereof, shall be recorded by such
Bank on its books and, prior to any transfer of such Note held by it, endorsed
by such Bank on the schedule attached to such Note or any continuation thereof.
The failure of any Bank to make any notation or entry or any error in such a
notation or entry shall not, however, limit or otherwise affect any obligation
of the Company under this Agreement or the Notes.
(b) The Money Market Loans made by any Bank shall be evidenced
by a single promissory note (a "Money Market Note") of the Company substantially
in the form of Exhibit A-2 hereto, dated the date of the delivery of such Note
to Chase under this Agreement, payable to such Bank and otherwise duly
completed. The date, amount, interest rate and
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maturity date of each Money Market Loan made by each Bank to the Company, and
each payment made on account of the principal thereof, shall be recorded by such
Bank on its books and, prior to any transfer of such Note held by it, endorsed
by such Bank on the schedule attached to such Note or any continuation thereof.
The failure of any Bank to make any notation or entry or any error in such a
notation or entry shall not, however, limit or otherwise affect any obligation
of the Company under this Agreement or the Notes.
(c) The Loans made by the Swingline Bank shall be evidenced by
a single promissory note (a "Swingline Note") of the Company substantially in
the form of Exhibit A-3 hereto, dated the Effective Date, payable to the
Swingline Bank in a principal amount equal to the amount of the Swingline
Commitment as originally in effect and otherwise duly completed. The date,
amount, type, interest rate and maturity date of each Swingline Loan made by the
Swingline Bank to the Company, and each payment made on account of the principal
thereof, shall be recorded by the Swingline Bank on its books and, prior to any
transfer of such Note held by it, endorsed by the Swingline Bank on the schedule
attached to such Note or any continuation thereof. The failure of the Swingline
Bank to make any notation or entry or any error in such a notation or entry
shall not, however, limit or otherwise affect any obligation of the Company
under this Agreement or the Notes.
II. PAYMENTS, INTEREST AND CERTAIN FEES
Section 2.01 Repayment of Loans. The Company hereby promises
to pay to Chase for account of each Bank, the principal amount of each Loan made
by such Bank (except for the Swingline Loan, as to which payments shall be made
to the Swingline Bank pursuant to Section 1.08), and such Loan shall mature, on
the last day of the Interest Period therefor.
Section 2.02 Interest. The Company hereby promises to pay to
Chase for account of each Bank, interest on the unpaid principal amount of each
Loan made by such Bank (except for the Swingline Loans, as to which payments
shall be made to the Swingline Bank pursuant to Section 1.08) for the period
from and including the date of such Loan to but excluding the date such Loan
shall be paid in full, at the following rates per annum:
(a) if such Loan is a Domestic Loan, the Base Rate (as in
effect from time to time) plus the Applicable Margin (if any);
(b) if such Loan is a Eurodollar Loan, the Fixed Rate for such
Loan for the Interest Period for such Loan plus the Applicable Margin
(as in effect from time to time during the Interest Period for such
Loan); and
(c) if such Loan is a Set Rate Loan, the Money Market Rate for
such Loan for the Interest Period therefor quoted by the Bank making
such Loan and accepted by the Company in accordance with Section 1.02
hereof.
Notwithstanding the foregoing, the Company hereby promises to pay to Chase for
account of each Bank, interest at the applicable Post-Default Rate on any
principal of any Loan made by such Bank, and on any other amount payable by the
Company hereunder or under the Notes held
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by such Bank to or for account of such Bank, which shall not be paid in full
when due (whether at stated maturity, by acceleration or otherwise), for the
period from and including the due date thereof to but excluding the date the
same is paid in full. Accrued interest on each Loan shall be payable on each
Interest Payment Date for such Loan, except that interest payable at the
Post-Default Rate shall be payable from time to time on demand and interest on
any Eurodollar Loan that is converted into a Domestic Loan (pursuant to Section
3.04 hereof) shall be payable on the date of conversion (but only to the extent
so converted). Promptly after the determination of any interest rate provided
for herein or any change therein, Chase shall give notice thereof to the Banks,
to which such interest is payable and to the Company.
Section 2.03 Interest Periods. As used in this Agreement,
"Interest Period" shall mean:
(a) With respect to any Eurodollar Loan, the period commencing
on the date such Eurodollar Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Company may select as provided in Section 1.05(b)
hereof, except that each Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent
calendar month;
(b) With respect to any Domestic Loan, the period commencing
on the date such Domestic Loan is made and ending on the date such Loan
is repaid;
(c) With respect to any Set Rate Loan, the period commencing
on the date such Set Rate Loan is made and ending on any Business Day
up to 180 days thereafter, as the Company may select as provided in
Section 1.02(b) hereof; and
(d) With respect to a Swingline Loan, the period commencing on
the Swingline Business Day on which such Swingline Loan is made and
ending on the date such Swingline Loan is repaid.
Notwithstanding the foregoing: (i) no Interest Period may commence before and
end after the Commitment Termination Date; (ii) each Interest Period which would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, in the case of an Interest Period for Eurodollar
Loans, if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); and (iii) notwithstanding
clause (i) above, no Interest Period for any Eurodollar Loans shall have a
duration of less than one month and, if the Interest Period for any Eurodollar
Loans would otherwise be a shorter period, such Loans shall not be available
hereunder.
Section 2.04 Prepayments. (a) The Company shall have the
right, at any time or from time to time, to prepay Syndicated Loans in whole or
in part, provided that (i) the Company shall give Chase notice of each such
prepayment not less than three Business Days' prior to the date of such
prepayment (which notice shall be effective upon receipt), (ii) each partial
prepayment shall be in an aggregate principal amount which is at least
$1,000,000 or a multiple thereof, (iii) interest on the principal prepaid,
accrued to the prepayment date, shall be paid on the prepayment
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date and (iv) in the case of prepayment of a Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, the Company shall pay
compensation, if any, due in accordance with Section 3.05(a) with respect
thereto. The Company may not prepay any Money Market Loans. Notwithstanding the
foregoing, upon not less than four Business Days' prior notice (which shall be
effective upon receipt) the Company may simultaneously prepay all Loans then
outstanding hereunder and terminate in whole the Commitments (in which case
interest on the principal prepaid, accrued to the prepayment date, together with
all other amounts owing hereunder, including without limitation under Section
3.05, shall be paid on such prepayment date).
(b) If, after giving effect to any termination or reduction of
the Commitment of any Bank pursuant to Section 1.04(a) or (b) hereof, the
outstanding aggregate principal amount of the Syndicated Loans held by such Bank
exceeds the amount of such Bank's Commitment, the Company shall prepay or pay
such Syndicated Loans (of a type to be designated by the Company by notice to
Chase not less than four Business Days prior to the date of such termination or
reduction and, failing such notice, such prepayment or repayment shall be
applied, first, to the outstanding Domestic Loans and, next, to the extent
necessary, to the outstanding Fixed Rate Loans with the fewest number of days
remaining in the Interest Periods therefor on such termination or reduction
date) in an aggregate principal amount equal to such excess, together with
interest thereon accrued to the date of such prepayment or payment and any other
amounts payable pursuant to Section 3.05 hereof in connection therewith.
Section 2.05 Payments, etc.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by the Company
under this Agreement and the Notes shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to Chase at its
Principal Office, not later than 11:00 a.m. New York time on the date on which
such payment shall become due; provided that, if a new Loan is to be made by any
Bank on a date the Company is to repay any principal of an outstanding Loan of
such Bank, such Bank shall apply the proceeds of such new Loan to the payment of
the principal to be repaid and only an amount equal to the difference (if any)
between the principal to be borrowed and the principal to be repaid shall be
made available by such Bank to Chase as provided in Section 1.02 or Section 1.05
hereof (if such principal to be borrowed exceeds such principal to be repaid) or
paid by the Company to Chase pursuant to this Section 2.05 (if such principal to
be repaid exceeds such principal to be borrowed).
(b) Each payment received by Chase under this Agreement or any
Note for account of a Bank shall be paid promptly to such Bank, in immediately
available funds, for account of such Bank's Applicable Lending Office for the
Loan in respect of which such payment is made.
(c) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day which is not a Business Day (or, in the case
of any Swingline Loan or Swingline Note, a Swingline Business Day) such date
shall be extended to the next succeeding
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Business Day (or, in the case of any Swingline Loan or Swingline Note, the next
succeeding Swingline Business Day) and interest shall be payable for any
principal so extended for the period of such extension.
Section 2.06 Pro Rata Treatment; Sharing.
(a) Except to the extent otherwise provided herein: (i) each
borrowing from the Banks under Section 1.01 hereof shall be made from the Banks
and each termination or reduction of the amount of the Commitments under Section
1.04 hereof shall be applied to the Commitments of the Banks, pro rata according
to the amounts of their respective Commitments; (ii) each payment of principal
of Syndicated Loans by the Company shall be made for account of the Banks pro
rata in accordance with the respective unpaid principal amounts of the
Syndicated Loans held by the Banks; and (iii) each payment of interest on
Syndicated Loans by the Company shall be made for account of the Banks pro rata
in accordance with the amounts of interest on Syndicated Loans due and payable
to the respective Banks.
(b) If any Bank shall obtain payment of any principal of or
interest on any Loan made by it to the Company under this Agreement through the
exercise of any right of set-off, banker's lien or counterclaim or similar right
or otherwise, and, as a result of such payment, such Bank shall have received a
greater percentage of the principal or interest then due to such Bank hereunder
than the percentage received by any other Banks, it shall promptly purchase from
such other Banks participations in (or, if and to the extent specified by such
Bank, direct interests in) the Loans made by such other Banks (or in interest
due thereon, as the case may be) in such amounts, and make such other
adjustments from time to time as shall be equitable, to the end that all the
Banks shall share the benefit of such excess payment (net of any expenses which
may be incurred by such Bank in obtaining or preserving such excess payment) pro
rata in accordance with the unpaid principal of and/or interest on the Loans
held by each of the Banks before giving effect to such payment. To such end all
the Banks shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
(c) The Company agrees that any Bank so purchasing a
participation (or direct interest) in the Loans made by other Banks (or in
interest due thereon, as the case may be) may exercise all rights of set-off,
bankers' lien, counterclaim or similar rights with respect to such participation
as fully as if such Bank were a direct holder of Loans in the amount of such
participation.
(d) Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Company.
(e) If, under any applicable bankruptcy, insolvency or other
similar law, any Bank receives a secured claim in lieu of a set-off to which
this Section 2.06 applies, such Bank shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Banks entitled under this Section 2.06 to share in the benefits of
any recovery on such secured claim.
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(f) Notwithstanding the foregoing, this Section 2.06 shall not
be applicable to the Swingline Bank with respect to Swingline Loans.
Section 2.07 Computations. Interest on Money Market Loans and
Eurodollar Loans shall be computed on the basis of a year of 360 days and actual
days elapsed (including the first day but excluding the last day) occurring in
the period for which payable, and interest on Domestic Loans, Swingline Loans
and facility fees shall be computed on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
Section 2.08 Facility Fee. The Company shall pay to Chase for
account of each Bank a facility fee on such Bank's Commitment (whether used or
not) for the period commencing on the Effective Date and ending on the
Commitment Termination Date (or such earlier date on which such Bank's
Commitment shall have terminated in full pursuant to Section 1.04 hereof) at a
rate per annum for each day during such period equal to the Applicable Facility
Fee Rate in effect on such day. Accrued facility fees shall be payable quarterly
on the last Business Day in March, June, September and December in each year,
commencing the first such date after the Effective Date and on the date the
Commitments are terminated in full.
Section 2.09 Administration Fee. The Company agrees to pay to
Chase for its own account a non-refundable fee in the amount of $5,000 for each
Quarterly Period commencing on or prior to the date on which the Commitments are
terminated in full. Such fee shall not be pro-rated and shall be paid in arrears
on the last Business Day of each Quarterly Period in each year, commencing with
the first such Business Day after the Effective Date, and on the date the
Commitments are terminated in full.
III. PROVISIONS RELATING TO FIXED RATE LOANS. The following
provisions shall apply to all Fixed Rate Loans:
Section 3.01 Additional Costs.
(a) The Company shall pay directly to each Bank from time to
time on request pursuant to paragraph (d) of this Section 3.01 such amounts as
such Bank may determine to be necessary to compensate it for any costs which
such Bank determines are attributable to its making or maintaining of any Fixed
Rate Loans or its obligation to make any Fixed Rate Loans hereunder, or any
reduction in any amount receivable by such Bank hereunder in respect of any of
such Loans or such obligation (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change which:
(i) changes the basis of taxation of any amounts
payable to such Bank under this Agreement or its Notes in respect of
any of such Loans (other than taxes imposed on or measured by the
overall net income of such Bank or of its Applicable Lending Office for
any of such Loans by the jurisdiction in which such Bank has its
principal office or such Applicable Lending Office); or
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(ii) imposes or modifies any reserve, special
deposit or similar requirements (other than in the case of any Bank for
any period as to which the Company is required to pay any amount under
paragraph (e) below, the reserves against "Eurocurrency liabilities"
under Regulation D therein referred to) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities
of, such Bank (including any of such Loans or any deposits referred to
in the definition of "Fixed Base Rate" in Schedule 1 hereof), or any
commitment of such Bank (including the Commitment of such Bank
hereunder); or
(iii) imposes any other condition affecting this
Agreement or its Notes (or any of such extensions of credit or
liabilities) or its Commitment.
If any Bank requests compensation from the Company under this Section 3.01(a),
the Company may, by notice to such Bank (with a copy to Chase), suspend the
obligation of such Bank to make additional Loans of the type with respect to
which such compensation is requested (in which case the provisions of Section
3.04 hereof shall be applicable) until either (A) the Regulatory Change giving
rise to such request ceases to be in effect or (B) such Bank gives notice to the
Company that it will no longer require the Company to pay Additional Costs
arising from such Regulatory Change.
(b) Without limiting the effect of the provisions of paragraph
(a) of this Section 3.01, in the event that, by reason of any Regulatory Change,
any Bank either (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of such Bank which includes deposits by reference to which the
interest rate on Eurodollar Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Bank which includes
Eurodollar Loans or (ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then, if such Bank so
elects by notice to the Company (with a copy to Chase), the obligation of such
Bank to make additional Loans of such type hereunder shall be suspended until
such Regulatory Change ceases to be in effect (in which case the provisions of
Section 3.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of
this Section 3.01 (but without duplication), the Company shall pay directly to
each Bank from time to time on request pursuant to paragraph (d) of this Section
3.01 such amounts as such Bank may determine to be necessary to compensate such
Bank for any costs which it determines are attributable to the maintenance by
such Bank (or any Applicable Lending Office), pursuant to any law or regulation
or any interpretation, directive or request (whether or not having the force of
law) of any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any risk-based capital guideline or
requirement (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful) heretofore or hereafter issued by
any government or governmental or supervisory authority implementing at the
national level the Basle Accord (including, without limitation, the Final Risk
Based Capital Guidelines of the Board of Governors of the Federal Reserve System
(12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) and the Final
Risk-Based Capital Guidelines of the Office of the Comptroller
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of the Currency (12 CFR Part 3, Appendix A)), of capital in respect of its
Commitment or Loans (such compensation to include, without limitation, an amount
equal to any reduction of the rate of return on assets or equity of such Bank
(or any Applicable Lending Office) to a level below that which such Bank (or any
Applicable Lending Office) could have achieved but for such law, regulation,
interpretation, directive or request). For purposes of this Section 3.01(c),
"Basle Accord" shall mean the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement thereof.
(d) Each Bank will notify the Company of any event occurring
after the date of this Agreement that will entitle such Bank to compensation
under paragraph (a) or (c) of this Section 3.01 as promptly as practicable, but
in any event within 90 days, after such Bank obtains actual knowledge thereof;
provided, however, that if any Bank fails to give such notice within 90 days
after it obtains actual knowledge of such an event, such Bank shall, with
respect to compensation payable pursuant to this Section 3.01 in respect of any
costs resulting from such event, only be entitled to payment under this Section
3.01 for costs incurred from and after the date 90 days prior to the date that
such Bank does give such notice; and provided, further, that each Bank will
designate a different Applicable Lending Office for the Loans of such Bank
affected by such event or by the matters requiring compensation pursuant to
paragraph (e) of this Section 3.01, and take other measures in its sole
discretion, if such designation or other measures will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole opinion of
such Bank, result in a material cost to, or be otherwise disadvantageous to,
such Bank, except that such Bank shall have no obligation to designate an
Applicable Lending Office located in the United States of America. Each Bank
will furnish to the Company a certificate setting forth the basis and amount of
each request by such Bank for compensation under paragraph (a) or (c) of this
Section 3.01. Determinations and allocations by any Bank for purposes of this
Section 3.01 of the effect of any Regulatory Change pursuant to paragraph (a) or
(b) of this Section 3.01, or of the effect of capital maintained pursuant to
paragraph (c) of this Section 3.01, on its costs or rate of return of
maintaining Loans or its obligation to make Loans, or on amounts receivable by
it in respect of Loans, and of the amounts required to compensate such Bank
under this Section 3.01, shall be conclusive, provided that such determinations
and allocations are made on a reasonable basis.
(e) Without limiting the effect of the foregoing (but without
duplication), the Company shall pay to each Bank on the last day of each
Interest Period so long as such Bank is maintaining reserves against
"Eurocurrency liabilities" under Regulation D (or, unless the provisions of
paragraph (b) above are applicable, so long as such Bank is, by reason of any
Regulatory Change, maintaining reserves against any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or against any
category of extensions of credit or other assets of such Bank which includes any
Eurodollar Loans) an additional amount (determined by such Bank and notified,
not less than five Business Days prior to the end of the applicable Interest
Period, to the Company through Chase) equal to the product of the following for
each Eurodollar Loan made by such Bank for each day during such Interest Period:
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(i) the principal amount of such Eurodollar Loan
outstanding on such day; and
(ii) the remainder of (x) a fraction the
numerator of which is the annual rate (expressed as a decimal) at which
interest accrues on such Eurodollar Loan for such Interest Period as
provided in this Agreement (less the Applicable Margin) and the
denominator of which is one minus the effective annual rate (expressed
as a decimal) at which such reserve requirements are imposed on such
Bank on such day minus (y) such numerator; and
(iii) 1/360.
Section 3.02 Limitation on Types of Loans. Anything herein to
the contrary notwithstanding, if, on or prior to the determination of any Fixed
Base Rate for any Interest Period in accordance with the terms hereof:
(a) Chase determines, which determination shall be conclusive,
that quotations of interest rates for the relevant deposits referred to
in the definition of "Fixed Base Rate" in Schedule 1 hereof are not
being provided in the relevant amounts or for the relevant maturities
for purposes of determining rates of interest for any type of Fixed
Rate Loans as provided herein; or
(b) the Majority Banks determine, which determination shall be
conclusive, and notify (or notifies, as the case may be) Chase that the
relevant rates of interest referred to in the definition of "Fixed Base
Rate" in Schedule 1 hereof upon the basis of which the rate of interest
for Eurodollar Loans for such Interest Period is to be determined are
not likely adequately to cover the cost to such Banks (or to such
quoting Bank) of making or maintaining such type of Loans;
then Chase shall give the Company and each Bank prompt notice thereof, and so
long as such condition remains in effect, the Banks (or such quoting Bank) shall
be under no obligation to make additional Loans of such type.
Section 3.03 Illegality. Notwithstanding any other provision
of this Agreement, in the event that it becomes unlawful for any Bank or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder, then such Bank shall promptly notify the Company thereof (with
a copy to Chase) and such Bank's obligation to make Eurodollar Loans shall be
suspended until such time as such Bank may again make and maintain Eurodollar
Loans (in which case the provisions of Section 3.04 hereof shall be applicable).
Section 3.04 Treatment of Affected Loans. If the obligation of
any Bank to make a particular type of Fixed Rate Loans shall be suspended
pursuant to Section 3.01 or Section 3.03 hereof (Loans of such type being herein
called "Affected Loans" and such type being herein called the "Affected Type"),
all Loans (other than Money Market Loans) which would otherwise be made by such
Bank as Loans of the Affected Type shall be made instead as Domestic Loans and,
if an event referred to in Section 3.01(b) or Section 3.03 hereof has occurred
and such Bank so requests by notice to
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the Company with a copy to Chase, all Affected Loans of such Bank then
outstanding shall be automatically converted into Domestic Loans on the date
specified by such Bank in such notice and, to the extent that Affected Loans are
so made (or converted), all payments of principal which would otherwise be
applied to such Bank's Affected Loans shall be applied instead to such Loans.
Section 3.05 Compensation. The Company shall pay to Chase for
account of each Bank, upon the request of such Bank through Chase, such amount
or amounts (the basis for which shall be set forth in reasonable detail in such
request) as shall be sufficient (in the reasonable opinion of such Bank) to
compensate it for any loss, cost or expense which such Bank determines is
attributable to:
(a) any payment or conversion of a Fixed Rate Loan or a Set
Rate Loan made by such Bank for any reason (including, without
limitation, the acceleration of the Loans pursuant to Article VII
hereof) on a date other than the last day of the Interest Period for
such Loan; or
(b) any failure by the Company for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Article IV hereof to be satisfied, but excluding the
failure of such Bank to make a Loan when so obligated hereunder) to
borrow a Fixed Rate Loan or a Set Rate Loan (with respect to which, in
the case of a Money Market Loan, the Company has accepted a Money
Market Quote) from such Bank on the date for such borrowing specified
in the relevant notice of borrowing given pursuant to Section 1.05 or
Section 1.02 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid or converted
or not borrowed for the period from the date of such payment, conversion or
failure to borrow to the last day of the Interest Period for such Loan (or, in
the case of a failure to borrow, the Interest Period for such Loan which would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein minus the Applicable Margin for
such Loan over (ii) the interest component of the amount such Bank would have
bid in the London interbank market (if such Loan is a Eurodollar Loan) or the
United States secondary certificate of deposit market (if such Loan is a Set
Rate Loan) for Dollar deposits of leading banks in amounts comparable to such
principal amount and with maturities comparable to such period (as reasonably
determined by such Bank).
Section 3.06 Survival. The obligations of the Company under
this Article III shall survive the repayment of the Loans and the cancellation
of the Notes.
IV. CONDITIONS
Section 4.01 Conditions to Effectiveness. The Agreement herein
contemplated shall become effective on the date (the "Effective Date") on which
Chase has received each of the
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following documents (with a copy for each Bank delivered to Chase), in form and
substance satisfactory to Chase:
(i) one or more counterparts of this Agreement
executed by each of the parties hereto;
(ii) certified copies of all corporate action
taken by the Company to authorize the execution and delivery of this
Agreement and the Notes and the borrowings hereunder;
(iii) a certificate of a duly authorized officer
of the Company as to the incumbency, and setting forth a specimen
signature, of each of the persons (a) who has signed this Agreement on
behalf of the Company, (b) who will sign the Notes on behalf of the
Company, and (c) who will, until replaced by other persons duly
authorized for that purpose, act as the representatives of the Company
for the purpose of signing documents in connection with this Agreement
and the transactions contemplated hereby;
(iv) the Syndicated Note and the Money Market
Note for each Bank and the Swingline Note for the Swingline Bank, all
as provided in Section 1.10 hereof, in each case duly completed and
executed by the Company;
(v) an opinion of Xxxxxx Xxxxxxx & Xxxx LLP,
counsel for the Company, substantially in the form of Exhibit B hereto,
which (except as to matters of New York or Federal law) may rely as to
certain matters upon an opinion of the Executive Vice President and
General Counsel of the Company substantially in the form attached to
said Exhibit B;
(vi) an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx,
special counsel to the Banks and the Agents, substantially in the form
of Exhibit C hereto; and
(vii) such other statements, documents, reports or
certificates as any Bank or Agent may reasonably request.
Section 4.02 Conditions Precedent to Loans. The obligation of
any Bank to make any Loan hereunder (including any Money Market Loan and such
Bank's initial Syndicated Loan on or after the Effective Date) is subject to the
further conditions precedent that, both immediately prior to such Loan and also
after giving effect thereto: (a) either (i) if such borrowing is a Money Market
Loan or will increase the outstanding aggregate principal amount of the
Syndicated Loans, no Default shall have occurred and be continuing or (ii) in
the case of any other borrowing, no Event of Default shall have occurred and be
continuing; and (b) the representations and warranties made by the Company in
Article VI (other than, if such borrowing is not a Money Market Loan and will
not increase the outstanding aggregate principal amount of the Syndicated Loans,
the last sentence of Section 6.03, Section 6.04, Section 6.05, Section 6.07,
Section 6.09 and Section 6.11 hereof) shall be true on and as of the date of the
notice or deemed notice of borrowing for such Loans and on the date of the
making of such Loans with the same force and effect as if made on and as of each
such date. The obligation of any Bank to make a Eurodollar Loan hereunder is
subject to
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the further condition precedent that, both immediately prior to such Loan and
also after giving effect thereto, no Default shall have occurred and be
continuing. Each notice or deemed notice of borrowing by the Company hereunder
shall constitute a certification by the Company to the effect set forth in the
two preceding sentences to the extent applicable to the borrowing that is the
subject of such notice (both as of the date of such borrowing notice and, unless
the Company otherwise notifies Chase in such borrowing notice or prior to the
date of such borrowing, as of the date of such borrowing).
V. COVENANTS. So long as any Loan or any other amount owing by
the Company to any Agent or Bank hereunder remains outstanding or any Bank's
Commitment remains in effect:
Section 5.01 Financial Statements. The Company shall deliver
to each Bank:
(a) As soon as available and in any event within 60 days after
the end of each of the first three quarterly accounting periods in each
fiscal year, the 10-Q report of the Company for such period;
(b) As soon as available and in any event within 120 days
after the end of each fiscal year, the 10-K report of the Company for
such fiscal year, accompanied by (A) an opinion as to the financial
statements contained in such 10-K report of independent certified
public accountants of recognized national standing, (B) a statement by
said accountants that in the course of their regular examination of the
Company and its Consolidated Subsidiaries for purposes of their opinion
they obtained no knowledge, except as specifically stated, of the
occurrence and continuance of any Default, and (C) a statement of an
Appropriate Officer of the Company that such officer has no knowledge,
except as specifically stated, of the occurrence and continuance of any
Default.
(c) With the report delivered under Section 5.01(b) hereof, a
statement signed by an Appropriate Officer of the Company certifying
and, where calculations are necessary, demonstrating compliance by the
Company with the provisions of Section 5.09 hereof.
(d) Promptly after their becoming available:
(i) Copies of all financial statements, reports
and proxy statements which the Company shall have sent to its
stockholders generally.
(ii) Copies of all regular and periodic reports,
if any, which the Company or any Restricted Subsidiary shall have filed
with the Securities and Exchange Commission, or any governmental agency
substituted therefor, or with any national securities exchange.
(e) From time to time, with reasonable
promptness, such further information regarding the business, affairs
and financial position of the Company and each Subsidiary as any Bank
may reasonably request.
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Section 5.02 Access to Books and Inspection. The Company
shall, upon reasonable request by any Bank, give any representative of such Bank
access, at the Company's principal office, during normal business hours to, and
permit such representative to examine, copy or make excerpts from, any and all
books, records and documents in the possession of the Company relating to its
affairs and the affairs of its Subsidiaries, excluding, however, any privileged
and confidential communications or other materials, and to inspect any of the
properties of the Company or such Subsidiaries; provided that all information
(other than publicly available information) delivered by the Company to any Bank
pursuant to this Section 5.02 is strictly confidential, and each Bank agrees
that it shall (or shall cause the persons referred to in clause (ii) below to)
maintain the confidentiality of any such information, subject to: (i) the
obligation to disclose such information pursuant to subpoena or other legal
process, or to regulatory or examining authorities or other governmental
agencies having jurisdiction, or otherwise as may be required by law; (ii) the
right to disclose such information to the independent auditors and counsel of
such Bank, or to the Agents or any other Bank; and (iii) the right to disclose
such information to assignees and participants (including prospective assignees
and participants) as provided in Section 8.05 hereof.
Section 5.03 Litigation. Notwithstanding any other provision
of this Agreement, the Company shall, promptly after its becoming available,
furnish to each Bank a copy of any report filed by the Company with the
Securities and Exchange Commission which contains a statement, description or
disclosure as to any litigation or proceeding before any governmental or
regulatory agencies affecting the Company or any of its Subsidiaries.
Section 5.04 Maintenance of Existence. The Company will
preserve and maintain, and cause each of its Restricted Subsidiaries to preserve
and maintain, its corporate existence, provided that the foregoing shall not
prevent a merger or consolidation, or sale or other disposition of assets, of
the Company or any Restricted Subsidiary unless otherwise prohibited by this
Agreement.
Section 5.05 Merger; Sale of Assets. The Company shall not:
(a) merge into or consolidate with any corporation if (i) the
Company is not the surviving corporation, (ii) the Company is the
surviving corporation and a majority of the board of directors of the
Company for a period of three months after the effective date of such
merger does not consist of individuals who were directors of the
Company 12 months prior to such effective date (except for changes due
to the retirement or death of any such individuals) or (iii) after
giving effect to such merger or consolidation, a Default has occurred
and is continuing; or
(b) permit any Restricted Subsidiary to be a party to any
merger or consolidation or to transfer all or substantially all of its
assets, except that any such Restricted Subsidiary may merge or
consolidate with, or transfer all or substantially all of its assets
to, the Company or any of the Company's other Subsidiaries provided
that (i) the surviving entity of such merger or consolidation or the
transferee of such assets (if it is not the Company or another
Restricted Subsidiary) shall thereafter be treated as a
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Restricted Subsidiary for all purposes of this Agreement and (ii) after
giving effect to such merger, consolidation or transfer of assets, no
Default shall have occurred and be continuing; or
(c) sell, assign, transfer or otherwise dispose of all or
substantially all of its assets or, in any case, any stock of or other
equity interest in any of the Restricted Subsidiaries, except that (i)
stock of or other equity interest in any such Restricted Subsidiary may
be sold, assigned or transferred by the Company to any of its
wholly-owned Subsidiaries provided that thereafter such Subsidiary
shall be treated as a Restricted Subsidiary for all purposes of this
Agreement and the Company shall not permit such Subsidiary to sell,
assign, transfer or otherwise dispose of any such stock or other equity
interest except to the Company or otherwise in accordance with this
clause (c), (ii) stock of or other equity interest in any Restricted
Subsidiary may be sold, assigned, transferred or disposed of (whether
by the Company or any of its wholly-owned Subsidiaries) so long as
immediately after giving effect to such transaction the Company and/or
one or more of its wholly-owned Subsidiaries owns stock of or other
equity interests in such Restricted Subsidiary (x) representing, in the
case of a partnership, not less than 80% of the outstanding capital and
profit interests in such partnership or, in the case of any other
entity, not less than 80% of the fair market value of the outstanding
stock of or other equity interests in such Restricted Subsidiary
(excluding Mandatory Preferred Stock of such Restricted Subsidiary) and
(y) representing not less than 80% of the ordinary voting power for the
election of directors or other persons performing similar functions of
such Restricted Subsidiary (other than stock or other equity interests
having such power only by reason of the happening of a contingency) and
(iii) Mandatory Preferred Stock of any Restricted Subsidiary may be
sold, assigned, transferred or disposed of (whether by the Company or
any of its Subsidiaries).
Section 5.06 Default; Investment Rating. The Company shall:
(a) as soon as it shall become known to a senior officer of
the Company, forthwith notify each Agent if any Default shall have
occurred; and
(b) if Xxxxx'x or S&P (or any successor thereto) shall have
assigned a new rating to the senior debt securities of the Company,
notify each Agent of such new rating within 30 days after it is first
announced by the applicable rating agency.
Section 5.07 ERISA. The Company will furnish to the Banks:
(a) as soon as possible and in any event within 15 days after
the Company knows or has reason to know that any Termination Event has
occurred, a statement of a senior officer of the Company describing
such Termination Event and the action, if any, which the Company
proposes to take with respect thereto;
(b) from time to time promptly after the request of any Bank,
copies of each annual report filed pursuant to Section 104 of ERISA
with respect to each Plan (including, to the extent required by Section
103 of ERISA, the related financial and
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actuarial statements and opinions and other supporting statements,
certifications, schedules and information referred to in Section 103)
and each annual report filed with respect to each Plan under Section
4065 of ERISA;
(c) promptly after receipt thereof by the Company from the
PBGC, copies of each notice received by the Company of PBGC's intention
to terminate any Plan or to have a trustee appointed to administer any
Plan; and
(d) promptly after such request, such other documents and
information relating to Plans as any Bank may reasonably request from
time to time.
Section 5.08 Liens. The Company will not, and will not permit
any Subsidiary to, grant a security interest in any stock of any of the
Restricted Subsidiaries or Citrus Corp. The Company will not grant a security
interest in any of its other assets to secure Indebtedness (except as provided
in the next sentence) unless the Company simultaneously grants to any Designated
Agent for the benefit of the Banks an equal and ratable security interest in the
assets subject to such security interest. The provisions of the preceding
sentence shall not apply to the grant by the Company of:
(a) Any purchase money mortgage or purchase money security
interest created to secure all or part of the purchase price of any
property (or to secure a loan made to enable the Company to acquire the
property described in such mortgage or in any applicable security
agreement); provided that such mortgage or security interest shall
extend only to the property so acquired, fixed improvements thereon,
replacements thereof and the income and profits therefrom;
(b) Any security interest on any property acquired or
constructed by the Company, and created not later than twelve months
after (i) such acquisition or completion of such construction or (ii)
commencement of operation of such property, whichever is later;
provided that such security interest shall extend only to the property
so acquired or constructed, fixed improvements thereon, replacements
thereof and income and profits therefrom;
(c) Any security interest deemed to be created as a result of
the deposit of cash or securities for the purpose of defeasance of
Indebtedness; and
(d) Any security interest in any of its cash or cash
equivalents (within the meaning of generally accepted accounting
principles) created by the Company for the purpose of securing
Derivative Obligations of the Company, provided that the aggregate
amount of all cash or cash equivalents secured by security interests
permitted by this clause (d) shall not exceed $25,000,000.
(e) Any security interest not otherwise permitted under the
preceding clauses (a) through (d) in any of its assets created by the
Company for the purpose of securing Indebtedness of the Company,
provided that the aggregate amount of all Indebtedness of
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the Company secured by security interests permitted by this clause (e)
shall not exceed $10,000,000.
Section 5.09 Total Indebtedness to Consolidated
Capitalization. The Company will not at any time permit Total Indebtedness of
the Company to exceed 65% of the Consolidated Capitalization of the Company.
Section 5.10 Certain Existing Credit Lines. The Company will
terminate its eleven bilateral credit lines in existence as of the date of this
Agreement, which provide for borrowings of up to $200 million in the aggregate,
within 30 days after the Effective Date, and will not make any borrowings
thereunder from and after the Effective Date.
Section 5.11 Insurance. The Company will, and will cause each
of its Subsidiaries to, keep insured with financially sound and reputable
insurers or through self-insurance conforming with practices of similar
corporations maintaining systems of self-insurance all property of a character
usually insured by corporations engaged in the same or similar business
similarly situated against loss or damage of the kinds and in the amounts
customarily insured against by such corporations and carry such other insurance
as is usually carried by such corporations.
Section 5.12 Maintenance of Properties. The Company will, and
will cause each of its Subsidiaries to, keep all of its material properties
necessary in its business in good working order and condition appropriate for
the use being made thereof, ordinary wear and tear excepted; except, in every
case, as and to the extent that the Company or its Subsidiaries may be prevented
from maintaining their respective properties by fire, strikes, lockouts, acts of
God, inability to obtain labor or materials, governmental (including judicial)
restrictions, enemy action, civil commotion or unavoidable casualty or similar
causes beyond the control of the Company; provided, however, that nothing in
this Section 5.12 shall prevent the Company or any of its Subsidiaries from
discontinuing the use, operation or maintenance of any of such properties if
such discontinuance is, in the judgment of the Company or its applicable
Subsidiary, desirable in the conduct of the business of the Company or such
Subsidiary and if such discontinuance is not disadvantageous in any material
respect to the Banks; and provided, further, that nothing in this Section 5.12
shall prohibit any sale, assignment, transfer or other disposition permitted by
Section 5.05 hereof.
Section 5.13 Public Utility Holding Company Act. The Company
will not, and will not permit any of its Subsidiaries to, be subject to
regulation under the Public Utility Holding Company Act of 1935, as amended.
VI. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants as follows:
Section 6.01 Corporate Existence and Powers. The Company and
each of its Restricted Subsidiaries is a corporation duly incorporated and
validly existing and in good standing under the laws of the jurisdiction of its
incorporation (or, in case of any Restricted Subsidiary not a corporation, such
Restricted Subsidiary is duly organized and validly existing under the laws of
the jurisdiction of its organization) and is duly licensed or qualified to do
business and is in good standing in all states in which the Company believes the
conduct of its business or the ownership
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of its assets requires such qualification, and the Company has corporate power
to make this Agreement and the Notes and to borrow hereunder.
Section 6.02 Corporate Authority, etc. The making and
performance by the Company of this Agreement and the Notes and each borrowing
hereunder have been duly authorized by all necessary corporate action and do not
and will not contravene any provision of law applicable to the Company or of the
certificate of incorporation or by-laws of the Company or result in the material
breach of, or constitute a material default or require any consent under, or
result in the creation of any material lien, charge or other security interest
or encumbrance not permitted by Section 5.08 hereof upon any property or assets
of the Company or any of its Restricted Subsidiaries pursuant to, any indenture
or other agreement or instrument to which the Company or any of its Restricted
Subsidiaries is a party or by which the Company or any of its Restricted
Subsidiaries or any of their respective properties may be bound or affected (or,
if any such consent is so required, the Company has obtained such consent, which
is sufficient for the purpose and remains in full force and effect, and copies
thereof have been furnished to Chase). This Agreement has been duly and validly
executed and delivered by the Company and constitutes, and each of the Notes
when executed and delivered will constitute, its legal, valid and binding
obligation, enforceable in accordance with its terms.
Section 6.03 Financial Condition. The consolidated balance
sheets of the Company and its Consolidated Subsidiaries as at December 31, 1996
and September 30, 1997 and the related statements of consolidated income and
cash flows of the Company and its Consolidated Subsidiaries for the 12 months
and nine months ended on said dates, respectively, heretofore furnished by the
Company to the Banks, fairly present in all material respects the financial
condition of the Company and its Consolidated Subsidiaries as at said dates and
the results of their operations and cash flows for the 12 months and nine
months, respectively, then ended in accordance with generally accepted
accounting principles (except that the financial statements as of September 30,
1997 and for the nine months then ended were prepared in accordance with the
rules of the Securities and Exchange Commission applicable to interim financial
statements and they are subject to normal year-end audit adjustments). Except as
disclosed in a letter dated January 26, 1998, from the Treasurer of the Company,
a copy of which has been furnished to each Bank, since December 31, 1996 there
has heretofore been no material adverse change in the financial condition or
operating results of the Company and its Consolidated Subsidiaries, taken as a
whole, from that set forth in the consolidated balance sheet and related
statements as at and for the period ended on said date.
Section 6.04 Litigation. Except as disclosed in a letter dated
January 26, 1998, from the Executive Vice President and General Counsel of the
Company, a copy of which has heretofore been furnished to each Bank, there are
no actions, suits or proceedings, and no proceedings before any arbitrator or by
or before any governmental commission, board, bureau or other administrative
agency, pending, or to the knowledge of the Company threatened, against or
affecting the Company or any Subsidiary which are reasonably likely to have a
material adverse effect on the financial condition, properties or operations of
the Company and its Subsidiaries, taken as a whole.
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Section 6.05 Taxes. Each of the Company and each Restricted
Subsidiary has filed all material tax returns required to be filed and paid all
material taxes shown thereon to be due, including interest and penalties, or
provided adequate reserves for payment thereof, except to the extent the same
have become due and payable but are not yet delinquent, and except for any taxes
and assessments of which the amount, applicability or validity is currently
being contested in good faith by appropriate proceedings.
Section 6.06 Approvals. No approval, license or consent of any
governmental regulatory body is requisite to the making and performance by the
Company of this Agreement, or the execution, delivery and payment of the Notes
(or, if any such approval, license or consent is so requisite, the Company has
obtained the same, which is sufficient for the purpose and remains in full force
and effect, and copies thereof have been furnished to Chase).
Section 6.07 ERISA. The Company, and each Subsidiary, has met
its minimum funding requirements under ERISA with respect to all its Plans and
has not incurred any material liabilities to PBGC or to such Plan under ERISA in
connection with any such Plan.
Section 6.08 Margin Regulations. The Company is not engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U or Regulation G of the Board of Governors of the Federal
Reserve System), and no part of the proceeds of any Loan will be used to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock.
Section 6.09 Certain Subsidiaries. Except as a consequence of
a transaction or transactions permitted by this Agreement, the Company directly
or indirectly owns all of the outstanding shares of common stock of each of the
Restricted Subsidiaries (except for directors' qualifying shares), and all
shares of stock of such corporations are validly issued, fully paid and
non-assessable.
Section 6.10 Investment Company Act. The Company is not an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
Section 6.11 Environmental Laws. The Company and its
Subsidiaries are in compliance in all material respects with the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, the
Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation
and Recovery Act, the Toxic Substances Control Act, as amended, the Clean Air
Act, as amended, the Clean Water Act, as amended, and each other federal, state
or local statute, law, ordinance, code, rule or regulation, regulating or
imposing liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material, except for any noncompliance that is not
reasonably likely to have a material adverse effect on the financial condition,
properties or operations of the Company and its Subsidiaries, taken as a whole.
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All representations and warranties made herein shall survive
the making of the Loans and the delivery of the Notes hereunder.
VII. EVENTS OF DEFAULT. If any of the following "Events of
Default" shall occur and shall not have been remedied:
A. default by the Company in the payment of any
principal of any of the Notes when the same becomes due and
payable;
B. default by the Company in the payment of interest
on any of the Notes or any other amounts payable under Section
1.03 or Section 2.08 hereof which shall remain unremedied for
ten days after the same becomes due and payable;
C. any representation or warranty made by the Company
in Article VI hereof or in any certificate furnished to the
Agents or to the Banks hereunder (or deemed to have been given
at the time of any borrowing hereunder) shall prove to have
been incorrect when made or deemed made, in any material
respect;
D. default by the Company in the due performance or
observance of Section 5.05, Section 5.08 or Section 5.09
hereof;
E. default by the Company in the due performance or
observance of Section 5.06(a) hereof which shall remain
unremedied for a period of ten days;
F. default by the Company in the due performance or
observance of Section 5.03 or Section 5.06(b) hereof which
shall remain unremedied for a period of 30 days after such
default shall have become known to an executive officer of the
Company;
G. default by the Company in the due performance or
observance of any other covenant or agreement herein contained
which shall remain unremedied for a period of 30 days after
written notice thereof shall have been given to the Company by
any Bank (through any Designated Agent);
H. default by the Company or any Restricted
Subsidiary (i) in the payment of any Indebtedness of the
Company and/or one or more Restricted Subsidiaries in an
aggregate unpaid principal amount of at least $25,000,000,
beyond the period or periods of grace (if any) provided with
respect thereto, or (ii) in the performance or observance of
any other provisions in indentures, credit or loan agreements
or other agreements or instruments under which such
Indebtedness in such aggregate unpaid principal amount of the
Company and/or one or more Restricted Subsidiaries is
outstanding or by which such Indebtedness is evidenced and, in
the case of clause (ii) only, if the effect of such default is
to cause, or permit the holder or holders of such Indebtedness
(or a trustee or an agent on behalf of such holder or holders)
to cause, such Indebtedness to become due prior to its stated
maturity;
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I. any Termination Event shall have occurred and
shall have continued under circumstances which result in an
uninsured payment or repayment liability of the Company or any
of its Subsidiaries to PBGC in an amount which is material in
relation to the financial position of the Company and its
Subsidiaries, on a consolidated basis;
J. either the Company or one or more Restricted
Subsidiaries (taken as a group) with total assets of at least
$10,000,000 in the aggregate (such Restricted Subsidiary or
Subsidiaries being hereinafter called the "Restricted Group")
shall (1) apply for or consent to the appointment of, or
taking possession by, a receiver, trustee, custodian,
liquidator or other similar official of itself or of all or a
substantial part of its assets, (2) admit in writing its
inability to pay its debts, or generally become unable to pay
its debts, as they become due, (3) make a general assignment
for the benefit of its creditors, (4) commence a voluntary
case under the federal bankruptcy laws (as now or hereafter in
effect), (5) file a petition seeking to take advantage of any
other laws relating to bankruptcy, reorganization, insolvency,
winding-up or composition or readjustment of debts, or (6)
acquiesce in writing to, or fail to controvert in a timely and
appropriate manner, any petition filed against it or in any
involuntary case under the aforesaid federal bankruptcy laws;
or corporate action shall be taken by the Company or the
Restricted Group for the purpose of effecting any of the
foregoing; or
K. a proceeding or case shall be commenced, without
the application or consent of the Company or the Restricted
Group (as defined in paragraph J above), in any court of
competent jurisdiction, seeking (1) its liquidation,
reorganization, dissolution, winding-up, or composition or
readjustment of debts, (2) the appointment of a receiver,
trustee, custodian, liquidator or any similar official of
itself of all or a substantial part of its assets, (3) similar
action with respect to the Company or the Restricted Group
under the federal bankruptcy laws (as now or hereafter in
effect) or any other laws relating to bankruptcy, insolvency,
reorganization, liquidation or winding-up, or composition or
adjustment of debts, and such proceeding or case shall
continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered
and continued unstayed and in effect, for any period of 60
consecutive days; or an order for relief against the Company
or the Restricted Group shall be entered in an involuntary
case under such federal bankruptcy laws,
THEREUPON, (in addition to the rights and remedies of the Swingline Bank
pursuant to Section 1.08(b)) (1) in the case of any of the Events of Default
specified in paragraphs A through I above, (i) any Designated Agent may and,
upon being directed so to do by the Majority Banks, shall, by notice to the
Company, terminate all Commitments hereunder and they shall thereupon terminate,
and (ii) any Designated Agent may and, upon being directed by Banks holding at
least 66-2/3% of the aggregate unpaid principal amount of the Loans shall, by
notice to the Company, declare all outstanding Loans and Notes and all other
obligations of the Company hereunder to be due and payable, whereupon the same
shall become forthwith due and payable, without
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further protest, presentment, notice or demand, all of which are expressly
waived by the Company, and (2) in case of any of the Events of Default specified
in paragraph J or K above, without any notice to the Company or any act by any
Designated Agent or the Majority Banks or any Bank, all Commitments hereunder
shall terminate forthwith and the principal of and interest accrued on all the
Loans and the Notes and all other obligations of the Company hereunder shall
become and be due and payable.
VIII. MISCELLANEOUS
Section 8.01 Waiver. No failure on the part of any Agent, Bank
or holder of a Note to exercise and no delay in exercising and no course of
dealing with respect to any right, power or privilege under this Agreement or
the Notes shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power, or privilege under this Agreement or the Notes
preclude any other or further exercise thereof or the exercise of any other
right, power, or privilege. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 8.02 Notices and Delivery of Documents. Except as
otherwise specified herein, all notices and other communications hereunder shall
be in writing or by telex or telecopy, and shall be deemed to have been duly
given when transmitted by telex or telecopier or personally delivered or, in the
case of a mailed notice or other communication, three Business Days after the
date deposited in the mails, certified and postage prepaid, addressed to any
party hereto at its address given on Schedule 2 hereto or on the signature pages
of, or any schedule to, any amendment hereto, or at such other address of which
any party hereto shall have notified in writing the party giving such notice or
(in the case of a telex message) addressed to any party at any telex number
which is published as belonging to the addressee. Except as otherwise expressly
provided herein, all Notes and other documents to be delivered to any Agent
under this Agreement shall be delivered to it at its Principal Office.
Section 8.03 Governing Law. This Agreement and the Notes
hereunder shall be construed in accordance with and governed by the law of the
State of New York.
Section 8.04 Offsets, etc. Upon the occurrence and during the
continuance of an Event of Default, each Bank is hereby authorized at any time
and from time to time, without notice to the Company except as required by law
(any such notice being expressly waived by the Company), 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 of the obligations
of the Company now or hereafter existing under this Agreement and the Notes held
by such Bank. Each Bank agrees promptly to notify the Company after any such
set-off and application made by such Bank, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of the Banks under this Section 8.04 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Banks may have.
Section 8.05 Disposition of Loans. Each Bank may at any time,
at its own expense, assign (but only with the prior written consent of the
Company, which it may refuse or grant in
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its sole discretion), or sell participations in, all or any portion of any Loans
made by it to another bank or other entity; provided that no such assignment
shall be in a principal amount less than $10,000,000. Any Bank making an
assignment hereunder shall pay to Chase an administrative fee of $2,500 with
respect to each assignment. In the case of an assignment, upon notice thereof by
such Bank to the Company and the Agents, to the extent of such assignment and
the Loans so assigned, the assignee shall have the same rights and benefits as
it would have if it were a Bank hereunder and the assignor shall cease to have
the rights and benefits of a Bank hereunder (provided that the obligations of
the Company under Article III to such Bank shall survive such assignment). In
the case of a participation, except as otherwise provided in Section 2.06(c)
hereof, the participant shall not have any rights under this Agreement or such
Bank's Notes (the participant's rights against such Bank in respect of such
participations to be those set forth in the agreement executed by such Bank in
favor of the participant relating thereto) and all amounts payable by the
Company under Article III hereof shall be determined as if such Bank had not
sold such participation. The granting of any such participation shall not
relieve the grantor of its Commitment hereunder. Each Bank may furnish any
information concerning the Company or any of its Subsidiaries in the possession
of such Bank from time to time to assignees and participants (including
prospective assignees and participants) under this Section 8.05, provided that,
if any such information is confidential information consisting of or based upon
information provided by the Company, prior to furnishing any such information
such Bank shall obtain the agreement of any such assignee or participant, in
favor of the Company, to maintain the confidentiality of such information,
subject to the same requirements and exceptions as specified in Section 5.02
hereof (and such Bank shall promptly furnish a copy of each such agreement to
the Company). Any Bank may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Bank to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Bank from any of its
obligations hereunder or substitute any such pledgee or assignee for such Bank
as a party hereto.
Section 8.06 Expenses. All statements, reports, certificates,
opinions and other documents or information furnished by the Company to the
Agents or the Banks under this Agreement shall be supplied without cost to the
Agents or the Banks. Further, the Company hereby agrees that it shall pay, on
demand, whether or not any Loan is made hereunder, (a) all reasonable
out-of-pocket costs and expenses of the Banks and the Agents incurred in
connection with the preparation, execution and delivery of this Agreement, or
any amendment or supplement thereto, and the Notes and the making of the Loans
hereunder, (b) the reasonable fees and disbursements of Xxxxxxx Xxxxxxx &
Xxxxxxxx, special counsel to the Banks, in connection therewith, and (c) all
costs and expenses of collection (including, without limitation, reasonable
legal fees) incident to the enforcement, protection or preservation of any right
of any Bank under this Agreement or the Notes.
Section 8.07 Amendments, Waivers, etc. This Agreement and the
Notes may not be amended, supplemented or modified, nor any of its terms be
waived, except by written instruments signed by the Company and the Majority
Banks (and, in the case of any amendment, supplement, modification or waiver
affecting Article IX hereof, each of the Agents); provided, however, that no
such amendment, supplement, modification or waiver shall, without the written
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consent of all of the Banks: (i) extend the term of, or change the amount of, or
change any of the provisions of Section 1.04 hereof with respect to the
reduction or increase of, the Commitment of any Bank, or change the rate at
which commitment or facility fees accrue hereunder or extend the time for
payment thereof, (ii) extend the maturity of any Loan, change the rate of
interest thereon, or affect in any way the terms of payment thereof, (iii) alter
the definition of "Majority Banks", (iv) affect any provisions relating to Fixed
Rate Loans, (v) alter this Section 8.07 or Section 8.09(a), (vi) waive any
condition specified in Article IV, (vii) waive an Event of Default under
paragraph J or K of Article VII or modify the effect thereof or (viii) waive or
amend any representation contained in Article VI; provided, further, that
Section 1.03 and Section 1.08 hereof may be amended, supplemented or modified,
and any of the terms thereof waived, by written instrument signed only by the
Company and the Swingline Bank. Any such amendment, supplement, modification or
waiver so entered into shall apply equally to all of the Banks and any holder of
the Notes and shall be binding upon all parties hereto. Any waiver hereunder
shall be for such period and subject to such conditions as shall be specified in
such written instrument. In the case of any waiver of an Event of Default, such
Event of Default shall be deemed to be cured and not continuing, but no such
waiver shall extend to any subsequent or other Event of Default or any right,
power or privilege of the Banks hereunder in connection therewith.
Section 8.08 Definitions. Certain terms are defined in
Schedule 1 hereto and as used herein shall have meanings as so defined.
Section 8.09 Successors and Assigns. (a) This Agreement shall
be binding upon and inure to the benefit of the Banks, the Agents, the Company
and their respective successors and assigns, except that Company may not assign
or transfer any of its respective rights or obligations hereunder without the
prior written consent of all the Banks.
(b) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC") of such Granting Lender, identified as such in writing from time to
time by the Granting Lender to the Agents and the Company, the option to provide
to the Company all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to Section 1.01 or 1.02,
provided that (i) nothing herein shall constitute a commitment to make any Loan
by any SPC and (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of a
Syndicated Loan by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by the Granting
Lender. Each party hereto hereby agrees that no SPC shall be liable for any
payment under this Agreement for which a Bank would otherwise be liable, for so
long as, and to the extent, the related Granting Lender makes such payment. In
furtherance of the foregoing, each party hereto hereby agrees that, prior to the
date that is one year and one day after the later of (i) the payment in full of
all outstanding senior indebtedness of any SPC and (ii) the Commitment
Termination Date, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding anything to
the contrary contained in this Section 8.09(b), any SPC may (i) with
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notice to, but without the prior written consent of, the Company or any Agent
and without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to its Granting Lender or to any financial institutions
providing liquidity and/or credit facilities to or for the account of such SPC
to fund the Loans made by such SPC or to support the securities (if any) issued
by such SPC to fund such Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of a surety, guarantee or credit or liquidity
enhancement to such SPC. In no event shall the Company be obligated to pay to an
SPC that has made a Loan any greater amount than the Company would have been
obligated to pay under this Agreement if the Granting Lender had made such Loan.
Each Granting Lender shall indemnify and hold harmless the Company and its
directors, officers, employees and agents from and against any and all losses,
liabilities, claims, damages and expenses arising from or attributable to the
making of a Loan by an SPC of such Granting Lender.
(c) In addition to the provisions of Section 8.09(b), PNC
Bank, National Association, as Granting Lender, may designate Wood Street
Funding Corporation as an SPC pursuant to a designating agreement entered into
by such Granting Lender and such SPC and accepted by Chase in substantially the
form of Exhibit F hereto (the "Designation Agreement"). Upon receipt of an
appropriately completed Designation Agreement executed by such Granting Lender
and such SPC, Chase will accept such Designation Agreement and give prompt
notice thereof to the Company, whereupon, from and after the effective date
specified in the Designation Agreement, such SPC shall become a party to this
Agreement with a right to make Money Market Loans on behalf of such Granting
Lender after the Company has accepted a Money Market Quote (or a portion
thereof) of such Granting Lender. Promptly after receipt of such notice, the
Company shall execute and deliver to such Granting Lender a Money Market Note in
the name of such SPC. Such Granting Lender shall serve as the agent (in its
capacity as a Granting Lender and not in its capacity as a referral lender) of
such SPC and shall on behalf of such SPC give and receive all communications and
notices and take all actions hereunder, including without limitation votes,
approvals, waivers, consents and amendments under or relating to this Agreement.
Any such notice, communication, vote approval, waiver, consent or amendment
shall be signed by such Granting Lender as agent (in its capacity as a Granting
Lender and not as a Bank) for such SPC and shall not be signed by such SPC. The
Company, the Agents and the Banks may rely thereon without any requirement that
such SPC sign or acknowledge the same.
Section 8.10 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
IX. THE AGENTS
Section 9.01 Appointment, Power and Immunities. Each Bank
hereby irrevocably appoints and authorizes each Designated Agent to act as its
agent hereunder with such powers as are specifically delegated to such Agent by
the terms of this Agreement, together with such other powers as are reasonably
incidental thereto. No Agent shall have any duties or responsibilities except
those expressly set forth in this Agreement, nor shall any Agent, by reason of
this
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Agreement, have a fiduciary relationship with any Bank. No Agent shall be
responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or in any information memorandum
pertaining to the Company or in any certificate or other document referred to or
provided for in, or received by any of them under, this Agreement, for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or the Notes or any other document referred to or provided for
herein or for any failure by the Company to perform its obligations under any
thereof. Each Designated Agent may employ agents and attorneys-in-fact and shall
not be answerable, except as to money or securities received by it or its
authorized agents, for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Neither the Agents nor
any of their directors, officers, employees or agents shall be liable or
responsible for any action taken or omitted to be taken by them hereunder or in
connection herewith, except for their own gross negligence or willful
misconduct.
Section 9.02 Reliance by Agents. Each Agent shall be entitled
to rely upon any certificate, notice or other document (including any cable,
telegram, telecopy or telex) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper person or persons, and
upon advice and statements of legal counsel, independent accountants and other
experts selected by Chase. Chase may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a notice of the
assignment thereof satisfactory to Chase signed by such payee shall have been
filed with it. As to any matters not expressly provided for by this Agreement,
each Agent shall in all cases be fully protected in acting, or in refraining
from acting, hereunder in accordance with written instructions signed by the
Majority Banks, and such instructions of the Majority Banks and any action taken
or failure to act pursuant thereto shall be binding on all of the Banks.
Section 9.03 Default. No Agent shall be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than
nonpayment of principal, interest or commitment or other fees) unless such Agent
has received written notice from a Bank or the Company specifying such Default
or Event of Default and stating that such notice is a "Notice of Default". In
the event that any Designated Agent receives such a notice of the occurrence of
a Default or an Event of Default, such Agent shall give prompt written notice
thereof to the other Agents and the Banks. The Designated Agents shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed in writing by the Majority Banks provided that (i) unless and until the
Designated Agents shall have received such directions, the Designated Agents may
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as they shall deem advisable in the best interests
of the Banks and (ii) in no event shall any Agent be required to institute any
action, suit or other proceeding in connection herewith.
Section 9.04 Rights as a Lender. With respect to its
Commitment and the Loans made by it or any collateral therefor, each of Xxxxx,
Xxxxxx and SunTrust (and any successor Agent hereunder) in its capacity as a
Bank under this Agreement shall have the same rights and powers hereunder as any
other Bank and may exercise the same as though it were not acting as an Agent,
and the term "Bank" or "Banks" shall, unless the context otherwise indicates,
include each of Xxxxx, Xxxxxx and SunTrust (and any successor Agent hereunder)
in its individual capacity.
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Each of Xxxxx, Xxxxxx and SunTrust (and any successor Agent hereunder) and their
affiliates may (without having to account therefor to any Bank) accept deposits
from, lend money to and generally engage in any kind of banking, trust or other
business with the Company (and any of its related companies) as if it were not
acting as an Agent and may accept fees and other consideration from the Company
for services in connection with this Agreement and otherwise without having to
account for the same to the other Agent and the Banks.
Section 9.05 Indemnification. The Banks severally agree to
indemnify each Agent (to the extent requested by such Agent as provided in
Section 9.08 hereof and/or to the extent not reimbursed by the Company), pro
rata according to the amounts of their respective Commitments, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against such Agent in any way relating to or
arising out of this Agreement or any other documents referred to herein or the
transactions contemplated hereby (including, without limitation, the costs and
expenses which the Company is obligated to pay under Section 8.06 hereof but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or of any such
other documents, provided that (a) such Agent shall have given the Banks notice
thereof and an opportunity to defend against the same at the expense of the
Banks and with counsel selected by the Majority Banks, (b) no Bank shall be
liable to an Agent for any of the foregoing to the extent they arise from such
Agent's gross negligence or willful misconduct and (c) no Bank shall be liable
for any amount in respect of any compromise or settlement of any of the
foregoing unless such compromise or settlement is approved by the Majority
Banks.
Section 9.06 Reports. Promptly after its receipt thereof, each
Agent (or, if all Agents shall have received the same, Chase) will forward to
each Bank a copy of each report, notice or other document required by this
Agreement to be delivered to such Agent for such Bank.
Section 9.07 Non-Reliance on Agents and Other Banks. Each Bank
agrees that it has, independently and without reliance on any Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Company and decision to enter into this
Agreement and that it will, independently and without reliance upon any Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking such action under this Agreement. No Agent shall be
required to keep itself informed as to the performance or observance by the
Company of this Agreement or any other document referred to or provided for
herein or to make inquiry of or to inspect the properties or books of the
Company. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by any Agent hereunder, no Agent
shall have any duty or responsibility to provide any Bank with any credit or
other information concerning the affairs, financial condition or business of the
Company (or any of its related companies) which may come into the possession of
such Agent or any of its affiliates.
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Section 9.08 Failure to Act. Except for action expressly
required of any Agent under this Agreement, such Agent shall in all cases be
fully justified in failing or refusing to act unless it shall 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.
Section 9.09 Resignation or Removal of Agents. Subject to the
appointment and acceptance of a successor Agent as provided below, any Agent may
resign at any time by giving written notice thereof to the Banks and the Company
and any Agent may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Majority Banks and shall have accepted such appointment within
30 days after the retiring Agent's giving of notice of resignation or the
Majority Banks' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a bank which has
an office (or an affiliate or a Subsidiary with an office) in New York, New
York. Upon the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Agreement shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as the
Agent.
Section 9.10 Documentation Agent. Nothing in this Agreement
shall impose on SunTrust, in its capacity as Documentation Agent, any duties or
obligations whatsoever.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
SONAT INC.
By
-----------------------------------
Title:
THE CHASE MANHATTAN BANK
By
-----------------------------------
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By
-----------------------------------
Title:
TORONTO DOMINION (TEXAS), INC.
By
-----------------------------------
Title:
THE BANK OF NOVA SCOTIA
By
-----------------------------------
Title:
BANK OF AMERICA, N.T. & S.A.
By
-----------------------------------
Title:
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41
SUNTRUST BANK, ATLANTA
By
-----------------------------------
Title:
By
-----------------------------------
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
-----------------------------------
Title:
NATIONSBANK OF TEXAS, N.A.
By
-----------------------------------
Title:
MELLON BANK, N.A.
By
-----------------------------------
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By
-----------------------------------
Title:
AMSOUTH BANK
By
-----------------------------------
Title:
BANK OF TOKYO - MITSUBISHI, LTD.
By
-----------------------------------
Title:
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42
THE FIRST NATIONAL BANK OF CHICAGO
By
-----------------------------------
Title:
PNC BANK, NATIONAL ASSOCIATION
By
-----------------------------------
Title:
REGIONS BANK
By
-----------------------------------
Title:
KREDIETBANK
By
-----------------------------------
Title:
COMPASS BANK
By
-----------------------------------
Title:
FUJI BANK LTD.
By
-----------------------------------
Title:
ROYAL BANK OF CANADA
By
-----------------------------------
Title:
BANK OF NEW YORK
By
-----------------------------------
Title:
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43
SOCIETE GENERALE
By
-----------------------------------
Title:
Agents
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
-----------------------------------
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Syndication Agent
By
-----------------------------------
Title:
SUNTRUST BANK, ATLANTA,
as Documentation Agent
By
-----------------------------------
Title:
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SCHEDULE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the
following respective meanings:
"Additional Costs" shall have the meaning attributed thereto
in Section 3.01(a) hereof.
"Affected Loans" shall have the meaning attributed thereto in
Section 3.04 hereto.
"Affected Type" shall have the meaning attributed thereto in
Section 3.04 hereto.
"Agents" shall have the meaning attributed thereto in the
preamble to this Agreement.
"Annual Dates" shall mean the Quarterly Date in December of
each year.
"Applicable Facility Fee Rate" shall mean, with respect to any
day, the percentage indicated below opposite the Rating Level in effect on such
day:
Rating Level Percentage
------------ ----------
I 0.080%
II 0.100%
III 0.125%
IV 0.150%
V 0.200%
"Applicable Lending Office" shall mean, with respect to each
Bank, with respect to each type of Loan, the Lending Office designated for such
type of Loan on Schedule 2 hereof, or on the signature pages of, or any schedule
to, any amendment hereto, or such other office or affiliate of such Bank as such
Bank may from time to time specify to Chase and the Company as the office at
which its Loans of such type are to be made and maintained.
"Applicable Margin" shall mean: (a) with respect to Domestic
Loans, zero; and (b) with respect to any Eurodollar Loan on any day, the
percentage indicated below opposite the Rating Level in effect on such day:
Rating Level Percentage
------------ ----------
I 0.220%
II 0.240%
III 0.265%
IV 0.315%
V 0.440%
45
"Appropriate Officer" shall mean the chief executive officer,
the chief operating officer, the chief financial officer, the Vice President -
Comptroller, the Vice President - Finance or the Treasurer.
"Banks" shall have the meaning attributed thereto in the
preamble to this Agreement, and which shall include the Swingline Bank in its
capacity as such.
"Base Rate" shall mean, for any day, the higher of (a) the
Federal Funds Rate for such day plus 1/2 of 1% per annum and (b) the Prime Rate
for such day. Each change in any interest rate provided for herein based upon
the Base Rate resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate.
"Basle Accord" shall have the meaning attributed thereto in
Section 3.01(c) hereto.
"Business Day" shall mean any day on which commercial banks
are not authorized or required to close in New York City and, if such day
relates to a borrowing of, a payment or prepayment of principal of or interest
on, or the Interest Period for, a Eurodollar Loan or a notice by the Company
with respect to any such borrowing, payment, prepayment or Interest Period,
which is also a day on which dealings in Dollar deposits are carried out in the
London interbank market.
"Change in Control" shall have the meaning attributed thereto
in Section 1.04(b) hereto.
"Chase" shall mean The Chase Manhattan Bank in its capacity as
the Administrative Agent.
"Commitment" shall mean, as to each Bank, the obligation of
such Bank to make Syndicated Loans pursuant to Section 1.01 hereof in an
aggregate amount at any one time outstanding up to but not exceeding the amount
set opposite such Bank's name on Schedule 3 to this Agreement under the caption
"Commitment" (as the same may be reduced at any time or from time to time
pursuant to Section 1.04 hereof).
"Commitment Termination Date" shall mean the 363rd day after
the Effective Date.
"Company" shall have the meaning attributed thereto in the
preamble to this Agreement.
"Consolidated Capitalization" shall mean, for any Person, the
sum of Total Indebtedness and Equity of such Person and its Consolidated
Subsidiaries.
"Consolidated Subsidiary" shall mean any Subsidiary of a
Person which was or shall be consolidated with such Person in any consolidated
financial statement furnished to the Banks under this Agreement.
"Default" shall mean an Event of Default or an event which,
with the notice or lapse of time or both specified in Article VII hereof, would
become such an Event of Default.
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46
"Derivative Obligations" shall mean any transaction which is a
rate swap transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions).
"Designated Agents" shall mean Chase and Xxxxxx.
"Dollars" and "$" shall mean lawful money of the United States
of America.
"Domestic Loans" shall mean Syndicated Loans which bear
interest at rates based upon the Base Rate.
"Effective Date" shall have the meaning attributed thereto in
Section 4.01 hereof.
"Equity" means at any time the sum of the following, for any
Person and its Consolidated Subsidiaries:
(i) the amount of share capital liability,
including common and preferred shares (less cost of treasury shares),
plus
(ii) the amount of surplus and retained earnings
(or, in the case of a surplus or retained earnings deficit minus the
amount of such deficit).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, including (unless the context otherwise
requires) any rules or regulations promulgated thereunder.
"Eurodollar Loans" shall mean Syndicated Loans, the interest
rates on which are determined on the basis of rates referred to in the
definition of "Fixed Base Rate".
"Event of Default" shall mean any of the Events of Default
specified in Article VII hereof.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate charged to The Chase Manhattan Bank on such day on such transactions as
determined by Chase.
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"Fixed Base Rate" shall mean, with respect to any Fixed Rate
Loan, the arithmetic mean (rounded upwards, if necessary, to the nearest 1/100
of 1%), as determined by Chase, of the rate per annum quoted by each Reference
Bank at approximately 11:00 a.m. London time (or as soon thereafter as
practicable) on the date two Business Days prior to the first day of the
Interest Period for such Loan for the offering by such Reference Bank to leading
banks in the London interbank market of Dollar deposits having a term comparable
to such Interest Period and in an amount comparable to the principal amount of
the Eurodollar Loan to be made by such Reference Bank for such Interest Period.
If any Reference Bank is not participating in any Fixed Rate Loan, the Fixed
Base Rate for such Loan shall be determined by reference to the amount of the
Loan which such Reference Bank would have made had it been participating in such
Loan. If any Reference Bank does not timely furnish such information for
determination of any Fixed Base Rate, Chase shall determine such Fixed Base Rate
on the basis of information timely furnished by the remaining Reference Banks.
"Fixed Rate" shall mean, for any Fixed Rate Loan, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
Chase to be equal to the Fixed Base Rate for such Loan for the Interest Period
for such Loan.
"Fixed Rate Loans" shall mean Eurodollar Loans.
"Indebtedness" shall mean, for any Person, all obligations for
borrowed money or purchase money obligations of such Person which in accordance
with generally accepted accounting principles would be shown on the balance
sheet of such Person as a liability; all obligations under leases required to be
capitalized under generally accepted accounting principles at the time of
entering into such lease; all guarantees of such Person in respect of
Indebtedness of others; Indebtedness of others secured by any mortgage, pledge,
security interest, encumbrance, lien or charge upon property owned by such
Person, whether or not assumed; Operating Lease Obligations; and, only as to any
Consolidated Subsidiary of the Company, any Mandatory Preferred Stock of such
Consolidated Subsidiary; provided that Indebtedness shall not include: (i) any
Indebtedness evidence of which is held in treasury (but the subsequent resale of
such Indebtedness shall be deemed to constitute the creation thereof); or (ii)
any particular Indebtedness if, upon or prior to the maturity thereof, there
shall have been deposited with the proper depositary, in trust, money or United
States government securities (or evidences of such Indebtedness as permitted by
the instrument creating such Indebtedness) in the necessary amount to pay,
redeem or satisfy such Indebtedness; or (iii) only as to the Company, any
Indebtedness of the Company to any of its Subsidiaries provided that such
Indebtedness is subordinated in right of payment to the prior payment in full of
the obligations of the Company to the Banks and the Agents under this Agreement
and the termination in full of the Commitments hereunder (including interest
accruing on such obligations after the date of any filing by the Company of any
petition in bankruptcy or the commencement of any bankruptcy, insolvency or
similar proceeding with respect to the Company) in the event that any Default
under this Agreement shall have occurred and be continuing and in the event of
any insolvency, bankruptcy or similar proceeding affecting the Company; or (iv)
any indirect guarantees or other contingent obligations in respect of
Indebtedness of other Persons, including agreements, contingent or otherwise,
with such other persons or with third persons with respect to, or to permit or
assure the payment of,
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obligations of such other persons, including, without limitation, agreements to
purchase or repurchase obligations of such other persons, to advance or supply
funds to, or to invest in, such other persons or to pay for properties, products
or services of such other persons (whether or not conveyed, delivered or
rendered); demand charge contracts, through-put, take-or-pay, keep-well,
make-whole or maintenance of working capital or similar agreements; or
guarantees with respect to rental or other similar periodic payments to be made
by such other Persons, including, but without limiting the generality of the
foregoing, the Guaranty Agreement dated as of June 1, 1968, as amended as of
August 1, 1968, May 1, 1970, April 13, 1973, May 26, 1973 and November 30, 1984,
between Boise Cascade Corporation, the Company and Parish of Xxxxxxxxxx,
Louisiana; or (v) any capitalized leases for space and/or equipment in respect
of oil and gas production platforms not in excess of $25,000,000 in the
aggregate; or (vi) any Indebtedness of Bear Creek Storage Company or Citrus
Corp. that is shown on the balance sheet of the Company as a liability and which
would not be required to be treated as Indebtedness of the Company or any of its
Subsidiaries under generally accepted accounting principles as in effect on the
date hereof but which is required to be treated as Indebtedness of the Company
or any of its Subsidiaries as a result of a change in generally accepted
accounting principles after the date hereof. For purposes of this Agreement, the
principal amount of any Indebtedness of any Person (excluding Operating Lease
Obligations and Mandatory Preferred Stock of a Consolidated Subsidiary) shall
mean the amount required in accordance with generally accepted accounting
principles to be shown as a liability on the balance sheet of such Person (or,
in the case of Indebtedness of another Person required to be treated as
Indebtedness of such Person under this Agreement, the balance sheet of such
other Person) prepared as of the applicable date.
"Interest Payment Date" shall mean, as to any Loan, the last
day of the Interest Period for such Loan and (i) with respect to a Set Rate Loan
with an Interest Period longer than 90 days, the last day of each consecutive 90
day period (other than such last day if such last day occurs within two Business
Days of the last day of such Interest Period) occurring during such Interest
Period commencing with the first day of such Interest Period, (ii) with respect
to a Eurodollar Loan with an Interest Period longer than three months, the last
day of each consecutive three month period (other than such last day if such
last day occurs within two Business Days of the last day of such Interest
Period) occurring during such Interest Period commencing with the first day of
such Interest Period and (iii) with respect to a Domestic Loan, each Quarterly
Date that occurs prior to the end of the Interest Period for such Loan.
"Interest Period" shall mean, for any Loan, the period
provided for such Loan pursuant to Section 2.03 hereof.
"Loans" shall mean Money Market Loans, Syndicated Loans and
Swingline Loans.
"Majority Banks" shall mean Banks having at least 66-2/3% of
the aggregate amount of the Commitments; provided that, if the Commitments shall
have terminated, Majority Banks shall mean Banks and SPCs holding at least
66-2/3% of the aggregate unpaid principal amount of the Loans.
5
49
"Mandatory Preferred Stock" shall mean, for any Person, the
aggregate stated liquidation value of any outstanding preferred stock issued by
such Person which is required to be redeemed, in whole or in part, by sinking
fund or other mandatory payments at any time prior to the Commitment Termination
Date.
"Moody's" shall mean Xxxxx'x Investor Service, Inc.
"Money Market Borrowing" shall have the meaning assigned to
such term in Section 1.02(b) hereof.
"Money Market Loans" shall mean the loans provided for by
Section 1.02 hereof.
"Money Market Note" shall have the meaning assigned to such
term in Section 1.10(b) hereof.
"Money Market Quote" shall mean an offer in accordance with
Section 1.02(c) hereof by a Bank to make a Money Market Loan with one single
specified interest rate.
"Money Market Quote Request" shall have the meaning assigned
to such term in Section 1.02(b) hereof.
"Money Market Rate" shall have the meaning assigned to such
term in Section 1.02(c)(ii)(C) hereof.
"Xxxxxx" shall mean Xxxxxx Guaranty Trust Company of New York
in its capacity as the Syndication Agent.
"Note" shall mean a Syndicated Note, a Money Market Note or a
Swingline Note.
"Operating Lease Obligations" shall mean, for the Company at
any date, if the minimum annual rental commitments of the Company and its
Consolidated Subsidiaries as lessee under leases (other than capital leases and
mineral leases) in effect on such date for the fiscal year in which such date
occurs shall exceed $30,000,000, the minimum rental commitments of the Company
and its Consolidated Subsidiaries as lessee over the remaining terms of such
leases that cause such minimum annual rental commitments to exceed $30,000,000,
discounted to present value at the rate of 10% per annum. For purposes of this
definition, rental payments under leases having the longest terms and which
cannot be canceled by the Lessee without the incurrence of a substantial penalty
shall be deemed to be those leases that cause such aggregate minimum rental
commitments to exceed $30,000,000.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
"Person" shall mean an individual, a corporation, a company, a
voluntary association, a partnership, a trust, an unincorporated organization or
a government or any agency, instrumentality or political subdivision thereof.
6
50
"Plan" shall mean any employee benefit or other plan
maintained by the Company or any Subsidiary of the Company for its employees and
covered by Title IV of ERISA.
"Post-Default Rate" shall mean, in respect of any amount
payable under this Agreement which is not paid when due (whether at stated
maturity, by acceleration or otherwise), a rate per annum for each day during
the period from the due date of such amount until such amount shall be paid in
full equal to 2% above the Base Rate in effect on such day (provided that, if
the amount so in default is principal of a Fixed Rate Loan or a Money Market
Loan and the due date thereof is a day other than the last day of the Interest
Period therefor, the "Post-Default Rate" for such principal shall be, for the
period from and including such due date to but excluding the last day of the
Interest Period for such Loan, 2% above the interest rate for such Loan as
provided in Section 2.02 hereof and, thereafter, the rate provided for above in
this definition).
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at its Principal Office as its prime commercial lending rate.
"Principal Office" shall mean (i) with respect to Chase or The
Chase Manhattan Bank, its principal office in New York, New York, presently
located at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, X.X. and (ii) with respect to
Xxxxxx, its principal office in New York, New York, presently located at 00 Xxxx
Xxxxxx, Xxx Xxxx, X.X.
"Quarterly Dates" shall mean the last day of each March, June,
September and December, commencing on the first such date after the Effective
Date.
"Quarterly Period" shall mean the period of three consecutive
calendar months ending on each Quarterly Date.
"Quotation Date" shall have the meaning attributed thereto in
Section 1.02(b)(iv) hereof.
"Rating Level" shall mean, as of any day, the level indicated
below opposite the statement that is correct with respect to the ratings of the
Company's senior unsecured long-term debt securities as of such day, provided,
that if the ratings of S&P and Moody's on such day fall within different levels,
the level shall be the level which is one level above the level with the lower
rating unless there is a difference of more than two levels, in which case the
level shall be the level which is one level below the level with the higher
rating:
Rating Level
------ -----
A- or better by S&P or A3 or better by Moody's I
BBB+ by S&P or Baa1 by Xxxxx'x II
BBB by S&P or Baa2 by Xxxxx'x III
BBB- by S&P or Baa3 by Xxxxx'x IV
7
51
Rating Level
------ -----
Below BBB- by S&P and below Baa3 by Xxxxx'x V
For purposes of this definition, "I" shall be the highest level and "V" shall be
the lowest level. If any rating established or deemed to have been established
by Xxxxx'x or S&P shall be changed, such change shall be effective as of the
date on which it is first announced by the applicable rating agency. Each change
in the Rating Level shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Xxxxx'x or S&P shall
change so as to make the above ratings inapplicable, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations or
shall no longer have in effect a rating for any reason, the Company and the
Banks shall negotiate in good faith to amend the references to specific ratings
in this definition to reflect such changed rating system or the non-availability
of ratings from such rating agency or to select a substitute rating agency and
pending or in the absence of any agreement the Rating Level will be determined
by reference to the single available rating, if any, or, in the absence of any
rating, then such rating agencies will be deemed to have established a rating in
Level V.
"Reference Banks" shall mean The Chase Manhattan Bank and
Xxxxxx Guaranty Trust Company of New York (or their Applicable Lending Offices,
as the case may be).
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System (or any successor), as the same may be
amended or supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Bank, any
change after the date of this Agreement in United States Federal, state or
foreign law or regulations (including, without limitation, Regulation D) or the
adoption or making after such date of any interpretation, directive or request
applying to a class of banks including such Bank of or under any United States
Federal, state or foreign law or regulations (whether or not having the force of
law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Restricted Subsidiaries" shall mean SNG, Sonat Exploration,
and any other Subsidiary of the Company which shall acquire or succeed to all or
any substantial part of the assets or the stock of any such Restricted
Subsidiary (in which case any references to any such Restricted Subsidiary in
this Agreement shall, mutatis mutandis, be deemed to refer to such other
Subsidiary).
"Set Rate Auction" shall mean a solicitation of Money Market
Quotes setting forth Money Market Rates pursuant to Section 1.02 hereof.
8
52
"Set Rate Loans" shall mean Money Market Loans the interest
rates on which are determined on the basis of Money Market Rates pursuant to a
Set Rate Auction.
"SNG" shall mean Southern Natural Gas Company, a wholly-owned
Subsidiary of the Company (except for directors' qualifying shares).
"Sonat Exploration" shall mean Sonat Exploration Company, a
wholly-owned Subsidiary of the Company (except for directors' qualifying
shares).
"S&P" shall mean Standard & Poor's Corporation.
"SPC" shall have the meaning provided in Section 8.09(b).
"Subsidiary" shall mean, as to any Person, any corporation,
partnership or other entity at least a majority of whose securities or other
ownership interests having ordinary voting power for the election of directors
or other persons performing similar functions of such corporation, partnership
or entity (other than securities or other ownership interests having such power
only by reason of the happening of a contingency) are at the same time owned by
such Person and/or one or more of its other Subsidiaries.
"SunTrust" shall mean SunTrust Bank, Atlanta, in its capacity
as the Documentation Agent.
"Swingline Account" shall mean the account of the Company
maintained with the Swingline Bank at its Lending Office which the Company and
the Swingline Lender shall designate as the Swingline Account for purposes of
this Agreement.
"Swingline Bank" shall mean SunTrust Bank, Atlanta, in its
capacity as the lender of Swingline Loans.
"Swingline Business Day" shall mean any day on which
commercial banks are not authorized or required to close in Atlanta, Georgia.
"Swingline Commitment" shall mean the obligation of the
Swingline Bank to make Swingline Loans pursuant to Section 1.03 hereof in an
aggregate principal amount at any one time outstanding up to but not exceeding
$60,000,000.
"Swingline Loans" shall have the meaning assigned to such term
in Section 1.03 hereof.
"Swingline Note" shall have the meaning assigned to such term
in Section 1.10(c) hereof.
"Syndicated Loans" shall mean the loans provided for by
Section 1.01 hereof.
"Syndicated Note" shall have the meaning assigned to such term
in Section 1.10(a) hereof.
9
53
"Termination Event" shall mean any event or condition which
would constitute grounds under Section 4042 of ERISA for the termination of, or
for the appointment of a trustee to administer, any Plan.
"Total Indebtedness" shall mean, for any Person, the aggregate
unpaid principal amount of the Indebtedness of such Person and its Consolidated
Subsidiaries (excluding Indebtedness of any Consolidated Subsidiary to such
Person or another such Consolidated Subsidiary and, except for the Company,
Indebtedness of such Person to any of its Consolidated Subsidiaries).
10
54
SCHEDULE 2
LENDING OFFICES
AND/OR
ADDRESSES FOR NOTICES
1. SONAT INC.
Address for Notices:
-------------------
AmSouth-Sonat Tower
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Treasurer
Fax: 000-000-0000
Telex: 4955644
Answerback: SNGC UI
2. The Chase Manhattan Bank (as a Bank and as
Administrative Agent)
Lending Office for All Types of Loans:
--------------------------------------
The Chase Manhattan Bank
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
--------------------
The Chase Manhattan Bank
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Loan and Agency Services
Xxxx Xxxxxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
With copies to:
---------------
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Oil & Gas Group
Xxxx Xx Xxxxxxxx
Xxxxx Xxxxxxxxx
Chase Securities, Inc.
000 Xxxx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Financial Products Money Market Management
6th floor
Chase Securities, Inc.
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
3. Xxxxxx Guaranty Trust Company
OF NEW YORK (AS A BANK AND AS SYNDICATION AGENT)
Lending Office for Domestic Loans:
----------------------------------
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Lending Office for Eurodollar Loans:
------------------------------------
Xxxxxx Guaranty Trust Company of New York
Nassau Bahamas Office
c/o X.X. Xxxxxx Services Inc.
Euro-Loan Servicing Unit - Loan Operations
000 Xxxxxxx-Xxxxxxxxxx Xxxx - 0xx Xx.
Xxxxxx, Xxxxxxxx 00000
Address for Notices:
--------------------
Xxxxxx Guaranty Trust Company of New York
c/o X.X. Xxxxxx Services Inc.
000 Xxxxxxx-Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Loan Xxxxxxxxxx-Xxxx 00
Telephone: 000-000-0000
Fax: 000-000-0000
Telex: 177615
Answerback: MGT UT
4. The Toronto-Dominion Bank
Lending Office for All Types of Loans:
--------------------------------------
The Toronto-Dominion Bank
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
2
56
Address for Notices:
--------------------
The Toronto-Dominion Bank
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
5. The Bank of Nova Scotia
Lending Office for All Types of Loans:
--------------------------------------
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Address for Notices:
--------------------
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Eudia Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
6. Bank of America, N.T. & S.A.
Lending Office for All Types of Loans:
--------------------------------------
Bank of America (Houston)
Three Xxxxx Center, 000 Xxxx Xx.
Xxxxxxx, XX 00000
Address for Notices:
--------------------
Bank of America (Houston)
Three Xxxxx Center, 000 Xxxx Xx.
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
3
57
7. SunTrust Bank, Atlanta (as a Bank,
as the Swingline Bank and as Documentation Agent)
Lending Office for All Types of Loans:
--------------------------------------
SunTrust Bank, Atlanta
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Address for Notices:
--------------------
SunTrust Bank, Atlanta
P.O. Box 4418, Mail Code 120
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Telex: 54220
Answerback: TruscoIntAtl
8. Credit Lyonnais New York Branch
Lending Office for All Types of Loans
-------------------------------------
Credit Lyonnais New York Branch
c/o Credit Lyonnais Houston Representative Xxxxxx
0000 Xxxxxxxxx, Xxxxx #0000
Xxxxxxx, Xxxxx 00000
Address for Notices:
--------------------
Credit Lyonnais New York Branch
c/o Credit Lyonnais Houston Representative Xxxxxx
0000 Xxxxxxxxx, Xxxxx #0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Vice President
Telephone: (000) 000-0000
Fax: (000) 000-0000
Telex: 6868674
Answerback: XX XXX UN
9. NationsBank of Texas, N.A.
Lending Office for All Types of Loans:
--------------------------------------
NationsBank of Texas, N.A.
000 Xxxxxxxxx
Xxxxxxx, XX 00000
4
58
Address for Notices:
--------------------
NationsBank of Texas, N.A.
000 Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Energy Group
Telephone: 000-000-0000
Fax: 000-000-0000
Telex: 6829317
Answerback: NationSBk DAL
10. Mellon Bank, N.A.
Lending Office for All Types of Loans:
--------------------------------------
Mellon Bank, N.A.
The Mellon Bank Center
Loan Administration
Room 1203
Xxxxxxxxxx, XX 00000
Attention: Supervisor
Telephone: 000-000-0000
Fax: 000-000-0000
Address for notices:
--------------------
Mellon Bank, N.A.
One Mellon Bank Center
Room 4425
Xxxxxxxxxx, XX 00000
Attention: A. Xxxx Xxxxx
Manager, Energy Services Group
Telephone: 000-000-0000
Fax: 000-000-0000
Address for Notices Regarding Money Market Loans
------------------------------------------------
Mellon Bank, N.A.
One Mellon Bank Center
Capital Markets, Room 151-0400
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
5
59
11. Wachovia Bank of Georgia, N.A.
Lending Office for All Types of Loans:
--------------------------------------
Wachovia Bank of Georgia, N.A.
000 Xxxxxxxxx Xxxxxx X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Address for Notices:
--------------------
Wachovia Bank of Georgia, N.A.
000 Xxxxxxxxx Xxxxxx N.E.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx Xxxxx
Assistant Vice President
Telephone: 000-000-0000
Fax: 000-000-0000
12. AmSouth Bank
Lending Office for All Types of Loans:
--------------------------------------
AmSouth Bank
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Address for Notices:
--------------------
AmSouth Bank
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Senior Vice President
Telephone: 000-000-0000
Fax: 000-000-0000
13. The Bank of Tokyo - Mitsubishi, Limited
Lending Office for All Types of Loans:
--------------------------------------
The Bank of Tokyo - Mitsubishi, Limited
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx Xxxxxxx Xxxxxx # 0000
Xxxxxxx, XX 00000-0000
6
60
Address for Notices:
--------------------
The Bank of Tokyo - Mitsubishi, Limited
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx-Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
14. PNC Bank, National Association
Lending Office for All Types of Loans
-------------------------------------
PNC Bank, National Association
Natural Resources Department
One PNC Plaza, 3rd Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Address for Notices:
--------------------
PNC Bank, National Association
Natural Resources Department
One PNC Plaza, 3rd Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
15. Regions Bank
Lending Office for All Types of Loans
-------------------------------------
Regions Bank (Birmingham)
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx XX 00000
Address for Notices:
--------------------
Regions Bank (Birmingham
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
7
61
16. Kredietbank, N.V.
Lending Office for All Types of Loans
-------------------------------------
Kredietbank (Atlanta)
0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Address for Notices:
--------------------
Kredietbank (Atlanta)
0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
17. Compass Bank
Lending Office for All Types of Loans
-------------------------------------
Compass Bank
00 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Address for Notices:
--------------------
Compass Bank
00 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
18. Fuji Bank Ltd.
Lending Office for All Types of Loans
-------------------------------------
Fuji Bank Ltd. (Atlanta)
Suite 2100 of the Marquis One Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx XX
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Address for Notices:
--------------------
Fuji Bank Ltd. (Atlanta)
Suite 2100 of the Marquis One Tower
8
62
000 Xxxxxxxxx Xxxxxx Xxxxxx XX
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
19. Royal Bank of Canada
Lending Office for All Types of Loans
-------------------------------------
Royal Bank of Canada, New York
Financial Square, 00xx Xxxxx
Xxx Xxxx XX 00000-0000
Attention: Asst. Manager, Loan Processing
Telephone: (000) 000-0000
Fax: (000) 000-0000
Address for Notices:
--------------------
Royal Bank of Canada
c/o Royal Bank of Canada
Financial Square, 00xx Xxxxx
Xxx Xxxx XX 00000-0000
Telephone:
Fax: (000) 000-0000
With Copies to:
---------------
Royal Bank of Canada
Attn: Xxx Xxxxxx
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
20. Bank of New York
Lending Office for All Types of Loans
-------------------------------------
Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices:
--------------------
Bank of New York
Xxx Xxxx Xxxxxx
0
00
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
21. Societe Generale
Lending Office for All Types of Loans
-------------------------------------
Societe Generale, Southwest Agency
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Vice President
Telephone: 000-000-0000
Fax: 000-000-0000
Address for Notices:
--------------------
Societe Generale
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
With copy to:
-------------
Societe Generale (Houston)
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
10
64
SCHEDULE 3
BANKS COMMITMENT
THE CHASE MANHATTAN BANK $ 65,000,000
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK 62,500,000
SUNTRUST BANK, ATLANTA 62,500,000
BANK OF AMERICA, N.T. & S.A. 40,000,000
CREDIT LYONNAIS NEW YORK BRANCH 40,000,000
NATIONSBANK OF TEXAS, N.A. 40,000,000
TORONTO DOMINION (TEXAS), INC. 40,000,000
THE BANK OF NOVA SCOTIA 30,000,000
BANK OF TOKYO - MITSUBISHI, LTD. 30,000,000
KREDIETBANK N.V. 30,000,000
MELLON BANK, N.A. 30,000,000
PNC BANK, NATIONAL ASSOCIATION 30,000,000
ROYAL BANK OF CANADA 30,000,000
SOCIETE GENERALE 30,000,000
AMSOUTH BANK 25,000,000
BANK OF NEW YORK 25,000,000
THE FUJI BANK LTD., ATLANTA AGENCY 25,000,000
REGIONS BANK 25,000,000
WACHOVIA BANK OF GEORGIA, N.A. 25,000,000
COMPASS BANK 15,000,000
------------
$700,000,000
65
EXHIBIT A-1
[Form of Note for Syndicated Loans]
PROMISSORY NOTE
$______________ ____________, 19__
New York, New York
FOR VALUE RECEIVED, SONAT INC., a Delaware corporation (the
"Company"), hereby promises to pay to ______________ (the "Bank"), for account
of its respective Applicable Lending Offices provided for by the Credit
Agreement referred to below, at the principal office of The Chase Manhattan Bank
at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, the principal sum of
_____________ Dollars (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Syndicated Loans made by the Bank to the Company under
the Credit Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such Syndicated Loan, at such office, in like money and funds, for the
period commencing on the date of such Syndicated Loan until such Syndicated Loan
shall be paid in full, at the rates per annum and on the dates provided in the
Credit Agreement.
The date, amount, type, interest rate and maturity date of
each Syndicated Loan made by the Bank to the Company, and each payment made on
account of the principal thereof, shall be recorded by the Bank on its books
and, prior to any transfer of this Note, endorsed by the Bank on the schedule
attached hereto or any continuation thereof. The failure of the Bank to make any
notation or entry or any error in such a notation or entry shall not, however,
limit or otherwise affect any obligation of the Company under the Credit
Agreement or this Note.
This Note is one of the Notes referred to in the Credit
Agreement (as modified and supplemented and in effect from time to time, the
"Credit Agreement") dated as of January 26, 1998, among the Company, the banks
named therein and The Chase Manhattan Bank, as Administrative Agent, Xxxxxx
Guaranty Trust Company of New York, as Syndication Agent, and SunTrust Bank,
Atlanta, as Documentation Agent, and evidences Syndicated Loans made by the Bank
thereunder. Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
66
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
SONAT INC.
By
-----------------------------------
Title:
2
67
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described
Credit Agreement to the Company, on the dates, in the principal amounts, of the
types, bearing interest at the rates and maturing on the dates set forth below,
subject to the payments and prepayments of principal set forth below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
---- --------- ---- -------- -------- ------- --------- --------
68
EXHIBIT A-2
[Form of Note for Money Market Loans]
PROMISSORY NOTE
_____________, 19_
New York, New York
FOR VALUE RECEIVED, SONAT INC., a Delaware corporation (the
"Company"), hereby promises to pay to __________________ (the "Bank"), for
account of its respective Applicable Lending Offices provided for by the Credit
Agreement referred to below, at the principal office of The Chase Manhattan Bank
at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, the aggregate unpaid
principal amount of the Money Market Loans made by the Bank to the Company under
the Credit Agreement, in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such Money Market Loan, at such office, in like money and funds, for the
period commencing on the date of such Money Market Loan until such Money Market
Loan shall be paid in full, at the rates per annum and on the dates provided in
the Credit Agreement.
The date, amount, interest rate and maturity date of each
Money Market Loan made by the Bank to the Company, and each payment made on
account of the principal thereof, shall be recorded by the Bank on its books
and, prior to any transfer of this Note, endorsed by the Bank on the schedule
attached hereto or any continuation thereof. The failure of the Bank to make any
notation or entry or any error in such a notation or entry shall not, however,
limit or otherwise affect any obligation of the Company under the Credit
Agreement or this Note.
This Note is one of the Notes referred to in the Credit
Agreement (as modified and supplemented and in effect from time to time, the
"Credit Agreement") dated as of January 26, 1998, among the Company, the banks
named therein and The Chase Manhattan Bank, as Administrative Agent, Xxxxxx
Guaranty Trust Company of New York, as Syndication Agent, and SunTrust Bank,
Atlanta, as Documentation Agent, and evidences Money Market Loans made by the
Bank thereunder. Capitalized terms used in this Note have the respective
meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
69
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
SONAT INC.
By
-----------------------------------
Title:
2
70
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described
Credit Agreement to the Company, on the dates, in the principal amounts, bearing
interest at the rates and maturing on the dates set forth below, subject to the
payments and prepayments of principal set forth below:
Principal
Date Amount Maturity Amount Unpaid
of of Interest Date of Paid or Principal Notation
Loan Loan Rate Loan Prepaid Amount Made by
---- --------- -------- -------- ------- --------- --------
71
EXHIBIT A-3
[Form of Note for Swingline Loans]
PROMISSORY NOTE
$__________________ ____________, 19__
New York, New York
FOR VALUE RECEIVED, SONAT INC., a Delaware corporation (the
"Company"), hereby promises to pay to SUNTRUST BANK, ATLANTA (the "Bank"), for
account of its respective Applicable Lending Offices provided for by the Credit
Agreement referred to below, at the principal office of The Chase Manhattan Bank
at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, the principal sum of
____________ Dollars (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Swingline Loans made by the Bank to the Company under
the Credit Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such Swingline Loan, at such office, in like money and funds, for the
period commencing on the date of such Swingline Loan until such Swingline Loan
shall be paid in full, at the rates per annum and on the dates provided in the
Credit Agreement.
The date, amount, type, interest rate and maturity date of
each Swingline Loan made by the Bank to the Company, and each payment made on
account of the principal thereof, shall be recorded by the Bank on its books
and, prior to any transfer of this Note, endorsed by the Bank on the schedule
attached hereto or any continuation thereof. The failure of the Bank to make any
notation or entry or any error in such a notation or entry shall not, however,
limit or otherwise affect any obligation of the Company under the Credit
Agreement or this Note.
This Note is one of the Notes referred to in the Credit
Agreement (as modified and supplemented and in effect from time to time, the
"Credit Agreement") dated as of January 26, 1998, among the Company, the banks
named therein and The Chase Manhattan Bank, as Administrative Agent, Xxxxxx
Guaranty Trust Company of New York, as Syndication Agent, and SunTrust Bank,
Atlanta, as Documentation Agent, and evidences Swingline Loans made by the Bank
thereunder. Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
72
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
SONAT INC.
By
-----------------------------------
Title:
2
73
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described
Credit Agreement to the Company, on the dates, in the principal amounts, of the
types, bearing interest at the rates and maturing on the dates set forth below,
subject to the payments and prepayments of principal set forth below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
---- -------- ---- -------- -------- ------- --------- --------
74
EXHIBIT B
[Form of Opinion of Special Counsel to the Company]
January __, 1998
To the Banks party to the Agreement
referred to below and The Chase
Manhattan Bank, as Administrative
Agent, Xxxxxx Guaranty Trust Company
of New York, as Syndication Agent and
SunTrust Bank, Atlanta, as Documentation
Agent
Dear Sirs:
We have acted as special counsel for Sonat Inc., a Delaware
corporation (the "Company"), in connection with the execution and delivery of
the Credit Agreement (the "Agreement") dated as of January 26, 1998, among the
Company, the Banks named therein and The Chase Manhattan Bank, as Administrative
Agent, Xxxxxx Guaranty Trust Company of New York, as Syndication Agent and
SunTrust Bank, Atlanta, as Documentation Agent.
This opinion is delivered to you pursuant to Section 4.01(v)
of the Agreement. All capitalized terms not otherwise defined herein shall have
the meanings attributed to them in the Agreement.
In this connection, and as a basis for the opinions expressed
below, we have examined or relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such records, instruments,
certificates and other documents, have made such inquiries as to questions of
fact of officers and representatives of the Company and have made such
examinations of law as we have deemed necessary or appropriate for purposes of
giving the opinions hereinafter expressed. As to certain matters in respect of
the opinions expressed in paragraphs 1 and 2 below, we have relied, with your
permission, solely on the opinion, a copy of which is attached hereto, of
Xxxxxxx X. Xxxxx, Executive Vice President and General Counsel.
In rendering the opinions expressed below, we have assumed
that the Agreement has been duly authorized, executed and delivered by each
party thereto other than the Company, that each party thereto other than the
Company has the requisite power and authority to execute, deliver and perform
the Agreement, and that such execution, delivery and performance by such other
parties does not and will not breach, conflict with or constitute a violation of
the laws or governmental rules or regulations of any jurisdiction.
Each of the opinions expressed below is restricted to matters
controlled or affected by Federal laws, the General Corporation Law of the State
of Delaware and the laws of the State of New York.
75
On the basis of the foregoing, it is our opinion that:
1. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware and is duly licensed or qualified to do
business and is in good standing in the States of Alabama,
Texas and New York, constituting those states which we have
been advised are the states in which the Company believes the
conduct of its business or the ownership of its assets
requires such qualification, and the Company has the corporate
power to make the Agreement and the Notes and to borrow under
the Agreement.
2. The making and performance by the Company of the
Agreement and the Notes and borrowings under the Agreement
have been duly authorized by all necessary corporate action
and do not and will not contravene any provision of law
applicable to the Company or of the certificate of
incorporation or by-laws of the Company or result in the
material breach of, or constitute a material default or
require any consent under, or result in the creation of any
material lien, charge or other security interest or
encumbrance (except as may be required by the Agreement) upon
any property or assets of the Company pursuant to, any
indenture or other agreement or instrument to which the
Company is a party or by which the Company or any of its
property may be bound or affected.
3. No approval, license or consent of any
governmental regulatory body is requisite to the making and
performance by the Company of the Agreement or the execution,
delivery and payment of the Notes.
4. The Agreement and the Notes have been duly
executed and delivered by the Company and each constitutes a
valid and binding agreement of the Company enforceable in
accordance with its terms (subject to applicable bankruptcy,
fraudulent conveyance, fraudulent transfer, preferential
transfer, insolvency, moratorium and other like laws of
general application affecting creditors' rights and to the
application of general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith
and fair dealing and whether considered in a proceeding in
equity or at law), except that we express no opinion as to (i)
Section 2.06(c) of the Agreement or (ii) the effect of the law
of any jurisdiction (other than the State of New York) wherein
any Bank (including any of its Applicable Lending Offices) may
be located which limits rates of interest which may be charged
or collected by such Bank or (iii) whether a Federal or state
court outside of the State of New York would give effect to
the choice of New York law provided for in the Agreement and
the Notes.
In connection with the above, we wish to point out that
provisions of the Agreement which permit any Agent or any Bank to take action or
make determinations or allocations, or to benefit from indemnities and similar
undertakings of the Company, may be subject to a requirement that such action be
taken or such determinations or allocations be made,
2
76
and that any action or inaction by an Agent or a Bank which may give rise to a
request for payment under such an indemnity or similar undertaking be taken or
not taken, on a reasonable basis and in good faith.
Very truly yours,
3
77
(ATTACHMENT TO
EXHIBIT B)
[Form of Opinion of General Counsel]
January __, 1998
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
As Executive Vice President and General Counsel of Sonat Inc.,
a Delaware corporation (the "Company"), I am familiar with the Credit Agreement
(the "Agreement") dated as of January 26, 1998, among the Company, the Banks
named therein and The Chase Manhattan Bank, as Administrative Agent, Xxxxxx
Guaranty Trust Company of New York, as Syndication Agent and SunTrust Bank,
Atlanta, as Documentation Agent.
This opinion is delivered to you in connection with the
opinion which you are rendering pursuant to Section 4.01(v) of the Agreement.
You may rely on this opinion in rendering your opinion, you may attach a copy
hereof to your opinion and the Banks may rely on this opinion as if it were
addressed to them. All capitalized terms not otherwise defined herein shall have
the meaning attributed to them in the Agreement.
In this connection, and as a basis for the opinions expressed
below, I have examined or relied upon originals or copies certified or otherwise
identified to my satisfaction, of such records, instruments, certificates and
other documents, have made inquiries as to questions of fact of officers and
representatives of the Company and have made such examinations of law as I have
deemed necessary or appropriate for purposes of giving the opinions hereinafter
expressed.
On the basis of the foregoing, it is my opinion that:
1. The Company is duly licensed or qualified to do
business and is in good standing in the States of Alabama,
Texas and New York, constituting those states in which the
Company believes the conduct of its business or the ownership
of its assets requires such qualification.
2. The making and performance by the Company of the
Agreement and the Notes and borrowings under the Agreement do
not and will not contravene any provision of law of the State
of Alabama or the United States applicable to the Company by
virtue of the nature of its or any of its Subsidiaries'
businesses or of the properties owned or leased by any of them
or result in the material breach of, or constitute a material
default or require any consent under, or result in the
creation of any material lien, charge or other security
interest or encumbrance upon any property or assets of the
Company pursuant to, any
78
indenture or other agreement or instrument to which the
Company is a party or by which the Company or any of its
property may be bound or affected.
3. The Company is not an "investment company" or a
company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
4. Neither the Company nor any of its Subsidiaries is
subject to regulation under the Public Utility Holding Company
Act of 1935, as amended.
Very truly yours,
2
79
EXHIBIT C
[Form of Opinion of Special Counsel
to the Banks and the Agents]
January __, 1998
To the Banks currently party to the
Credit Agreement referred to below and
listed on Schedule 1 attached hereto;
The Chase Manhattan Bank, as Administrative
Agent, Xxxxxx Guaranty Trust Company
of New York, as Syndication Agent and
SunTrust Bank, Atlanta, as Documentation
Agent
Gentlemen:
We have acted as your special counsel in connection with the
Credit Agreement (the "Credit Agreement") dated as of January 26, 1998, among
Sonat Inc. (the "Company"), the Banks named therein and The Chase Manhattan
Bank, as Administrative Agent, Xxxxxx Guaranty Trust Company of New York, as
Syndication Agent and SunTrust Bank, Atlanta, as Documentation Agent. Terms
defined in the Credit Agreement are used herein as defined therein.
We have assumed for purposes of our opinion hereinafter set
forth that the Credit Agreement has been duly authorized, executed and delivered
by the Company, each Bank and each Agent, and that the Company is duly
incorporated and validly existing under the laws of the State of Delaware and
has full power, authority and legal right to make and perform the Credit
Agreement and the Notes and that such execution, delivery and performance by the
Company does not contravene its certificate of incorporation or by-laws or
violate, or require any consent not obtained under, any applicable law or
regulation or any order, writ, injunction or decree of any court or other
governmental authority and does not violate, or require any consent not obtained
under, any contractual obligation applicable to or binding upon the Company.
We have examined (i) a copy of the Credit Agreement signed by
the Company, each Bank and each Agent and (ii) a copy of the opinion letter of
Xxxxxx Xxxxxxx & Xxxx LLP, counsel for the Company, addressed to you and dated
the date hereof in respect of the Credit Agreement together with the opinion of
the Executive Vice President and General Counsel of the Company, attached
thereto. We have assumed the genuineness of all signatures, the authenticity of
documents submitted to us as originals, the conformity with the originals of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based upon the foregoing and subject to the comments and
qualifications set forth below, we are of the opinion that the Credit Agreement
constitutes, and the Notes when executed and delivered for value will
constitute, valid and binding obligations of the Company enforceable
80
in accordance with their respective terms, except as the foregoing may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing, and
except that we express no opinion as to (i) Section 2.06(c) of the Credit
Agreement or (ii) the effect of the law of any jurisdiction (other than the
State of New York) wherein any Bank (including any of its Applicable Lending
Offices) may be located which limits rates of interest which may be charged or
collected by such Bank. In addition, we express no opinion as to whether a
Federal or state court outside of the State of New York would give effect to the
choice of New York law provided for in the Credit Agreement and the Notes.
In connection with the above, we wish to point out that
provisions of the Credit Agreement which permit either Agent or any Bank to take
action or make determinations, or to benefit from indemnities and similar
undertakings of the Company, may be subject to a requirement that such action be
taken or such determinations be made, and that any action or inaction by an
Agent or a Bank which may give rise to a request for payment under such an
undertaking be taken or not taken, on a reasonable basis and in good faith.
We are members of the Bar of the State of New York and do not
herein intend to express any opinion as to any matters governed by any laws
other than the law of the State of New York and the Federal law of the United
States of America.
This opinion is rendered to you in connection with the above
described transactions. This opinion may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
2
81
EXHIBIT D
[Form of Money Market Quote Request]
[Date]
To: [Bank]
From: Sonat Inc.
Re: Money Market Quote Request
Pursuant to Section 1.02 of the Credit Agreement (the "Credit
Agreement") dated as of January 26, 1998, among Sonat Inc., the banks named
therein and The Chase Manhattan Bank, as Administrative Agent, Xxxxxx Guaranty
Trust Company of New York, as Syndication Agent and SunTrust Bank, Atlanta, as
Documentation Agent, we hereby give notice that we request Money Market Quotes
for the following proposed Money Market Borrowing(s):
Borrowing Quotation Interest
Date Date [*1] Amount [*2] Period [*3]
--------- --------- ----------- -----------
Money Market Quotes responding to this Money Market Quote
Request must be submitted to us not later than [time and date] [*4].
Terms used herein have the meanings assigned to them in the
Credit Agreement.
SONAT INC.
By
-----------------------------------
Title:
-----------------------------------
* All numbered footnotes appear on last page of this Exhibit.
[1] For use if a Money Market Rate in a Set Rate Auction is requested to be
submitted before the Borrowing Date.
[2] Each amount must be $25,000,000 or a larger multiple of $5,000,000.
[3] A period of up to 180 days after the making of such Set Rate Loan and
ending on a Business Day.
[4] Insert time and date determined pursuant to Section 1.02(c)(i).
82
EXHIBIT E
[Form of Money Market Quote]
To: Sonat Inc.
Attention:
Re: Money Market Quote to Sonat Inc.
(the "Borrower")
This Money Market Quote is given in accordance with Section
1.02(c) of the Credit Agreement (the "Credit Agreement") dated as of January 26,
1998, among the Borrower, the banks named therein and The Chase Manhattan Bank,
as Administrative Agent, Xxxxxx Guaranty Trust Company of New York, as
Syndication Agent and SunTrust Bank, Atlanta, as Documentation Agent. Terms
defined in the Credit Agreement are used herein as defined therein.
In response to the Borrower's invitation dated ____________,
19__, we hereby make the following Money Market Quote(s) on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Money Market Loan(s) in
the following principal amount[s], for the following Interest
Period(s) and at the following rate(s):
Borrowing Quotation Interest
Date Date [*1] Amount [*2] Period [*3] Rate [*4]
--------- --------- ----------- ----------- ---------
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate[s] us to make the Money Market Loan(s) for which
any offer(s) (is/are) accepted, in whole or in part (subject to the third
sentence of Section 1.02(d) of the Credit Agreement).
Very truly yours,
[Name of Bank]
By
-----------------------------------
Authorized Officer
Dated: ____________,
83
-----------------------------------
* All numbered footnotes appear on last page of this Exhibit.
[1] As specified in the related Money Market Quote Request.
[2] The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 or a
larger multiple of $1,000,000.
[3] A period of up to 180 days after the making of such Set Rate Loan and
ending on a Business Day, as specified in the related Money Market Quote
Request.
[4] Specify rate of interest per annum (rounded to the nearest 1/10,000 of 1%).
2
84
EXHIBIT F
[FORM OF DESIGNATION AGREEMENT]
Dated _______________, 199___
Reference is made to the Credit Agreement dated as of January
26, 1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among Sonat Inc., a Delaware corporation (the "Company"),
the Banks parties thereto, The Chase Manhattan Bank, as Administrative Agent,
Xxxxxx Guaranty Trust Company of New York, as Syndication Agent, and SunTrust
Bank, Atlanta, as Documentation Agent. Terms defined in the Credit Agreement are
used herein with the same meaning unless otherwise define herein.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNEE] (the
"Designee"), the Agent and the Borrower agree as follows:
1. The Designor hereby designates the Designee, and the
Designee hereby accepts such designation, to have a right to make Money Market
Loans pursuant to Section 1.02 of the Credit Agreement. Any assignment by
Designor to Designee of its rights to make a Money Market Loan pursuant to such
Section 1.02 shall be effective at the time of the funding for such Money Market
Loan and not before such time.
2. The Designor makes no representation or warranty and
assumes no responsibility pursuant to this Designation Agreement with respect to
(a) any statements, warranties or representations made in or in connection with
the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument and document furnished pursuant thereto and (b) the financial
condition of the Company or the performance or observance by the Company of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto. (It is acknowledged that the Designor may make
representations and warranties of the type described above in other agreements
to which the Designor is a party.)
3. The Designee (a) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 6.03 of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own independent credit
analysis and decision to enter into this Designation Agreement; (b) agrees that
it will, independently and without reliance upon any Agent, the Designor or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (c) confirms that it is an SPC;
(d) appoint and authorizes the Agents to take such action as agent on its behalf
and to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agents by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (e) agrees that it will
perform in accordance
85
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank.
4. The Designee hereby appoints Designor (in Designor's
capacity as a the designating lender and not as the referral bank) as Designee's
agent and attorney in fact, and grants to Designor an irrevocable power of
attorney, to deliver and receive all communications and notices under the Credit
Agreement and to exercise on Designee's behalf all rights to vote and to grant
and made approvals, waivers, consents or amendment to or under the Credit
Agreement. Any document executed by the Designor on the Designee's behalf in
connection with the Credit Agreement shall be binding on the Designee. The
Company, the Agent and each of the Banks may rely on and are beneficiaries of
the preceding provisions.
5. Following the execution of this Designation Agreement by
the Designor and its Designee, it will be delivered to Chase for acceptance and
recording by Chase. The effective date for this Designation Agreement (the
"Effective Date") shall be the date of acceptance hereof by Chase, unless
otherwise specified on the signature page thereto.
6. The Designor unconditionally agrees to pay or reimburse the
Designee and save the Designee harmless against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed or asserted
by any of the parties to the Credit Agreement against the Designee, in its
capacity as such, in any way relating to or arising out of this Designation
Agreement or any action taken or omitted by the Designee hereunder or
thereunder, provided that the Designor shall not be liable for any portion of
such liabilities, obligations, losses, damage, penalties, actions, judgments,
suits, costs, expenses or disbursements if the same results from the Designee's
gross negligence or willful misconduct.
7. Upon such acceptance and recording by Chase, as of the
Effective Date, the Designee shall be a party to the Credit Agreement with a
right to make Money Market Loans as a Bank pursuant to Section 1.02 of the
Credit Agreement and the rights and obligations of a Bank related thereto.
8. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the New York.
9. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
2
86
IN WITNESS WHEREOF, the Designor and the Designee, intending
to be legally bound, have caused this Designation Agreement to be executed by
their officers thereunto duly authorized as of the date first above written.
Effective Date(1): _______________, ____, 199__
[NAME OF DESIGNOR], as Designor
By:________________________________
Title:_____________________________
[NAME OF DESIGNEE], as Designee
By:________________________________
Title:_____________________________
Applicable Lending Office (and address
for notices):
[ADDRESS]
Accepted this _____ day
of _______________, 199__
THE CHASE MANHATTAN BANK, SONAT INC.
as Agent
By: ____________________________ By:________________________________
Title: _________________________ Title:_____________________________
--------------------
1. This date should be no earlier than five Business Days after the
delivery of this Designation Agreement to the Agent.
3
