Contract
EXECUTION VERSION
$2,500,000,000
CREDIT AGREEMENT
Dated as of April 18, 2017
among
ONEOK, INC.,
as the Borrower,
CITIBANK, N.A.,
as Administrative Agent, a Swing Line Lender and an L/C Issuer,
and
The Other Lenders, Swing Line Lenders and L/C Issuers Party Hereto
_________________________
BANK OF AMERICA, N.A.,
Syndication Agent
BARCLAYS BANK PLC,
JPMORGAN CHASE BANK, N.A.,
MIZUHO BANK, LTD.,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Documentation Agents
CITIGROUP GLOBAL MARKETS INC.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
BARCLAYS BANK PLC,
JPMORGAN CHASE BANK, N.A.,
MIZUHO BANK, LTD.,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
XXXXX FARGO SECURITIES, LLC,
Joint Lead Arrangers and Joint Bookrunners
16208864_8
Exhibit 10.1
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS ..................................................................... 1
1.01 Defined Terms ............................................................................................................... 1
1.02 Other Interpretive Provisions ....................................................................................... 27
1.03 Accounting Terms. ...................................................................................................... 28
1.04 Rounding ..................................................................................................................... 28
1.05 References to Agreements and Laws ........................................................................... 28
1.06 Times of Day ............................................................................................................... 28
1.07 Letter of Credit Amounts ............................................................................................. 29
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS ..................................................... 29
2.01 Committed Loans ........................................................................................................ 29
2.02 Borrowings, Conversions and Continuations of Loans. .............................................. 29
2.03 Reserved. ..................................................................................................................... 31
2.04 Letters of Credit. .......................................................................................................... 31
2.05 Swing Line Loans. ....................................................................................................... 40
2.06 Prepayments. ................................................................................................................ 43
2.07 Termination or Reduction of Commitments ................................................................ 44
2.08 Repayment of Loans. ................................................................................................... 44
2.09 Interest. ........................................................................................................................ 45
2.10 Fees .............................................................................................................................. 45
2.11 Computation of Interest and Fees ................................................................................ 46
2.12 Evidence of Debt. ........................................................................................................ 46
2.13 Payments Generally. .................................................................................................... 47
2.14 Sharing of Payments .................................................................................................... 48
2.15 Extension of Maturity Date. ........................................................................................ 49
2.16 Increase in Commitments. ........................................................................................... 51
2.17 Defaulting Lenders. ..................................................................................................... 52
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY ...................................................... 55
3.01 Taxes. ........................................................................................................................... 55
3.02 Illegality ....................................................................................................................... 59
3.03 Inability to Determine Rates ........................................................................................ 60
3.04 Increased Costs; Reserves on Eurodollar Rate Loans. ................................................ 61
3.05 Compensation for Losses ............................................................................................. 63
3.06 Mitigation Obligations; Replacement of Lenders. ....................................................... 63
3.07 Survival ........................................................................................................................ 64
ARTICLE IV. CONDITIONS PRECEDENT TO EXECUTION DATE, CLOSING DATE AND
CREDIT EXTENSIONS ............................................................................................................... 64
4.01 Conditions to Effectiveness of this Agreement (Execution Date) ............................... 64
4.02 Conditions of Initial Credit Extension (Closing Date) ................................................ 64
4.03 Conditions to all Credit Extensions ............................................................................. 67
ARTICLE V. REPRESENTATIONS AND WARRANTIES .................................................................... 67
5.01 Existence, Qualification and Power ............................................................................. 67
5.02 Authorization; No Contravention ................................................................................ 68
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5.03 Governmental Authorization; Other Consents ............................................................ 68
5.04 Binding Effect .............................................................................................................. 68
5.05 Financial Statements. ................................................................................................... 68
5.06 Litigation ..................................................................................................................... 69
5.07 No Default ................................................................................................................... 69
5.08 Ownership of Property; Liens ...................................................................................... 69
5.09 Environmental Compliance ......................................................................................... 69
5.10 Insurance ...................................................................................................................... 69
5.11 Taxes ............................................................................................................................ 70
5.12 ERISA Compliance. .................................................................................................... 70
5.13 Subsidiaries .................................................................................................................. 71
5.14 Margin Regulations; Investment Company Act. ......................................................... 71
5.15 Disclosure .................................................................................................................... 71
5.16 Compliance with Laws ................................................................................................ 71
5.17 Intellectual Property; Licenses, Etc. ............................................................................ 72
5.18 Solvency. ..................................................................................................................... 72
5.19 OFAC .......................................................................................................................... 72
5.20 Anti-Corruption Laws .................................................................................................. 72
5.21 EEA Financial Institution ............................................................................................ 72
ARTICLE VI. AFFIRMATIVE COVENANTS ........................................................................................ 72
6.01 Financial Statements .................................................................................................... 72
6.02 Certificates; Other Information .................................................................................... 73
6.03 Notices ......................................................................................................................... 75
6.04 Payment of Obligations ............................................................................................... 76
6.05 Preservation of Existence, Etc. .................................................................................... 76
6.06 Maintenance of Properties ........................................................................................... 76
6.07 Maintenance of Insurance ............................................................................................ 76
6.08 Compliance with Laws ................................................................................................ 76
6.09 Books and Records. ..................................................................................................... 77
6.10 Inspection Rights ......................................................................................................... 77
6.11 Use of Proceeds ........................................................................................................... 77
6.12 Sanctions ...................................................................................................................... 77
6.13 Maintenance of Control ............................................................................................... 77
6.14 Additional Guarantors ................................................................................................. 78
6.15 Anti-Corruption Laws .................................................................................................. 78
ARTICLE VII. NEGATIVE COVENANTS .............................................................................................. 78
7.01 Liens ............................................................................................................................ 78
7.02 Investments .................................................................................................................. 81
7.03 Indebtedness of Subsidiaries........................................................................................ 81
7.04 Fundamental Changes .................................................................................................. 82
7.05 Change in Nature of Business ...................................................................................... 83
7.06 Transactions with Affiliates ......................................................................................... 83
7.07 Burdensome Agreements ............................................................................................. 83
7.08 Use of Proceeds ........................................................................................................... 84
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7.09 Leverage Ratio ............................................................................................................. 84
7.10 Restricted Payments .................................................................................................... 84
7.11 Anti-Corruption Laws .................................................................................................. 84
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES ................................................................... 85
8.01 Events of Default ......................................................................................................... 85
8.02 Remedies Upon Event of Default ................................................................................ 87
8.03 Application of Funds ................................................................................................... 87
ARTICLE IX. ADMINISTRATIVE AGENT ............................................................................................ 88
9.01 Appointment and Authority ......................................................................................... 88
9.02 Rights as a Lender ....................................................................................................... 88
9.03 Exculpatory Provisions ................................................................................................ 89
9.04 Reliance by Administrative Agent ............................................................................... 89
9.05 Delegation of Duties .................................................................................................... 90
9.06 Resignation of Administrative Agent. ......................................................................... 90
9.07 Non-Reliance on Administrative Agent and Other Lenders ........................................ 91
9.08 Administrative Agent May File Proofs of Claim......................................................... 92
9.09 Release of Lien on Cash Collateral Upon Expiration of Letters of Credit .................. 92
9.10 Other Agents; Arrangers and Managers ...................................................................... 92
ARTICLE X. MISCELLANEOUS............................................................................................................. 93
10.01 Amendments, Etc. ........................................................................................................ 93
10.02 Notices and Other Communications; Facsimile Copies. ............................................. 94
10.03 No Waiver; Cumulative Remedies; Enforcement. ...................................................... 97
10.04 Expenses; Indemnity; Damage Waiver. ...................................................................... 97
10.05 Payments Set Aside ..................................................................................................... 99
10.06 Successors and Assigns. ............................................................................................ 100
10.07 Confidentiality ........................................................................................................... 105
10.08 Set-off ........................................................................................................................ 106
10.09 Interest Rate Limitation ............................................................................................. 107
10.10 Counterparts............................................................................................................... 107
10.11 Integration .................................................................................................................. 107
10.12 Survival of Representations and Warranties .............................................................. 108
10.13 Severability ................................................................................................................ 108
10.14 Replacement of Lenders ............................................................................................ 108
10.15 Governing Law. ......................................................................................................... 109
10.16 Waiver of Right to Trial by Jury................................................................................ 110
10.17 No Advisory or Fiduciary Responsibility .................................................................. 110
10.18 USA PATRIOT Act Notice ....................................................................................... 111
10.19 Electronic Execution of Assignments and Certain Other Documents ....................... 111
10.20 Reserved .................................................................................................................... 111
10.21 ENTIRE AGREEMENT ........................................................................................... 111
10.22 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ................ 112
SIGNATURESβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.S-1
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SCHEDULES
1.01A Existing Sale and Leaseback Transactions
2.01 Commitments and Pro Rata Shares
5.13 Subsidiaries and Other Equity Investments
7.03 Senior Notes of ONEOK Partners
10.02 Administrative Agentβs Office, Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Reserved
C Swing Line Loan Notice
D Note
E Compliance Certificate
F Assignment and Assumption
G Guaranty Agreement
H Forms of U.S. Tax Compliance Certificates
I Guaranty Agreement Joinder
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this βAgreementβ) is entered into as of April 18, 2017
among ONEOK, INC., an Oklahoma corporation (the βBorrowerβ), each lender from time to
time party hereto (collectively, the βLendersβ and individually, a βLenderβ), CITIBANK, N.A.,
as Administrative Agent, a Swing Line Lender and an L/C Issuer, and Bank of America, N.A., as
an L/C Issuer and a Swing Line Lender.
In consideration of the mutual covenants and agreements herein contained, the parties
hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:
βAcquisition Adjustment Periodβ means a period elected by the Borrower, such election to be
exercised by the Borrower by giving notice to the Administrative Agent, beginning with the funding date
of the purchase price for any Specified Acquisition and continuing through the earlier of (a) the last day
of the second fiscal quarter next succeeding the fiscal quarter in which such funding date occurred, or (b)
the Borrowerβs election to terminate such Acquisition Adjustment Period, such election to be exercised by
the Borrower giving notice to the Administrative Agent. When an Acquisition Adjustment Period is in
effect, the next Acquisition Adjustment Period may not commence until the termination of such
Acquisition Adjustment Period then in effect.
βAdjusted Consolidated EBITDAβ means, for the Borrower and its Subsidiaries for any period,
the sum of (a) Consolidated EBITDA for such period plus (b) any Material Project EBITDA Adjustments
for such period.
βAdministrative Agentβ means Citibank in its capacity as administrative agent under any of the
Loan Documents, or any successor administrative agent.
βAdministrative Agentβs Officeβ means the Administrative Agentβs address and, as appropriate,
account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may
from time to time notify the Borrower and the Lenders.
βAdministrative Questionnaireβ means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
βAffiliateβ means, with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common Control with the Person
specified. βControlβ means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise voting power,
by contract or otherwise. βControllingβ and βControlledβ have meanings correlative thereto.
βAggregate Commitmentsβ means the Commitments of all the Lenders.
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βAgreementβ means this Credit Agreement.
βAnti-Corruption Lawsβ means the United States Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder, the UK Xxxxxxx Xxx 0000, and other similar anti-
corruption legislation enacted or promulgated by any governmental authority having jurisdiction over the
Loan Parties or a Subsidiary in other jurisdictions, in each case to the extent applicable to the Loan Parties
or a Subsidiary.
βApplicable Rateβ means, from time to time, the following percentages, set forth in basis points
per annum, based upon the Debt Rating as set forth below:
Pricing
Level
Debt Ratings
S&P, Fitch and/or
Xxxxxβx Facility Fee
Applicable Rate for
Eurodollar Rate
Loans and Letter of
Credit Fee
Applicable
Rate for Base
Rate Loans
1 A-/A3 or better 10.0 90.0 0.0
2 BBB+/Baa1 12.5 100.0 0.0
3 BBB/Baa2 15.0 110.0 10.0
4 BBB-/Baa3 20.0 130.0 30.0
5 BB+/Ba1 or lower
30.0 145.0 45.0
βDebt Ratingβ means, as of any date of determination, the rating as determined by either S&P,
Fitch or Xxxxxβx (collectively, the βDebt Ratingsβ) of the Borrowerβs non-credit-enhanced,
senior unsecured long-term debt; provided that (a) if only one Debt Rating is available, such
available Applicable Rating will govern; (b) if at any time there is more than one Debt Rating
and such Debt Ratings are different (i) if three Debt Ratings are available either (x) the majority
Debt Rating will govern if two Debt Ratings are the same, or (y) the middle Debt Rating will
govern if all three Debt Ratings differ, and (ii) if only two Debt Ratings are available, the higher
Debt Rating will govern (with the Debt Rating for Pricing Level 1 being the highest and the Debt
Rating for Pricing Level 5 being the lowest), unless one of the Debt Ratings is two or more
Pricing Levels lower than the other in which case the Applicable Rate shall be determined by
reference to the Pricing Level one rating lower than the higher of the two ratings; (c) for any day
after the Closing Date when no Debt Rating is in effect, then Pricing Level 5 shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the
certificate delivered pursuant to Section 4.02(a)(viii). Thereafter, each change in the Applicable
Rate resulting from a publicly announced change in the Debt Rating shall be effective during the
period commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change.
βApproved Fundβ has the meaning set forth in Section 10.06(g).
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βArrangersβ means Citigroup Global Markets Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx (or any
other registered broker-dealer wholly-owned by Bank of America Corporation to which all or
substantially all of Bank of America Corporationβs or any of its subsidiariesβ investment banking,
commercial lending services or related businesses may be transferred following the date of this
Agreement), Barclays Bank PLC, JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd., Xxxxxx Xxxxxxx
Senior Funding, Inc. and Xxxxx Fargo Securities LLC, each in its capacity as joint lead arranger and joint
bookrunner.
βAssignment and Assumptionβ means an Assignment and Assumption substantially in the form
of Exhibit F.
βAttorney Costsβ means and includes all fees, expenses and disbursements of any law firm or
other external counsel.
βAttributable Indebtednessβ means, on any date, in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a capital lease.
βAudited Financial Statementsβ means the most recent audited financial statements delivered by
the Borrower on or prior to the Execution Date pursuant to Section 6.01(a) of the Existing OKS Credit
Agreement.
βAvailability Periodβ means, for any Lender, the period from and including the Closing Date to
the earliest of (a) the Maturity Date for such Lender (determined in accordance with Section 2.15), (b) the
date of termination of the Aggregate Commitments pursuant to Section 2.07, and (c) the date of
termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuers to
make L/C Credit Extensions pursuant to Section 8.02.
βBail-In Actionβ means the exercise of any Write-Down and Conversion Powers by the
applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
βBail-In Legislationβ means, with respect to any EEA Member Country implementing Article 55
of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the
implementing law for such EEA Member Country from time to time which is described in the EU Bail-In
Legislation Schedule.
βBank of Americaβ means Bank of America, N.A., and its successors.
βBase Rateβ means for any day a fluctuating rate per annum equal to the highest of (a) the Federal
Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time
to time by Citibank as its βprime rate,β and (c) the Eurodollar Rate plus 1.00%. The βprime rateβ is a rate
set by Citibank based upon various factors including Citibankβs costs and desired return, general
economic conditions and other factors, and is used as a reference point for pricing some loans, which may
be priced at, above, or below such announced rate. Any change in such prime rate announced by Citibank
shall take effect at the opening of business on the day specified in the public announcement of such
change.
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βBase Rate Committed Loanβ means a Committed Loan that is a Base Rate Loan.
βBase Rate Loanβ means a Loan that bears interest based on the Base Rate.
βBorrowerβ has the meaning specified in the introductory paragraph hereto.
βBorrowingβ means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.
βBusiness Dayβ means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state where the
Administrative Agentβs Office is located or the state of New York, and, if such day relates to any
Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank Eurodollar market.
βCapital Lease Obligationsβ of any Person means the obligations of such Person to pay rent or
other amounts under any lease (or other arrangement conveying the right to use) of real or personal
property, or a combination thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be
the capitalized amount thereof determined in accordance with GAAP. It is understood that with respect to
the accounting for leases as either operating leases or capital leases and the impact of such accounting on
the definitions and covenants herein, GAAP as in effect on the Execution Date shall be applied.
βCash Collateralizeβ has the meaning specified in Section 2.04(g).
βChange in Lawβ means the occurrence, after the date of this Agreement, of any of the following:
(a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation, implementation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive
(whether or not having the force of law) by any Governmental Authority; provided that notwithstanding
anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and
all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all
requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign
regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a βChange in
Lawβ, regardless of the date enacted, adopted or issued.
βChange of Controlβ means an event or series of events by which:
(a) any βpersonβ or βgroupβ (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan
of Borrower or its Subsidiaries, and any person or entity acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan) after the Execution Date
becomes the βbeneficial ownerβ (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be deemed to have
βbeneficial ownershipβ of all securities that such person or group has the right to acquire
(such right, an βoption rightβ), whether such right is exercisable immediately or only after
16208864_8 4
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the passage of time), directly or indirectly, of 25% or more of the equity securities of
Borrower entitled to vote for members of the board of directors or equivalent governing
body of Borrower on a fully-diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of the members of
the board of directors or other equivalent governing body of Borrower cease to be
composed of individuals (i) who were members of that board or equivalent governing
body on the first day of such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a majority of that
board or equivalent governing body; or
(c) the Borrower shall fail to own, directly or indirectly, 100% of the equity
interests in the Guarantors.
Notwithstanding the foregoing, βoption rightβ shall not include any securities which any person
or group has a right to acquire pursuant to a merger or acquisition agreement, until such right is
exercised and such acquisition occurs pursuant to such agreement.
βCitibankβ means Citibank, N.A., and its successors.
βClosing Dateβ means the first date all the conditions precedent in Section 4.02 are satisfied or
waived in accordance with Section 10.01 (or, in the case of Section 4.02(e), waived by the Person entitled
to receive the applicable payment), which date shall be set forth in and conclusively established by the
notice, dated as of the Closing Date, delivered by the Administrative Agent pursuant to Section 4.02. The
Closing Date shall not be later than one hundred eighty (180) days after the Execution Date.
βCodeβ means the Internal Revenue Code of 1986, as amended.
βCommercial Operation Dateβ means the date on which a Material Project is substantially
complete and commercially operable.
βCommercial Paper Borrowingβ means a Borrowing of Loans the entire proceeds of which are
used, within five (5) Business Days of disbursement, to repay commercial paper issued by the Borrower.
βCommitmentβ means, as to each Lender, its obligation to (a) make Committed Loans to the
Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lenderβs name on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement.
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βCommitted Borrowingβ means a borrowing consisting of simultaneous Committed Loans of the
same Type and, in the case of Eurodollar Rate Committed Loans, having the same Interest Period made
by each of the Lenders pursuant to Section 2.01.
βCommitted Loanβ has the meaning specified in Section 2.01.
βCommitted Loan Noticeβ means a notice of (a) a Committed Borrowing, (b) a conversion of
Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Committed Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
βCommon Unitβ means units representing limited partner interests in ONEOK Partners offered
for sale to the public.
βCompliance Certificateβ means a certificate substantially in the form of Exhibit E.
βConnection Income Taxesβ means Other Connection Taxes that are imposed on or measured by
net income (however denominated) or that are franchise Taxes or branch profits Taxes.
βConsolidated EBITDAβ means, for any period, an amount equal to the sum of (i) Consolidated
Net Income for such period plus without duplication (ii) to the extent deducted in determining
Consolidated Net Income for such period, the following: (A) Consolidated Interest Expense, (B) income
tax expense determined on a consolidated basis in accordance with GAAP, (C) depreciation and
amortization determined on a consolidated basis in accordance with GAAP, (D) charges, fees and
expenses (including any premium and acceleration of fees or discounts) in connection with any
Investment, issuance of equity interests or prepayment, purchase, amendment or refinancing of
Indebtedness permitted hereunder (in each case, whether or not consummated) for such period, (E)
Transaction Expenses with respect to any such period, and (F) all other non-cash charges, minus (iii) all
non-cash items increasing Consolidated Net Income for such period, determined in each case on a
consolidated basis in accordance with GAAP for such period.
For purposes of Section 7.09, (a) if the Borrower or any Subsidiary has acquired any assets or
another Person as a Subsidiary (including through the purchase or other acquisition of additional
ownership interests in such Person resulting in such Person becoming a Subsidiary) during the relevant
period for determining the Leverage Ratio, Consolidated EBITDA shall be calculated after giving pro
forma effect thereto, as if such acquisition had occurred on the first day of the relevant period for
determining Consolidated EBITDA and (b) for any four quarter period during which any of the
Borrowerβs or any Subsidiaryβs operations constitute discontinued operations, in accordance with GAAP,
such discontinued operations shall be excluded from the calculation of Consolidated EBITDA and not
given effect in determining Consolidated EBITDA.
βConsolidated Interest Expenseβ means, for the Borrower and its Subsidiaries for any period
determined on a consolidated basis in accordance with GAAP, the sum of (without duplication) (i) total
interest expense, including the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or not actually paid during such
period) plus (ii) the net amount payable (or minus the net amount receivable) under any Swap Contract
(relating to interest rates only) during such period (whether or not actually paid or received during such
period), plus (iii) amortization of debt issuance costs, debt discount or premium, plus (iv) other financing
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fees and expenses incurred by Borrower or any of its Subsidiaries for such period, including any tender or
redemption premiums paid or payable in connection with the purchase, acquisition, repayment,
redemption, discharge or defeasance of any Indebtedness.
βConsolidated Net Incomeβ means, for any period, the net income (or loss) of the Borrower and
its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided
that there shall be excluded therefrom (a) the income or loss of any Person accrued prior to the date it
became a Subsidiary of the Borrower, or is merged or consolidated with the Borrower or any of its
Subsidiaries, (b) any equity interests of the Borrower or any Subsidiary in the earnings of any Person
(other than a Subsidiary of the Borrower), but including dividends and similar distributions actually
received by the Borrower or its Subsidiaries from any such Person, (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of the organizational documents
or Contractual Obligations of, or requirements of Law applicable to, such Subsidiary, (d) any
extraordinary gains or losses, and (e) any gains attributable to write-ups of assets.
βConsolidated Net Tangible Assetsβ means, at any date of determination, the total amount of
consolidated assets of the Borrower and its Subsidiaries after deducting therefrom: (a) all current
liabilities (excluding (i) any current liabilities that by their terms are extendable or renewable at the option
of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is
being computed, (ii) current maturities of the Obligations and other long-term debt and (iii) notes
payable); and (b) the value, net of any applicable reserves and accumulated amortization, of all goodwill,
trade names, trademarks, patents and other like intangible assets, all as set forth, or on a pro forma basis
would be set forth, on the consolidated balance sheet of the Borrower and its Subsidiaries, prepared in
accordance with GAAP.
βConsolidated Net Worthβ means, as of any date of determination, consolidated shareholdersβ
equity, determined in accordance with GAAP, of the Borrower and its Subsidiaries as of that date,
adjusted as follows: (a) either (i) less the absolute value of net unrealized gains resulting from Swap
Contracts that are recorded by the Borrower in accumulated other comprehensive income (loss) as
determined in accordance with GAAP, or (ii) plus the absolute value of net unrealized losses resulting
from Swap Contracts that are recorded by the Borrower in accumulated other comprehensive income
(loss) as determined in accordance with GAAP; and (b) either (i) less the absolute value of defined benefit
plan assets that are recorded by the Borrower in accumulated other comprehensive income (loss) as
determined in accordance with GAAP, or (ii) plus the absolute value of defined benefit plan liabilities that
are recorded by the Borrower in accumulated other comprehensive income (loss) as determined in
accordance with GAAP.
βConsolidated Total Debtβ means, as of any date of determination, Indebtedness of the Borrower
and its Subsidiaries on a consolidated basis as of such date, but excluding Indebtedness of the type
described in subsection (c) of the definition thereof.
βContractual Obligationβ means, as to any Person, any provision of any security issued by such
Person or of any agreement, instrument or other undertaking to which such Person is a party or by which
it or any of its property is bound.
16208864_8 7
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βControlβ has the meaning specified in the definition of βAffiliate.β
βCredit Extensionβ means each of the following: (a) a Borrowing, and (b) an L/C Credit
Extension.
βDebt Ratingβ has the meaning set forth in the definition of βApplicable Rate.β
βDebtor Relief Lawsβ means the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect.
βDefaultβ means any event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an Event of Default.
βDefault Rateβ means (a) when used with respect to Obligations other than Letter of Credit Fees,
an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans plus
(iii) 2% per annum; provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate shall
be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such
Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the
Applicable Rate plus 2% per annum, in each case to the fullest extent permitted by applicable Laws.
βDefaulting Lenderβ means, subject to Section 2.17(b), any Lender that (a) has failed to (i) fund
all or any portion of its Loans within two Business Days of the date such Loans were required to be
funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that
such failure is the result of such Lenderβs good faith determination that one or more conditions precedent
to funding (each of which conditions precedent, together with any applicable default, shall be specifically
identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer,
any Swing Line Lender or any other Lender any other amount required to be paid by it hereunder
(including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business
Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any L/C Issuer or
Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or
has made a public statement to that effect (unless such writing or public statement relates to such
Lendersβ obligation to fund a Loan hereunder and states that such position is based on such Lenderβs good
faith determination that a condition precedent to funding (which condition precedent, together with any
applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied),
(c) has failed, within three Business Days after written request by the Administrative Agent or the
Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its
prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting
Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent
and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject
of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator,
trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other
state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in
Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or
16208864_8 8
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acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a
Governmental Authority so long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of judgments
or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject,
repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination
by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above
shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting
Lender (subject to Section 2.17(b)) upon delivery of written notice of such determination to the Borrower,
each L/C Issuer, each Swing Line Lender and each Lender.
βDesignated Jurisdictionβ means any country, region or territory to the extent that such country,
region or territory itself is the subject of any Sanction.
βDispositionβ or βDisposeβ means the sale, transfer, license, lease or other disposition (including
any sale and leaseback transaction) of any property by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith, but excluding (i) any sale, assignment, transfer or other disposal of cash or
cash equivalents and (ii) any transfer of property or assets constituting an Investment.
βDocumentation Agentβ means each entity named as a βDocumentation Agentβ on the cover page
of this Agreement.
βDollarβ and β$β mean lawful money of the United States.
βEEA Financial Institutionβ means (a) any credit institution or investment firm established in any
EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity
established in an EEA Member Country which is a parent of an institution described in clause (a) of this
definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of
an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision
with its parent.
βEEA Member Countryβ means any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
βEEA Resolution Authorityβ means any public administrative authority or any person entrusted
with public administrative authority of any EEA Member Country (including any delegee) having
responsibility for the resolution of any EEA Financial Institution.
βEligible Assigneeβ has the meaning specified in Section 10.06(g).
βEnvironmental Lawsβ means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including those related to hazardous
substances or wastes, air emissions and discharges to waste or public systems.
16208864_8 9
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βEnvironmental Liabilityβ means any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, or its
Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant
to which liability is assumed or imposed with respect to any of the foregoing.
βERISAβ means the Employee Retirement Income Security Act of 1974, as amended.
βERISA Affiliateβ means any trade or business (whether or not incorporated) under common
control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m)
and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
βERISA Eventβ means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in βcritical statusβ or insolvent; (d) the filing of a notice of intent
to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but
not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; (g) the
application for a waiver of the minimum funding standard under the Pension Funding Rules; (h) the
assertion of a material claim (other than routine claims for benefits) against any Pension Plan or the assets
thereof, or against Borrower or any of its ERISA Affiliates in connection with any Plan; or (i) the
imposition of a Lien against Borrower or any of ERISA Affiliates pursuant to Section 430(k) of the Code
or pursuant to Section 303(k) of ERISA with respect to any Pension Plan.
βEU Bail-In Legislation Scheduleβ means the EU Bail-In Legislation Schedule published by the
Loan Market Association (or any successor person), as in effect from time to time.
βEurodollar Rateβ means:
(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per
annum equal to the London Interbank Offered Rate (βLIBORβ) or a comparable or
successor rate, which rate is approved by the Administrative Agent, as published on the
applicable Reuters screen page (or such other commercially available source providing
such quotations as may be designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the commencement
of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period; and
16208864_8 10
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(b) for any interest calculation with respect to a Base Rate Loan on any date,
the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two
Business Days prior to such date for Dollar deposits with a term of one month
commencing that day;
provided that, if the Eurodollar Rate shall be less than zero (0), such rate shall be deemed
zero (0) for all purposes of this Agreement; provided, further that to the extent a
comparable or successor rate is approved by the Administrative Agent in connection
herewith, the approved rate shall be applied in a manner consistent with market practice
for LIBOR-based loans; provided, further that to the extent such market practice is not
administratively feasible for the Administrative Agent, such approved rate shall be
applied in a manner as otherwise reasonably determined by the Administrative Agent.
βEurodollar Rate Committed Loanβ means a Committed Loan that bears interest at a rate based
on clause (a) of the definition of Eurodollar Rate.
βEurodollar Rate Loanβ means a Eurodollar Rate Committed Loan.
βEvent of Defaultβ has the meaning specified in Section 8.01.
βExcluded Taxesβ means any of the following Taxes imposed on or with respect to the
Administrative Agent, any Lender or any L/C Issuer or required to be withheld or deducted from a
payment to the Administrative Agent, such Lender or such L/C Issuer: (a) Taxes imposed on or measured
by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case,
(i) imposed as a result of the Administrative Agent, such Lender or such L/C Issuer being organized under
the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the
jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection
Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for
the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a
law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment
(other than pursuant to an assignment request by the Borrower under Section 10.14) or (ii) such Lender
changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii), (a)(iii)
or (c), amounts with respect to such Taxes were payable either to such Lender's assignor immediately
before such Lender became a party hereto or to such Lender immediately before it changed its Lending
Office, (c) Taxes attributable to the Administrative Agentβs, such Lenderβs or such L/C Issuerβs failure to
comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
βExecution Dateβ means the first date all the conditions precedent in Section 4.01 are satisfied or
waived in accordance with Section 10.01 (or, in the case of Section 4.01(b), waived by the Person entitled
to receive the applicable payment), which date shall be set forth in and conclusively established by the
notice, dated as of the Execution Date, delivered by the Administrative Agent pursuant to Section 4.01.
βExisting OKE Credit Agreementβ means that certain Amended and Restated Credit Agreement,
effective as of January 31, 2014, among Borrower, Bank of America, N.A., as administrative agent and
the lenders and letter of credit issuing banks parties thereto, as amended.
16208864_8 11
Β
βExisting OKS Credit Agreementβ means that certain Amended and Restated Credit Agreement
effective as of January 31, 2014, among ONEOK Partners, Citibank, N.A., as administrative agent and the
lenders and letter of credit issuing banks parties thereto, as amended.
βFacility Feeβ has the meaning set forth in Section 2.10(b).
βFATCAβ means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or
any amended or successor version that is substantively comparable and not materially more onerous to
comply with), and any current or future regulations or official interpretations thereof and any agreements
entered into pursuant to Section 1471(b)(1) of the Code.
βFederal Funds Rateβ means, for any day, the rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal Reserve System, as published
by the Federal Reserve Bank on the Business Day next succeeding such day; provided that (a) if such day
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 (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Citibank on
such day on such transactions most closely resembling such overnight Federal funds transactions as
reasonably determined by the Administrative Agent; and (c) if the Federal Funds Rate shall be less than
zero (0), such rate shall be deemed zero (0) for all purposes of this Agreement.
βFee Lettersβ means (i) the letter agreement dated March 20, 2017, among the Borrower and
Citigroup Global Markets Inc., and (ii) the letter agreement dated March 20, 2017, among the Borrower,
Bank of America, N.A. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, and (iii) the letter
agreement dated as of April 18, 2017 among Borrower, Barclays Bank PLC, JPMorgan Chase Bank,
N.A., Mizuho Bank, Ltd., Xxxxxx Xxxxxxx Senior Funding, Inc., Xxxxx Fargo Bank, National Association
and Xxxxx Fargo Securities LLC.
βFinancing Vehicleβ has the meaning set forth in the definition of βHybrid Securitiesβ.
βFitchβ means Fitch Ratings, Inc. and any successor thereto.
βForeign Lenderβ means any Lender that is organized under the laws of a jurisdiction other than
that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States,
each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
βFRBβ means the Board of Governors of the Federal Reserve System of the United States.
βFronting Exposureβ means, at any time there is a Defaulting Lender, (a) with respect to any L/C
Issuer, such Defaulting Lenderβs Pro Rata Share of the outstanding L/C Obligations with respect to
Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which such Defaulting
Lenderβs participation obligation has been reallocated to other Lenders or Cash Collateralized in
accordance with the terms hereof, and (b) with respect to any Swing Line Lender, such Defaulting
Lenderβs Pro Rata Share of outstanding Swing Line Loans made by such Swing Line Lender other than
Swing Line Loans as to which such Defaulting Lenderβs participation obligation has been reallocated to
other Lenders pursuant to Section 2.17 or Cash Collateralized in accordance with the terms hereof.
16208864_8 12
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βFundβ has the meaning specified in Section 10.06(g).
βGAAPβ means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or
such other principles as may be approved by a significant segment of the accounting profession in the
United States, that are applicable to the circumstances as of the date of determination, consistently
applied.
βGovernmental Authorityβ means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central Bank).
βGranting Lenderβ has the meaning specified in Section 10.06(i).
βGuaranteeβ means, as to any Person, (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable
or performable by another Person (the βprimary obligorβ) in any manner, whether directly or indirectly,
and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or
lease property, securities or services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation,
(iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the
obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of
such Person securing any Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in
good faith. The term βGuaranteeβ as a verb has a corresponding meaning.
βGuarantorsβ means, collectively, the Initial Guarantors and each other Guarantor that executes a
Guaranty Agreement Joinder in accordance with Section 6.14
βGuaranty Agreementβ shall mean the Guaranty Agreement, dated as of the date hereof and
substantially in the form of Exhibit G, made by the Guarantors in favor of the Administrative Agent for
the benefit of the Lenders.
βGuaranty Agreement Joinderβ means a Guaranty Agreement Joinder, substantially in the form
as Exhibit I.
16208864_8 13
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βHazardous Materialsβ means all explosive or radioactive substances or wastes and all hazardous
or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any Environmental Law.
βHybrid Securitiesβ means any trust preferred securities, or deferrable interest subordinated debt
with a maturity of at least 20 years, which provides for the optional (at the option of the issuer thereof) or
mandatory deferral of interest or distributions, issued by the Borrower, or any business trusts, limited
liability companies, limited partnerships or similar entities (each, a βFinancing Vehicleβ) (i) substantially
all of the common equity, general partner or similar interests of which are owned (either directly or
indirectly through one or more wholly-owned Subsidiaries) at all times by the Borrower, (ii) that have
been formed for the purpose of issuing trust preferred securities or deferrable interest subordinated debt,
and (iii) substantially all the assets of which consist of (A) subordinated debt of the Borrower, and (B)
payments made from time to time on the subordinated debt.
βHydrocarbon Interestsβ means all rights, titles, interests and estates now owned or hereafter
acquired by the Borrower or any of its Subsidiaries in any and all oil, gas and other liquid or gaseous
hydrocarbon properties and interests, including without limitation, mineral fee or lease interests,
production sharing agreements, concession agreements, license agreements, service agreements, risk
service agreements or similar Hydrocarbon interests granted by an appropriate Governmental Authority,
farmout, overriding royalty and royalty interests, net profit interests, oil payments, production payment
interests and similar interests in Hydrocarbons, including any reserved or residual interests of whatever
nature.
βHydrocarbonsβ means oil, gas, casing head gas, condensate, distillate, liquid hydrocarbons,
gaseous hydrocarbons, all products refined, separated, settled and dehydrated therefrom, including,
without limitation, kerosene, liquefied petroleum gas, refined lubricating oils, diesel fuel, drip gasoline,
natural gasoline, helium, sulfur and all other minerals.
βImmaterial Subsidiaryβ on any date shall mean any Subsidiary of the Borrower that (a) does not
have, as of such date, assets with a value in excess of 5.0% of the total assets of the Borrower and its
Subsidiaries, and did not, as of the last day of the fiscal quarter of the Borrower most recently ended, have
revenues representing in excess of 5.0% of total revenues of the Borrower and its Subsidiaries, in each
case, on a consolidated basis, and (b) taken together with all Immaterial Subsidiaries does not have, as of
such date, assets with a value in excess of 5.0% of the total assets of the Borrower and its Subsidiaries,
and as of the last day of the fiscal quarter of the Borrower most recently ended, did not have revenues
representing in excess of 5.0% of total revenues of the Borrower and its Subsidiaries, in each case, on a
consolidated basis.
βIncrease Effective Dateβ has the meaning set forth in Section 2.16(b).
βIndebtednessβ means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance with GAAP:
16208864_8 14
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(a) all obligations of such Person for borrowed money and all obligations of
such Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
(b) all direct or contingent obligations of such Person arising under letters of
credit (including standby and commercial), bankersβ acceptances, bank guaranties, surety
bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course of
business);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
(f) Capital Lease Obligations and Synthetic Lease Obligations;
(g) Off-Balance Sheet Liabilities;
(h) Guarantees of such Person in respect of any of the foregoing; and
(i) Hybrid Securities.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership
or joint venture (other than a joint venture that is itself a corporation or limited liability company) in
which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date
shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.
βIndemnified Taxesβ means (a) Taxes, other than Excluded Taxes, imposed on or with respect to
any payment made by or on account of any obligation of any Loan Party under any Loan Document and
(b) to the extent not otherwise described in (a), Other Taxes.
βIndemniteeβ has the meaning set forth in Section 10.04(b).
βInitial Guarantorsβ means Intermediate Partnership and ONEOK Partners.
βInterest Payment Dateβ means, (a) as to any Loan other than a Base Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any
Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any
16208864_8 15
Β
Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September
and December and the Maturity Date.
βInterest Periodβ means as to each Eurodollar Rate Loan, the period commencing on the date
such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and
ending on the date one, two, three or six months (in each case, subject to availability) thereafter, as
selected by the Borrower in its Committed Loan Notice; provided that:
(i) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan that begins on the
last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
βIntermediate Partnershipβ means ONEOK Partners Intermediate Limited Partnership, a
Delaware limited partnership.
βInvestmentβ means, as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or interest in, another Person,
including any partnership or joint venture interest in such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a
business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.
βIRSβ means the United States Internal Revenue Service.
βISPβ has the meaning set forth in Section 2.04(h).
βIssuer Documentsβ means with respect to any Letter of Credit, the Letter Credit Application, and
any other document, agreement and instrument entered into any L/C Issuer and the Borrower (or any
Subsidiary) or in favor of such L/C Issuer and relating to any such Letter of Credit.
βJoint Ventureβ means an entity, other than a Subsidiary, in which the Borrower or a Subsidiary
owns an equity interest.
βLawsβ means, collectively, all international, foreign, Federal, state and local statutes, treaties,
rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable administrative orders, directed
16208864_8 16
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duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
βL/C Advanceβ means, with respect to each Lender, such Lenderβs funding of its participation in
any L/C Borrowing in accordance with its Pro Rata Share.
βL/C Borrowingβ means an extension of credit resulting from a drawing under any Letter of
Credit which has not been reimbursed on the date required to be reimbursed pursuant to Section 2.04(c)(i)
or refinanced as a Committed Borrowing on or before such date.
βL/C Credit Extensionβ means, with respect to any Letter of Credit, the issuance thereof or
extension of the expiry date thereof, or the renewal or increase of the amount thereof.
βL/C Issuerβ means each of Citibank, N.A., Bank of America, N.A., Barclays Bank PLC,
JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd., Xxxxxx Xxxxxxx Senior Funding, Inc. and Xxxxx Fargo
Bank, National Association, in its capacity as issuer of Letters of Credit hereunder, and any additional
Lender approved by the Administrative Agent and the Borrower in its reasonable discretion that has
agreed to act as an βL/C Issuerβ, and any successor issuer of Letters of Credit hereunder. As used herein,
the term βthe L/C Issuerβ shall mean βeach L/C Issuerβ or, if such term is used with reference to one or
more Letters of Credit, shall mean, with respect to each such Letter of Credit, βthe applicable L/C Issuer.β
βL/C Issuer Commitmentβ means (a) with respect to each of Citibank, N.A., Bank of America,
N.A. and any other initial L/C Issuer hereunder, the amount opposite such L/C Issuerβs name on Schedule
2.01 under the heading of βL/C Issuer Commitmentsβ, or, with respect to any such L/C Issuer (x) such
greater amount as shall be agreed from time to time in writing by the Borrower, such L/C Issuer and the
Administrative Agent or (y) such lesser amount as shall be agreed from time to time in writing by the
Borrower, all L/C Issuers and the Administrative Agent, and (b) with respect to any Lender which agrees
to be a L/C Issuer after the Closing Date, the amount agreed in writing from time to time by such L/C
Issuer, the Borrower and the Administrative Agent.
βL/C Obligationsβ means, as at any date of determination, the aggregate undrawn amount of all
outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C
Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.07. For all purposes of
this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount
may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP or applicable law, such
Letter of Credit shall be deemed to be βoutstandingβ in the amount so remaining available to be drawn.
βLeft Lead Arrangerβ means Citigroup Global Markets Inc.
βLenderβ has the meaning specified in the introductory paragraph hereto and, as the context
requires, includes the L/C Issuers and the Swing Line Lenders.
βLending Officeβ means, as to any Lender, the office or offices of such Lender described as such
in such Lenderβs Administrative Questionnaire, or such other office or offices as a Lender may from time
to time notify the Borrower and the Administrative Agent.
16208864_8 17
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βLetter of Creditβ means any standby letter of credit issued hereunder.
βLetter of Credit Applicationβ means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by any L/C Issuer.
βLetter of Credit Expiration Dateβ means, with respect to each L/C Issuer and each Letter of
Credit issued by such L/C Issuer, the day that is seven days prior to the later of (a) the initial Maturity
Date and (b) such extended Maturity Date as to which such L/C Issuer has agreed in accordance with the
Borrowerβs exercise of the extension option pursuant to Section 2.15 (or, if such day is not a Business
Day, the next preceding Business Day).
βLetter of Credit Feeβ has the meaning set forth in Section 2.04(i).
βLetter of Credit Sublimitβ means an amount equal to $100,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Commitments.
βLeverage Ratioβ means, as of the last day of any fiscal quarter, the ratio of (i) Consolidated
Total Debt as of such date (excluding any amount of Hybrid Securities not to exceed a total of 15% of
Total Capital) to (ii) Adjusted Consolidated EBITDA for the four consecutive fiscal quarters ending on
such date.
βLienβ means any mortgage, pledge, hypothecation, assignment for security, deposit
arrangement, lien (statutory or other), charge, or preference, priority or other security interest or
preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title
retention agreement, and any financing lease having substantially the same economic effect as any of the
foregoing).
βLoanβ means an extension of credit by a Lender to the Borrower under Article II in the form of a
Committed Loan or a Swing Line Loan.
βLoan Documentsβ means this Agreement, each Note, each Issuer Document, any agreement
creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.04 of this
Agreement, the Guaranty Agreement, each Guaranty Agreement Joinder and each Fee Letter.
βLoan Partiesβ means the Borrower and the Guarantors.
βMaterial Adverse Effectβ means (a) a material adverse change in, or a material adverse effect
upon, the operations, properties or financial condition of the Borrower and its Subsidiaries taken as a
whole; provided however, (i) a downgrade by S&P, Fitch and/or Moodyβs of their respective Debt Rating
shall not, in and of itself, be deemed to be a Material Adverse Effect, and (ii) the fact that the Borrower is
unable to borrow in the commercial paper market shall not, in and of itself, be deemed to be a Material
Adverse Effect; but for purposes of clarity in interpreting the foregoing clauses (i) and (ii), it is agreed
that the event(s), change(s), circumstance(s) or condition(s) that causes such downgrade (or an
announcement of a potential downgrade or a review for possible ratings change) of the Debt Rating or
that causes such inability of the Borrower to borrow in the commercial paper market, and the effect or
change caused by such downgrade (or an announcement of a potential downgrade or a review for possible
ratings change) of the Debt Rating or by such inability to borrow, will be considered in determining
16208864_8 18
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whether there has been a Material Adverse Effect; (b) a material impairment of the ability of any Loan
Party to perform its payment obligations, under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party
of any Loan Document to which it is a party.
βMaterial Projectβ means the construction or expansion of a capital project of the Borrower or
any of its Subsidiaries which has a budgeted capital cost exceeding $25,000,000.
βMaterial Project EBITDA Adjustmentsβ means, with respect to each Material Project,
(A) prior to the Commercial Operation Date of the Material Project (but including the fiscal
quarter in which such Commercial Operation Date occurs), a percentage (based on the then-current
completion percentage of the Material Project) of an amount to be approved by the Administrative Agent
as the projected Consolidated EBITDA attributable to such Material Project for the twelve month period
following the scheduled Commercial Operation Date of such Material Project (such amount to be
determined based on customer contracts or tariff-based customers relating to such Material Project, the
creditworthiness of the other parties to such contracts or such tariff-based customers and projected
revenues from such contracts, tariffs, capital costs and expenses, scheduled Commercial Operation Date,
commodity price assumptions and other factors deemed appropriate by the Administrative Agent) which
may, at the Borrowerβs option, be added to actual Consolidated EBITDA for the Borrower and its
Subsidiaries for the fiscal quarter in which construction of such Material Project commences and for each
fiscal quarter thereafter until the Commercial Operation Date of the Material Project (including the fiscal
quarter in which such Commercial Operation Date occurs, but without duplication of any actual
Consolidated EBITDA attributable to such Material Project following such Commercial Operation
Date); provided that if the actual Commercial Operation Date does not occur by the scheduled
Commercial Operation Date, then the foregoing amount shall be reduced, for quarters ending after the
scheduled Commercial Operation Date to (but excluding) the first full quarter after its Commercial
Operation Date, by the following percentage amounts depending on the period of delay (based on the
period of actual delay or then-estimated delay, whichever is longer): (i) longer than 90 days, but not more
than 180 days, 25%, (ii) longer than 180 days but not more than 270 days, 50%, and (iii) longer than 270
days, 100%; and
(B) beginning with the first full fiscal quarter following the Commercial Operation Date of
the Material Project and for the two immediately succeeding fiscal quarters, an amount to be approved by
the Administrative Agent as the projected Consolidated EBITDA attributable to the Material Project
(determined in the same manner set forth in clause (A) above) for the balance of the four full fiscal
quarter period following such Commercial Operation Date, which may, at the Borrowerβs option, be
added to the actual Consolidated EBITDA attributable to the Material Project for such fiscal quarter or
quarters.
Notwithstanding the foregoing:
(i) no such additions shall be allowed with respect to any Material Project unless
(a) not later than 30 days (or such shorter period as acceptable to the Administrative Agent)
prior to the delivery of any certificate required by the terms and provisions of Section 6.02(a) to
16208864_8 19
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the extent Material Project EBITDA Adjustments will be made to Consolidated EBITDA in
determining compliance with Section 7.09, the Borrower shall have delivered to the
Administrative Agent a written request for Material Project EBITDA Adjustments setting forth (i)
the scheduled Commercial Operation Date for such Material Project, (ii) pro forma projections of
Consolidated EBITDA attributable to such Material Project, (iii) information, as applicable,
regarding (A) customer contracts and tariffs relating to such Material Project, (B) the
creditworthiness of the other parties to such contracts and tariff-based customers, (C) projected
revenues, (D) projected capital costs and expenses, and (E) commodity price assumptions, and
(iv) such other information previously requested by the Administrative Agent, and
(b) prior to the date such certificate is required to be delivered, the Administrative Agent
shall have approved (such approval not to be unreasonably withheld) such projections and shall
have received such other information and documentation as the Administrative Agent may
reasonably request, all in form and substance satisfactory to the Administrative Agent, and
(ii) the aggregate amount of all Material Project EBITDA Adjustments during any period shall be
limited to 20% of the total actual Consolidated EBITDA for such period (which total actual Consolidated
EBITDA shall be determined without including any Material Project EBITDA Adjustments or any pro
forma adjustments for Acquisitions).
βMaturity Dateβ means, with respect to any Lender, the later of (a) the fifth anniversary of the
Closing Date and (b) if maturity is extended pursuant to Section 2.15 with the consent of such Lender,
such extended maturity date as determined pursuant to such Section; provided, however, that, in each
case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
βMoodyβsβ means Xxxxxβx Investors Service, Inc. and any successor thereto.
βMultiemployer Planβ means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been obligated to make
contributions.
βNon-Defaulting Lenderβ means, at any time, each Lender that is not a Defaulting Lender at such
time.
βNon-Extending Lenderβ has the meaning set forth in Section 2.15(b).
βNoteβ means a promissory note made by the Borrower in favor of a Lender evidencing Loans
made by such Lender, substantially in the form of Exhibit D.
βObligationsβ means all advances to, and debts, liabilities, obligations, covenants and duties of,
any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of
Credit, in each case whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees that
accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding
under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding.
16208864_8 20
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βOFACβ means the Office of Foreign Assets Control of the United States Department of the
Treasury.
βOff-Balance Sheet Liabilitiesβ means, with respect to the Borrower as of any date of
determination thereof, without duplication and to the extent not included as a liability on the consolidated
balance sheet of the Borrower and its Subsidiaries in accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable purchase facility) (i) the unrecovered
investment of purchasers or transferees of assets so transferred and (ii) any other payment, recourse,
repurchase, hold harmless, indemnity or similar obligation of the Borrower or any of its Subsidiaries in
respect of assets transferred or payments made in respect thereof, other than limited recourse provisions
that are customary for transactions of such type and that neither (x) have the effect of limiting the loss or
credit risk of such purchasers or transferees with respect to payment or performance by the obligors of the
assets so transferred nor (y) impair the characterization of the transaction as a true sale under applicable
Laws (including Debtor Relief Laws); (b) any Synthetic Lease Obligation; (c) the monetary obligations
under any sale and leaseback transaction which does not create a liability on the consolidated balance
sheet of the Borrower and its Subsidiaries, provided that Off-Balance Sheet Liabilities of the Borrower
and its Subsidiaries shall not include the existing sale and leaseback transactions described
on Schedule 1.01A provided that the documents governing such transactions are not amended after the
Execution Date so as to increase the amount of the Borrowerβs or its Subsidiariesβ total payment
obligations thereunder; or (d) any other monetary obligation arising with respect to any other transaction
which (i) upon the application of any Debtor Relief Law to the Borrower or any of its Subsidiaries, would
be characterized as indebtedness or (ii) is the functional equivalent of or takes the place of borrowing but
which, in each such case does not constitute a liability on the consolidated balance sheet of the Borrower
and its Subsidiaries (for purposes of this clause (d), any transaction structured to provide tax deductibility
as interest expense of any dividend, coupon or other periodic payment will be deemed to be the functional
equivalent of a borrowing).
βOil and Gas Agreementsβ means operating agreements, processing agreements, farm-out and
farm-in agreements, development agreements, area of mutual interest agreements, contracts for the
gathering and/or transportation of oil and natural gas, unitization agreements, pooling arrangements, joint
bidding agreements, joint venture agreements, participation agreements, surface use agreements, service
contracts, leases and subleases of Oil and Gas Properties or other similar agreements which are customary
in the oil and gas business, howsoever designated, in each case made or entered into in the ordinary
course of the oil and gas business as conducted by the Borrower and its Subsidiaries.
βOil and Gas Propertiesβ means (a) Hydrocarbon Interests; (b) the Property now or hereafter
pooled or unitized with Hydrocarbon Interests; (c) all presently existing or future unitization, pooling
agreements and declarations of pooled units and the units created thereby (including, without limitation,
all units created under orders, regulations and rules of any Governmental Authority) which may affect all
or any portion of the Hydrocarbon Interests; (d) all operating agreements, contracts and other agreements
which relate to any of the Hydrocarbon Interests or the production, sale, purchase, exchange or processing
of Hydrocarbons from or attributable to such Hydrocarbon Interest; (e) all Hydrocarbons in and under and
which may be produced and saved or attributable to the Hydrocarbon Interests, the lands covered thereby
and all oil in tanks and all rents, issues, profits, proceeds, products, revenues and other income from or
attributable to the Hydrocarbon Interests; and (f) all tenements, hereditaments, appurtenances and
16208864_8 21
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property in any manner appertaining, belonging, affixed or incidental to the Hydrocarbon Interests, and
any and all property, now owned or hereinafter acquired and situated upon, used, held for use or useful in
connection with the operating, working or development of any of such Hydrocarbon Interests or property
(excluding drilling rigs, automotive equipment or other personal property which may be on such premises
for the purpose of drilling a well or for other similar temporary uses) and including any and all oil xxxxx,
gas xxxxx, injection xxxxx or other xxxxx, buildings, structures, fuel separators, liquid extraction plants,
plant compressors, pumps, pumping units, field gathering systems, tanks and tank batteries, fixtures,
valves, fittings, machinery and parts, engines, boilers, meters, apparatus, equipment, appliances, tools,
implements, cables, wires, towers, casing, tubing and rods, surface leases, rights-of-way, easements and
servitudes together with all additions, substitutions, replacements, accessions and attachments to any and
all of the foregoing.
βONEOK Partnersβ means ONEOK Partners, L.P., a Delaware limited partnership.
βONEOK Partners Unit Acquisitionβ means the acquisition by Borrower (directly or indirectly
through one or more wholly-owned Subsidiaries) of all of the 171.5 million outstanding Common Units
not already owned by Borrower (directly or indirectly through one or more wholly-owned Subsidiaries) as
of the Closing Date at a fixed exchange ratio of a 0.985 share of common stock of the Borrower for each
publicly-held Common Unit.
βOrganization Documentsβ means, (a) with respect to any corporation, the certificate or articles
of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any
non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other applicable agreement of
formation or organization and any agreement, instrument, filing or notice with respect thereto filed in
connection with its formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or
organization of such entity.
βOther Connection Taxesβ means, with respect to the Administrative Agent, any Lender or any
L/C Issuer, Taxes imposed as a result of a present or former connection between the Administrative
Agent, such Lender or such L/C Issuer and the jurisdiction imposing such Tax (other than connections
arising from the Administrative Agent, such Lender or such L/C Issuer having executed, delivered,
become a party to, performed its obligations under, received payments under, received or perfected a
security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or
sold or assigned an interest in any Loan or Loan Document).
βOther Taxesβ means all present or future stamp, court or documentary, intangible, recording,
filing or similar Taxes that arise from any payment made under or, from the execution, delivery,
performance, enforcement or registration of, or from the receipt or perfection of a security interest under,
or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes
imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).
βOutstanding Amountβ means (i) with respect to Committed Loans and Swing Line Loans on any
date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and
16208864_8 22
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prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on
such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes
in the aggregate amount of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on such date.
βParticipantβ has the meaning specified in Section 10.06(d).
βPBGCβ means the Pension Benefit Guaranty Corporation.
βPension Actβ means the Pension Protection Act of 2006.
βPension Funding Rulesβ means the rules of the Code and ERISA regarding minimum required
contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect
to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section
302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and
436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
βPension Planβ means any βemployee pension benefit planβ (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during the immediately
preceding five plan years.
βPersonβ means any natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other entity.
βPlanβ means any βemployee benefit planβ (as such term is defined in Section 3(3) of ERISA)
which is established, sponsored, maintained or contributed to by, or required to be contributed to, by the
Borrower or any ERISA Affiliate.
βPlatformβ has the meaning set forth in Section 6.02.
βPro Rata Shareβ means, with respect to each Lender at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is the amount of the
Commitment of such Lender at such time and the denominator of which is the amount of the Aggregate
Commitments at such time, subject to adjustment as provided in Section 2.17; provided that if the
commitment of each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or has otherwise expired, then the Pro Rata
Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made pursuant to the terms
hereof. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender
on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.
16208864_8 23
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βRegisterβ has the meaning set forth in Section 10.06(c).
βRegistration Statementβ means the Registration Statement on Form S-4 filed by the Borrower
with the SEC with respect to the shares of Borrowerβs common stock to be exchanged for Common Units
in connection with the ONEOK Partners Unit Acquisition, as amended from time to time.
βRelated Partiesβ means, with respect to any Person, such Personβs Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such Personβs Affiliates.
βReportable Eventβ means any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.
βRequest for Credit Extensionβ means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension,
a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
βRequired Lendersβ means, as of any date of determination, Lenders having more than 50% of
the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of
each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, Lenders
holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each
Lenderβs risk participation and funded participation in L/C Obligations and Swing Line Loans being
deemed βheldβ by such Lender for purposes of this definition); provided that the Commitment of, and the
portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
βResponsible Officerβ of a Loan Party means the chief executive officer, president, vice president
with responsibility for financial matters, chief financial officer, treasurer or assistant treasurer of such
Loan Party (or, if such Loan Party is a limited partnership, of the general partner of such Loan Party).
Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action
on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
βRestricted Paymentβ shall have the meaning set forth in Section 7.10.
βS&Pβ means Standard & Poor's Ratings Services, a Standard & Poor's Financial Services LLC
business, and any successor thereto.
βSanction(s)β means any international economic sanction administered or enforced by the United
States Government, including without limitation, OFAC, the United Nations Security Council, the
European Union, Her Majestyβs Treasury or other relevant sanctions authority.
βSECβ means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
βSolventβ mean, with respect to any Person on any date of determination, that on such date (a) the
fair value of the property of such Person is greater than the total amount of liabilities, including
contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not
16208864_8 24
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less than the amount that will be required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Personβs ability to pay such debts and liabilities as they mature, and
(d) such Person is not engaged in business or a transaction, and is not about to engage in business or a
transaction, for which such Personβs property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
βSPCβ has the meaning specified in Section 10.06(i).
βSpecified Acquisitionβ means one or more acquisitions of assets, equity interests, entities,
operating lines or divisions in any fiscal quarter for an aggregate purchase price of not less than
$25,000,000.
βSubsidiaryβ of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities or other interests having
ordinary voting power for the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a
βSubsidiaryβ or to βSubsidiariesβ shall refer to a Subsidiary or Subsidiaries of the Borrower.
βSwap Contractβ means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options (excluding stock options granted to directors,
employees, management, and consultants), bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options to enter into any of the
foregoing), whether or not any such transaction is governed by or subject to any master agreement, and
(b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a βMaster Agreementβ),
including any such obligations or liabilities under any Master Agreement.
βSwap Termination Valueβ means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a)
for any date on or after the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the xxxx-to-market value(s) for such Swap
Contracts, as determined based upon one or more mid-market or other readily available quotations
provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate
of a Lender).
16208864_8 25
Β
βSwing Line Borrowingβ means a borrowing of a Swing Line Loan pursuant to Section 2.05.
βSwing Line Commitmentβ means (a) with respect to each Swing Line Lender hereunder, the
amount opposite such Swing Line Lenderβs name on Schedule 2.01 under the heading of βSwing Line
Commitmentsβ, and (b) with respect to any Lender which agrees to be a Swing Line Lender after the
Closing Date, the amount agreed in writing from time to time by such Swing Line Lender, the Borrower
and the Administrative Agent.
βSwing Line Lenderβ means Citibank and Bank of America, each in its capacity as provider of
Swing Line Loans, and any additional Lender that is designated as a Swing Line Lender hereunder with
the consent of the Borrower and the Administrative Agent. All references to βSwingline Lenderβ mean
each Swing Line Lender, and Swing Line Lender or the applicable Swing Line Lender, as the context
may require.
βSwing Line Loanβ has the meaning specified in Section 2.05(a).
βSwing Line Loan Noticeβ means a notice of a Swing Line Borrowing pursuant to Section
2.05(b), which, if in writing, shall be substantially in the form of Exhibit C.
βSwing Line Sublimitβ means an amount equal to the lesser of (a) $200,000,000 and (b) the
Aggregate Commitments, or such lesser amount as agreed by the Borrower and the Swing Line Lenders.
The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.
βSyndication Agentβ means each entity named as a βSyndication Agentβ on the cover page of this
Agreement.
βSynthetic Lease Obligationβ means the monetary obligation of a Person under (a) a so-called
synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of
property creating obligations that do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).
βTaxesβ means all present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.
βThreshold Amountβ means $100,000,000.
βTotal Capitalβ means, at any time, the sum of (a) Consolidated Total Debt and (b) Consolidated
Net Worth.
βTotal Outstandingsβ means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.
βTransaction Expensesβ means any costs, premiums, fees or expenses incurred or paid by the
Borrower or any of its Subsidiaries in connection with the Transactions.
16208864_8 26
Β
βTransactionsβ means (i) the execution, delivery and performance by each of the Loan Parties of
this Agreement and the other Loan Documents to which it is a party, the initial borrowing of Loans on the
Closing Date and the use of the proceeds thereof, (ii) the payment of all Transaction Expenses and (iii)
the transactions related or ancillary thereto.
βTypeβ means with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.
βUnfunded Pension Liabilityβ means the amount (if any) by which the present value of a Pension
Planβs benefit liabilities under Section 4001(a)(16) of ERISA, determined using actuarial assumptions for
funding purposes which are equal to the assumptions used by the Pension Plan's actuary for funding said
Pension Plan pursuant to Section 412 of the Code for the applicable plan year, exceeds the current fair
market value of such Pension Plan's assets.
βUnited Statesβ and βU.S.β mean the United States of America.
βUnreimbursed Amountβ has the meaning set forth in Section 2.04(c)(i).
βU.S. Personβ means any Person that is a βUnited States Personβ as defined in
Section 7701(a)(30) of the Code.
βU.S. Tax Compliance Certificateβ has the meaning specified in Section 3.01(e)(ii)(B)(3).
βWrite-Down and Conversion Powersβ means, with respect to any EEA Resolution Authority, the
write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In
Legislation for the applicable EEA Member Country, which write-down and conversion powers are
described in the EU Bail-In Legislation Schedule.
1.02 Other Interpretive Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.
(b) (i) The words βherein,β βhereto,β βhereofβ and βhereunderβ and words of similar
import when used in any Loan Document shall refer to such Loan Document as a whole and not to any
particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the Loan Document in
which such reference appears.
(iii) The words βinclude,β βincludesβ and βincludingβ are by way of example and not
limitation.
(iv) The term βdocumentsβ includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however evidenced, whether
in physical or electronic form.
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(v) The words βassetβ and βpropertyβ shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(c) In the computation of periods of time from a specified date to a later specified date, the
word βfromβ means βfrom and including;β the words βtoβ and βuntilβ each mean βto but excluding;β and
the word βthroughβ means βto and including.β
(d) Section headings herein and in the other Loan Documents are included for convenience
of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) All accounting terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP as in
effect from time to time. Notwithstanding the foregoing, for purposes of determining compliance with
any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the
Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount
thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be
disregarded.
(b) If at any time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein until such time, if any, as such financial ratio or
requirement are adjusted or reset to reflect such changes in GAAP and such adjustments or resets are
agreed to in writing by the Borrower, the Administrative Agent and the Required Lenders.
1.04 Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.05 References to Agreements and Laws. Unless otherwise expressly provided herein,
(a) references to Organization Documents, agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only to the extent that
such amendments, restatements, extensions, supplements and other modifications are not
prohibited by any Loan Document; and (b) references to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or interpreting such
Law.
1.06 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to Central time (daylight or standard, as applicable).
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1.07 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms
or the terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a βCommitted Loanβ) to the Borrower
from time to time, on any Business Day during the Availability Period, in an aggregate amount
not to exceed at any time outstanding the amount of such Lenderβs
Commitment; provided, however, that after giving effect to any Committed Borrowing, (i) the
Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lenderβs Pro Rata Share
of the Outstanding Amount of all L/C Obligations, plus such Lenderβs Pro Rata Share of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lenderβs Commitment.
Within the limits of each Lenderβs Commitment, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.06, and
reborrow under this Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate
Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the
other, and each continuation of Eurodollar Rate Committed Loans shall be made upon the Borrowerβs
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must
be received by the Administrative Agent (i) not later than 10:00 a.m. three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Committed Loans
or of any conversion of Eurodollar Rate Committed Loans to Base Rate Committed Loans, and (ii) not
later than 1:00 p.m. on the requested date of any Borrowing of Base Rate Committed Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Committed Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Except as provided in Sections 2.04(c) and 2.05(c), each Borrowing of or
conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple
of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify
(i) whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from
one Type to the other, or a continuation of Eurodollar Rate Committed Loans, (ii) the requested date of
the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if
16208864_8 29
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applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type
of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or
converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as
of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate
Committed Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar
Rate Committed Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Pro Rata Share of the applicable Committed Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Committed Borrowing, each Lender shall make the amount of its
Committed Loan available to the Administrative Agent in immediately available funds at the
Administrative Agentβs Office not later than 1:00 p.m. (in the case of Eurodollar Rate Committed Loans)
or 3:00 p.m. (in the case of Base Rate Committed Loans) on the Business Day specified in the applicable
Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.03 (and, if
such Borrowing is the initial Credit Extension, Sections 4.01 and 4.02), the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received by the Administrative
Agent either by (i) crediting the account of the Borrower on the books of Citibank with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on
the date the Committed Loan Notice with respect to such Borrowing is given by the Borrower, there are
L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment
in full of any such L/C Borrowings and second, to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Committed Loan may be
continued or converted only on the last day of an Interest Period for such Eurodollar Rate Committed
Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as
Eurodollar Rate Committed Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Committed Loans upon determination of
such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in Citibankβs prime rate
used in determining the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of Committed Loans
from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than six Interest Periods in effect with respect to Committed Loans.
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2.03 Reserved.
2.04 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees,
in reliance upon the agreements of the other Lenders set forth in this Section 2.04, (1) from time
to time on any Business Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the Borrower and to amend or extend
Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to
honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (w) the Total Outstandings shall not exceed the Aggregate Commitments, (x) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lenderβs Pro
Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lenderβs Pro Rata Share
of the Outstanding Amount of all Swing Line Loans shall not exceed such Lenderβs Commitment,
(y) the Outstanding Amount of all L/C Obligations shall not exceed the Letter of Credit Sublimit,
and (z) the Outstanding Amount of the L/C Obligations with respect to Letters of Credit issued by
such L/C Issuer shall not exceed such L/C Issuerβs L/C Issuer Commitment (unless such L/C
Issuer consents to having the Outstanding Amounts of the L/C Obligations with respect to Letters
of Credit issued by such L/C Issuer exceed such L/C Issuerβs L/C Issuer Commitment). Each
request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by the Borrower that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrowerβs ability to obtain Letters of Credit shall
be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters
of Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed. All Letters of Credit shall be standby letters of credit issued to support the payment
or performance obligations of the Borrower or its Subsidiaries.
(ii) No L/C Issuer shall issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of the requested Letter of
Credit would occur more than twelve months after the date of issuance or last extension,
unless such L/C Issuer has approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all Lenders have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such
Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with
16208864_8 31
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jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of Credit in particular or
shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which such L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date and
which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the expiry date of such requested Letter of Credit would occur after any
Maturity Date applicable to any Non-Extending Lender, unless the amount of such Letter
of Credit together with all other L/C Obligations outstanding on the date of issuance of
such Letter of Credit is equal to or less than the aggregate Commitments of all Lenders
who shall remain parties to this Agreement subsequent to the Maturity Date that
immediately precedes the expiry date of such Letter of Credit;
(C) the issuance of such Letter of Credit would violate one or more policies
of such L/C Issuer, or such Letter of Credit is in an initial stated amount less than
$500,000 or is to be denominated in a currency other than Dollars; or
(D) any Lender is at that time a Defaulting Lender, unless (x) such L/C Issuer
has entered into arrangements, including the delivery of Cash Collateral, reasonably
satisfactory to such L/C Issuer with the Borrower or such Lender to eliminate such L/C
Issuerβs Fronting Exposure with respect to the Defaulting Lender as provided in Section
2.17(c) or (y) such Defaulting Lenderβs participation in L/C Obligations has been
reallocated among Non-Defaulting Lenders under Section 2.17.
(iv) Such L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended
form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
(v) Such L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and such L/C Issuer shall have all of
the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect
to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of
Credit as fully as if the term βAdministrative Agentβ as used in Article IX included such L/C
Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect
to such L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a
16208864_8 32
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Responsible Officer of the Borrower. Such Letter of Credit Application must be received by such
L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or
such later date and time as the applicable L/C Issuer may agree in a particular instance in its sole
discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail reasonably satisfactory to such L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text
of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as such L/C Issuer may require. In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail
reasonably satisfactory to such L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as such L/C Issuer may require. Additionally,
the Borrower shall furnish to such L/C Issuer and the Administrative Agent such other documents
and information pertaining to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as such L/C Issuer or the Administrative Agent may require to prepare,
amend, or extend such Letter of Credit.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the Borrower
and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Unless
such L/C Issuer has received written notice from the Administrative Agent or the Borrower, at
least one Business Day prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be
satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Borrower or the applicable Subsidiary or enter
into the applicable amendment, as the case may be, in each case in accordance with such L/C
Issuer's usual and customary business practices. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from such L/C Issuer a risk participation in such Letter of Credit in an amount equal to
the product of such Lenderβs Pro Rata Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an βAuto-Extension Letter of Creditβ); provided that
any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such
extension at least once in each twelve-month period (commencing with the date of issuance of
such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the
βNon-Extension Notice Dateβ) in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by such L/C Issuer, the Borrower shall
not be required to make a specific request to such L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized
16208864_8 33
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(but may not require) such L/C Issuer to permit the extension of such Letter of Credit at any time
to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that such
L/C Issuer shall not permit any such extension if (A) such L/C Issuer has determined that it would
not be permitted, at such time to issue such Letter of Credit in its revised form (as extended)
under the terms hereof (by reason of the provisions of clause (ii) of Section 2.04(a) or otherwise),
or (B) it has received notice (which may be by telephone or in writing) on or before the day that is
seven Business Days before the Non-Extension Notice Date from the Administrative Agent or the
Borrower that one or more of the applicable conditions specified in Section 4.03 is not then
satisfied, and in such case directing such L/C Issuer not to permit such extension.
(iv) If the Borrower so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
permits the automatic reinstatement of all or a portion of the stated amount thereof after any
drawing thereunder (each, an βAuto-Reinstatement Letter of Creditβ). Unless otherwise directed
by such L/C Issuer, the Borrower shall not be required to make a specific request to such L/C
Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been
issued, except as provided in the following sentence, the Lenders shall be deemed to have
authorized (but may not require) such L/C Issuer to reinstate all or a portion of the stated amount
thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the
foregoing, if such Auto-Reinstatement Letter of Credit permits such L/C Issuer to decline to
reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving
notice of such non-reinstatement within a specified number of days after such drawing (the βNon-
Reinstatement Deadlineβ), such L/C Issuer shall not permit such reinstatement if it has received a
notice (which may be by telephone or in writing) on or before the day that is ten Business Days
before the Non-Reinstatement Deadline from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section 4.03 is not then
satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and,
in such case, directing such L/C Issuer not to permit such reinstatement.
(v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, such L/C Issuer
will also deliver to the Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
compliant drawing under such Letter of Credit, the applicable L/C Issuer shall notify the
Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the Business Day
following the date of any payment by such L/C Issuer under a Letter of Credit (each such date, an
βHonor Dateβ), the Borrower shall reimburse such L/C Issuer through the Administrative Agent,
in an amount equal to the amount of such drawing. In the event that reimbursement is made on
the day after the Honor Date as permitted by this subsection (c)(i), interest shall be payable by the
Borrower at the rate set forth in Section 2.09(a)(ii) on the amount of the drawing from the date on
which the relevant draft is paid until the date on which such amount is either paid in full (by
16208864_8 34
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payment made by the Borrower or by a Borrowing of Base Rate Loans pursuant to this subsection
(c)(i)) or is deemed to be an L/C Borrowing pursuant to Section 2.04(c)(iii). If the Borrower does
not so reimburse such L/C Issuer by such time, the Administrative Agent shall promptly notify
each Lender of the Honor Date, the amount of the unreimbursed drawing (the βUnreimbursed
Amountβ), and the amount of such Lenderβs Pro Rata Share thereof. In such event, the Borrower
shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed
on the Honor Date or the next Business Day thereafter in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.03 (other than the delivery of a Committed
Loan Notice). Any notice given by such L/C Issuer or the Administrative Agent pursuant to
this Section 2.04(c)(i) may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender (including the Lender acting as a L/C Issuer) shall upon any notice
pursuant to Section 2.04(c)(i) make funds available (and the Administrative Agent may apply
Cash Collateral provided for this purpose pursuant to Section 2.04(g) as a result of a Defaulting
Lender) for the account of such L/C Issuer at the Administrative Agentβs Office in an amount
equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business
Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions
of Section 2.04(c)(iii), each Lender that so makes funds available shall be deemed to have made a
Base Rate Committed Loan to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to such L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.03 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have incurred from such L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear
interest at the Default Rate. In such event, each Lenderβs payment to the Administrative Agent
for the account of such L/C Issuer pursuant to Section 2.04(c)(ii) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such
Lender in satisfaction of its participation obligation under this Section 2.04.
(iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to
this Section 2.04(c) to reimburse any L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lenderβs Pro Rata Share of such amount shall be solely for the account
of such L/C Issuer.
(v) Each Lenderβs obligation to make Committed Loans or L/C Advances to
reimburse any L/C Issuer for amounts drawn under Letters of Credit, as contemplated by
this Section 2.04(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against such L/C Issuer, the Borrower or any other Person for any reason
16208864_8 35
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whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however, that each Lenderβs
obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions
set forth in Section 4.03 (other than delivery by the Borrower of a Committed Loan Notice). No
such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower
to reimburse such L/C Issuer for the amount of any payment made by such L/C Issuer under any
Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account
of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(ii), such L/C Issuer
shall be entitled to recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such payment is required
to the date on which such payment is immediately available to such L/C Issuer at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined by such L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by such L/C Issuer in connection with the
foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so
paid shall constitute such Lenderβs Committed Loan included in the relevant Committed
Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A
certificate of such L/C Issuer submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after any L/C Issuer has made a payment under any Letter of Credit
and has received from any Lender such Lenderβs L/C Advance in respect of such payment in
accordance with Section 2.04(c), if the Administrative Agent receives for the account of such L/C
Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by
the Administrative Agent), the Administrative Agent will distribute to such Lender its Pro Rata
Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lenderβs L/C Advance was outstanding) in the same funds as those
received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of any L/C
Issuer pursuant to Section 2.04(c)(i) is required to be returned under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered into by such L/C Issuer
in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C
Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the termination
of this Agreement.
16208864_8 36
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(e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer for
each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement
under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may
be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any
payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any transferee of such Letter
of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
or
(v) any other circumstance or happening whatsoever, whether or not similar to any
of the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of noncompliance with
the Borrowerβs instructions or other irregularity, the Borrower will immediately notify the L/C
Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the
L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing
under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other
than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain
or inquire as to the validity or accuracy of any such document or the authority of the Person executing or
delivering any such document. No L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any of the correspondents, participants or assignees of any L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the
Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
16208864_8 37
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negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the
Borrowerβs pursuing such rights and remedies as it may have against the beneficiary or transferee at law
or under any other agreement. No L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any of the correspondents, participants or assignees of any L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of Section
2.04(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower
may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent,
but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which were determined by a court of competent jurisdiction by final and nonappealable
judgment to have been caused by the L/C Issuer's willful misconduct or gross negligence or the L/C
Issuer's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on
their face to be in order, without responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent or any L/C Issuer (with a
copy to the Administrative Agent) (i) if the L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter
of Credit Expiration Date, any Letter of Credit may for any reason remain outstanding and partially or
wholly undrawn, the Borrower shall immediately Cash Collateralize the then Outstanding Amount of all
L/C Obligations in an amount equal to one hundred and two percent (102%) of such Outstanding Amount
determined as of the date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case may
be. Sections 2.06, 2.15(f), and 8.02(c) set forth certain additional requirements to deliver Cash Collateral
hereunder. If a Defaulting Lender fails to provide Cash Collateral within two Business Days of receiving
a written request of the Administrative Agent or any L/C Issuer or Swing Line Lender, then the Borrower
shall provide such Cash Collateral within one Business Day of receiving written notice from the
Administrative Agent or such L/C Issuer or Swing Line Lender of the Defaulting Lenderβs failure to
provide such Cash Collateral. For purposes of this Agreement, βCash Collateralizeβ means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuers and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form
and substance reasonably satisfactory to the Administrative Agent and the L/C Issuers (which documents
are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to
the Administrative Agent, for the benefit of the L/C Issuers and the Lenders, a first priority security
interest in all such cash, deposit accounts and all balances therein and in all other property so provided as
collateral pursuant to this Agreement, and in all proceeds of the foregoing, all as security for the
16208864_8 38
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obligations to which Cash Collateral may be applied. Cash collateral shall be maintained in blocked, non-
interest bearing deposit accounts held by the Administrative Agent.
If at any time the Administrative Agent determines that Cash Collateral is subject to any
right or claim of any Person other than the Administrative Agent as herein provided which has
priority over the Administrative Agentβs claim, or that the total amount of such Cash Collateral is
less than the amount required by this Section, Section 2.06 or 2.15(f), as applicable, the
Borrower or the relevant Defaulting Lender will, promptly upon demand by the Administrative
Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount
sufficient to eliminate such deficiency.
Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral
provided under this Agreement in respect of Letters of Credit or Swing Line Loans shall be held
and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to
fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender,
any interest accrued on such obligation) and other obligations for which the Cash Collateral was
so provided, prior to any other application of such property as may be provided for herein.
Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure
or other obligations shall be released promptly following (i) the elimination of the applicable
Fronting Exposure or payment in full of all other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 10.06(b)(vi)); or (ii) the Administrative Agentβs
determination that there exists excess Cash Collateral; provided, however, that Cash Collateral
furnished by or on behalf of a Loan Party shall not be released during the continuance of an
Event of Default (and following application as provided in this Section 2.06, in Section 2.15(a)
or Section 2.17, as applicable, may be otherwise applied in accordance with Section 8.03).
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued, the rules of the βInternational Standby Practices 1998β
published by the Institute of International Banking Law & Practice (or such later version thereof as may
be in effect at the time of issuance) (the βISPβ) shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share a Letter of Credit fee (the βLetter of Credit
Feeβ) for each Letter of Credit equal to the Applicable Rate times the daily maximum amount available to
be drawn under such Letter of Credit; provided, however, any Letter of Credit Fees otherwise payable for
the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting
Lender has not provided Cash Collateral satisfactory to the L/C Issuer pursuant to this Section 2.04 shall
be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance with
the upward adjustments in their respective Pro Rata Share allocable to such Letter of Credit pursuant
to Section 2.17(a)(iv), with the balance of such fee, if any, payable to the L/C Issuer for its own account
(unless Cash Collateral has been provided with respect to such Defaulting Lenderβs participation in
Letters of Credit). For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. Such
letter of credit fees shall be computed on a quarterly basis in arrears. Such letter of credit fees shall be
16208864_8 39
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due and payable on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during
any quarter, the daily maximum amount available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue
at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter
of Credit, at the rate per annum specified in the applicable Fee Letter (or, with respect to any L/C Issuer
who is not a party to a Fee Letter, at the rate per annum agreed between the Borrower and such L/C
Issuer), computed on the daily amount available to be drawn under such Letter of Credit on a quarterly
basis in arrears, and due and payable on the tenth Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing
the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.07. In addition, the Borrower shall pay directly to the
L/C Issuer for its own account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to
time in effect. Such customary fees and standard costs and charges are due and payable on demand and
are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any conflict between the terms
hereof and the terms of any Letter of Credit Application, the terms hereof shall control.
(l) Letter of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or
outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the
Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such
Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account
of Subsidiaries inures to the benefit of the Borrower, and that the Borrowerβs business derives substantial
benefits from the businesses of such Subsidiaries.
(m) L/C Issuer Reporting Requirements. Each L/C Issuer shall, no later than the last Business
Day of each month, provide to the Administrative Agent a schedule of the Letters of Credit issued by it
outstanding at any time during such month, such schedule to be in form and substance reasonably
satisfactory to the Administrative Agent, showing the date of issuance of each such Letter of Credit, the
account party, the original face amount, the current face amount (if any), the expiration date, and the
reference number.
2.05 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, each Swing Line
Lender agrees, severally and not jointly, in reliance upon the agreements of the other Lenders set forth in
this Section 2.05, to make loans (each such loan, a βSwing Line Loanβ) to the Borrower from time to time
16208864_8 40
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on any Business Day during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of such Swing Line Lenderβs Swing Line Commitment, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of
Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the
amount of such Lenderβs Commitment; provided, however, that after giving effect to any Swing Line
Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii) the Outstanding
Amount of all Swing Line Loans shall not exceed the Swing Line Sublimit, and (iii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lenderβs Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lenderβs Pro Rata Share of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lenderβs Commitment, and provided, further, that
no Swing Line Lender shall be required to make any Swing Line Loan to refinance any outstanding
Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.05, prepay under Section 2.06, and reborrow under
this Section 2.05. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the applicable Swing Line Lender a risk participation in such Swing Line Loan in an
amount equal to the product of such Lenderβs Pro Rata Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrowerβs
irrevocable notice to the applicable Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the applicable Swing Line Lender and the
Administrative Agent not later than 2:00 p.m. on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $1,000,000, and (ii) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to
the applicable Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by
the applicable Swing Line Lender of any telephonic Swing Line Loan Notice, such Swing Line Lender
will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has
also received such Swing Line Loan Notice and, if not, such Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof. Unless the applicable Swing
Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing such Swing Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the first proviso to the first sentence of Section 2.05(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof,
such Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower at its office by crediting
the account of the Borrower on the books of such Swing Line Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The applicable Swing Line Lender at any time in its sole and absolute discretion
may request, on behalf of the Borrower (which hereby irrevocably authorizes such Swing Line
Lender to so request on its behalf), that each Lender make a Base Rate Committed Loan in an
amount equal to such Lenderβs Pro Rata Share of the amount of Swing Line Loans then
16208864_8 41
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outstanding. Such request shall be made in writing (which written request shall be deemed to be
a Committed Loan Notice for purposes hereof) and in accordance with the requirements
of Section 2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments
and the conditions set forth in Section 4.03. The applicable Swing Line Lender shall furnish the
Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such
notice to the Administrative Agent. Each Lender shall make an amount equal to its Pro Rata
Share of the amount specified in such Committed Loan Notice available to the Administrative
Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral
provided for this purpose pursuant to Section 2.04(g) as a result of a Defaulting Lender) for the
account of the applicable Swing Line Lender at the Administrative Agentβs Office not later than
1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section
2.05(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate
Committed Loan to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the applicable Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a
Committed Borrowing in accordance with Section 2.05(c)(i), the request for Base Rate
Committed Loans submitted by the applicable Swing Line Lender as set forth herein shall be
deemed to be a request by such Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lenderβs payment to the Administrative
Agent for the account of such Swing Line Lender pursuant to Section 2.05(c)(i) shall be deemed
payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative Agent for the account
of the applicable Swing Line Lender any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.05(c) by the time specified in Section 2.05(c)(i), such
Swing Line Lender shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is immediately available to such
Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by such Swing Line Lender in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by such
Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such Lenderβs Committed Loan
included in the relevant Committed Borrowing or funded participation in the relevant Swing Line
Loan, as the case may be. A certificate of the applicable Swing Line Lender submitted to any
Lender (through the Administrative Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.
(iv) Each Lenderβs obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.05(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have against the
applicable Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B)
16208864_8 42
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the occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each Lenderβs obligation
to make Committed Loans pursuant to this Section 2.05(c) is subject to the conditions set forth
in Section 4.03. No such funding of risk participations shall relieve or otherwise impair the
obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the applicable Swing Line Lender receives any payment on account of such
Swing Line Loan, such Swing Line Lender will distribute to such Lender its Pro Rata Share
thereof in the same funds as those received by such Swing Line Lender.
(ii) If any payment received by the applicable Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by such Swing Line
Lender under any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by such Swing Line Lender in its discretion), each Lender shall pay to
such Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is returned, at a rate per
annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon
the request of the applicable Swing Line Lender. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lenders. The applicable Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender funds its
Base Rate Committed Loan or risk participation pursuant to this Section 2.05 to refinance such Lenderβs
Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the
account of such Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the applicable Swing Line Lender.
2.06 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business
Days prior to any date of prepayment of Eurodollar Rate Committed Loans and (B) on the date of
prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar Rate Committed Loans
shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii)
any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lenderβs Pro Rata Share of such prepayment. If
such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount
16208864_8 43
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specified in such notice shall be due and payable on the date specified therein, unless such notice is made
conditional on a transaction or financing, in which case the obligation of the Borrower to make such
prepayment (and to pay such payment amount) shall be subject to such conditions. Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest thereon, together with any additional
amounts required pursuant to Section 3.05. Subject to Section 2.17, each such prepayment shall be
applied to the Committed Loans of the Lenders in accordance with their respective Pro Rata Shares.
(b) Reserved.
(c) The Borrower may, upon notice to the applicable Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole
or in part without premium or penalty; provided that (i) such notice must be received by such Swing Line
Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any
such prepayment shall be in a minimum principal amount of $1,000,000. Each such notice shall specify
the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein.
(d) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments
then in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not
be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(d) unless after the
prepayment in full of the Committed Loans and Swing Line Loans the Total Outstandings exceed the
Aggregate Commitments then in effect.
2.07 Termination or Reduction of Commitments. The Borrower may, upon notice to
the Administrative Agent (which notice may be conditioned on the consummation of a
transaction or financing), terminate the Aggregate Commitments, or from time to time
permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m. three Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount
of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate
Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Commitments,
the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate
Commitments, such Sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall
be applied to the Commitment of each Lender according to its Pro Rata Share. All Facility Fees
accrued until the effective date of any termination of the Aggregate Commitments shall be paid
on the effective date of such termination.
2.08 Repayment of Loans.
(a) The Borrower shall repay to each Lender on its Maturity Date the aggregate principal
amount of Committed Loans outstanding on such date.
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(b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the next occurring Maturity Date.
2.09 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Committed
Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate
Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swing
Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing
date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b) If any amount payable by the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and
payable in accordance with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.10 Fees. In addition to certain fees described in subsections (i) and (j) of Section
2.04:
(a) Ticking Fee. The Borrower agrees to pay to the Administrative Agent for the account of
each Lender a non-refundable ticking fee (the βTicking Feeβ) from and including July 17, 2017 to, but
excluding, the earlier of (i) the Closing Date and (ii) the date upon which all of the Commitments have
expired or been terminated, computed at 0.15% per annum on the average daily amount of the
Commitment of such Lender during the period for which payment is made. Such Ticking Fees shall be
payable on the earlier of (x) the Closing Date and (y) the date upon which all of the Commitments have
expired or been terminated.
(b) Facility Fee. The Borrower shall pay to the Administrative Agent for the account of each
Lender in accordance with its Pro Rata Share, a facility fee (the βFacility Feeβ) equal to the Applicable
Rate times the actual daily amount of the Aggregate Commitments (or, if the Aggregate Commitments
have terminated, on the Outstanding Amount of all Committed Loans, Swing Line Loans and L/C
Obligations), regardless of usage, subject to adjustment as provided in Section 2.17. The Facility Fee
shall accrue at all times during the Availability Period (and thereafter so long as any Committed Loans,
Swing Line Loans or L/C Obligations remain outstanding), including at any time during which one or
more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the
last Business Day of each March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the last day of the Availability Period (and, if applicable, thereafter
on demand). The Facility Fee shall be calculated quarterly in arrears, and if there is any change in the
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Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(c) Other Fees.
(i) The Borrower shall pay to the Arrangers and the Administrative Agent for their
own respective accounts fees in the amounts and at the times specified in the Fee Letters. Such
fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
2.11 Computation of Interest and Fees. All computations of interest for Base Rate
Loans determined by reference to the Citibank βprime rateβ shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees
and interest shall be made on the basis of a 360-day year and actual days elapsed (which results
in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day
year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.13(a), bear interest for one day.
2.12 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts
or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.
The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the
interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit
or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Administrative Agent in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lenderβs Loans in addition to such
accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing
the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In
the event of any conflict between the accounts and records maintained by the Administrative Agent and
the accounts and records of any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.
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2.13 Payments Generally.
(a) All payments to be made by the Borrower shall be made without condition or deduction
for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all
payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agentβs Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such Lenderβs Lending Office. All
payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
(c) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing of Base
Rate Loans, prior to 12:00 p.m. on the date of such Committed Borrowing of Base Rate Loans) that such
Lender will not make available to the Administrative Agent such Lenderβs share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such
Lender has made such share available in accordance with and at the time required by Section 2.02) and
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in immediately available funds
with interest thereon, for each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a
payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the Administrative Agent in connection
with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate
applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender
pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lenderβs Committed Loan included in such Committed Borrowing. Any
payment by the Borrower shall be without prejudice to any claim the Borrower may have against a
Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer
16208864_8 47
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hereunder that the Borrower will not make such payment, the Administrative Agent may assume
that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such payment, then each of the
Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in
immediately available funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at
the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under this subsection (c) shall be conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan to be
made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof,
the Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(e) The obligations of the Lenders hereunder to make Committed Loans and to fund
participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section
10.04(c) are several and not joint. The failure of any Lender to make any Committed Loan or to fund any
such participation or to make any payment under Section 10.04(c) on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Committed Loan or purchase its
participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan
in any particular place or manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
2.14 Sharing of Payments. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the
Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lenderβs receiving payment of a proportion of the aggregate amount
of such Committed Loans or participations and accrued interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater proportion shall (a)
notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line
Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Committed Loans and
other amounts owing them, provided that:
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(i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or subparticipations
shall be rescinded and the purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a Defaulting
Lender), or (y) the application of Cash Collateral provided for in Section 2.17, or (z) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in any of its
Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant,
other than to the Borrower or any Affiliate thereof (as to which the provisions of this Section
shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
2.15 Extension of Maturity Date.
(a) Requests for Extension. The Borrower may, by notice to the Administrative Agent (who
shall promptly notify the Lenders) not earlier than 90 days and not later than 35 days prior to an
anniversary of the Closing Date (each, an βApplicable Anniversary Dateβ), request that each Lender
extend such Lenderβs Maturity Date for an additional year from the Maturity Date then in effect for such
Lender hereunder (such Lenderβs βExisting Maturity Dateβ). The Borrower may request such an
extension no more than two times.
(b) Lender Elections to Extend. Each Lender, acting in its sole and individual discretion,
shall, by notice to the Administrative Agent not later than the date (the βNotice Dateβ) that is 20 days
prior to such Applicable Anniversary Date, advise the Administrative Agent whether or not such Lender
agrees to such extension (and each Lender that determines not to so extend its Maturity Date (a
βNon-Extending Lenderβ) shall notify the Administrative Agent of such fact promptly after such
determination (but in any event no later than the Notice Date)) and any Lender that does not so advise the
Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Lender. The
election of any Lender to agree to such extension (each such Lender is herein called an βExtending
Lenderβ) shall not obligate any other Lender to so agree.
(c) Notification by Administrative Agent. The Administrative Agent shall notify the
Borrower of each Lenderβs determination under this Section no later than the date that is 15 days prior to
the Applicable Anniversary Date (or, if such date is not a Business Day, on the next preceding Business
Day).
(d) Additional Commitment Lenders. The Borrower shall have the right, on or before the
Maturity Date applicable to any Non-Extending Lender, to replace such Non-Extending Lender with, and
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add as βLendersβ under this Agreement in place thereof, one or more Eligible Assignees (each, an
βAdditional Commitment Lenderβ) as provided in Section 10.14, each of which Additional Commitment
Lenders shall have entered into an Assignment and Assumption pursuant to which each such Additional
Commitment Lender shall, effective as of such Existing Maturity Date, undertake a Commitment (and, if
any such Additional Commitment Lender is already a Lender, its Commitment shall be in addition to such
Lenderβs Commitment hereunder on such date).
(e) Minimum Extension Requirement. If (and only if) the aggregate (x) Commitments of the
Lenders that have agreed to extend their Maturity Date and (y) additional Commitments of Additional
Commitment Lenders shall be more than 50% of the Aggregate Commitments in effect immediately prior
to an Applicable Anniversary Date, then, effective as of the Existing Maturity Date of each such
Extending Lender, the Maturity Date of each such Extending Lender and of each such Additional
Commitment Lender shall be extended to the date falling one year after the Existing Maturity Date of
each such Extending Lender (except that, if such date is not a Business Day, such Maturity Date as so
extended shall be the next preceding Business Day) and each Additional Commitment Lender shall
thereupon become a βLenderβ for all purposes of this Agreement.
(f) Conditions to Effectiveness of Extensions. As a condition precedent to the extension of
the Maturity Date pursuant to this Section:
(i) the Borrower shall deliver to the Administrative Agent a certificate of a
Responsible Officer of the Borrower certifying that (A) no Default exists on the date of such
certificate, either before or after giving effect to such extension; (B) the representations and
warranties of the Loan Parties contained in this Agreement and the other Loan Documents are
true and correct in all material respects on and as of the date of such extension and after giving
effect thereto (or, if any such representation or warranty is expressly stated to have been made as
of a specific date, as of such specific date and except that such materiality qualifier shall not
apply to the extent that any such representation or warranty is qualified by materiality); and (C)
there has been no event or circumstance since the Execution Date that has had or could be
reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ii) on the Maturity Date applicable to each Non-Extending Lender, the Borrower
shall prepay, on a non pro rata basis with respect to Extending Lenders, any Committed Loans
outstanding on such date (and pay any additional amounts required pursuant to Section 3.05) to
the extent necessary to satisfy in full the Obligations due to such Non-Extending Lender under
the Loan Documents as of such date;
(iii) on the Maturity Date applicable to each Non-Extending Lender, all or any part of
such Non-Extending Lendersβ Pro Rata Share of the Outstanding Amount of L/C Obligations
shall be reallocated among the Extending Lenders and the Additional Commitment Lenders in
accordance with their respective Pro Rata Shares (calculated without regard to the Non-Extending
Lendersβ Commitments) but only to the extent that such reallocation does not cause, with respect
to any Extending Lender or Additional Commitment Lender, the aggregate Outstanding Amount
of the Committed Loans of such Lender, plus such Lenderβs Pro Rata Share of the Outstanding
Amount of all L/C Obligations, plus such Lenderβs Pro Rata Share of the Outstanding Amount of
all Swing Line Loans to exceed such Lenderβs Commitments as in effect at such time; and
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(iv) if the reallocation described in the preceding clause (iii) cannot, or can only
partially, be effected, the Borrower shall Cash Collateralize the L/C Obligations to the extent that,
after giving effect to the reallocation pursuant to the preceding clause (iii) and the payment
required by the preceding clause (ii), the Total Outstandings exceed the Commitments of the
Extending Lenders and the Additional Commitment Lenders. The amount of Cash Collateral
provided by the Borrower pursuant to this clause (iv) shall reduce the Non-Extending Lendersβ
Pro Rata Share of the Outstanding Amount of L/C Obligations (after giving effect to any partial
reallocation pursuant to the preceding clause (iii)) on a pro rata basis; and each Non-Extending
Lenderβs Commitment to make Committed Loans, purchase participations in Swing Line Loans,
and purchase participations in L/C Obligations with respect to Letters of Credit issued after such
Maturity Date shall terminate.
(g) Conflicting Provisions. This Section shall supersede any provisions in Section 2.14
or 10.01 to the contrary.
2.16 Increase in Commitments.
(a) Request for Increase. Provided there exists no Default or Event of Default, upon notice
to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may, from time to
time, request an increase in the Aggregate Commitments by an amount (for all such requests) not
exceeding $1,000,000,000; provided that any such request for an increase shall be in a minimum amount
of $5,000,000. To achieve the requested increase, the Borrower may ask that one or more Lenders
increase their existing Commitments and/or the Borrower may invite additional Eligible Assignees to
become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the
Administrative Agent. In the event that the Borrower desires to ask all Lenders whether they are willing
to increase their Commitments, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond. In such case, each Lender shall
notify the Administrative Agent within such time period whether or not it agrees to increase its
Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of
such requested increase. Any Lender not responding within such time period shall be deemed to have
declined to increase its Commitment.
(b) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Borrower shall determine the effective date (subject to the approval of
the Administrative Agent, not to be unreasonably withheld) (the βIncrease Effective Dateβ) and the final
allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the
Lenders of the final allocation of such increase and the Increase Effective Date.
(c) Conditions to Effectiveness of Increase. As a condition precedent to such increase, the
Borrower shall deliver to the Administrative Agent the following, each dated as of the Increase Effective
Date: (i) a certificate signed by the Secretary or an Assistant Secretary of each Loan Party (or of its
general partner) certifying and attaching the resolutions or other action authorizing such increase, and
(ii) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying that, before
and after giving effect to such increase, (I) the representations and warranties of the Loan Parties
contained in Article V and the other Loan Documents are true and correct in all material respects on and
as of the Increase Effective Date, except to the extent that such representations and warranties specifically
16208864_8 51
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refer to an earlier date, in which case they are true and correct as of such earlier date (except that such
materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by
materiality), (II) no Default exists, and (III) there has been no event or circumstance since the Execution
Date that has had or could be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect. To the extent the Aggregate Commitments are being increased on the relevant
Increase Effective Date, then each of the Lenders having a Commitment prior to such Increase Effective
Date (such Lenders, the βPre-Increase Lendersβ) shall assign or transfer to any Lender which is acquiring
a new Commitment on the Increase Effective Date (the βPost-Increase Lendersβ), and such Post-Increase
Lenders shall purchase from each such Pre-Increase Lender, at the funded principal amount thereof, such
interest in the Loans and participation interests in L/C Obligations and Swing Line Loans (but not, for the
avoidance of doubt, the related Commitments) outstanding on such Increase Effective Date as shall be
necessary in order that, after giving effect to all such assignments or transfers and purchases, such Loans
and participation interests in L/C Obligations and Swing Line Loans will be held by Pre-Increase Lenders
and Post-Increase Lenders ratably in accordance with their Commitments after giving effect to such
increase in Commitments (and after giving effect to any Loans made on the relevant Increase Effective
Date). Such assignments or transfers and purchases shall be made in accordance with Section 10.06.
(d) Conflicting Provisions. This Section shall supersede any provisions in Section 2.14
or 10.01 to the contrary.
2.17 Defaulting Lenders.
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in
this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no
longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Waivers and Amendments. Such Defaulting Lenderβs right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted
as set forth in the definition of Required Lenders and in Section 10.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other
amounts received by the Administrative Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received
by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied
at such time or times as may be determined by the Administrative Agent as follows: first, to the
payment of any amounts owing by such Defaulting Lender to the Administrative Agent
hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting
Lender to the L/C Issuer and the Swing Line Lender hereunder; third, to Cash Collateralize the
L/C Issuersβ or Swing Line Lendersβ Fronting Exposure with respect to such Defaulting Lender in
accordance with Section 2.04(g); fourth, as the Borrower may request (so long as no Default or
Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender
has failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be
held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lenderβs
potential future funding obligations with respect to Loans under this Agreement and (y) Cash
Collateralize the L/C Issuersβ and the Swing Line Lendersβ future Fronting Exposure with respect
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to such Defaulting Lender with respect to future Letters of Credit and Swing Line Loans issued
under this Agreement, in accordance with Section 2.04(g); sixth, to the payment of any amounts
owing to the Lenders, the L/C Issuers or Swing Line Lenders as a result of any judgment of a
court of competent jurisdiction obtained by any Lender, L/C Issuer or Swing Line Lender against
such Defaulting Lender as a result of such Defaulting Lenderβs breach of its obligations under
this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any
amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction
obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender's
breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a
payment of the principal amount of any Loans or L/C Advances in respect of which such
Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or
the related Letters of Credit were issued at a time when the conditions set forth in Section 4.03
were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C
Advances owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the
payment of any Loans of, or L/C Advances owed to, such Defaulting Lender until such time as all
Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held
by the Lenders pro rata in accordance with the Commitments without giving effect to Section
2.17(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender
that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this Section 2.17(a)(ii) shall be deemed paid to and redirected by such Defaulting
Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees.
(A) Each Defaulting Lender shall be entitled to receive a Facility Fee for any
period during which that Lender is a Defaulting Lender only to the extent allocable to the
sum of (1) the outstanding principal amount of the Committed Loans funded by it, and
(2) its Pro Rata Share of the stated amount of Letters of Credit for which it has provided
Cash Collateral pursuant to Section 2.04(g).
(B) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees
for any period during which that Lender is a Defaulting Lender only to the extent
allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has
provided Cash Collateral pursuant to Section 2.04(g).
(C) With respect to any Facility Fee or Letter of Credit Fee not required to be
paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x)
pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to
such Defaulting Lender with respect to such Defaulting Lenderβs participation in L/C
Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting
Lender pursuant to clause (iv) below, (y) pay to each L/C Issuer and each Swing Line
Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting
Lender to the extent allocable to the such L/C Issuerβs or such Swing Line Lenderβs
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Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the
remaining amount of any such fee.
(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any part of
such Defaulting Lenderβs participation in L/C Obligations and Swing Line Loans shall be
reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata
Shares (calculated without regard to such Defaulting Lenderβs Commitment) but only to the
extent that (x) the conditions set forth in Section 4.03 are satisfied at the time of such reallocation
(and, unless the Borrower shall have otherwise notified the Administrative Agent at such time,
the Borrower shall be deemed to have represented and warranted that such conditions are satisfied
at such time), and (y) such reallocation does not cause the Pro Rata Share of any Non-Defaulting
Lender in the Total Outstandings to exceed such Non-Defaulting Lenderβs Commitment. Subject
to Section 10.22, no reallocation hereunder shall constitute a waiver or release of any claim of
any party hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-
Defaulting Lenderβs increased exposure following such reallocation.
(v) Cash Collateral, Repayment of Swing Line Loans. If the reallocation described
in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without
prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swing
Line Loans in an amount equal to the Swing Line Lendersβ Fronting Exposure and (y) second,
Cash Collateralize the L/C Issuersβ Fronting Exposure in accordance with the procedures set forth
in Section 2.04(g).
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, each Swing Line
Lender and each L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in
such notice and subject to any conditions set forth therein (which may include arrangements with respect
to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of
outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may
determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit
and Swing Line Loans to be held pro rata by the Lenders in accordance with the Commitments (without
giving effect to Section 2.17(a)(iv)), whereupon such Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lenderβs having been a Defaulting Lender.
(c) New Swing Line Loans/Letters of Credit. So long as any Lender is a Defaulting Lender,
(i) each Swing Line Lender shall not be required to fund any Swing Line Loans unless it is reasonably
satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) each
L/C Issuer shall not be required to issue, extend, renew or increase any Letter of Credit unless it is
reasonably satisfied that it will have no Fronting Exposure after giving effect thereto arising from either
16208864_8 54
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the Letter of Credit then proposed to be issued, extended, renewed or increased or that Letter of Credit
and all other L/C Obligations as to which the L/C Issuer has Fronting Exposure.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of any Loan Party
hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be
made without deduction or withholding for any Taxes. If, however, applicable Laws require any
Loan Party or the Administrative Agent to withhold or deduct any Tax as determined by a Loan
Party or the Administrative Agent, as the case may be, then the Administrative Agent or such
Loan Party shall be entitled to make such deduction or withholding, upon the basis of the
information and documentation to be delivered pursuant to subsection (e) below.
(ii) If any Loan Party or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make
such deductions as are determined by the Administrative Agent to be required based upon the
information and documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent that the withholding
or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan
Party shall be increased as necessary so that after any required withholding or the making of all
required deductions (including deductions applicable to additional sums payable under this
Section) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount
equal to the sum it would have received had no such withholding or deduction been made.
(iii) If any Loan Party or the Administrative Agent shall be required by any
applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then
(A) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or
make such deductions as are determined by it to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) such Loan Party or the
Administrative Agent, to the extent required by such Laws, shall timely pay the full amount
withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and
(C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the
sum payable by the applicable Loan Party shall be increased as necessary so that after any
required withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section 3.01) the applicable Administrative Agent, Lender or
L/C Issuer receives an amount equal to the sum it would have received had no such withholding
or deduction been made.
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(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection
(a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in accordance with
applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any
Other Taxes.
(c) Tax Indemnifications.
(i) Without limiting the provisions of subsection (a) or (b) above, each of the Loan
Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent, each
Lender and the L/C Issuer, and shall make payment in respect thereof within 10 days after
demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes
imposed or asserted on or attributable to amounts payable under this Section) withheld or
deducted by any Loan Party or the Administrative Agent or paid by the Administrative Agent,
such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
(ii) Each Lender and the L/C Issuer shall, and does hereby, severally indemnify, and
shall make payment in respect thereof within 10 days after demand therefor, (x) the
Administrative Agent against any Indemnified Taxes attributable to such Lender or the L/C Issuer
(but only to the extent that any Loan Party has not already indemnified the Administrative Agent
for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so),
(y) the Administrative Agent and the Loan Parties, as applicable, against any Taxes attributable to
such Lenderβs failure to comply with the provisions of Section 10.06(d) relating to the
maintenance of a Participant Register and (z) the Administrative Agent and the Loan Parties, as
applicable, against any Excluded Taxes attributable to such Lender or the L/C Issuer, in each
case, that are payable or paid by the Administrative Agent or a Loan Party in connection with any
Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to any Lender by
the Administrative Agent shall be conclusive absent manifest error. Each Lender and the L/C
Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any
time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any
other Loan Document against any amount due to the Administrative Agent under this clause (ii).
The agreements in this clause (ii) shall survive the resignation and/or replacement of the
Administrative Agent, any assignment of rights by, or the replacement of, a Lender or the L/C
Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all other Obligations. Each of the Loan Parties shall, and does hereby, jointly and
severally indemnify the Administrative Agent, and shall make payment in respect thereof within
10 days after demand therefor, for any amount which a Lender or the L/C Issuer fails to pay to the
Administrative Agent as required by this clause (ii).
(d) Evidence of Payments. Upon request by any Loan Party or the Administrative Agent, as
the case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, such Loan Party shall deliver to the
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Administrative Agent or the Administrative Agent shall deliver to such Loan Party, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to such Loan Party or the Administrative Agent, as the case may be.
(e) Status of Lenders; Tax Documentation.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax
with respect to payments made under any Loan Document shall deliver to the Borrower and to the
Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed
documentation reasonably requested as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested
by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed
by applicable law or reasonably requested by the Borrower or the Administrative Agent as will
enable the Borrower or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements. Notwithstanding anything
to the contrary in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), 3.01(e)(ii)(B)
and 3.01(e)(ii)(D) below) shall not be required if in the Lenderβs reasonable judgment such
completion, execution or submission would subject such Lender to any material unreimbursed
cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is
a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the
Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying
that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), whichever of the
following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, executed originals of IRS Form W-8BEN (or
W-8BEN-E, as applicable) establishing an exemption from, or reduction of, U.S.
federal withholding Tax pursuant to the βinterestβ article of such tax treaty and
(y) with respect to any other applicable payments under any Loan Document,
IRS Form W-8BEN (or W-8BEN-E, as applicable) establishing an exemption
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from, or reduction of, U.S. federal withholding Tax pursuant to the βbusiness
profitsβ or βother incomeβ article of such tax treaty;
(2) executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is
not a βbankβ within the meaning of Section 881(c)(3)(A) of the Code, a β10
percent shareholderβ of the Borrower within the meaning of Section 881(c)(3)(B)
of the Code, or a βcontrolled foreign corporationβ described in
Section 881(c)(3)(C) of the Code (a βU.S. Tax Compliance Certificateβ) and
(y) executed originals of IRS Form W-8BEN (or W-8BEN-E, as applicable); or
(4) to the extent a Foreign Lender is not the beneficial owner, executed
originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form
W-8BEN (or W-8BEN-E, as applicable), a U.S. Tax Compliance Certificate
substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or
other certification documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership and one or more direct or indirect
partners of such Foreign Lender are claiming the portfolio interest exemption,
such Foreign Lender may provide a U.S. Tax Compliance Certificate
substantially in the form of Exhibit H-4 on behalf of each such direct and indirect
partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), executed originals of
any other form prescribed by applicable law as a basis for claiming exemption from or a
reduction in U.S. federal withholding Tax, duly completed, together with such
supplementary documentation as may be prescribed by applicable law to permit the
Borrower or the Administrative Agent to determine the withholding or deduction
required to be made; and
(D) if a payment made to a Lender under any Loan Document would be
subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail
to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall
deliver to the Borrower and the Administrative Agent at the time or times prescribed by
law and at such time or times reasonably requested by the Borrower or the Administrative
Agent such documentation prescribed by applicable law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Borrower or the Administrative Agent as may be necessary for the
Borrower and the Administrative Agent to comply with their obligations under FATCA
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and to determine that such Lender has complied with such Lenderβs obligations under
FATCA or to determine the amount to deduct and withhold from such payment. Solely
for purposes of this clause (D), βFATCAβ shall include any amendments made to
FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered
pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall
update such form or certification or promptly notify the Borrower and the Administrative Agent
in writing of its legal inability to do so.
(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the
Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or any L/C
Issuer, or have any obligation to pay to any Lender or such L/C Issuer, any refund of Taxes withheld or
deducted from funds paid for the account of such Lender or such L/C Issuer, as the case may be. If the
Administrative Agent, any Lender or any L/C Issuer determines, in its sole discretion, exercised in good
faith, that it has received a refund of any Taxes as to which it has been indemnified by any Loan Party or
with respect to which any Loan Party has paid additional amounts pursuant to this Section, it shall pay to
the Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by a Loan Party under this Section with respect to the Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or such L/C Issuer, as
the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Loan Party, upon the request of the
Administrative Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over to the Loan
Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent, such Lender or such L/C Issuer in the event the Administrative Agent, such
Lender or such L/C Issuer is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this subsection, in no event will the Administrative Agent,
any Lender or any L/C Issuer be required to pay any amount to the Loan Party pursuant to this subsection
to the extent such payment would place the Administrative Agent, any Lender or any L/C Issuer in a less
favorable net after-Tax position than the Administrative Agent, any Lender or any L/C Issuer would have
been in if the Tax subject to indemnification and giving rise to such refund had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts with respect to
such Tax had never been paid. This subsection shall not be construed to require the Administrative
Agent, any Lender or any L/C Issuer to make available its tax returns (or any other information relating to
its taxes that it deems confidential) to any Loan Party or any other Person.
(g) Survival. Each partyβs obligations under this Section 3.01 shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender
or a L/C Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all
other Obligations.
3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Loans whose interest is determined by reference to the
Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of such Lender to
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purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice
thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of
such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Committed
Loans to Eurodollar Rate Committed Loans shall be suspended, and (ii) if such notice asserts the
illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is
determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on
which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined
by the Administrative Agent without reference to the Eurodollar Rate component of the Base
Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x)
the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans
(the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate
component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such
notice asserts the illegality of such Lender determining or charging interest rates based upon the
Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute
the Base Rate applicable to such Lender without reference to the Eurodollar Rate component
thereof until the Administrative Agent is advised in writing by such Lender that it is no longer
illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate.
Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.
3.03 Inability to Determine Rates. If in connection with any request for a Eurodollar
Rate Loan or a conversion to or continuation thereof, (a) the Administrative Agent determines
that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market
for the applicable amount and Interest Period of such Eurodollar Rate Loan, or (ii) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Committed Loan or in connection with an
existing or proposed Base Rate Loan (in each case with respect to clause (a) above, βImpacted
Loansβ), or (b) the Administrative Agent or the Required Lenders determine for any reason that
the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate
Committed Loan does not adequately and fairly reflect the cost to such Lenders of funding such
Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.
Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be
suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) in the
event of a determination described in the preceding sentence with respect to the Eurodollar Rate
component of the Base Rate, the utilization of the Eurodollar Rate component in determining the
Base Rate shall be suspended in each case until the Administrative Agent (upon the instruction
of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may
revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate
Committed Loans suspended (to the extent of the affected Eurodollar Rate Committed Loans or
Interest Periods) or, failing that, will be deemed to have converted such request into a request for
a Committed Borrowing of Base Rate Loans in the amount specified therein.
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Notwithstanding the foregoing, if the Administrative Agent has made the determination
described in clause (a)(i) of this Section, the Administrative Agent, in consultation with the
Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted
Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted
Loans (unless the Borrower elects to maintain the Impacted Loans as Base Rate Loans) until
(1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans
under clause (a) of the first sentence of this Section, (2) the Administrative Agent or the
Required Lenders notify the Administrative Agent and the Borrower that such alternative interest
rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted
Loans, or (3) as to any Lender, such Lender determines that any Law has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful, for such Lender or its
applicable Lending Office to make, maintain or fund Loans whose interest is determined by
reference to such alternative rate of interest or to determine or charge interest rates based upon
such rate or any Governmental Authority has imposed material restrictions on the authority of
such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower
written notice thereof.
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e)) or any L/C Issuer;
(ii) subject any Lender or any L/C Issuer to any Taxes (other than (A) Indemnified
Taxes, (B) Taxes described in clause (a) of the definition of Excluded Taxes to the extent
resulting from changes in tax rates, and Taxes described in clauses (b) through (d) of the
definition of Excluded Taxes or (C) Connection Income Taxes) on its loans, loan principal, letters
of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital
attributable thereto; or
(iii) impose on any Lender or any L/C Issuer or the London interbank market any
other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making,
continuing, converting to or maintaining any Loan the interest on which is determined by
reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to
increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender
or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as the case may be,
such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the
case may be, for such additional costs incurred or reduction suffered.
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(b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change in
Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lenderβs or
such L/C Issuerβs holding company, if any, regarding capital or liquidity requirements has or would have
the effect of reducing the rate of return on such Lenderβs or such L/C Issuerβs capital or on the capital of
such Lenderβs or such L/C Issuerβs holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such
Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or
such L/C Issuer or such Lenderβs or such L/C Issuerβs holding company could have achieved but for such
Change in Law (taking into consideration such Lenderβs or such L/C Issuerβs policies and the policies of
such Lenderβs or such L/C Issuerβs holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or such L/C Issuer or such Lenderβs or such L/C Issuerβs
holding company for any such reduction suffered.
(c) Certificates for Reimbursement. The Borrower shall pay such Lender or L/C Issuer, as
the case may be, the amount shown as due on a certificate from such Lender or L/C Issuer setting forth
the amounts necessary to compensate such Lender or L/C Issuer or its holding company to the extent
required by subsection (a) or (b) of this Section within 10 days after receipt thereof. Each Lender agrees
that it will not claim, and that it shall not be entitled to claim, from the Borrower the payment of any of
the amounts referred to in Section 3.04(a), (b) or (e) if it is not generally claiming similar compensation
from its other similar customers in similar circumstances.
(d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to
demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lenderβs or such L/C Issuerβs right to demand such compensation, provided that the Borrower shall
not be required to compensate a Lender or a L/C Issuer pursuant to the foregoing provisions of this
Section for any increased costs incurred or reductions suffered more than nine months prior to the date
that such Lender or such L/C Issuer, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lenderβs or such L/C Issuerβs intention to
claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above shall be extended to include the
period of retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long as
such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as βEurocurrency liabilitiesβ), additional
interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date on which interest is
payable on such Loan, provided the Borrower shall have received at least 15 daysβ prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional interest shall be due and
payable 15 days from receipt of such notice.
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3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender
for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.14;
including any loss or expense arising from the liquidation or reemployment of funds obtained by
it to maintain such Loan or from fees payable to terminate the deposits from which such funds
were obtained, but excluding loss of Applicable Rate or loss of profit. The Borrower shall also
pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Committed
Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing
in the London interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender, or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a
notice pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different
Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01
or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as
applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation or
assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if
the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, the Borrower may replace such Lender in accordance
with Section 10.14.
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3.07 Survival. All of the Borrowerβs obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO EXECUTION DATE, CLOSING DATE AND CREDIT
EXTENSIONS
4.01 Conditions to Effectiveness of this Agreement (Execution Date). This Agreement
shall be effective upon satisfaction of the conditions precedent set forth in this Section 4.01;
provided that the obligation of each Lender to make its initial Credit Extension hereunder is
subject to satisfaction or waiver of the conditions precedent set forth in Section 4.02 and Section
4.03:
(a) The Administrative Agentβs receipt of an original, facsimile or βpdfβ electronic copy
(followed promptly by any original) unless otherwise specified, of this Agreement, properly executed by a
Responsible Officer of the Borrower, the Administrative Agent, the Swing Line Lenders, the L/C Issuers,
and the Lenders and dated the Execution Date.
(b) Any fees and expenses required to be paid by the Borrower on or before the Execution
Date shall have been paid, including fees and expenses payable to the Administrative Agent.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney
Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the
extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be
incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the Administrative Agent and the Left Lead
Arranger).
The Administrative Agent shall notify the Lenders and the Borrower of the Execution Date.
Such notice shall be binding and conclusive.
4.02 Conditions of Initial Credit Extension (Closing Date). The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:
(a) The Administrative Agentβs receipt of the following, each of which shall be originals,
facsimiles or βpdfβ electronic copies (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the Borrower or the Guarantors, as applicable, each dated
the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing
Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ii) the Guaranty Agreement executed by the Initial Guarantors;
(iii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies
of all consents, licenses and approvals required in connection with the execution, delivery and
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performance by the Loan Parties and the validity against the Loan Parties of the Loan Documents
and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(iv) a certificate of a secretary or assistant secretary of each Loan Party or its general
partner (attaching resolutions and incumbency certificates as the Administrative Agent may
reasonably require) evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents;
(v) a certificate as to the good standing (or such other customary functionally
equivalent certificate) of each Loan Party and the general partner of each Loan Party from the
Secretary of State (or other applicable Governmental Authority) of its jurisdiction of
organization;
(vi) a favorable opinion of GableGotwals, counsel to the Loan Parties, addressed to
the Administrative Agent and each Lender as of the Closing Date, reasonably satisfactory to the
Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies
of all consents, licenses and approvals required in connection with the execution, delivery and
performance by the Loan Parties and the validity against the Loan Parties of the Loan Documents
and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
no Default exists, (B) that the representations and warranties of the Borrower contained in Article
V are true and correct in all material respects, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be true and correct in all
material respects as of such earlier date, except that such materiality qualifier shall not apply to
the extent that any such representation or warranty is qualified by materiality, (C) that there has
been no event or circumstance since the date of the Audited Financial Statements that has had or
could be reasonably expected to have, either individually or in the aggregate, (1) a material
adverse change in, or a material adverse effect upon, the operations, assets or financial condition
of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by
S&P, Fitch and/or Xxxxxβx of their respective Debt Ratings shall not, in and of itself, be deemed
βmaterially adverseβ, and (y) the fact that the Borrower is unable to borrow in the commercial
paper market shall not, in and of itself, be deemed to be βmaterially adverseβ, (2) a material
impairment of the ability of the Borrower to perform its payment obligations under any Loan
Document to which it is a party; or (3) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Borrower of any Loan Document to which it is a party
and (D) as to the Debt Ratings of the Borrower; and
(ix) a certificate signed by a Responsible Officer of the Guarantors certifying that
there has been no event or circumstance since the date of the Audited Financial Statements that
has had or could be reasonably expected to have, either individually or in the aggregate, (A) a
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material adverse change in, or a material adverse effect upon, the operations, assets or financial
condition of the Guarantors and its Subsidiaries, taken as a whole; provided however (x) a
downgrade by S&P, Fitch and/or Xxxxxβx of their respective Debt Ratings shall not, in and of
itself, be deemed βmaterially adverseβ, and (y) the fact that the Borrower is unable to borrow in
the commercial paper market shall not, in and of itself, be deemed to be βmaterially adverseβ,
(B) a material impairment of the ability of the each Guarantor to perform its payment obligations
under any Loan Document to which it is a party, or (C) a material adverse effect upon the
legality, validity, binding effect or enforceability against a Guarantor of any Loan Document to
which it is a party.
(b) The ONEOK Partners Unit Acquisition shall have been consummated or shall be
consummated substantially concurrently with satisfaction of the other conditions precedent set forth in
this Section 4.02.
(c) A certificate signed by a Responsible Officer of the Guarantors certifying that (A) the
ONEOK Partners Unit Acquisition is within the Borrowerβs corporate powers and has been duly
authorized by all necessary corporate action, (B) all partnership and company consents and approvals and
all material governmental and third-party consents and approvals necessary in connection with the
ONEOK Partners Unit Acquisition have been obtained and are in full force and effect (including the
declaration by the SEC that the Registration Statement is effective), and all applicable waiting periods
have expired without any action being taken or threatened by any governmental, regulatory or other
similar authority which would restrain in a materially adverse manner or prevent or otherwise impose
materially adverse conditions on the ONEOK Partners Unit Acquisition, and (C) the ONEOK Partners
Unit Acquisition has been consummated, or is being consummated, on the Closing Date in all material
respects (i) as described in the Registration Statement, and (ii) in compliance with applicable Laws and
regulatory approvals.
(d) Evidence reasonably satisfactory to the Administrative Agent that the Existing OKE
Credit Agreement and the Existing OKS Credit Agreement have been terminated.
(e) Any fees and expenses required to be paid by the Borrower on or before the Closing Date
shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the
Arrangers and the Administrative Agent.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney
Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be
incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the Administrative Agent and the Left Lead
Arranger).
Without limiting the generality of the provisions of Section 9.03, for purposes of determining
compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document or other matter
required under this Section 4.02 to be consented to or approved by or acceptable or satisfactory
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to a Lender unless the Administrative Agent shall have received notice from such Lender prior to
the proposed Closing Date specifying its objection thereto.
The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date. Such
notice shall be binding and conclusive. The obligations of the Lenders to make Credit
Extensions and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective
unless each of the foregoing conditions contained in this Section 4.02 is satisfied (or waived in
accordance with Section 10.01) at or prior to 5:00 P.M., New York City time, on October 16,
2017 (and, in the event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
4.03 Conditions to all Credit Extensions. The obligation of each Lender to honor any
Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion
of Committed Loans to the other Type, or a continuation of Eurodollar Rate Committed Loans)
is subject to the following conditions precedent:
(a) The representations and warranties of the Loan Parties contained in Article V (other than,
in the case of a Commercial Paper Borrowing, Section 5.06), or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith or therewith, shall be
true and correct in all material respects on and as of the date of such Credit Extension, except to the extent
that such representations and warranties refer to an earlier date or another specific date, in which case
they shall be true and correct in all material respects as of such earlier date or other specific date, except
that such materiality qualifier shall not apply to the extent that any such representation or warranty is
qualified by materiality.
(b) No Default shall exist, or would result from such proposed Credit Extension.
(c) The Administrative Agent and, if applicable, any L/C Issuer or any Swing Line Lender,
shall have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only
a conversion of Committed Loans to the other Type, or a continuation of Eurodollar Rate
Committed Loans) submitted by the Borrower shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.03(a), (b) and (c) have been satisfied on and
as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders, as of
the Closing Date and thereafter as of each date required by this Agreement, that:
5.01 Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof
(a) is a corporation, partnership or limited liability company duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its assets and carry on its business and (ii)
execute, deliver and perform its obligations under the Loan Documents to which it is a party, and
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(c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction
where its ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that
failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery and performance by
each Loan Party of each Loan Document to which it is a party has been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of such Loan Partyβs Organization Documents; (b) conflict with or result in any breach or
contravention of (i) any Contractual Obligation to which such Loan Party or any Subsidiary
thereof is a party or (ii) any order, injunction, writ or decree of any Governmental Authority or
any arbitral award to which such Loan Party or any Subsidiary thereof or the property of any of
the aforementioned parties is subject; (c) violate any Law or (d) result in the creation of any Lien
prohibited by this Agreement; except in the case of clauses (b) and (c), to the extent such
contravention, conflict, breach or violation could not reasonably be expected to have a Material
Adverse Effect.
5.03 Governmental Authorization; Other Consents. No material approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any Governmental
Authority or any other Person is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document to which it is a party.
5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by the each Loan Party party
thereto. This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable
against such Loan Parties in accordance with its terms, subject to Debtor Relief Laws and subject
to general principles of equity, regardless of whether considered in a proceeding in equity or at
law.
5.05 Financial Statements.
(a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted therein;
(ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and
their results of operations for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein.
(b) The unaudited consolidated financial statements of the Borrower and its Subsidiaries
most recently delivered pursuant to Section 6.01(b) and the related consolidated statements of income or
operations, shareholdersβ equity and cash flows for the fiscal quarter ended on that date (i) were prepared
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject,
in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
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5.06 Litigation. Except as disclosed in the Borrowerβs annual report on Form 10-K for
the year ended December 31, 2016 and in any other Form 10-Q or Form 8-K delivered prior to
the date of this Agreement, there are no actions, suits, proceedings, investigations, claims or
disputes pending or, to the knowledge of the Borrower, threatened in writing, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that (a) challenge the legality, validity
or enforceability of this Agreement or any other Loan Document and are non-frivolous in the
reasonable judgment of the Administrative Agent and the Arrangers, or (b) as to which there is a
reasonable probability of an adverse determination and that, if determined adversely, either
individually or in the aggregate could reasonably be expected to have a Material Adverse Effect;
provided that this representation, when made, shall not constitute an admission that any action,
suit, proceeding, investigation, claim or dispute set forth or disclosed in any annual report on
Form 10-K or on any Form 10-Q or Form 8-K referred to above could reasonably be expected to
result in a Material Adverse Effect due to an adverse determination, if any.
5.07 No Default. Neither Loan Party nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.
5.08 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has
good record and marketable title in fee simple to, or valid leasehold interests in (or other right to
occupy), all real property necessary or used in the ordinary conduct of its business, except for
such defects in title as could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. The property of the Borrower and its Subsidiaries is subject to no
Liens, other than Liens permitted by Section 7.01.
5.09 Environmental Compliance. The Borrower and its Subsidiaries conduct in the ordinary
course of business a review of claims alleging potential liability or responsibility for violation of any
Environmental Law on their respective businesses, operations and properties, and as a result thereof, the
Borrower has reasonably concluded that, except as disclosed in the Borrowerβs annual report on Form 10-
K for the year ended December 31, 2016, such claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Borrower and its Subsidiaries are in
compliance with applicable Environmental Laws except to the extent non-compliance could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Borrower
and each of its Subsidiaries have obtained or have applied for all material licenses, permits, authorizations
and registrations required under any Environmental Law (βEnvironmental Permitsβ) necessary for its
operations, and all such Environmental Permits are in good standing, and the Borrower and each of its
Subsidiaries is in compliance with all terms and conditions of such Environmental Permits, except to the
extent that the failure to possess, or be in compliance with, any of the foregoing would not reasonably be
expected to have a Material Adverse Effect.
5.10 Insurance. The properties of the Borrower and its Subsidiaries are either covered
by self-insurance meeting the criteria set forth in Section 6.07 or are insured with financially
sound and reputable insurance companies (determined at the time the applicable insurance was
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obtained), in such amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties in localities
where the Borrower or the applicable Subsidiary operates.
5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal and other material
tax returns and reports required to be filed, and have paid all material Federal, state and other
material taxes, assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable, except (i) those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP or (ii) where the failure to make such
filing or payment would not reasonably be expected to have a Material Adverse Effect. There is
no proposed tax assessment against any Loan Party or any Subsidiary thereof that would, if
made, have a Material Adverse Effect.
5.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other applicable Laws. Each Plan that is intended to qualify under Section 401(a)
of the Code has received a favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best knowledge of the Borrower,
nothing has occurred which would prevent, or cause the loss of, such qualification. The Borrower and
each ERISA Affiliate have made all required contributions to each Plan subject to the Pension Funding
Rules, and no application for a funding waiver under the Pension Funding Rules or an extension of any
amortization period pursuant to the Pension Funding Rules has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect. No Plan which provides health or welfare
benefits for any retired or former employee of the Borrower or any of its ERISA Affiliates has resulted in
or could reasonably be expected to have a Material Adverse Effect.
(c) (i) No ERISA Event, which together with any other ERISA Event, that has resulted in or
could reasonably be expected to result in a Material Adverse Effect has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability which, when aggregated with
the Unfunded Pension Liability of all other Pension Plans, could reasonably be expected to have a
Material Adverse Effect; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower nor
any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of
ERISA.
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5.13 Subsidiaries. As of the Execution Date, the Borrower has no Subsidiaries other
than those specifically disclosed in Part (a) of Schedule 5.13 and has no equity investments in
any other Joint Venture other than those specifically disclosed in Part (b) of Schedule 5.13.
5.14 Margin Regulations; Investment Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U
issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
Following the application of the proceeds of each Borrowing and each drawing under a Letter of Credit,
not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its
Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or subject to any restriction
contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any
Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary (i) is or is
required to be registered as an βinvestment companyβ under the Investment Company Act of 1940, or (ii)
is subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public
utilities code or any other Federal or state statute or regulation limiting its ability to incur Indebtedness
hereunder.
5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the
Lenders all agreements, instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. For purposes of this Section
5.15, information that is disclosed in a Form 10-K, 10-Q, 8-K, or definitive proxy materials filed
by the Borrower with the SEC shall be deemed to have been disclosed to the Administrative
Agent and the Lenders. No written report, financial statement, certificate or other information
(excluding projections, industry or general economic data or information and other forward
looking information) furnished (in writing) by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby
and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by
other information so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not materially misleading; provided that, with respect to projected
financial information, the Borrower represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time such projected financial
information was prepared.
5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in
compliance in all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
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5.17 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, intellectual property licenses and other intellectual property rights that
are reasonably necessary for the operation of their respective businesses, and, to the knowledge
of the Borrower, such ownership or right to use is without conflict with the rights of any other
Person (except to the extent such conflict would not reasonably be expected to have a Material
Adverse Effect). To the knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now contemplated
to be employed, by the Borrower or any Subsidiary infringes upon any rights held by any other
Person (except to the extent such infringement would not reasonably be expected to have a
Material Adverse Effect). No claim or litigation regarding any of the foregoing is pending or, to
the best knowledge of the Borrower, threatened, which, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
5.18 Solvency. As of the Closing Date, after giving effect to the transactions (including
each Loan and each Letter of Credit) to be consummated on such date, each Loan Party,
individually and together with its Subsidiaries, is Solvent.
5.19 OFAC. Neither Loan Party nor any Subsidiary, nor, to the knowledge of the Loan
Parties and their Subsidiaries, any director, officer, employee, agent, affiliate or representative
thereof, is an individual or entity currently the subject of any Sanctions, nor is either Loan Party
or any Subsidiary located, organized or resident in a Designated Jurisdiction.
5.20 Anti-Corruption Laws. Each Loan Party and their Subsidiaries are in material
compliance with Anti-Corruption Laws, and have instituted and maintain policies and procedures
designed to promote and achieve continued compliance with Anti-Corruption Laws. To the
knowledge of the Borrower, (a) the Loan Partiesβ and their Subsidiariesβ respective directors,
officers and employees have materially complied with Anti-Corruption Laws in the course of
performing their duties for the Loan Parties or their Subsidiaries (as applicable), and (b) the Loan
Partiesβ and their Subsidiariesβ respective agents have materially complied with Anti-Corruption
Laws while acting in such capacity and at the direction of the Loan Parties or their Subsidiaries
(as applicable).
5.21 EEA Financial Institution. No Loan Party is an EEA Financial Institution.
ARTICLE VI.
AFFIRMATIVE COVENANTS
From and after the Closing Date, and for so long as any Lender shall have any
Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall, and shall
(except in the case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each
Subsidiary to:
6.01 Financial Statements. Deliver to the Administrative Agent:
(a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such
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fiscal year, and the related consolidated statements of income or operations, shareholdersβ equity and cash
flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a
report and opinion of an independent certified public accountant of nationally recognized standing, which
report and opinion shall be prepared in accordance with generally accepted auditing standards and shall
not be subject to any βgoing concernβ or like qualification or exception or any qualification or exception
as to the scope of such audit;
(b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or
operations, shareholdersβ equity and cash flows for such fiscal quarter and for the portion of the
Borrowerβs fiscal year then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous
fiscal year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly
presenting the financial condition, results of operations, shareholdersβ equity and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section 6.02(c), the Borrower
shall not be separately required to furnish such information under clause (a) or (b) above, but the
foregoing shall not be in lieu of the obligation of the Borrower to furnish the information and
materials described in subsections (a) and (b) above at the times specified therein.
6.02 Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 6.01(a)
and (b), (or if such financial statements are delivered electronically, within two (2) Business Days of such
electronic delivery) a duly completed Compliance Certificate signed by a Responsible Officer of the
Borrower (which delivery may, unless the Administrative Agent, or a Lender requests executed originals,
be by electronic communication including fax or email and shall be deemed to be an original authentic
counterpart thereof for all purposes);
(b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors (or the
audit committee of the board of directors) of Borrower by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(c) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the public holders of equity interests in the Borrower,
and copies of all annual, regular, periodic and special reports, and all registration statements which any
Loan Party may file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and
not otherwise required to be delivered to the Administrative Agent pursuant hereto; and
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(d) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably request;
provided that disclosure of confidential information pursuant to subsections (b) and (d) of this
Section shall be subject to (x) such attorney-client privilege exceptions that the Borrower
reasonably determines are necessary in order to avoid loss of its attorney-client privilege and (y)
compliance with reasonable conditions to disclosure under non-disclosure agreements between
the Borrower and Person(s) other than Affiliates thereof, and to the extent that the
Administrative Agent or a Lender is required to produce any such information to a regulatory
authority, the Borrower shall cooperate with the Administrative Agent or such Lender in efforts
to obtain any required consents to disclosure.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c)
(to the extent any such documents are included in materials otherwise filed with the SEC) may
be delivered electronically and if so delivered, shall be deemed to have been delivered on the
date (i) (A) after which the Borrower posts such documents, or provides a link thereto on the
Borrowerβs website on the Internet at the website address listed on Schedule 10.02; or (B) after
which such documents are posted on the Borrowerβs behalf on DebtDomain or another relevant
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent), and (ii) the
Borrower notifies (which may be by facsimile or electronic mail) the Administrative Agent and
each Lender of the posting of any such documents; provided that the Borrower shall deliver
paper copies or soft copies (by electronic mail) of such documents to the Administrative Agent
or any Lender that requests the Borrower to deliver such paper copies or soft copies until a
written request to cease delivering paper copies or soft copies is given by the Administrative
Agent or such Lender. The Administrative Agent shall have no obligation to request the delivery
or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of
such documents.
The Borrower hereby acknowledges that (1) the Administrative Agent and/or the
Arrangers will make available to the Lenders and the L/C Issuers materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, βBorrower Materialsβ) by
posting the Borrower Materials on DebtDomain or another similar electronic system (the
βPlatformβ) and (2) certain of the Lenders may be βpublic-sideβ Lenders (i.e., Lenders that do
not wish to receive material non-public information with respect to the Borrower or its securities)
(each, a βPublic Lenderβ). The Borrower hereby agrees that (w) all Borrower Materials that are
to be made available to Public Lenders shall be clearly and conspicuously marked βPUBLICβ
which, at a minimum, shall mean that the word βPUBLICβ shall appear prominently on the first
page thereof; (x) by marking Borrower Materials βPUBLIC,β the Borrower shall be deemed to
have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat
such Borrower Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws; (y) all Borrower Materials marked
βPUBLICβ are permitted to be made available through a portion of the Platform designated
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βPublic Investor;β and (z) the Administrative Agent and the Arrangers shall be entitled to treat
any Borrower Materials that are not marked βPUBLICβ as being suitable only for posting on a
portion of the Platform not designated βPublic Investor,β provided, however, that
notwithstanding the foregoing, the Borrower shall not have any obligation to xxxx any Borrower
Materials as βPUBLIC.β
6.03 Notices. Notify the Administrative Agent and each Lender:
(a) promptly, of the occurrence of any Default and the action which the Borrower is taking or
proposes to take with respect thereto;
(b) promptly, and in any event within five (5) days:
(i) of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (to the extent resulting or such matter could reasonably be
expected to result in a Material Adverse Effect) (A) breach or non-performance of, or any default
under, a Contractual Obligation of the Borrower or any Subsidiary; (B) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary and any
Governmental Authority; or (C) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(ii) of the commencement of, or any material development in, any litigation or
proceeding affecting the Borrower or any Subsidiary (A) in which the amount of damages
claimed is $100,000,000 (or its equivalent in another currency or currencies) or more, (B) in
which injunctive or similar relief is sought and which could reasonably be expected to result in a
Material Adverse Effect, or (C) in which the relief sought is an injunction or other stay of the
performance of this Agreement or any Loan Document;
(iii) of any material change in accounting policies or financial reporting practices by
the Borrower or any Subsidiary; and
(iv) of any announcement by Xxxxxβx, Fitch or S&P of a downgrade in a Debt
Rating;
(c) promptly, and in any event within 30 days:
(i) of the occurrence of any ERISA Event; or
(ii) upon determining that any Pension Plan or Multiemployer Plan, as applicable, is
considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections
430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA (in such case, notice shall
include a certification of funding status from the enrolled actuary for the Pension Plan or
Multiemployer Plan).
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take with respect thereto. Each
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notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.04 Payment of Obligations. Pay and discharge as the same shall become due and
payable, its Indebtedness and tax liabilities but excluding Indebtedness (other than the
Obligations) that is not in excess of the Threshold Amount, unless the same are being contested
in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary or failure to do
so would not reasonably be expected to result in a Material Adverse Effect.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 7.04, (b) take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not reasonably be expected to have
a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear, force majeure and casualty events excepted; and (b) make all
necessary repairs thereto and renewals and replacements thereof except where, in each case, the
failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.07 Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies (determined at the time the applicable insurance is maintained or renewed),
or through self-insurance, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons. Such insurance may include self-insurance or be subject to
co-insurance, deductibility or similar clauses which, in effect, result in self-insurance of certain
losses, provided that such self-insurance is in accord with the approved practices of business
enterprises of established reputation similarly situated and adequate insurance reserves are
maintained in connection with such self-insurance, and, notwithstanding the foregoing provisions
of this Section 6.07, the Borrower may effect workersβ compensation or similar insurance in
respect of operations in any state or other jurisdiction any through an insurance fund operated by
such state or other jurisdiction or by causing to be maintained a system or systems of self-
insurance in accord with applicable laws.
6.08 Compliance with Laws. Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a Material Adverse
Effect.
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6.09 Books and Records. (a) Maintain proper books of record and account, in which
full, true and correct entries in conformity in all material respects with GAAP consistently
applied shall be made of all financial transactions and matters involving the assets and business
of the Borrower or such Subsidiary, as the case may be; and (b) maintain such books of record
and account in material conformity with all applicable requirements of any Governmental
Authority having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may
be.
6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its officers and independent public accountants
(provided Borrower has the opportunity to participate in such meetings), all at the expense of the
Borrower and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided, however, that (x)
when an Event of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and without advance notice
and (y) disclosure of confidential information pursuant to this Section shall be subject to (x) such
attorney-client privilege exceptions that the Borrower reasonably determines are necessary in
order to avoid loss of its attorney-client privilege and (y) compliance with reasonable conditions
to disclosure under non-disclosure agreements between the Borrower and Person(s) other than
Affiliates thereof, and to the extent that the Administrative Agent or a Lender is required to
produce any such information to a regulatory authority, the Borrower shall cooperate with the
Administrative Agent or such Lender in efforts to obtain any required consents to disclosure.
6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for working capital,
capital expenditures, acquisitions, mergers, and for other general corporate purposes (including
repayment of Indebtedness and payments of dividends) not in contravention of any Law or of
any Loan Document; provided however, no portion of the proceeds of any Credit Extension will
be used in any manner prohibited by Section 7.08.
6.12 Sanctions. Not permit the use of the proceeds of any Credit Extension, whether
direct or indirect, or the direct or indirect lending, contributing or otherwise making available of
such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any
activities of or business with any individual, entity or vessel, or in any Designated Jurisdiction,
that, at the time of such funding, is the subject of Sanctions, or in any other manner that will
result in a violation by any individual or entity (including any individual or entity participating in
the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line
Lender, or otherwise) of Sanctions.
6.13 Maintenance of Control. (a) Maintain Control of each Guarantor, and (b) own,
free and clear of all Liens, one hundred percent (100%) of the equity interests entitled to vote for
the board of directors or equivalent governing body of each Guarantor or the general partner of
each Guarantor (if such Guarantor is a partnership). As used in this Section, βLiensβ shall mean
Liens securing Indebtedness.
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6.14 Additional Guarantors.
(a) In the event any Subsidiary that is not a Guarantor as of the Closing Date guarantees any
of the Borrowerβs other senior, unsecured, long-term Indebtedness, the Borrower will, within 30 days
thereof, (i) cause such Subsidiary to guarantee the Obligations by executing and delivering to the
Administrative Agent a Guaranty Agreement Joinder substantially in the form of Exhibit I, and (ii) deliver
certificates and other documentation substantially similar to those required to be delivered on the Closing
Date with respect to the Initial Guarantors pursuant to Section 4.02(a)(iv) and 4.02(a)(vi), in form and
substance reasonably satisfactory to the Administrative Agent.
(b) Upon delivery of a Guaranty Agreement Joinder and other required documents to the
Administrative Agent by a Subsidiary, notice of which is hereby waived by each Loan Party, such
Subsidiary shall be a Guarantor and shall be a party to the Guaranty Agreement as if an original signatory
thereto. Each Loan Party expressly agrees that its obligations arising thereunder shall not be affected or
diminished by the addition or release of any other Loan Party thereunder.
6.15 Anti-Corruption Laws. Each Loan Party will conduct its businesses in material
compliance with Anti-Corruption Laws, and will maintain in effect policies and procedures
designed to promote compliance by the Loan Parties, their Subsidiaries, and their respective
directors, officers, employees, and agents (which acting in such capacity and at the direction of
the Loan Parties or their Subsidiaries) with such Anti-Corruption Laws.
ARTICLE VII.
NEGATIVE COVENANTS
From and after the Closing Date, and for so long as any Lender shall have any
Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding:
7.01 Liens. The Borrower shall not, and shall not permit any Subsidiary to, create,
incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document (including any documents entered into in order to
Cash Collateralize L/C Obligations);
(b) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of
the applicable Person in accordance with GAAP;
(c) carriersβ, warehousemenβs, mechanicsβ, materialmenβs, repairmenβs or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable Person;
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(d) pledges or deposits in the ordinary course of business in connection with workersβ
compensation, unemployment insurance and other social security legislation, other than any Lien imposed
by ERISA;
(e) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(f) any right which any municipal or governmental body or agency may have by virtue of
any franchise, license, contract or status to purchase or designate a purchaser of, or order the sale of, any
property of the Borrower or a Subsidiary upon payment of reasonable compensation therefor or to
terminate any franchise, license or other rights or to regulate the property and business of the Borrower or
a Subsidiary;
(g) any Liens, neither assumed by the Borrower or a Subsidiary nor on which it customarily
pays interest, existing upon real estate or rights in or relating to real estate acquired by the Borrower or a
Subsidiary for sub-station, measuring station, regulating station, gas purification station, compressor
station, transmission line, distribution line or right-of-way purposes;
(h) easements or reservations in any property of the Borrower or a Subsidiary for the purpose
of roads, pipe lines, gas transmission and distribution lines, electric light and power transmission and
distribution lines, water mains and other like purposes, and zoning ordinances, regulations and restrictions
which do not impair the use of such property in the operation of the business of the Borrower or a
Subsidiary;
(i) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case materially
interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(j) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
(k) (i) Liens securing Indebtedness in respect of Capital Lease Obligations, Synthetic Lease
Obligations and purchase money obligations for fixed or capital assets, provided that (A) such Liens do
not at any time encumber any property other than the property financed by such Indebtedness, (B) the
Indebtedness secured thereby does not exceed the cost of the property being acquired on the date of
acquisition, and (C) such Liens attach to such property concurrently with or within 90 days after the
acquisition thereof, and (ii) Liens securing any refinancing (including successive refinancings) of such
Indebtedness, provided that such Liens do not extend to additional property and the amount of the
Indebtedness is not increased (except by an amount not to exceed fees, premiums and interest relating to
such refinancing); provided further that the unpaid principal balance of Indebtedness secured by Liens
permitted by this clause (k) shall not in the aggregate at any time exceed 2.5% of Total Capital;
(l) Liens on property of a Person existing at the time such Person is merged with or into or
consolidated with or acquired by the Borrower or any Subsidiary of the Borrower; provided that such
Liens were not granted in contemplation of, and were in existence prior to, such merger, consolidation or
acquisition and do not extend to any assets other than those of the Person merged into or consolidated
16208864_8 79
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with the Borrower or the Subsidiary that were encumbered prior to such merger, consolidation or
acquisition;
(m) Liens on property existing at the time of acquisition of the property by the Borrower or
any Subsidiary of the Borrower; provided that such Liens were not granted in contemplation of, and were
in existence prior to, the contemplation of such acquisition and no such Lien may encumber any other
property of the Borrower or any Subsidiary;
(n) Liens incurred to refinance any Indebtedness of the Borrower or its Subsidiaries which
has been secured by Liens otherwise permitted hereunder under clauses (l) and (m); provided that such
Liens do not extend to any property other than the property securing the Indebtedness refinanced and the
amount of the Indebtedness secured thereby is not increased (except by an amount not to exceed fees,
premiums and interest relating to such refinancing);
(o) Liens on cash and cash equivalents granted pursuant to master netting agreements entered
into in the ordinary course of business in connection with Swap Contracts; provided that (i) the
transactions secured by such Liens are governed by standard International Swaps and Derivatives
Association, Inc. documentation, and (ii) such Swap Contracts consist of derivative transactions
contemplated to be settled in cash and not by physical delivery and are designed to minimize the risk of
fluctuations in oil and gas prices with respect to the Borrowerβs and its Subsidiariesβ operations in the
ordinary course of its business;
(p) Liens pursuant to master netting agreements entered into in the ordinary course of
business in connection with Swap Contracts, in each case pursuant to which the Borrower or a Subsidiary
of the Borrower, as a party to such master netting agreement and as pledgor, pledges or otherwise
transfers to the other party to such master netting agreement, as pledgee, in order to secure the Borrowerβs
or such Subsidiaryβs obligations under such master netting agreement, a Lien upon and/or right of set off
against, all right, title, and interest of the pledgor in any obligations of the pledgee owed to the pledgor,
together with all accounts and general intangibles and payment intangibles in respect of such obligations
and all dividends, interest, and other proceeds from time to time received, receivable, or otherwise
distributed in respect of, or in exchange for, any or all of the foregoing;
(q) Liens arising in the ordinary course of business under Oil and Gas Agreements to secure
compliance with such agreements, provided that any such Lien referred to in this clause are for claims
which are not delinquent or which are being contested in good faith by appropriate action and for which
adequate reserves have been maintained in accordance with GAAP, and provided further that any such
Lien referred to in this clause does not materially impair the use of the property covered by such Lien for
the purposes for which such property is held by the Borrower or any Subsidiary or materially impair the
value of such property subject thereto, and provided further that such Liens are limited to property that is
the subject of the relevant Oil and Gas Agreement;
(r) bankers' Liens, rights of setoff and other similar Liens existing with respect to cash and
cash equivalents on deposit in one or more accounts maintained by the Borrower or any Subsidiary, in
each case arising in the ordinary course of business in favor of the bank or banks with which such
accounts are maintained;
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(s) Liens on equity interests of any Joint Venture owned by a Subsidiary to the extent such
Liens secure Indebtedness that is otherwise non-recourse to such Subsidiary, all other Subsidiaries and the
Borrower; and
(t) Liens not otherwise permitted by this Section 7.01 securing Indebtedness of the Borrower
or its Subsidiaries, provided that the aggregate outstanding principal amount of all such Indebtedness does
not at any time exceed 15% of Consolidated Net Tangible Assets.
7.02 Investments. The Borrower shall not, and shall not permit any Subsidiary to,
make any Investments, except:
(a) Investments in the form of cash and cash equivalents;
(b) advances to officers, directors and employees of the Borrower and Subsidiaries in the
ordinary course of business in accordance with applicable law for travel, entertainment, relocation and
analogous ordinary business purposes;
(c) Investments of the Borrower in any wholly-owned Subsidiary and Investments of any
Subsidiary in the Borrower and any wholly-owned Subsidiary;
(d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(e) Investments in Subsidiaries, Joint Ventures or other Persons, in each case which are
engaged principally in the business of the purchasing, gathering, compression, transportation, distribution,
marketing, or storage of crude oil, natural gas, compressed natural gas, natural gas liquids and refined
products, the exploration or production of crude oil, natural gas or oil or the processing or fractionation of
natural gas or natural gas liquids, the underground piping of natural gas distribution systems, the
generation or marketing of electricity or other businesses related to or incidental to any of the foregoing;
provided that such Investments are not opposed by the board of directors or management of such Person;
(f) Investments of a Person acquired after the Closing Date or of a Person merged or
consolidated with or into Borrower or a Subsidiary; provided that such Investments were not made in
contemplation of, and were in existence prior to, such acquisition, merger or consolidation;
(g) the Guarantee by the Guarantors under the Guaranty Agreement; and
(h) other Investments, if at the time of, and after giving effect to, such Investments, the
aggregate book value of all such Investments does not exceed $100,000,000 in the aggregate.
7.03 Indebtedness of Subsidiaries. The Borrower shall not permit any Subsidiary to
create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness owed to the Borrower or to another Subsidiary; provided, however, that any
Indebtedness of the Guarantors owed to another Subsidiary shall be subordinated on terms and conditions
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satisfactory to Administrative Agent and the Required Lenders in right of payment to its obligations under
the Guaranty Agreement;
(b) obligations under Swap Contracts;
(c) Indebtedness existing at the time of acquisition of any new Subsidiary by the Borrower or
by a then-existing Subsidiary of the Borrower; provided that such Indebtedness was not incurred in
contemplation of, and was in existence prior to, such acquisition and that neither the Borrower nor any
other Subsidiary of the Borrower has any liability under such Indebtedness (other than a Subsidiary of any
Person so acquired);
(d) guaranty by the Guarantors of the Borrowerβs Indebtedness;
(e) Indebtedness of Guardian Pipeline, L.L.C. (βGuardianβ) pursuant to the Master Shelf
Agreement, dated as of November 8, 2001, among Guardian, Prudential Insurance Company of America
and the other parties thereto, as amended from time to time, together with any renewals, extensions or
refinancings thereof, provided that any renewal, extension or refinancing thereof is not greater than the
principal amount of the Indebtedness being renewed, extended or refinanced, and does not shorten the
weighted average life to maturity of such Indebtedness;
(f) each series of outstanding senior notes issued by ONEOK Partners and guaranteed by
Intermediate Partnership set forth on Schedule 7.03;
(g) that certain Term Loan Agreement, dated as of January 8, 2016, by and among and
ONEOK Partners, as borrower, Mizuho Bank, Ltd., a national banking association, as administrative
agent, and the lenders from time to time party thereto and guaranteed by Intermediate Partnership;
(h) Indebtedness of Subsidiaries (excluding Indebtedness otherwise permitted in
this Section 7.03) which does not exceed at any time an aggregate principal amount outstanding equal to
fifteen percent (15%) of Consolidated Net Tangible Assets.
7.04 Fundamental Changes. The Borrower shall not and shall not permit any
Subsidiary to, directly or indirectly: merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of the assets of the Borrower and its Subsidiaries taken as a whole (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default
exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall be the
continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that when a
Guarantor is merging with another Subsidiary, such Guarantor shall be the continuing or surviving Person
and when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned
Subsidiary shall be the continuing or surviving Person; and
(b) any Subsidiary other than a Guarantor may Dispose of all or substantially all of its assets
(upon voluntary liquidation, dissolution or otherwise) to the Borrower or to another Subsidiary; provided
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that if the transferor in such a transaction is a wholly-owned Subsidiary, then the transferee must either be
the Borrower or a wholly-owned Subsidiary; and
(c) the Borrower or any Subsidiary may consolidate or merge with another corporation or
entity, and a Person may consolidate with or merge into the Borrower or any Subsidiary, provided that (x)
if the merger involves a Subsidiary but does not involve the Borrower or a Guarantor, a Subsidiary shall
be the surviving entity, and (y) if the merger involves the Borrower, the Borrower shall be the ultimate
surviving entity and if the merger involves a Guarantor, such Guarantor shall be the surviving entity, and
(z) in each such case (i) the surviving entity shall be after the merger a solvent entity and existing under
the laws of the United States of America, any State thereof or the District of Columbia, (ii) immediately
after giving effect to such transaction and treating any Indebtedness which becomes an obligation of the
Borrower or a Subsidiary as a result of such transaction as having been incurred by the Borrower or such
Subsidiary at the time of such transaction, no Default shall have happened and be continuing, and (iii) if
the merger or consolidation involves the Borrower or a Guarantor, the Borrower has delivered to the
Administrative Agent a certificate signed by a Responsible Officer of the Borrower and an opinion of
counsel, each stating that such consolidation or merger complies with this Section 7.04; and
(d) any Subsidiary (other than the Guarantors) may dissolve in connection with any
Disposition otherwise permitted by this Section 7.04.
provided, however, that nothing contained in this Section 7.04 shall be or be deemed to permit
any merger, dissolution, liquidation, consolidation or Disposition which would result in a
Change of Control.
7.05 Change in Nature of Business. The Borrower and its Subsidiaries shall not engage
in any material line of business substantially different from those lines of business described in
Section 7.02(e) or any business substantially related or incidental to such lines of business.
7.06 Transactions with Affiliates. The Borrower shall not, and shall not permit any
Subsidiary to, enter into any transaction of any kind with any Affiliate of the Borrower, whether
or not in the ordinary course of business, other than (a) on fair and reasonable terms substantially
as favorable to the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable armβs length transaction with a Person other than an
Affiliate and (b) transactions between or among the Borrower and one or more wholly-owned
Subsidiaries of the Borrower, not involving any Affiliates other than the Borrower and wholly-
owned Subsidiaries of the Borrower, and (c) transactions between or among the Borrower or any
Subsidiary and any Joint Venture, provided that such transactions described in this clause (c)
shall be consistent with prior practices and could not reasonably be expected to have a Material
Adverse Effect.
7.07 Burdensome Agreements. The Borrower shall not, and shall not permit any
Subsidiary to, enter into or permit any Contractual Obligation that limits the ability of any
Subsidiary to pay dividends or make other payments or distributions to the Borrower or to any
other Subsidiary or to otherwise transfer property to the Borrower or to any other Subsidiary;
unless (a) none of such limitations, either individually or in the aggregate, would (i) materially
restrict the ability of the Subsidiaries taken as a whole to pay dividends, make other payments or
distributions or transfer property to the Borrower, or (ii) materially restrict the ability of the
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Subsidiaries of the Guarantors taken as a whole to pay dividends, make other payments or
distributions or transfer property to the Guarantors, and (b) each such limitation, individually and
in the aggregate with all other such limitations, could not reasonably be expected to impair the
ability of the Borrower to perform its monetary obligations hereunder.
7.08 Use of Proceeds. The Borrower shall not:
(a) Use the proceeds of any Credit Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose; provided that the foregoing shall not
restrict the repurchase of equity interests of the Borrower by the Borrower or any of its Subsidiaries; or
(b) use the proceeds of any Credit Extension in connection with the acquisition of a voting
interest of five percent or more in any Person if such acquisition is opposed by the board of directors or
management of such Person.
7.09 Leverage Ratio. The Borrower shall not permit the Leverage Ratio (a) as of the
end of the fiscal quarter in which the ONEOK Partners Unit Acquisition is consummated and the
two fiscal quarters immediately thereafter to exceed 5.75:1.00, (b) as of the two fiscal quarters
immediately thereafter to exceed 5.50:1.00; and (c) as of the end of each fiscal quarter thereafter,
5:00:1.00 (such 5:00:1.00 Leverage Ratio, the βRequired Thresholdβ); provided, however, that
during an Acquisition Adjustment Period, the Required Threshold shall be increased to
5.50:1.00.
7.10 Restricted Payments. The Borrower shall not declare or make, or agree to pay or
make, directly or indirectly, any dividend or distribution on any class of its capital stock or other
equity interests, or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, cancellation, termination, defeasance
or acquisition of, any shares of capital stock or other equity interests or any options, warrants, or
other rights to purchase such capital stock or other equity interests, whether now or hereafter
outstanding (each, a βRestricted Paymentβ), except for (i) redemptions, dividends or other
Restricted Payments on the equity interests of Borrower, so long as both before and after the
making of such Restricted Payments, no Event of Default has occurred and is continuing, (ii)
dividends, distributions or other Restricted Payments payable by Subsidiaries or by the Borrower
solely in shares of any class of its capital stock or other equity interests, and (iii) Restricted
Payments made by any Subsidiary to the Borrower or to another Subsidiary, on at least a pro rata
basis with any other holders of its capital stock or other equity interests if such Subsidiary is not
wholly owned by the Borrower and other wholly owned Subsidiaries.
7.11 Anti-Corruption Laws. The Loan Parties will not, and not permit any of their
Subsidiaries to, directly or, to the Loan Partiesβ knowledge, indirectly, use the proceeds of any
Credit Extension for any purpose that would violate Anti-Corruption Laws.
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ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event of Default from
and after the Closing Date:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within five
days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any Facility Fee
or other fee due hereunder, or (iii) within five Business Days after the same becomes due, any other
amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term, covenant or
agreement contained in any of Section 6.03(a), 6.05(a), 6.11, 7.01, 7.03 or 7.09 or clause (y) of Section
7.04(c); or
(c) Other Defaults. A Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be
performed or observed and such failure continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty, certification or statement
of fact made or deemed made by or on behalf of the Borrower or the Guarantors herein or in any other
Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made (except that such materiality qualifier
shall not apply to the extent that any such representation or warranty is qualified by materiality); or
(e) Payment Cross-Default and Cross-Acceleration. (i) A Loan Party or any Subsidiary of a
Loan Party (A) fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee of
Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee of Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause the acceleration of the final stated maturity of such
Indebtedness or require such Indebtedness to be prepaid prior to the stated maturity thereof; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting
from (A) any event of default under such Swap Contract as to which a Loan Party or any Subsidiary of a
Loan Party is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as
so defined) under such Swap Contract as to which a Loan Party or any Subsidiary of a Loan Party is an
Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan Party
or such Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. A Loan Party, any Subsidiary (other than any Immaterial
Subsidiary) of a Loan Party institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the
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appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for
it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent of such Person and the
appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or a Loan Party, any Subsidiary (other than any
Immaterial Subsidiary) of a Loan Party shall take any corporate action in furtherance of any of the
foregoing; or
(g) Inability to Pay Debts; Attachment. (i) A Loan Party or any Subsidiary (other than any
Immaterial Subsidiary) of a Loan Party becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of any such Person and is not
released, vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against a Loan Party, any Subsidiary (other than any
Immaterial Subsidiary) of a Loan Party (i) one or more final judgments or orders for the payment of
money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to
the extent not covered by independent third-party insurance), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon
such judgment or order, or (B) there is a period of ten (10) consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of a Loan Party or any
ERISA Affiliate of a Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC, together with any liability related to other ERISA Events, in an aggregate amount in excess of the
Threshold Amount, (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold
Amount; (iii) any Plan(s) (other than a Pension Plan or Multiemployer Plan), or the Borrower or any
ERISA Affiliate in respect of any such Plan(s), incurs any unfunded liabilities in an aggregate amount in
excess of the Threshold Amount; or; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution and
delivery and for any reason other than as permitted hereunder or satisfaction in full of all the Obligations,
ceases to be in full force and effect; or a Loan Party or any of its Affiliates contests in any manner the
validity or enforceability of any Loan Document; or a Loan Party denies that it has any or further liability
or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document
other than pursuant to the terms thereof; or
(k) Change of Control. There occurs any Change of Control; or
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(l) Guaranty. Any material provision of the Guaranty Agreement shall for any reason cease
to be valid and binding on, or enforceable against the Guarantors, or a Guarantor shall so state in writing,
or a Guarantor shall seek to terminate the Guaranty Agreement.
8.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation of each L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation
shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to
be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies available to it and the
Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of
each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions
shall automatically terminate, the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or
any Lender.
8.03 Application of Funds. After the exercise of remedies provided for in Section 8.02
(or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall, subject to the
provisions of Section 2.04(g) and Section 2.17, be applied by the Administrative Agent in the
following order:
First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and
other amounts (other than principal and interest) payable to the Lenders (including Attorney
Costs and amounts payable under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;
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Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the
Loans and L/C Borrowings, ratably among the Lenders in proportion to the respective amounts
described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of each L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to
the Borrower or as otherwise required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such
Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority. Each of the Lenders and the L/C Issuers hereby
irrevocably appoints Citibank to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders
and the L/C Issuers, and the Borrower shall not have rights as a third party beneficiary of any of
such provisions (except with respect to Section 9.06). It is understood and agreed that the use of
the term βagentβ herein or in any other Loan Documents (or any other similar term) with
reference to the Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable Law. Instead such term
is used as a matter of market custom, and is intended to create or reflect only an administrative
relationship between contracting parties.
9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term βLenderβ or
βLendersβ shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity.
Such Person and its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders.
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9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in
the other Loan Documents), provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability
or that is contrary to any Loan Document or applicable law including for the avoidance of doubt any
action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a
forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor
Relief Law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith
shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the
absence of its own gross negligence or willful misconduct as determined by a court of competent
jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed
not to have knowledge of any Default unless and until notice describing such Default is given in
writing to the Administrative Agent by the Borrower, a Lender or a L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other
agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to have
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been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or the issuance,
extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or a L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or such L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.
9.05 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory provisions of this Article
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Administrative Agent. The
Administrative Agent shall not be responsible for the negligence or misconduct of any sub-
agents except to the extent that a court of competent jurisdiction determines in a final and
nonappealable judgment that the Administrative Agent acted with gross negligence or willful
misconduct in the selection of such sub-agents.
9.06 Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the Lenders,
the L/C Issuers and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, with the prior written consent of the Borrower (provided such consent shall not be
unreasonably withheld or delayed and no such consent shall be required if an Event of Default has
occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United States. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall
be agreed by the Required Lenders) (the βResignation Effective Dateβ), then the retiring Administrative
Agent may on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause
(d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by
notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, with
the prior written consent of the Borrower (provided such consent shall not be unreasonably withheld or
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delayed and no such consent shall be required if an Event of Default has occurred and is continuing),
appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required
Lenders) (the βRemoval Effective Dateβ), then such removal shall nonetheless become effective in
accordance with such notice on the Removal Effective Date. As used in this Section 9.06, the terms
βretiringβ and βretiredβ shall include βremovedβ.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as
applicable) (1) the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any collateral security held by
the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents,
the retiring Administrative Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (2) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be made by or to each
Lender and each L/C Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successorβs
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents (if not already discharged therefrom as provided above in this Section). The
fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring
Administrative Agentβs resignation or removal, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.
Any resignation or removal by Citibank as Administrative Agent pursuant to this Section
shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance
of a successorβs appointment as Administrative Agent hereunder, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall, or another L/C Issuer may, issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangement satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and each
L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender and each L/C Issuer also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action under or based
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upon this Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.
9.08 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether
the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on the Borrower or any other Loan Party) shall be entitled and empowered, by intervention in
such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and
to file such other documents as may be necessary or advisable in order to have the claims of the Lenders,
the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the
Administrative Agent under Sections 2.04(i) and (j), 2.10, and 10.04) allowed in such judicial proceeding;
and
(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make
such payments to the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any other amounts due
the Administrative Agent under Sections 2.10 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of
any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender in
any such proceeding.
9.09 Release of Lien on Cash Collateral Upon Expiration of Letters of Credit. The
Lenders irrevocably authorize the Administrative Agent to release its Lien on Cash Collateral (x)
at such time as all Letters of Credit have expired, all Obligations have been paid in full, and the
Aggregate Commitments have terminated or (y) pursuant to the last paragraph of Section
2.04(g).
9.10 Other Agents; Arrangers and Managers. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a βsyndication agent,β
βdocumentation agent,β βjoint lead arranger and joint book manager,β or βjoint lead arrangerβ
shall have any right, power, obligation, liability, responsibility or duty under this Agreement
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except in its capacity, as applicable, as the Administrative Agent, a Lender, or a L/C Issuer
hereunder. Without limiting the foregoing, none of the Lenders or other Persons so identified
shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so
identified in deciding to enter into this Agreement or in taking or not taking action hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing, signed by the Required Lenders and the
Borrower or the applicable Loan Party, as the case may be, and a copy thereof is provided to the
Administrative Agent, or signed by the Borrower and the applicable Loan Party and the
Administrative Agent with the consent of the Required Lenders, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01, Section 4.02 or permit the Closing Date to
be later than October 16, 2017 without the written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any payment
or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of them)
or any mandatory reduction of the Aggregate Commitments hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (v) of the second proviso to this Section 10.01) any fees or other amounts
payable hereunder or under any other Loan Document without the written consent of each Lender directly
affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary to
amend the definition of βDefault Rateβ or to waive any obligation of the Borrower to pay interest or
Letter of Credit Fees at the Default Rate;
(e) change Section 2.07, Section 2.14, Section 8.03 or the definition of βPro Rata Shareβ in a
manner that would alter the pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the percentages contained in the definition of
βRequired Lendersβ or any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; or
(g) release any Guarantor from liability under the Guaranty Agreement without the written
consent of each Lender;
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and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and
signed by the L/C Issuers in addition to the Lenders required above, affect the rights or duties of
the L/C Issuers under this Agreement or any Letter of Credit Application relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lenders in addition to the Lenders required above, affect the rights
or duties of the Swing Line Lenders under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in addition to the
Lenders required above, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document; (iv) Section 10.06(i) may not be amended, waived or
otherwise modified without the consent of each Granting Lender all or any part of whose Loans
are being funded by an SPC at the time of such amendment, waiver or other modification; and
(v) a Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the applicable Lenders
other than Defaulting Lenders), except that (x) the Commitment of a Defaulting Lender may not
be increased or extended, nor the principal amount of any Loan or any interest thereon, or any
other amounts payable hereunder, owed to such Defaulting Lender reduced or the date for
payment thereof extended, without the consent of such Defaulting Lender, (y) any waiver,
amendment or modification requiring the consent of all Lenders or each affected Lender that by
its terms affects any Defaulting Lender more adversely than other affected Lenders shall require
the consent of such Defaulting Lender, and (z) any waiver, amendment or modification changing
the voting rights of a Defaulting Lender shall require the consent of each Lender that is a
Defaulting Lender at the time that such waiver, amendment or modification becomes effective.
If, in connection with any proposed change, waiver, consent, discharge or termination of or to
any of the provisions of this Agreement as contemplated by this Section 10.01, the consent of the
Required Lenders is obtained but the consent of one or more of such other Lenders whose
consent is required is not obtained, then the Borrower shall have the right, to replace each such
non-consenting Lender or Lenders with one or more (so long as all non-consenting Lenders are
so replaced) persons pursuant to Section 10.14 so long as at the time of such replacement, each
such new Lender consents to the proposed change, waiver, consent, discharge or termination.
Each Lender agrees that, if the Borrower elects to replace such Lender in accordance with this
Section, it shall promptly execute and deliver to the Administrative Agent an Assignment and
Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent
any Note (if Notes have been issued in respect of such Lenderβs Loans) subject to such
Assignment and Assumption; provided that the failure of any such non-consenting Lender to
execute an Assignment and Assumption shall not render such sale and purchase (and the
corresponding assignment) invalid and such assignment shall be recorded in the Register.
10.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile transmission). All
such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or
(subject to subsection (c) below) electronic mail address, and all notices and other communications
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expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number,
as follows:
(i) if to the Borrower or the Administrative Agent, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on Schedule 10.02 or to
such other address, facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties; and
(ii) if to any other Lender, any L/C Issuer or any Swing Line Lender, to the address,
facsimile number, electronic mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the Borrower, the Administrative
Agent, and the L/C Issuers.
Notices and other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received; notices and other
communications sent by facsimile shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to have been given at
the opening of business on the next business day for the recipient). Notices and other
communications delivered through electronic communications to the extent provided
in subsection (b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders and the
L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that
the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II if such
Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the senderβs receipt of
an acknowledgement from the intended recipient (such as by the βreturn receipt requestedβ
function, as available, return e-mail or other written acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of the recipient, such
notice or communication shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the intended recipient at
its e-mail address as described in the foregoing clause of notification that such notice or
communication is available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender, each L/C Issuer and each Swing Line Lender may
change its address, telecopier or telephone number for notices and other communications hereunder by
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notice to the Borrower, the Administrative Agent, the L/C Issuers and the Swing Line Lenders. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier
number and electronic mail address to which notices and other communications may be sent and (ii)
accurate wire instructions for such Lender. Furthermore, each Public Lender (as defined in Section 6.02)
agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected
the βPrivate Investorβ or similar designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public Lenderβs compliance
procedures and applicable Law, including United States Federal and state securities Laws, to make
reference to Borrower Materials that are not made available through the βPublic Investorβ portion of the
Platform and that may contain material non-public information with respect to the Borrower or its
securities for purposes of United States Federal or state securities laws.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent,
the L/C Issuers, and the Lenders shall be entitled to rely and act upon any notices (including telephonic
Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the
Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower except to the extent such losses, costs, expenses and
liabilities are determined by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of such Person. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
(e) THE PLATFORM IS PROVIDED βAS ISβ AND βAS AVAILABLE.β THE AGENT
PARTIES AND THE ARRANGER PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF
THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM
FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY OR ANY
ARRANGER PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE
PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the
βAgent Partiesβ) or any Arranger or any of their respective Related Parties (collectively, the βArranger
Partiesβ) have any liability to the Borrower, any Lender, any L/C Issuer or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of
the Borrowerβs or the Administrative Agentβs transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Agent Party or Arranger Party; provided, however, that in no event shall
any Agent Party or Arranger Party have any liability to the Borrower, any Lender, any L/C Issuer or any
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other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or
actual damages).
10.03 No Waiver; Cumulative Remedies; Enforcement.
(a) No failure by any Lender or the Administrative Agent to exercise, and no delay by any
such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
(b) Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents
against Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative
Agent in accordance with Section 8.02 for the benefit of all the Lenders; provided, however, that the
foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and
remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the
other Loan Documents, (b) the L/C Issuers or the Swing Line Lenders from exercising the rights and
remedies that inure to its benefit (solely in their respective capacity as L/C Issuer or Swing Line Lender,
as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising
setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.14), or (d) any Lender
from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a
proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any
time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents,
then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent
pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the
preceding proviso and subject to Section 2.14, any Lender may, with the consent of the Required Lenders,
enforce any rights and remedies available to it and as authorized by the Required Lenders.
10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out of pocket expenses
incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and
disbursements of outside counsel for the Administrative Agent), in connection with the syndication of the
credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of
this Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out of pocket expenses incurred by the L/C Issuers in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out of pocket expenses incurred by the Administrative Agent, any Lender or any
L/C Issuer (including the fees, charges and disbursements of one primary outside counsel for the
Administrative Agent, the Lenders and the L/C Issuers, and in the case of actual or potential conflict of
interest, separate counsel for Indemnitees to the extent needed to avoid such conflict, and one firm of
local counsel, as applicable, in any relevant jurisdiction, and in the case of actual or potential conflict of
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interest, separate local counsel for Indemnitees to the extent needed to avoid such conflict), in connection
with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of
Credit issued hereunder, including all such out of pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and each L/C Issuer, and each Related Party of any of the
foregoing Persons (each such Person being called an βIndemniteeβ) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees,
charges and disbursements of one primary outside counsel for the Indemnitees and, in the case of actual
or potential conflict of interest, separate counsel for Indemnitees to the extent needed to avoid such
conflict), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or
any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a
third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the
comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence, willful misconduct, bad faith or material breach by such
Indemnitee of its obligations under this Agreement; and provided further that no Indemnitee (other than
the Administrative Agent, each Arranger, each Documentation Agent, and each Syndication Agent, in
each case in its capacity as such) will have a right to indemnification for such losses, claims, damages,
liabilities or expenses to the extent they result from disputes among the Lenders other than as a result of
any act or omission by the Borrower or any of its Affiliates. Without limiting the provisions
of Section 3.01(c), this Section 10.04(b) shall not apply with respect to Taxes other than any Taxes that
represent losses, claims, damages, etc. arising from any non-Tax claim.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the
Administrative Agent (or any sub-agent thereof), each L/C Issuer or any Related Party of any of the
foregoing (and without limiting the obligation of the Borrower to do so), each Lender severally agrees to
pay to the Administrative Agent (or any such sub-agent), such L/C Issuer or such Related Party, as the
case may be, such Lenderβs Pro Rata Share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense
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or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent (or any such sub-agent) or any L/C Issuer in its capacity as
such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 2.13(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable
law, the parties to this Agreement shall not assert, and hereby waive, any claim against any other party or
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof, provided that, nothing
in this Section 10.04(d) shall relieve the Borrower of any obligation it may have to indemnify an
Indemnitee against special, indirect, consequential or punitive damages actually paid by such Indemnitee
to a third party. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the
extent caused by such Personβs gross negligence or willful misconduct of such Indemnitee as determined
by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section 10.04 shall be payable not later than ten
Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, any L/C Issuer and any Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
10.05 Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent, any L/C Issuer or any Lender, or the
Administrative Agent, any L/C Issuer or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently invalidated, declared
to be fraudulent or preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, such L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable share of any
amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the
date of such demand to the date such payment is made at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuers
under clause (b) of the preceding sentence shall survive the payment in full of the Obligations
and the termination of this Agreement.
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10.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation
in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of
a security interest subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in
accordance with the provisions of subsection (i) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the
extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be
subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lenderβs Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if βTrade Dateβ is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably withheld or
delayed); provided, however, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a single
Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.
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(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lenderβs rights and obligations under this Agreement
with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply
to the Swing Line Lendersβ rights and obligations in respect of Swing Line Loans;
(iii) Required Consents. No consent shall be required for any assignment except to
the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed
to have consented to any such assignment unless it shall object thereto by written notice
to the Administrative Agent within ten (10) Business Days after having received notice
thereof;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a Person that
is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such
Lender;
(C) the consent of each L/C Issuer (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment; and
(D) the consent of each Swing Line Lender (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment.
(iv) Assignment and Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made (A) to the
Borrower or any of the Borrowerβs Subsidiaries or Affiliates, or (B) to any Defaulting Lender or
any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute
any of the foregoing Persons described in this clause (B), or (C) to a natural person.
(vi) Certain Additional Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and
until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall
make such additional payments to the Administrative Agent in an aggregate amount sufficient,
upon distribution thereof as appropriate (which may be outright payment, purchases by the
assignee of participations or subparticipations, or other compensating actions, including funding,
with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of
Loans previously requested but not funded by the Defaulting Lender, to each of which the
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applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all
payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any
Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full
pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in
accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any
assignment of rights and obligations of any Defaulting Lender hereunder shall become effective
under applicable Law without compliance with the provisions of this paragraph, then the assignee
of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement
until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lenderβs rights and obligations under this Agreement, such Lender shall
cease to be a party hereto) but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment provided, that except to the extent otherwise expressly agreed
by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release
of any claim of any party hereunder arising from that Lenderβs having been a Defaulting Lender.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary
agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the
Administrative Agentβs Office a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time
to time (the βRegisterβ). The entries in the Register shall be conclusive absent manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the
Register information regarding the designation, and revocation of designation, of any Lender as a
Defaulting Lender. The Register shall be available for inspection by the Borrower and any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a
Defaulting Lender or the Borrower or any of the Borrowerβs Affiliates or Subsidiaries) (each, a
βParticipantβ) in all or a portion of such Lender's rights and/or obligations under this Agreement
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(including all or a portion of its Commitment and/or the Loans (including such Lenderβs participations in
L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent,
the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 10.01 that directly affects such
Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of, and subject to the obligations of, Sections 3.01, 3.04 and 3.05 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section; provided that such Participant agrees to be subject to the provisions
of Sections 3.06 and 10.13 as if it were an assignee under paragraph (b) of this Section. Each Lender that
sells a participation agrees, at the Borrower's request and expense, to use reasonable efforts to cooperate
with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it
were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the
Borrower, maintain a register on which it enters the name and address of each Participant and the
principal amounts (and stated interest) of each Participantβs interest in the Loans or other obligations
under the Loan Documents (the βParticipant Registerβ); provided that no Lender shall have any obligation
to disclose all or any portion of the Participant Register (including the identity of any Participant or any
information relating to a Participant's interest in any commitments, loans, letters of credit or its other
obligations under any Loan Document) to any Person except to the extent that such disclosure is
necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form
under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant
Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is
recorded in the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its
capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any
greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower is
notified of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.01(e) as though it were a Lender.
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(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any
other central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall
release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Certain Definitions. As used herein, the following terms have the following meanings:
βAssignee Groupβ means two or more Eligible Assignees that are Affiliates of
one another or two or more Approved Funds managed by the same investment advisor
βEligible Assigneeβ means any Person that meets the requirements to be an
assignee under Section 10.06(b)(iii), and (v) (subject to such consents, if any, as may be
required under Section 10.06(b)(iii)).
βFundβ means any Person (other than a natural person) that is (or will be) engaged
in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its activities.
βApproved Fundβ means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
(h) Electronic Execution of Assignments. An Assignment and Assumption may be signed
electronically as provided in Section 10.19.
(i) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary contained
herein, any Lender (a βGranting Lenderβ) may grant to a special purpose funding vehicle identified as
such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower
(an βSPCβ) the option to provide all or any part of any Committed Loan that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Committed Loan, and (ii) if an SPC elects not to
exercise such option or otherwise fails to make all or any part of such Committed Loan, the Granting
Lender shall be obligated to make such Committed Loan pursuant to the terms hereof or, if it fails to do
so, to make such payment to the Administrative Agent as is required under Section 2.13(c)(ii). Each party
hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall
increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this
Agreement (including its obligations under Section 3.04), (ii) no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the
Granting Lender shall for all purposes, including the approval of any amendment, waiver or other
modification of any provision of any Loan Document, remain the lender of record hereunder. The
making of a Committed Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Committed Loan were made by such Granting Lender. In furtherance
of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding
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commercial paper or other senior debt of any SPC, it will not institute against, or join any other Person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation
proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and
the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which
processing fee may be waived by the Administrative Agent in its sole discretion), assign all or any portion
of its right to receive payment with respect to any Committed Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its funding of Committed Loans to
any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.
(j) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if (i) at any time Citibank assigns all of its Commitment and
Loans pursuant to subsection (b) above, Citibank may, (A) upon 30 daysβ notice to the Borrower and the
Lenders, resign as L/C Issuer, and/or (B) 30 daysβ notice to the Borrower and the Lenders, resign as
Swing Line Lender, (ii) at any time any other L/C Issuer assigns all of its Commitment and Loans
pursuant to subsection (b) above, such L/C Issuer may, upon 30 daysβ notice to the Borrower and the
Lenders, resign as L/C Issuer, and (iii) at any time any other Swing Line Lender assigns all of its
Commitment and Loans pursuant to subsection (b) above, such Swing Line Lender may, upon 30 daysβ
notice to the Borrower an Lender, resign a Swing Line Lender. In the event of any such resignation as
L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Borrower
to appoint any such successor shall affect the resignation of such L/C Issuer or Swing Line Lender, as the
case may be. If any L/C Issuer resigns as L/C Issuer, it shall retain all the rights, powers, privileges and
duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date
of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require
the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.04(c)). If any Swing Line Lender resigns as Swing Line Lender, it shall retain all
the rights of a Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it
and outstanding as of the effective date of such resignation, including the right to require the Lenders to
make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant
to Section 2.05(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender and the
written acceptance by such successor of such appointment, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing
Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring
L/C Issuer with respect to such Letters of Credit.
10.07 Confidentiality. Each of the Administrative Agent, the Lenders and the L/C
Issuers agrees to maintain the confidentiality of the Information (as defined below), except that
(a) Information may be disclosed (i) to its and its Affiliates' Related Parties (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential); (ii) to the extent
requested by any regulatory authority or self-regulatory authority; (iii) to the extent required by
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applicable laws or regulations or by any subpoena or similar legal process; (iv) to any other party
to this Agreement; (v) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or the enforcement
of rights hereunder or thereunder; (vi) subject to an agreement containing provisions
substantially the same as those of this Section, to any Eligible Assignee of or Participant in, or
any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this
Agreement; (vii) with the consent of the Borrower; (viii) to the extent such Information (A)
becomes publicly available other than as a result of a breach of this Section or (B) becomes
available to the Administrative Agent, any Lender or any L/C Issuer on a nonconfidential basis
from a source other than the Borrower; (ix) to the National Association of Insurance
Commissioners or any other similar organization exercising regulatory authority over a Lender;
or (x) on a confidential basis to the CUSIP Service Bureau or any similar agency in connection
with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to
the credit facility provided hereunder; and (b) subject to an agreement containing provisions
substantially the same as those of this Section, Information other than the Projections (as
hereinafter defined) may be disclosed to any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterpartyβs or prospective counterpartyβs
professional advisor) to any swap or credit derivative transaction relating to obligations of the
Borrower. In addition, the Administrative Agent, the Lenders and the L/C Issuer may disclose
the existence of this Agreement and general information about this Agreement to market data
collectors, similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and management of
this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions. For
the purposes of this Section, βInformationβ means all information received from the Borrower or
any Subsidiary of Borrower, or any officer, director, employee, counsel, or agent of Borrower or
any of its Subsidiaries relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower. As
used herein, βProjectionsβ means all financial projections prepared by the Borrower and
furnished to the Lenders in connection with this Agreement. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a)
the Information may include material non-public information concerning the Borrower or a
Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
10.08 Set-off. In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each Lender and its
Affiliates are authorized at any time and from time to time, without prior notice to the Borrower,
any such notice being waived by the Borrower to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such Lender, such L/C Issuer or any
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such Affiliate to or for the credit or the account of the Borrower against any and all Obligations
owing to such Lender or such L/C Issuer hereunder or under any other Loan Document, now or
hereafter existing, irrespective of whether or not the Administrative Agent or such Lender or
such L/C Issuer shall have made demand under this Agreement or any other Loan Document and
although such Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or indebtedness; provided, that in the event that any
Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid
over immediately to the Administrative Agent for further application in accordance with the
provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting
Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent
and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative
Agent a statement describing in reasonable detail the Obligations owing to such Defaulting
Lender as to which it exercised such right of setoff. The rights of each Lender, each L/C Issuer
and their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates
may have. Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender or any of its
Affiliates; provided, however, that the failure to give such notice shall not affect the validity of
such set-off and application.
10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not
exceed the maximum rate of non-usurious interest permitted by applicable Law (the βMaximum
Rateβ). If the Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or,
if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize
any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
10.10 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
10.11 Integration. This Agreement, together with the other Loan Documents, comprises
the complete and integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
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10.12 Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof
and thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the
Administrative Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default at the
time of any Credit Extension, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
10.13 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of
this Section 10.13, if and to the extent that the enforceability of any provisions in this Agreement
relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good
faith by the Administrative Agent, the L/C Issuers or the Swing Line Lenders, as applicable, then
such provisions shall be deemed to be in effect only to the extent not so limited.
10.14 Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender
is a Defaulting Lender, or if the Borrower exercises its right to replace non-consenting Lenders
pursuant to Section 10.01, or if any other circumstance exists hereunder that gives the Borrower
the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign
and delegate, without recourse (in accordance with and subject to the restrictions contained in,
and consents required by, Section 10.06), all of its interests, rights and obligations under this
Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment fee specified
in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the outstanding principal
of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts);
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(c) in the case of any such assignment resulting from a claim for compensation under Section
3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction
in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable Laws; and
(e) in the event that such Lender is a L/C Issuer and any one or more Letters of Credit issued
by such L/C Issuer under this Agreement remain outstanding on such L/C Issuerβs Maturity Date, the
Borrower shall cash collateralize such Letter of Credit upon terms reasonably satisfactory to such L/C
Issuer to secure the Borrowerβs obligations to reimburse for drawings under such Letters of Credit or
make other arrangements reasonably satisfactory to such L/C Issuer with respect to such Letters of Credit
including providing other credit support.
A Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
10.15 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN
PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE
ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN
LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE
ADMINISTRATIVE AGENT, ANY LENDER, ANY L/C ISSUER, OR ANY RELATED PARTY OF
THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM
OTHER THAN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN THE BOROUGH OF
MANHATTAN IN XXX XXXX XXXX XXX XX XXX XXXXXX XXXXXX DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF,
AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS
TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL
BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
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(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN
PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.16 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Borrower acknowledges and agrees, and acknowledges its
Affiliatesβ understanding, that: (i) the credit facility provided for hereunder and any related
arranging or other services in connection therewith (including in connection with any
amendment, waiver or other modification hereof or of any other Loan Document) are an armβs-
length commercial transaction between the Borrower, on the one hand, and the Administrative
Agent, the Lenders and the Arrangers, on the other hand, and the Borrower is capable of
evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with the process leading to
such transaction, the Administrative Agent, each Lender and each Arranger is and has been
acting solely as a principal with respect to the financing contemplated hereby and is not the
financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates, stockholders,
creditors or employees or any other Person; (iii) none of the Administrative Agent, any Lender or
any Arranger has assumed or will assume an advisory, agency or fiduciary responsibility in favor
of the Borrower with respect to any aspect of the financing contemplated hereby or the process
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leading thereto, including with respect to any amendment, waiver or other modification hereof or
of any other Loan Document (irrespective of whether the Administrative Agent or any Lender or
Arranger has advised or is currently advising the Borrower or any of its Affiliates on other
matters) and none of the Administrative Agent, any Lender or any Arranger has any obligation to
the Borrower or any of its Affiliates with respect to the financing contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents; (iv) the
Administrative Agent, the Lenders and the Arrangers and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from those of the
Borrower and its Affiliates, and none of the Administrative Agent, any Lender or any Arranger
has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Administrative Agent, the Lenders and the Arrangers have not provided
and will not provide any legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Loan Document) and the Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate. The Borrower
hereby waives and releases, to the fullest extent permitted by law, any claims that it may have
against the Administrative Agent, the Lenders and the Arrangers with respect to any breach or
alleged breach of agency or fiduciary duty.
10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the βActβ), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and
address of the Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act. The Borrower shall,
promptly following a request by the Administrative Agent or any Lender, provide all
documentation and other information that the Administrative Agent or such Lender requests in
order to comply with its ongoing obligations under applicable βknow your customerβ and anti-
money laundering rules and regulations, including the Act.
10.19 Electronic Execution of Assignments and Certain Other Documents. The words
βexecution,β βsigned,β βsignature,β and words of like import in any Assignment and Assumption
or in any amendment or other modification hereof (including waivers and consents) shall be
deemed to include electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and
as provided for in any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act, or any
other similar state laws based on the Uniform Electronic Transactions Act.
10.20 Reserved.
10.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
16208864_8 111
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OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
10.22 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any
liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to
the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers
of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be
bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution
Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an
EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments
of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that
may be issued to it or otherwise conferred on it, and that such shares or other instruments of
ownership will be accepted by it in lieu of any rights with respect to any such liability under this
Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the
Write-Down and Conversion Powers of any EEA Resolution Authority.
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[Signature Page to ONEOK, Inc. Credit Agreement]
BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line Lender
By:
Name: Xxxx X. Xxx
Title: Director
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