EXHIBIT ___
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 27, 1997
AMONG
NGC CORPORATION
and
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and As Agent
THE CHASE MANHATTAN BANK
and
NATIONSBANK OF TEXAS, N.A.,
Individually and as Co-Agents
and
THE LENDERS NAMED HEREIN
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..................................................... 2
1.1 Defined Terms................................................... 2
1.2 Accounting Terms and Other Determinations....................... 29
1.3 Currency References............................................. 29
ARTICLE II THE FACILITY.................................................... 30
2.1 The Facilities.................................................. 30
2.1.1 Description of the Tranche A Revolving Facility......... 30
2.1.2 Availability of Tranche A Revolving Facility............ 31
2.1.3 Tranche A Committed Advances............................ 31
2.1.4 Description of Tranche B Facility...................... 31
2.1.5 Availability of Tranche B Facility...................... 31
2.1.6 Tranche B Committed Advances............................ 31
2.2 Letters of Credit............................................... 31
2.2.1 Issuance of Letters of Credit........................... 31
2.2.2 Aggregate Amount Available under Letters of Credit...... 32
2.2.3 Reimbursement of Issuer; Automatic Advances............. 33
2.2.4 Lender Participation.................................... 34
2.2.5 Letter of Credit Fees................................... 35
2.2.6 Issuer Fees............................................. 35
2.2.7 Verification............................................ 36
2.2.8 Irrevocable Obligations and Commercial Practices........ 37
2.2.9 [Intentionally Omitted.................................. 38
2.2.10 Letter of Credit Collateral Account..................... 38
2.2.11 Currency Fluctuation.................................... 38
2.3 Competitive Bid Advances........................................ 39
2.3.1 Competitive Bid Option.................................. 39
2.3.2 Competitive Bid Quote Request........................... 39
2.3.3 Invitation for Competitive Bid Quotes................... 40
2.3.4 Submission and Contents of Competitive Bid Quotes....... 40
2.3.5 Notice to the Borrower.................................. 42
2.3.6 Acceptance and Notice by the Borrower................... 42
2.3.7 Allocation by the Agent................................. 43
2.3.8 Administration Fees..................................... 43
2.4 Required Payments; Termination.................................. 43
2.5 Types of Committed Advances..................................... 44
2.6 Facility Fees, Commitment Fees and Designation of the
Tranche A Active Aggregate Revolving Commitment................. 44
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TABLE OF CONTENTS
(CONTINUED)
PAGE
2.6.1 Designation of Tranche A Active and Tranche A
Inactive Aggregate Revolving Commitment................. 44
2.6.2........................................................... 44
Commitment Fees................................................. 44
2.6.3 Cancellation of Tranche A............................... 45
2.7 Minimum Amount of Each Advance.................................. 46
2.8 Optional Principal Payments..................................... 46
2.9 Method of Selecting Types and Interest Periods for New
Advances........................................................ 46
2.10 Conversion and Continuation of Outstanding Advances............. 47
2.11 Changes in Interest Rate, etc................................... 47
2.12 Rates Applicable After Default.................................. 48
2.13 Method of Payment............................................... 48
2.14 Notes; Notices.................................................. 48
2.15 Interest Payment Dates; Interest and Fee Basis.................. 49
2.16 Notification of Tranche A Advances, Tranche B Advances,
Interest Rates, Prepayments and Commitment Reductions........... 49
2.17 Lending Installations........................................... 50
2.18 Non-Receipt of Funds by the Agent............................... 50
2.19 Withholding Tax Exemption....................................... 50
2.20 Maximum Interest Rate........................................... 51
2.21 Agent's Fees.................................................... 51
2.22 Procedures with respect to the Tranche A Aggregate
Revolving Commitment............................................ 51
ARTICLE III CHANGE IN CIRCUMSTANCES......................................... 54
3.1 Yield Protection................................................ 54
3.2 Changes in Capital Adequacy Regulations......................... 55
3.3 Availability of Types of Advances............................... 56
3.4 Funding Indemnification......................................... 56
3.5 Lender Statements; Survival of Indemnity........................ 56
3.6 Replacement of Lenders.......................................... 57
3.7 Currency........................................................ 58
ARTICLE IV CONDITIONS PRECEDENT............................................ 59
4.1 Conditions Precedent to Effectiveness........................... 59
4.2 Additional Condition to Effectiveness........................... 61
4.3 Each Advance.................................................... 61
ARTICLE V REPRESENTATIONS AND WARRANTIES.................................. 62
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TABLE OF CONTENTS
(CONTINUED)
PAGE
5.1 Corporate or Partnership Existence and Standing................. 62
5.2 Authorization and Validity...................................... 62
5.3 No Conflict; Government Consent................................. 62
5.4 Financial Statements............................................ 63
5.5 Material Adverse Change......................................... 63
5.6 Taxes........................................................... 63
5.7 Litigation and Contingent Obligations........................... 63
5.8 Subsidiaries.................................................... 64
5.9 ERISA........................................................... 64
5.10 Accuracy of Information......................................... 64
5.11 Regulation U.................................................... 65
5.12 Compliance With Laws............................................ 65
5.13 Environmental Matters........................................... 65
5.14 Ownership of Properties; Liens.................................. 66
5.15 Investment Company Act.......................................... 66
5.16 Public Utility Holding Company Act.............................. 66
5.17 Insurance....................................................... 66
5.18 Solvency........................................................ 66
5.19 Default......................................................... 67
ARTICLE VI COVENANTS....................................................... 67
6.1 Affirmative Covenants........................................... 67
6.1.1 Financial Reporting..................................... 67
6.1.2 Use of Proceeds......................................... 69
6.1.3 Additional Subsidiary Guaranties........................ 69
6.1.4 Conduct of Business..................................... 71
6.1.5 Taxes and Other Charges................................. 71
6.1.6 Insurance............................................... 71
6.1.7 Compliance with Laws.................................... 71
6.1.8 Maintenance of Properties............................... 72
6.1.9 Inspection.............................................. 72
6.1.10 Maintenance of Books and Records........................ 72
6.1.11 Compliance with ERISA................................... 72
6.2 Negative Covenants.............................................. 73
6.2.1 [Intentionally Omitted]................................. 73
6.2.2 Debt.................................................... 73
6.2.3 Merger.................................................. 74
6.2.4 Sale of Assets.......................................... 74
6.2.5 Sale of Accounts........................................ 75
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TABLE OF CONTENTS
(CONTINUED)
PAGE
6.2.6 [Intentionally Omitted]................................. 76
6.2.7 Investments and Acquisitions............................ 76
6.2.8 Contingent Obligations.................................. 77
6.2.9 Liens................................................... 78
6.2.10 Consolidated Net Fixed Price Book Deficit............... 80
6.2.11 [Intentionally omitted.]................................ 80
6.2.12 Affiliates.............................................. 80
6.2.13 Judgments............................................... 80
6.3 Financial Covenants............................................ 80
6.3.1 Net Worth.............................................. 80
6.3.2 Leverage Ratio......................................... 81
6.3.3 Coverage Ratio......................................... 81
ARTICLE VII DEFAULTS....................................................... 81
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES................. 84
8.1 Acceleration................................................... 84
8.2 Amendments..................................................... 86
8.3 Preservation of Rights......................................... 87
ARTICLE IX GENERAL PROVISIONS............................................. 87
9.1 Survival of Representations; Obligations....................... 87
9.2 Governmental Regulation........................................ 87
9.3 Taxes.......................................................... 87
9.4 Headings....................................................... 87
9.5 Entire Agreement............................................... 88
9.6 Several Obligations; Benefits of this Agreement................ 88
9.7 Expenses; Indemnification of Agent, Issuers and Lenders........ 88
9.8 Numbers of Documents........................................... 89
9.9 [Intentionally Omitted]........................................ 89
9.10 Severability of Provisions..................................... 89
9.11 Nonliability of Lenders........................................ 89
9.12 CHOICE OF LAW.................................................. 89
9.13 CONSENT TO JURISDICTION........................................ 89
9.14 WAIVER OF JURY TRIAL........................................... 90
9.15 Confidential Information....................................... 90
ARTICLE X THE AGENT...................................................... 91
10.1 Appointment and Authority of Agent and Issuers................. 91
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TABLE OF CONTENTS
(CONTINUED)
PAGE
10.2 Capacity of the Agent and each Issuer.......................... 92
10.3 No Liability of the Agent or Issuers and Indemnity............. 92
10.4 Employees of Agent and Issuers................................. 93
10.5 Reliance....................................................... 93
10.6 Several Commitments............................................ 94
10.7 Notice of Default.............................................. 94
10.8 Lender Credit Decision......................................... 95
10.9 Successor Agent................................................ 95
10.10 The Co-Agents have no duties hereunder in their
capacities as Co-Agents........................................ 96
ARTICLE XI SETOFF; RATABLE PAYMENTS....................................... 96
11.1 Setoff......................................................... 96
11.2 Ratable Payments............................................... 96
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.............. 97
12.1 Successors and Assigns......................................... 97
12.2 Participations................................................. 97
12.2.1 Permitted Participants; Effect......................... 97
12.2.2 Voting Rights.......................................... 97
12.2.3 Benefit of Setoff...................................... 98
12.3 Assignments.................................................... 98
12.3.1 Permitted Assignments.................................. 98
12.3.2 Effect; Effective Date................................. 99
12.4 Dissemination of Information................................... 99
12.5 Tax Treatment................................................. 100
ARTICLE XIII NOTICES....................................................... 100
13.1 Giving Notice................................................. 100
13.2 Change of Address............................................. 100
ARTICLE XIV COUNTERPARTS.................................................. 100
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SCHEDULES
EXHIBIT "A-1" TRANCHE A COMMITTED NOTE
EXHIBIT "A-2" TRANCHE B NOTE
EXHIBIT "A-3" COMPETITIVE BID NOTE
EXHIBIT "B-1" FORM OF OPINION OF BORROWERS COUNSEL
EXHIBIT "B-2" FORM OF OPINION OF XXXXXX & XXXXXX
EXHIBIT "C" COMPLIANCE CERTIFICATE
EXHIBIT "C-1" ISSUANCE REQUEST
EXHIBIT "C-2" FORM OF NOTICE OF COMMITMENT INCREASE
EXHIBIT "D" ASSIGNMENT AGREEMENT
EXHIBIT "E" LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
EXHIBIT "F" COMPETITIVE BID QUOTE REQUEST
EXHIBIT "G" INVITATION FOR COMPETITIVE BID QUOTES
EXHIBIT "H" COMPETITIVE BID QUOTE
EXHIBIT "I" FORM OF OPINION OF XXXXX, XXXXX & XXXXX
EXHIBIT "J-1" FORM OF GUARANTY
EXHIBIT "J-2" FORM OF XXXXXX GUARANTY
EXHIBIT "K" FORM OF CONSENT, ACKNOWLEDGMENT AND AMENDMENT
SCHEDULE "1" SUBSIDIARIES AND OTHER INVESTMENTS
SCHEDULE "2" DEBT AND LIENS
SCHEDULE "3" OUTSTANDING LETTERS OF CREDIT
SCHEDULE "4" LITIGATION
SCHEDULE "5" XXXXXX EXISTING GUARANTIES
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated as of June 27, 1997 is
among NGC Corporation, a Delaware corporation, as Borrower (the "Borrower"), the
Lenders (hereinafter defined), The First National Bank of Chicago, as Agent, and
The Chase Manhattan Bank (successor by merger to The Chase Manhattan Bank
National Association) and NationsBank of Texas, N.A., as Co-Agents (the "Co-
Agents"). The parties hereto agree as follows:
W I T N E S S E T H:
WHEREAS, the Borrower, certain Lenders, the Issuers, the Agent and the Co-
Agents have entered into that certain Credit Agreement, dated as of March 14,
1995 as amended by an amendment dated October 4, 1995 (the "First Amendment"),
the Consent and Second Amendment to Credit Agreement dated July 26, 1996 (the
"Second Amendment"), the Third Amendment to Credit Agreement dated January 22,
1997 (the "Third Amendment"), and the Fourth Amendment to Credit Agreement dated
April 23, 1997 (the "Fourth Amendment") (as amended the "Original Credit
Agreement"); and
WHEREAS, the predecessor to the Borrower entered into that certain
Combination Agreement and Plan of Merger dated as of May 22, 1996 (the "Newco
Combination Agreement") with Chevron U.S.A. Inc. ("CUSA") and Midstream
Combination Corp. ("Newco") whereby at the closing of the transaction
contemplated thereby (the "Newco Combination") CUSA contributed certain assets
to Newco and the predecessor to the Borrower merged into Newco and upon
consummation of such transactions the separate existence of the predecessor to
the Borrower ceased and Newco became the surviving Person; and
WHEREAS, upon the effective date of the Newco Combination, Newco continued
its existence as NGC Corporation and assumed the obligations of the Borrower
under the Credit Agreement; and
WHEREAS, the Borrower and NGC Acquisition Corporation II, a wholly-owned
subsidiary of the Borrower ("NACII"), have entered into that certain Agreement
and Plan of Merger dated as of February 17, 1997 (the "Destec Contract") with
Destec Energy, Inc., ("Destec") and The Dow Chemical Company, whereby at the
closing of the transaction contemplated thereby (the "Destec Transaction"),
Borrower will acquire the stock of Destec and NACII shall be merged with and
into Destec; and
WHEREAS, the Borrower, the Lenders, the Issuers, the Agent and the Co-
Agents intend to amend and restate the Original Credit Agreement in its entirety
as hereinafter set forth; and
WHEREAS, the Borrower intends to sell the International Assets (as defined
below) of Destec pursuant to the AES Contract (as defined below); and
1
WHEREAS, the parties hereto intend that upon the effectiveness hereof
pursuant to Article IV, the Commitments, outstanding Notes, Revolving Advances,
and Competitive Bid Loans and Letters of Credit under the Original Credit
Agreement shall become Tranche A Commitments, Tranche A Committed Notes, Tranche
A Revolving Advances, Competitive Bid Loans and Letters of Credit, respectively,
hereunder; and
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrower, the Lenders, the Issuers, the Agent and the Co-
Agents hereby agree that the Original Credit Agreement is hereby amended and
restated in its entirety as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms.
As used in this Agreement:
"Absolute Rate" means, with respect to a Loan made by a particular Tranche
A Lender for the relevant Absolute Rate Interest Period, the rate of interest
per annum (rounded to the nearest 1/100 of 1%) offered by such Tranche A Lender
and accepted by the Borrower pursuant to Section 2.3.6(ii).
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Tranche A Lenders to the Borrower at the same time and for the same Absolute
Rate Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.3.
"Absolute Rate Interest Period" means, with respect to an Absolute Rate
Advance or an Absolute Rate Loan, a period of not less than 30 and not more than
270 days commencing on a Business Day selected by the Borrower pursuant to this
Agreement. If such Absolute Rate Interest Period would end on a day which is
not a Business Day, such Absolute Rate Interest Period shall end on the next
succeeding Business Day.
"Absolute Rate Loan" means a Loan which bears interest at an Absolute Rate.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after March 14, 1995, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number
2
of votes) of the securities of a corporation which have ordinary voting power
for the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding partnership interests of a partnership.
"Additional Guaranty" is defined in Section 6.1.3.
"Advance" means a Tranche A Advance or a Tranche B Advance.
"AES" means The AES Corporation, a Delaware corporation.
"AES Contract" means the Asset Purchase Agreement dated February 17, 1997
between the Borrower and AES.
"AES Transaction" means the sale by Borrower of the International Assets
(as defined in the AES Contract) of Destec pursuant to the AES Contract.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means The First National Bank of Chicago in its capacity as agent
for the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as reduced from time to time pursuant to the terms hereof.
"Agreement" means this Credit Agreement, as it may be amended or modified
and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied on a basis consistent with
the most recent financial statements of the Borrower and its Subsidiaries
delivered to the Lenders pursuant hereto.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternative Currency" means Pounds Sterling or Canadian Dollars.
3
"Applicable Commitment Fee" means on any date (subject to clause (iii) of
the definition of "Applicable Rating Level") the rate per annum set forth below
opposite the Applicable Rating Level:
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Applicable Rating Level Applicable Commitment Fee
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Tranche A Active Aggregate Tranche A Inactive Aggregate
Revolving Commitment Revolving Commitment
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Level I 0.1000% 0.0800%
Level II 0.1250% 0.1000%
Level III 0.1500% 0.1250%
Level IV 0.2000% 0.1500%
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"Applicable Documentary Margin" means on any date and with respect to each
Documentary Letter of Credit (subject to clause (iii) of the definition of
"Applicable Rating Level"), the applicable margin set forth below based on the
Applicable Rating Level on such date:
Applicable
Applicable Documentary
Rating Level Margin
------------ ------
Level I 0.1800%
Level II 0.2150%
Level III 0.2500%
Level IV 0.3250%
"Applicable Margin" means on any date (subject to clause (iii) of the
definition of "Applicable Rating Level"), the applicable margin set forth below
based on the Applicable Rating Level on such date:
---------------------------------
Applicable Applicable
Rating Level Margin
---------------------------------
Level I 0.3000%
---------------------------------
Level II 0.3750%
---------------------------------
Level III 0.4500%
---------------------------------
Level IV 0.6500%
---------------------------------
"Applicable Rating Level" means the highest level set forth below that
corresponds to the rating issued from time to time by S&P or Xxxxx'x as
applicable to the Borrower's senior unsecured long-term debt:
4
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Xxxxx'x S&P
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Level I Level I *Baa1 *BBB+
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Level II Baa2 BBB
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Level III Baa3 BBB-
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Level IV **Baa3 **BBB-
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For example, if the Xxxxx'x rating is Baa1 and the S&P rating is BBB, Level I
shall apply.
For purposes of the foregoing, (i) "*" means a rating equal to or more
favorable than; "**" means a rating less favorable than; (ii) if ratings for the
Borrower's senior unsecured long-term debt shall not be available from S&P or
Xxxxx'x, Level IV shall be deemed applicable; (iii) if determinative ratings
shall change (other than as a result of a change in the rating system used by
any applicable Rating Agency) such that a change in Applicable Rating Level
would result, such change shall effect a change in Applicable Rating Level as of
the day on which it is first announced by the applicable Rating Agency, and any
change in the Applicable Margin or percentage used in calculating fees due
hereunder shall apply commencing on the effective date of such change and ending
on the date immediately preceding the effective date of the next such change;
and (iv) if the rating system of any of the Rating Agencies shall change prior
to the date all obligations hereunder have been paid and the relevant
Commitments canceled, the Borrower and the Lenders shall negotiate in good faith
to amend the references to specific ratings in this definition to reflect such
changed rating system, and pending such amendment, if no Applicable Rating Level
is otherwise determinable based upon the foregoing, the last Applicable Rating
Level shall apply.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the President, the Chief Financial
Officer, the Senior Vice President-General Counsel, the Vice President-Finance,
the Controller or the Treasurer of the Borrower.
"Authorized Representative" means any Authorized Officer, the Borrower's
Assistant Treasurer or the Borrower's Director, Treasury Operations.
"Borrower" means NGC Corporation, a Delaware corporation, successor by
merger to Newco pursuant to the Newco Combination Agreement and its successors
and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" means a Committed Borrowing Notice or a Competitive Bid
Borrowing Notice, or both, as the context may require.
_______________
* equal to or greater than
** less than
5
"British Gas" means BG plc, a corporation incorporated under the laws of
England and Wales, and its successors and assigns.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances or Eurodollar Bid Rate Advances, a day (other
than a Saturday or Sunday) on which banks generally are open in Chicago, New
York and London for the conduct of substantially all of their commercial lending
activities and on which dealings in United States dollars are carried on in the
London interbank market (ii) with respect to the determination of any Dollar
Equivalent for purposes hereof, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago, New York and London for dealings in
foreign exchange involving U.S. Dollars, Canadian Dollars and Pounds Sterling,
and (iii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York City for the conduct of
substantially all of their commercial lending activities.
"Canadian Dollars" and "C$" each mean lawful money of Canada.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person as a lessee under Capitalized Leases which would be
shown as a liability on a balance sheet of such Person prepared in accordance
with Agreement Accounting Principles.
"Change" is defined in Section 3.2.
"Change in Control" means NOVA Corporation, British Gas, Chevron
Corporation, and/or the shareholders of the PEP Partners (as defined in the
Merger Agreement) including Xxxxx X. Xxxxxxx, Inc. shall cease to own, directly
or indirectly (i) at least 50% in the aggregate of the outstanding shares of
voting stock of the Borrower without giving effect to any equity issues by the
Borrower after the Closing Date (but after giving effect to any equity issued by
the Borrower to any one or more of NOVA Corporation, British Gas, Chevron
Corporation, the shareholders of the PEP Partners, and their successors,
including Xxxxx X. Xxxxxxx, Inc., or their respective Subsidiaries) or (ii) at
least 40% in the aggregate of the outstanding shares of voting stock of the
Borrower.
"Closing Date" means June 27, 1997.
"Co-Agent" means each of The Chase Manhattan Bank and NationsBank of Texas,
N.A. in their capacity as Co-Agents, and not in their respective individual
capacities as Lender.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
6
"Collateral Shortfall Amount" is defined in Sections 2.4 and 8.1(a).
"Commitment" means, for each Lender, the obligation of such Lender to make
Committed Loans of a particular Type not exceeding the amount set forth opposite
its signature below or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to Section 12.3.2 for such Type of
Loan, as such amount may be modified from time to time pursuant to the terms
hereof.
"Commitment Increase Effective Date" is defined in Section 2.22.
"Committed Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Committed Loans made by the relevant Lenders to the
Borrower at the same time, at the same Rate Option, for the same Interest Period
and of the same Type.
"Committed Borrowing Notice" is defined in Section 2.9.
"Committed Loan" means a Tranche A Committed Revolving Loan or a Tranche B
Loan.
"Competitive Bid Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of the
Tranche A Lenders to the Borrower at the same time, at the same interest basis,
and for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 2.3.6.
"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an Absolute Rate
Loan, as the case may be.
"Competitive Bid Margin" means the margin above or below the applicable
Eurodollar Base Rate offered for a Eurodollar Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added or subtracted from
such Eurodollar Base Rate.
"Competitive Bid Note" means a promissory note in substantially the form of
Exhibit "A-2" hereto, with appropriate insertions, duly executed and delivered
to the Agent by the Borrower for the account of a Tranche A Lender and payable
to the order of such Tranche A Lender, including any amendment, modification,
renewal or replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in the
form of Exhibit "H" hereto completed and delivered by a Tranche A Lender to the
Agent in accordance with Section 2.3.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit "F" hereto completed and delivered by the
Borrower to the Agent in accordance with Section 2.3.2.
7
"Compliance Certificate" is defined in Section 6.1.1(iii).
"Consent, Acknowledgment and Amendment" means a Consent, Acknowledgment and
Amendment substantially in the form of Exhibit K hereto.
"Consolidated Debt" means, as of any date of determination thereof, the
aggregate principal amount of all then outstanding Debt of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with Agreement
Accounting Principles as of such date.
"Consolidated EBITD" means, for any period, the sum of (a) Consolidated Net
Income (excluding income taxes) determined for such period; provided that there
shall be excluded (i) the income (or loss) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any Subsidiary of the
Borrower has an interest but in which any other Person (not the Borrower or any
of its Subsidiaries) has a joint interest with respect to which the equity
method of accounting is utilized, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower, or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person (other than a Person that is consolidated as a result of the Merger)
accrued prior to the date it becomes a Subsidiary of the Borrower or is merged
into or consolidated with the Borrower or any of its Subsidiaries or that
Person's Properties are acquired by the Borrower or any of its Subsidiaries, and
(iii) the income of any Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of that income is not at the time permitted by operation of the terms of its
charter or any agreement (other than the Existing Xxxxxx Indentures as in effect
on November 1, 1994), instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, plus (b) the Consolidated
Interest Expense for such period, plus (c) to the extent taken into account in
calculating Consolidated Net Income (excluding income taxes) referred to in
clause (a) of this definition, the aggregate amount of all costs and expenses
incurred as a result of the Destec Transaction, and of the Newco Combination,
respectively, plus (d) depreciation, depletion and amortization expense of the
Borrower and its Subsidiaries determined for such period on a consolidated basis
plus (e) without duplication, the amount of dividends or other distributions
actually paid to the Borrower or any of its Subsidiaries during such period to
the extent attributable to income from another period excluded pursuant to
clause (i) above; provided, however, for purposes of this definition,
extraordinary gains and losses shall be excluded from the calculation of
Consolidated Net Income.
"Consolidated Interest Expense" means, for any Rolling Period, the total
interest expense, whether paid or accrued (including, without limitation, that
attributable to Capitalized Leases), of the Borrower and its Subsidiaries
determined for such period on a consolidated basis in accordance with Agreement
Accounting Principles, including, without limitation, all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing plus or minus net amounts paid or payable or received or
receivable pursuant to interest rate swap, exchange, cap or similar agreements.
8
"Consolidated Net Fixed Price Book Deficit" means, as of any date of
determination for any specified period, (i) if the Natural Gas Projected
Contract Exposure for such period is a negative number, the absolute value of
such negative number, and (ii) otherwise, zero.
"Consolidated Net Income" means, for any period, the consolidated net
income of a Person and its Subsidiaries for such period as determined on a
consolidated basis in accordance with Agreement Accounting Principles.
"Consolidated Net Worth" means at any date the stockholders' equity of the
Borrower and its Subsidiaries determined on a consolidated basis in accordance
with Agreement Accounting Principles as of such date.
"Consolidated Tangible Net Worth" means at any date the stockholders'
equity of the Borrower and its Subsidiaries less their consolidated Intangible
Assets, all determined on a consolidated basis in accordance with Agreement
Accounting Principles as of such date. For purposes of this definition
"Intangible Assets" means the amount (to the extent reflected in determining
such stockholders' equity) of (a) all net write-ups (other than write-ups
resulting from foreign currency translations and write-ups of assets of a going
concern business made within twelve months after the acquisition of such
business) subsequent to December 31, 1993 in the book value of any Property
owned by the Borrower or any of its consolidated Subsidiaries and (b) all
unamortized debt discount and expense, goodwill, patents, trademarks, service
marks, trade names, copyrights, and organization or developmental expenses.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.10.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when and
as said corporate base rate changes.
"CUSA" is defined in the second recital.
"CUSA Assumed Debt" means the $155,373,000 aggregate principal amount of
CUSA's obligations under the CUSA Note, the payment of which was assumed by
Newco under the CUSA Assumption Agreement.
"CUSA Assumption Agreement" means the agreement dated as of the closing of
the Newco Combination pursuant to which Newco assumed CUSA's payment obligation
for the CUSA Assumed Debt.
9
"CUSA Note" means the demand promissory note dated August 25, 1994 payable
by CUSA to Chevron Capital U.S.A. Inc.
"Debt" means, with respect to any Person, (a) all indebtedness and other
obligations of such Person for the repayment of money borrowed, whether or not
represented by acceptances, bonds, debentures, notes, or other instruments or
securities, (b) all indebtedness and other obligations of such Person for the
deferred payment of the purchase price of any property or assets (other than
accounts payable on terms customary in the trade), (c) all Capitalized Lease
Obligations of such Person, and (d) all indebtedness and other obligations,
whether or not assumed by such Person, secured by any Lien (other than a Lien
permitted pursuant to Section 6.2.9 (other than clauses (iv), (vi) and (vii)
thereof)) on, or payable out of the proceeds of or production from, any Property
of such Person; provided, however, that in no event shall Debt described in any
of the foregoing categories (i) be duplicative of any Debt described in any
other such category, (ii) include Guaranties or (iii) include any Project
Financing that would not be shown as a liability on the financial statements of
the Borrower and its Subsidiaries on a consolidated basis; provided further,
that for purposes of the foregoing clauses (a), (b), (c) and (d), Debt shall
include, in the case of the Borrower and its Subsidiaries, only such obligations
as are shown as a liability on a consolidated balance sheet of the Borrower and
its Subsidiaries in accordance with Agreement Accounting Principles; provided
further that the Institutionally Targeted Capital Securities shall not
constitute Debt.
"Default" means an event described in Article VII.
"Destec" is defined in the fourth recital.
"Destec Contract" is defined in the fourth recital.
"Destec Transaction" is defined in the fourth recital.
"Documentary Letter of Credit" means a Letter of Credit which is a short
term, self-liquidating trade-related contingency.
"Dollar Equivalent" means on any day (a) with respect to any amount
denominated in U.S. Dollars, such amount and (b) with respect to any amount
denominated in an Alternative Currency, the amount of U.S. Dollars into which
such amount may be converted at the spot rate at which U.S. Dollars are offered
to the Agent in London for the Alternative Currency in which such amount is
denominated at approximately 11:00 a.m. (London time) on such day or if such day
is not a Business Day, on the immediately preceding Business Day.
"Draw Amount" is defined in Section 2.2.4.
"Draw Date" is defined in Section 2.2.4.
10
"Environmental Laws" means all applicable federal, state or local statutes,
laws, ordinances, codes, rules and regulations (including consent decrees and
administrative orders directed to the Borrower or any of its Subsidiaries)
relating to the protection of the environment and in effect in any and all
jurisdictions in which the Borrower or its Subsidiaries are conducting or at any
time have conducted business, or where any Property of the Borrower or any of
its Subsidiaries is located, or where any Hazardous Material generated by or
disposed of by the Borrower or any of its Subsidiaries is located, to the extent
applicable to each such business activity, Property or generation or disposal.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at a Eurodollar
Rate.
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes setting
forth Competitive Bid Margins pursuant to Section 2.3.
"Eurodollar Base Rate" means, with respect to any Eurodollar Interest
Period for any Eurodollar Loan, the lesser of (A) the rate per annum equal to
the average of the offered quotations appearing on Telerate Page 3750 (or if
such Telerate Page shall not be available, any successor or similar service as
may be selected by the Agent and the Borrower) as of 11:00 a.m., London time,
(or as soon thereafter as practicable) on the day two Business Days prior to the
first day of such Eurodollar Interest Period for dollar deposits having a term
comparable to such Eurodollar Interest Period or (B) the maximum interest rate
permitted pursuant to Section 2.20. If none of such Telerate Page 3750 nor any
successor or similar service is available, then the "Eurodollar Base Rate" shall
mean, with respect to any Eurodollar Interest Period for any applicable
Eurodollar Loan, the lesser of (A) the rate per annum determined by the Agent to
be the average of the rates quoted by the Reference Banks at approximately 11:00
a.m., London time, (or as soon thereafter as practicable) on the day two
Business Days prior to the first day of such Eurodollar Interest Period for the
offering by such Reference Banks to leading banks in the interbank market of
U.S. dollar deposits having a term comparable to such Eurodollar Interest Period
and in an amount comparable to the principal amount of the Eurodollar Loan of
such respective Reference Bank to which such Eurodollar Interest Period relates
or (B) the maximum interest rate permitted pursuant to Section 2.20. If any
Reference Bank does not furnish a timely quotation, the Agent shall determine
the relevant interest rate on the basis of the quotation or quotations furnished
by the remaining Reference Bank or Banks. Each determination of the Eurodollar
Base Rate shall be conclusive and binding, absent manifest error.
"Eurodollar Bid Rate" means, with respect to a Loan made by a given Tranche
A Lender for the relevant Eurodollar Interest Period, the sum of (i) the
Eurodollar Base Rate and (ii) the Competitive Bid Margin offered by such Tranche
A Lender and accepted by the Borrower pursuant to Section 2.3.6(i).
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which bears
interest at a Eurodollar Bid Rate.
11
"Eurodollar Bid Rate Loan" means a Competitive Bid Loan which bears
interest at a Eurodollar Bid Rate.
"Eurodollar Committed Advance" means a Tranche A Committed Advance or
Tranche B Advance, as the case may be, which bears interest at a Eurodollar Rate
requested by the Borrower pursuant to Section 2.1 or 2.10.
"Eurodollar Committed Loan" means a Tranche A Committed Revolving Loan or
Tranche B Loan, as the case may be, which bears interest at a Eurodollar Rate
requested by the Borrower pursuant to Section 2.1 or 2.10.
"Eurodollar Interest Period" means, with respect to a Eurodollar Committed
Advance, a Eurodollar Committed Loan, a Eurodollar Bid Rate Advance or a
Eurodollar Bid Rate Loan, a period of one, two, three, six, or (subject to
availability by each applicable Lender) nine or twelve months commencing on a
Business Day selected by the Borrower pursuant to this Agreement. Such
Eurodollar Interest Period shall end on (but exclude) the day which corresponds
numerically to such date one, two, three, six, nine or twelve months thereafter,
provided, however, that if there is no such numerically corresponding day in
such next, second, third, sixth, ninth or twelfth succeeding month, such
Eurodollar Interest Period shall end on the last Business Day of such next,
second, third, sixth, ninth or twelfth succeeding month. If a Eurodollar
Interest Period would otherwise end on a day which is not a Business Day, such
Eurodollar Interest Period shall end on the next succeeding Business Day,
provided, however, that if said next succeeding Business Day falls in a new
month, such Eurodollar Interest Period shall end on the immediately preceding
Business Day.
"Eurodollar Loan" means a Eurodollar Committed Loan or a Eurodollar Bid
Rate Loan, as applicable.
"Eurodollar Rate" means, with respect to a Eurodollar Committed Advance or
a Eurodollar Committed Loan for the relevant Eurodollar Interest Period, the sum
of (i) the quotient of (a) the Eurodollar Base Rate applicable to such
Eurodollar Interest Period, divided by (b) one minus the Reserve Requirement, if
any, (expressed as a decimal) applicable to such Eurodollar Interest Period plus
(ii) the Applicable Margin. The Eurodollar Rate shall be rounded, if necessary,
to the next higher 1/16 of 1%.
"Excess Exposure" is defined in Section 2.4.
"Existing Xxxxxx Subordinated Debt" means Debt of Xxxxxx under the Existing
Xxxxxx Indentures as amended to the date hereof, and hereafter as amended
consistent with Xxxxxx'x Subsidiary Guaranty.
"Existing Xxxxxx Indentures" means each of (i) the Indenture dated to be
effective as of September 9, 1993 between Xxxxxx NGL, Inc., Issuer, and
Ameritrust Texas National Association, Trustee, for $65,000,000 14% Senior
Subordinated Notes due 2001 and (ii) the Indenture dated to
12
be effective as of April 15, 1993 between Xxxxxx NGL, Inc., Issuer, and the
First National Bank of Boston, Trustee, for $105,000,000 10 1/4% Subordinated
Notes due 2003.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"First Amendment" is defined in the first recital.
"First Chicago" means The First National Bank of Chicago in its individual
capacity, and its successors.
"Fixed Price Contract" means, as of any date of determination, a contract
(including, without limitation, physical delivery, option (whether cash or
financial), exchange, swap and futures contracts) entered into by the Borrower
or any Subsidiary of the Borrower for the purchase or sale of Natural Gas, other
than (i) such a contract which has a remaining term of thirty (30) days or less
from such date of determination, or (ii) such a contract under which the
purchase or sale price of any portion of Natural Gas delivered or to be
delivered on or after such date of determination is calculated by reference to
(a) the spot price for Natural Gas current on each date of delivery at the place
of delivery specified in such contract, (b) the spot price for Natural Gas
current on each date of delivery at a place of delivery other than the place of
delivery specified in such contract provided that such spot price is adjusted to
reflect the cost of transporting Natural Gas to the place of delivery specified
in such contract, (c) a basket of price indices similar to the spot price for
Natural Gas current on each date of delivery at the place of delivery, or (d) a
basket of price indices similar to the then current spot price for Natural Gas
at a place of delivery other than the place of delivery specified in such
contract provided that each such price index is adjusted to reflect the cost of
transporting Natural Gas to the place of delivery specified in such contract;
provided, however, that no Processing Supply Contract shall be considered a
Fixed Price Contract for purposes of this Agreement.
"Fixed Rate" means the Eurodollar Rate, the Eurodollar Bid Rate or the
Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum equal to the Alternate
Base Rate for such day.
13
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Fourth Amendment" is defined in the first recital.
"Guarantor" means each of Natural Gas Clearinghouse; NGC Oil Trading and
Transportation, Inc., NGC Futures, Inc., Electric Clearinghouse, Inc., Kansas
Gas Supply Corporation, NGC Great Britain, Ltd., NGC Canada, Inc., Xxxxxx Energy
Resources, Limited Partnership, Xxxxxx Gas Liquids, Inc., Xxxxxx Gas Marketing,
Inc., Xxxxxx Intrastate Gas Supply, Inc., Xxxxxx NGL, Inc., Xxxxxx NGL Pipeline
Company, Xxxxxx Petroleum Company, Limited Partnership, WPC LP, Inc. and WTLPS,
Inc. and any other Subsidiary (direct or indirect) from time to time of the
Borrower that delivers a Subsidiary Guaranty pursuant to Section 6.1.3 and each
of their respective successors and assigns.
"Guarantor Discontinuance Test" means, with respect to any Subsidiary of
the Borrower, a Subsidiary which at the end of a calendar quarter has (i)
consolidated fixed assets plus net working capital with a book value of less
than $80,000,000 or (ii) 12% or less of the Consolidated EBITD for such calendar
quarter, as determined by the then most recent financial statements provided
pursuant to Section 6.1.1.
"Guaranty" means, with respect to any Person, (a) all indebtedness and
other obligations, contingent or otherwise, of such Person under or in respect
of any letter of credit issued for its own account, and (b) all indebtedness and
other obligations of such Person under any agreement, undertaking or other
arrangement by which such Person (i) assumes, guarantees, endorses (other than
the endorsement of instruments for collection in the ordinary course of
business), commits or agrees (whether or not such commitment or agreement is
contingent or subject to the occurrence of a specified event or events) to
purchase or otherwise acquire or provide funds for the payment of any obligation
or liability of any other Person or (ii) agrees to maintain the net worth,
working capital or any other financial condition of any other Person; provided,
however, in no event shall Guaranties described in any of the foregoing
categories include any Guaranties by a Project Financing Subsidiary that would
not be shown as a liability on the financial statements of the Borrower and its
Subsidiaries on a consolidated basis.
"Hazardous Material" means (a) any "hazardous substance," as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, and (b) any "hazardous waste," as defined by the Resource Conservation
and Recovery Act, as amended and (c) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material waste or substance within the meaning of
any applicable Environmental Law, all as amended or hereafter amended.
"Increasing Lender" is defined in Section 2.22(iii).
14
"Indemnified Party" is defined in Section 9.7.
"Information Memorandum" is defined in Section 5.10.
"Institutionally Targeted Capital Securities" means the capital securities
to be issued in an aggregate amount of up to $200,000,000 by a Delaware business
trust, the proceeds of which will be loaned to the Borrower or one or more of
its Subsidiaries all on terms substantially similar to the offering Memorandum
dated May 22, 1997.
"Interest Period" means a Eurodollar Interest Period or an Absolute Rate
Interest Period.
"Investment" of a Person means any loan, advance (other than commission,
relocation, travel and similar loans and/or advances to officers and employees
made in the ordinary course of business), extension of credit (other than
Guaranties, accounts receivable arising in the ordinary course of business on
terms customary in the trade and prepayments made and production payments
acquired in the ordinary course of business), or contribution of capital by such
Person to any other Person or any investment in, or purchase or other
acquisition of, the stock, partnership interests, notes, debentures or other
securities of any other Person made by such Person.
"Invitation for Competitive Bid Quotes" means an Invitation for Competitive
Bid Quotes substantially in the form of Exhibit "G" hereto, completed and
delivered by the Agent to the Tranche A Lenders in accordance with Section
2.3.3.
"Issuance Date" means, for each Letter of Credit, the date on which such
Letter of Credit is issued hereunder.
"Issuance Request" means either (i) a credit issuance request in
substantially the form attached to this Agreement as Exhibit "C-1" hereto, with
all blanks appropriately completed and duly executed and delivered by an
Authorized Representative on behalf of the Borrower, or (ii) a request for the
issuance of a Letter of Credit by First Chicago made by the Borrower through
First Chicago's FirstTrade System pursuant to the FirstTrade Services Agreement
between the Borrower and First Chicago dated as of August 18, 1989, as amended
or replaced from time to time.
"Issuer" means with respect to each Letter of Credit, the Tranche A Lender
that issues such Letter of Credit and shall be either First Chicago or, for
Letters of Credit with a Dollar Equivalent of the Stated Amount of $5,000,000 or
more, First Chicago or a Tranche A Lender other than First Chicago which has
agreed in writing to issue one or more such Letters of Credit under this
Agreement. The Borrower shall indicate in the Issuance Request to the Agent and
any such Tranche A Lender with respect to each Letter of Credit who the Issuer
shall be for such Letter of Credit.
"Laws" means all statutes, laws, ordinances, regulations, orders, writs,
injunctions, or decrees of the United States, any state, any foreign country, or
any other Tribunal.
15
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and the lending institutions that hereafter become parties hereto
pursuant to Section 12.3.
"Lending Installation" means, with respect to a Lender, any office, branch,
subsidiary or affiliate of such Lender.
"Letter of Credit" means (i) a Documentary Letter of Credit or a Standby
Letter of Credit or similar instrument which is issued pursuant to this
Agreement for which the Borrower is liable and (ii) each letter of credit
outstanding on the Closing Date listed on Schedule 3 hereto which letters of
credit will be deemed to be issued and outstanding under this Agreement as of
the Closing Date.
"Letter of Credit Collateral Account" has the meaning in Section 2.2.10.
"Letter of Credit Sublimit" is defined in Section 2.2.2.
"Leverage Ratio" means the ratio, expressed as a percentage, of
Consolidated Debt to the sum of Consolidated Debt plus Consolidated Net Worth.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, security interest, encumbrance or preference,
priority or other security agreement or any interest in Property to secure
payment of a debt or performance of an obligation (including, without
limitation, the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance of a particular Type.
"Loan Documents" means this Agreement, each of the Notes, each of the
Subsidiary Guaranties, each Competitive Bid Quote Request, each Issuance
Request, each Committed Borrowing Notice, the agreement with respect to fees
referred to in Section 2.21, together in each case with all exhibits, schedules
and attachments thereto, and all other agreements, documents, certificates and
instruments from time to time executed and delivered by the Borrower or any of
its Subsidiaries pursuant to or in connection with any of the foregoing.
"Maintenance Capital Expenditure" means, for any Rolling Period, any
capital expenditure to maintain the Property of the Borrower and its
Subsidiaries in good working condition in accordance with industry standards.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, financial condition or results of operations of the Borrower
and its Subsidiaries taken as a whole, or (ii) the ability of the Borrower to
perform its payment obligations under any of the Loan Documents.
16
"Material Agreement" means any contract or agreement to which the Borrower
or any of its Subsidiaries is a party which is material to the consolidated
financial condition or operations of the Borrower and its Subsidiaries, and
includes, without limitation, the Existing Xxxxxx Indentures.
"Merger" means the merger, consolidation or combination of NGC's partners
into or with the Borrower, with the Borrower being the surviving corporation
pursuant to the Merger Agreement.
"Merger Agreement" means the Combination Agreement and Plan of Merger by
and among Natural Gas Clearinghouse and Trident NGL Holding, Inc. and others
dated as of October 21, 1994.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto
that is a nationally-recognized rating agency.
"Multiemployer Plan" means a "multiemployer plan" within the meaning of
Section 4001(a)(3) of ERISA to which the Borrower or any member of the
Controlled Group is obligated to make contributions.
"NACII" is defined in the fourth recital.
"Natural Gas" means all gaseous hydrocarbons including, but not limited to
oil well gas, gas well gas, and casinghead gas but excluding any natural gas
liquids.
"Natural Gas Fixed Price Book Report" means, for any calendar month, a
report prepared pursuant to the same procedures and methods of calculation used
to prepare the Natural Gas fixed price book report dated February 28, 1995
delivered to the Agent which report sets out (i) the net open supply or market
position in MMBTU's resulting from all Fixed Price Contracts for the purchase or
sale of Natural Gas to be delivered during such month, and (ii) the net profit
or loss in dollars resulting from all Fixed Price Contracts for the purchase or
sale of Natural Gas to be delivered during such month.
"Natural Gas Monthly Market Exposure" means, for any calendar month, (i) an
amount (such amount being a positive number in the case of a net profit and a
negative number in the case of a net loss) equal to the net profit or loss in
dollars which would be shown on a Natural Gas Fixed Price Book Report for such
calendar month as a result of all Fixed Price Contracts for the purchase and
sale of Natural Gas to be delivered during such month, minus (ii) the aggregate
amount of dollars of profit included in calculating such net profit or loss to
reflect all profitable Fixed Price Contracts for the purchase or sale of Natural
Gas to be delivered during such month under which the counterparty (i.e. the
party thereto other than the Borrower or a Subsidiary of the Borrower) is in
default except to the extent the obligations of such counterparty are secured by
cash, cash equivalent investments or readily marketable securities or other
similar assets or by one or more letters of credit or are subject to set off by
the Borrower or any of its Subsidiaries, plus (iii) the aggregate amount of
dollars of loss included in calculating such net profit or loss to reflect all
unprofitable Fixed Price Contracts for the purchase or sale of Natural Gas to be
delivered during such month under which the
17
counterparty (i.e. the party thereto other than the Borrower or a Subsidiary of
the Borrower) is in default.
"Natural Gas Projected Contract Exposure" means, for any period, the sum
(which sum may be either positive or negative and shall be calculated by netting
the net profit and net loss Natural Gas Monthly Market Exposures) of the Natural
Gas Monthly Market Exposures for each full calendar month included in such
period.
"Negative Pledge" means, with respect to any Person, any agreement which
prohibits or limits the creation by such Person of any Lien in, of or on any of
the property, assets or revenue of such Person.
"New Lender" is defined in Section 2.22(iii).
"Newco" means Midstream Combination Corp., a Delaware corporation.
"Newco Combination" means the merger of the Borrower into Newco pursuant to
the Newco Combination Agreement.
"Newco Combination Agreement" means that certain Combination Agreement and
Plan of Merger among NGC Corporation, Chevron U.S.A. Inc., and Midstream
Combination Corp. dated May 22, 1996.
"New Funds Amount" means the amount by which a New Lender's or an
Increasing Lender's outstanding Tranche A Committed Revolving Loans increase as
of a Commitment Increase Effective Date (without regard to any such increase as
a result of Advances made on such Commitment Increase Effective Date).
"NGC" means Natural Gas Clearinghouse, a general partnership organized
under the laws of the state of Colorado.
"Notes" means, collectively, the Competitive Bid Notes, the Tranche A
Committed Notes and the Tranche B Notes; and "Note" means any one of the Notes.
"Notice of Assignment" is defined in Section 12.3.2.
"Notice of Commitment Increase" is defined in Section 2.22.
"Obligations" means all unpaid principal of and accrued and unpaid interest
on the Notes, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders or to any
Lender, the Agent or any Indemnified Party arising under any of the Loan
Documents.
18
"Obligors" means the Borrower and each Guarantor, and their successors and
assigns.
"Original Credit Agreement" is defined in the first recital.
"Out of Funds Period" means the period from and including a Draw Date to
but excluding the date a Tranche A Lender provides the Agent immediately
available and freely transferable funds equal to such Tranche A Lender's
Percentage of the drawing under a Letter of Credit which took place on such Draw
Date.
"Partially Increasing Lender" is defined in Section 2.22(iii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last Business Day of each calendar quarter.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Percentage" means, (i) as to any Tranche A Lender at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Lender's Tranche A Commitment divided by the Tranche
A Aggregate Commitment and (ii) as to any Tranche B Lender (A) at any time prior
to the Tranche B Commitments expiring or being terminated in full, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Lender's Tranche B Commitment divided by the Tranche
B Aggregate Commitment and (B) at any time thereafter, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place) of such Tranche B
Lender's outstanding Tranche B Loans divided by the aggregate of the outstanding
Tranche B Loans.
"Permitted Liens" means any one or more of the following: (a) Liens for
taxes, assessments or other governmental charges or levies either not yet
delinquent or which are being contested in good faith by appropriate proceedings
diligently prosecuted and as to which adequate reserves shall have been set
aside in conformity with Agreement Accounting Principles, (b) deposits or
pledges to secure the payment of workers' compensation, unemployment insurance,
social security benefits or obligations arising under similar legislation, or to
secure the performance of public or statutory obligations, surety or appeal
bonds, and other obligations of a like nature incurred in the ordinary course of
business, (c) materialmen's, mechanics', workmen's, repairmen's, employees's,
landlord's, lessor's or other like Liens arising in the ordinary course of
business to secure obligations not more than 30 days past due or being contested
in good faith and as to which adequate reserves shall have been set aside in
conformity with Agreement Accounting Principles or as to which adequate bonds
shall have been obtained, (d) Liens arising under Section 9.319 of the Texas
Uniform Commercial Code or similar statutes of states other than Texas, (e)
zoning restrictions, easements, rights-of-way, restrictions, servitudes,
permits, reservations, encroachments, exceptions, conditions, covenants, and any
other restrictions on the use of real property none of which materially impairs
the use of such property by the owner of such property in the operation of its
business, (f) liens in favor of the Agent
19
for pro rata benefit of Lenders, or to the Lenders to secure the Obligations,
(g) inchoate Liens arising under ERISA, (h) Liens reserved in customary oil, gas
and/or mineral leases for bonus or rental payments and for compliance with the
terms of such leases and Liens reserved in customary operating agreements, farm-
out and farm-in agreements, exploration agreements, development agreements and
other similar agreements for compliance with the terms of such agreements, (i)
any obligations or duties affecting any of the Property of any Person to any
municipality or public authority with respect to any franchise, grant, license
or permit which do not materially impair the use of such Property for the
purposes for which it is held, (j) defects, irregularities and deficiencies in
title to any Property of any Person which in the aggregate do not materially
impair the use of such Property for the purposes for which such Property is held
by the Borrower, and defects, irregularities and deficiencies in title to any
Property of the Borrower which defects, irregularities or deficiencies have been
cured by possession under applicable statutes of limitation, (k) royalties,
overriding royalties, revenue interests, net revenue interests, production
payments (other than royalties, overriding royalties, revenue interests, net
revenue interests or production payments granted or created by such Person or
any of its Subsidiaries in the ordinary course of business in connection with,
or having the effect of, the borrowing of money), advance payment obligations
(other than obligations in respect of advance payment received by such Person or
any of its Subsidiaries in connection with, or having the effect of, the
borrowing of money) and other similar burdens now existing on Properties now
owned or, as to Properties hereafter acquired, at the time of acquisition by
such Person, (l) Liens arising out of all presently existing and future division
and transfer orders, advance payment agreements, processing contracts, gas
processing plant agreements, operating agreements, gas balancing or deferred
production agreements, pooling, unitization or communitization agreements,
pipeline, gathering or transportation agreements, platform agreements, drilling
contracts, injection or repressuring agreements, cycling agreements,
construction agreements, salt water or other disposal agreements, leases or
rental agreements (but only as otherwise permitted by this Agreement), farm-out
and farm-in agreements, exploration and development agreements, and any and all
other contracts or agreements covering, arising out of, used or useful in
connection with or pertaining to the exploration, development, operation,
production, sale, use, purchase, exchange, storage, separation, dehydration,
treatment, compression, gathering, transportation, processing, improvement,
marketing, disposal or handling of any Property of a Person, provided such
agreements are entered into the ordinary course of business and contain terms
customary for such agreements in the industry, and (m) in the case of the
Borrower and its Subsidiaries, other minor liens or encumbrances none of which
interferes materially with the use of the Property affected in the ordinary
conduct of the Borrower's and/or its Subsidiaries business and which
individually or in the aggregate do not have a Material Adverse Effect.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, limited liability company, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
20
"Pounds Sterling" and "(Pounds)" each mean lawful money of the United
Kingdom.
"Processing Supply Contract" means any contract (including, without
limitation, physical delivery, option (whether cash or financial), exchange,
swap and futures contracts) entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business for the purpose of managing the
impact of price fluctuations on natural gas supply costs related to any natural
gas processing activity conducted by the Borrower or any of its Subsidiaries.
"Project Financing" shall mean any Debt or other obligations under leases
that do not constitute Capitalized Lease Obligations at the time such leases are
entered into, in each case that are incurred to finance a project (including any
construction financing) and that do not permit recourse to the Borrower or any
of its Subsidiaries (other than a Project Financing Subsidiary) or any of their
respective Property other than the Property of a Project Financing Subsidiary.
"Project Financing Subsidiary" shall mean (i) any Subsidiary of the
Borrower or (ii) any other Person in which the Borrower owns a 50% or less
interest, in each case, whose principal purpose is to incur Project Financing or
to become an owner of interests in a Person so created to conduct the business
activities for which such Project Financing was incurred, and substantially all
the fixed assets of which Subsidiary or Person are those fixed assets being
financed (or to be financed) in whole or in part by one or more Project
Financings.
"Prompt Month" means, as of any date of determination, the first month
thereafter for which NYMEX Natural Gas futures contracts are trading.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person, and includes, without limitation, stock, partnership
and limited liability company interests owned or held in any other Person by
such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Option" means the Fixed Rate or the Floating Rate.
"Rating Agency" means either of S&P or Moody's.
"Reducing Lender" is defined in Section 2.22(iii).
"Reduction Amount" means the amount by which a Reducing Lender's or a
Partially Increasing Lender's outstanding Loans decrease as of a Commitment
Increase Effective Date (without regard to any such increase as a result of
Advances made on such Commitment Increase Effective Date).
"Reference Banks" means each of the Agent and the Co-Agents.
21
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Single
Employer Plan, excluding, however, such events as to which the PBGC by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means, (i) at any time prior to the Tranche B
Commitments expiring or being terminated in full, Lenders in the aggregate
having at least 60% of the Aggregate Commitment and (ii) at any time thereafter,
Lenders in the aggregate holding at least 60% of the sum of the aggregate of the
outstanding Tranche B Loans plus the Aggregate Commitment or, if the entire
Aggregate Commitment has been terminated, Lenders in the aggregate holding at
least 60% of the aggregate unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a Eurodollar Interest Period,
the maximum aggregate reserve requirement, if any, (including all basic,
supplemental, marginal and other reserves) which is imposed on Eurocurrency
liabilities (in the case of Eurodollar Committed Advances or Eurodollar
Committed Loans). The Reserve Requirement shall be adjusted automatically on
and as of the effective date of any change in the applicable reserve
requirement.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"Rolling Period" means for each calendar quarter, such quarter and the
three preceding calendar quarters.
"S&P" means Standard & Poor's Ratings Group and any successor thereto that
is a nationally-recognized rating agency.
"Scheduled Debt Service" means, for any Rolling Period, the sum of all
scheduled, required and mandatory principal payments of the Borrower and its
Subsidiaries on a consolidated basis in accordance with Agreement Accounting
Principles plus Consolidated Interest Expense for such Rolling Period, provided,
that for purposes of this definition, principal owing in respect of the CUSA
22
Assumed Debt as a result of a demand for payment thereof being made by CUSA
prior to the stated maturity thereof shall not be a scheduled, required or
mandatory principal payment of the Borrower and its Subsidiaries.
"Second Amendment" is defined in the first recital.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan that is not a Multiemployer Plan.
"Specified Amount" is defined in Section 6.2.2.
"Standby Letter of Credit" means a Letter of Credit (other than a
Documentary Letter of Credit).
"Stated Amount" means the original amount of a Letter of Credit as reduced
(i) by any drawings thereunder or (ii) pursuant to a provision of such Letter of
Credit which provides for one or more reductions in the amount drawable
thereunder and as increased or reinstated pursuant to a provision of such Letter
of Credit which provides for one or more increases in or reinstatements of the
amount drawable thereunder.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any
partnership, association, joint venture, limited liability company or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean a direct or
indirect Subsidiary of the Borrower.
"Subsidiary Guaranty" means (i) in the case of NGC or any Subsidiary of the
Borrower (other than Xxxxxx and its Subsidiaries) the Guaranty Agreement
substantially in the form of Exhibit "J-1", (ii) in the case of Xxxxxx and its
Subsidiaries, the Guaranty Agreement substantially in the form of Exhibit "J-2"
and (iii) each "Subsidiary Guaranty" outstanding under the Original Credit as
amended by the Consent, Acknowledgment and Amendment delivered pursuant to
Section 4.1(vi), as amended or modified from time to time.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (i) represents more than 15% of the
consolidated assets of the Borrower and its Subsidiaries as shown in the
consolidated financial statements of the Borrower and its Subsidiaries most
recently delivered to the Lenders pursuant to Section 6.1.1 (or, if no such
statements have been delivered, the statements referred to in Section 5.4) or
(ii) is responsible for
23
more than 15% of the Consolidated EBITD for the Rolling Period ending with the
calendar quarter immediately prior to the quarter in which such determination is
made.
"Third Amendment" is defined in the first recital.
"Tranche A Active Aggregate Revolving Commitment" means, at any time, the
Tranche A Aggregate Revolving Commitment minus the Tranche A Inactive Aggregate
Revolving Commitment.
"Tranche A Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Tranche A Committed Revolving Loans made by some or all of
the Tranche A Lenders to the Borrower on the same Borrowing Date, at the same
Rate Option and for the same Interest Period or a Competitive Bid Advance on the
same interest basis.
"Tranche A Aggregate Revolving Commitment" means $550,000,000 as reduced
from time to time pursuant to the terms hereof; provided, that the Tranche A
Aggregate Revolving Commitment shall be no more than $550,000,000 (or such
increased amount as may be established pursuant to Section 2.22) reduced by
$22,500,000 per quarter commencing June 30, 1998 and on the last Business Day of
each fiscal quarter thereafter.
"Tranche A Commitment" means, for each Tranche A Lender, the obligation of
such Lender to make Tranche A Committed Revolving Loans not exceeding the amount
set forth opposite its signature below or as set forth in any Notice of
Assignment relating to any assignment that has become effective pursuant to
Section 12.3.2, as such amount may be modified from time to time pursuant to the
terms hereof.
"Tranche A Committed Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Tranche A Committed Revolving Loans made by some
or all of the Tranche A Lenders to the Borrower on the same Borrowing Date, at
the same Rate Option and for the same Interest Period.
"Tranche A Committed Note" means a promissory note in substantially the
form of Exhibit "A-1" hereto, with appropriate insertions, duly executed and
delivered to the Agent by the Borrower for the account of a Tranche A Lender and
payable to the order of such Tranche A Lender in the amount of its Tranche A
Commitment, including any amendment, modification, renewal or replacement of
such promissory note.
"Tranche A Committed Revolving Loan" means a Loan made by a Tranche A
Lender pursuant to Section 2.1.1(i).
"Tranche A Inactive Aggregate Revolving Commitment" means $100,000,000 as
from time to time (i) reclassified as Tranche A Active Aggregate Revolving
Commitment pursuant to Section 2.6.1, (ii) increased pursuant to Section 2.22 or
(iii) reduced pursuant to the terms hereof; provided,
24
that all reductions to the Tranche A Aggregate Revolving Commitment shall be
first effected as reductions of the Tranche A Inactive Aggregate Revolving
Commitment (as opposed to the Tranche A Active Aggregate Revolving Commitment)
until it is terminated or reduced to zero and then as reductions of the Tranche
A Active Aggregate Revolving Commitment.
"Tranche A Lender" means a Lender identified as a Tranche A Lender on the
signature pages hereto and any successor or assign thereof.
"Tranche A Loan" means a Loan made by a Tranche A Lender pursuant to
Section 2.1.1.
"Tranche A Revolving Advance" means an Advance pursuant to Section
2.1.1(i).
"Tranche A Revolving Facility" is defined in Section 2.1.1.
"Tranche A Revolving Facility Termination Date" means the earlier of March
14, 2000 and the date on which the Tranche A Active Aggregate Revolving
Commitment shall have been reduced to zero pursuant to Section 2.6.3.
"Tranche B Advance" means a borrowing hereunder consisting of the aggregate
amount of several Tranche B Loans made by the Tranche B Lenders to the Borrower
on the same Borrowing Date, at the same Rate Option and for the same Interest
Period.
"Tranche B Aggregate Commitment" means $400,000,000 as reduced from time to
time pursuant to the terms hereof.
"Tranche B Commitment" means, for each Tranche B Lender, the obligation of
such Lender to make Tranche B Loans not exceeding the amount set forth opposite
its signature below or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to Section 12.3.2, as such amount
may be modified from time to time pursuant to the terms hereof.
"Tranche B Facility" is defined in Section 2.1.4.
"Tranche B Facility Termination Date" means the date two (2) years from the
Closing Date.
"Tranche B Lender" means a Lender identified as a Tranche B Lender on the
signature pages hereto and any successor or assign thereof.
"Tranche B Loan" means a Loan made by a Lender pursuant to Section 2.1.4.
"Tranche B Note" means a promissory note in substantially the form of
Exhibit "A-2" hereto, with appropriate insertions, duly executed and delivered
to the Agent by the Borrower for the account of a Tranche B Lender and payable
to the order of such Tranche B Lender in the amount of
25
its Tranche B Commitment, including any amendment, modification, renewal or
replacement of such promissory note.
"Transferee" is defined in Section 12.4.
"Tribunal" means any state, commonwealth, federal, foreign, territorial, or
other court or governmental department, commission, board, bureau, agency, or
instrumentality or any properly convened arbitration.
"Type" means, with respect to any Committed Advance, its nature as a
Floating Rate Advance or Eurodollar Advance and with respect to any Competitive
Bid Advance, its nature as a Eurodollar Bid Rate Advance or Absolute Rate
Advance.
"UCC" means the Uniform Commercial Code in effect from time to time in the
State of Illinois.
"U.S. Dollars" and "$" each mean lawful money of the United States.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested nonforfeitable benefits under all Single Employer Plans exceeds
the fair market value of all such Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans.
"Unmatured Default" means an event or condition which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
"Xxxxxx" means Xxxxxx NGL, Inc., a Delaware corporation.
"Xxxxxx Intercompany Credit Agreement" means a credit agreement entered
into by the Borrower and Xxxxxx.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
1.2 Accounting Terms and Other Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with Agreement Accounting
Principles. The words "herein," "hereof," "hereunder," and words of similar
import refer to this Agreement as a whole and not to a particular article,
section, paragraph or other subdivision. All other terms used herein shall have
the meanings stated herein or, if not otherwise defined herein, the meanings for
such terms provided in the UCC.
26
1.3 Currency References. Unless otherwise specified herein, all dollar
amounts expressed herein shall refer to U.S. Dollars. Except as otherwise
herein specified, for purposes of calculating compliance with the terms of this
Agreement and the other Loan Documents (including for purposes of calculating
compliance with the covenants), each obligation or calculation shall be
converted to its Dollar Equivalent.
ARTICLE II
THE FACILITY
2.1 The Facilities.
2.1.1 Description of the Tranche A Revolving Facility. The Tranche A
Lenders grant to the Borrower a revolving credit facility (the "Tranche A
Revolving Facility") pursuant to which, and upon the terms and subject to the
conditions herein set out and provided that no Default or Unmatured Default has
occurred and is continuing:
(i) each Tranche A Lender severally agrees to make Tranche A
Committed Revolving Loans in U.S. Dollars to the Borrower in accordance
with Section 2.1.3; provided, that in no event may the sum of such Tranche
A Lender's share of the outstanding principal amount of Tranche A Revolving
Advances, plus such Tranche A Lender's Percentage of the Dollar Equivalent
of the Stated Amount of outstanding Letters of Credit plus such Tranche A
Lender's Percentage of the Dollar Equivalent of the reimbursement
obligations to the Issuers of Letters of Credit with respect to the amounts
paid by such Issuers pursuant to Letters of Credit which reimbursement
obligations have not been repaid by the Borrower and have not been deemed
to be automatic Floating Rate Advances pursuant to Section 2.2.3 exceed
such Tranche A Commitment;
(ii) the Issuers severally agree to issue Letters of Credit and
the Tranche A Lenders agree with the Issuers to acquire participations in
the Letters of Credit in accordance with Section 2.2;
(iii) each Tranche A Lender may, in its sole discretion, make bids
to make Competitive Bid Loans in U.S. Dollars to the Borrower in accordance
with Section 2.3; and
(iv) in no event may the sum of the aggregate principal amount of
all outstanding Tranche A Revolving Advances plus all Competitive Bid
Advances plus the Dollar Equivalent of the Stated Amount of outstanding
Letters of Credit plus the Dollar Equivalent of the reimbursement
obligations to the Issuers of Letters of Credit with respect to the amounts
paid by such Issuers pursuant to Letters of Credit which reimbursement
obligations have not been repaid by the Borrower and have not been deemed
to be automatic Floating Rate Advances pursuant to Section 2.2.3 exceed the
Tranche A Active Aggregate Revolving Commitment.
27
2.1.2 Availability of Tranche A Revolving Facility. Subject to the terms
of this Agreement, the Tranche A Revolving Facility is available to the Borrower
from the date of this Agreement to the Tranche A Revolving Facility Termination
Date, and the Borrower may borrow, repay and reborrow, or obtain Letters of
Credit under the Tranche A Revolving Facility at any time prior to the Tranche A
Revolving Facility Termination Date.
2.1.3 Tranche A Committed Advances. Each Tranche A Committed Advance
hereunder shall consist of borrowings made from the several Tranche A Lenders
ratably in proportion to their respective Percentage. The Tranche A Committed
Advances shall be evidenced by the Tranche A Committed Notes.
2.1.4 Description of Tranche B Facility. The Tranche B Lenders grant to
the Borrower a term credit facility (the "Tranche B Facility") pursuant to
which, and upon the terms and subject to the conditions herein set out:
(i) each Tranche B Lender severally agrees to make Tranche B
Loans in U.S. Dollars to the Borrower in accordance with Section 2.1.6; and
(ii) in no event may the sum of the aggregate principal amount of
all outstanding Tranche B Advances to the Borrower exceed the Tranche B
Commitment.
2.1.5 Availability of Tranche B Facility. Subject to the terms of this
Agreement, the Tranche B Facility is available for borrowing from the date of
this Agreement until the end of the 10th Business Day following the closing of
the Destec Transaction at which time any unutilized portion of the Tranche B
Commitment shall be deemed permanently cancelled. Amounts repaid on the Tranche
B Facility may not be reborrowed.
2.1.6 Tranche B Committed Advances. Each Tranche B Committed Advance
hereunder shall consist of borrowings made from the several Tranche B Lenders
ratably in proportion to their respective Tranche B Lender's Percentage. The
Tranche B Committed Advances shall be evidenced by the Tranche B Notes.
2.2 Letters of Credit.
2.2.1 Issuance of Letters of Credit. Subject to the terms and conditions
of this Agreement, and provided that no Default or Unmatured Default has
occurred and is continuing and the Borrower has provided the Agent and the
applicable Issuer with an Issuance Request, the applicable Issuer will issue one
or more Letters of Credit from time to time prior to the Tranche A Revolving
Facility Termination Date for the account of the Borrower; it being understood
and agreed that subject to the other terms of this Agreement the Borrower may
obtain for its account Letters of Credit on behalf of any of its Subsidiaries.
Each Letter of Credit shall be issued for the purpose of securing the trade
payables or other obligations of the Borrower or a Subsidiary or Affiliate of
the Borrower and shall be in such form as shall be reasonably acceptable to the
Agent and the applicable Issuer and all legal
28
and regulatory matters in respect of each Letter of Credit to be issued by an
Issuer shall be reasonably satisfactory to such Issuer and its counsel. Each
Issuer will immediately notify the Agent of the issuance of each Letter of
Credit by such Issuer and immediately provide a copy of each Letter of Credit
issued by such Issuer to the Agent; provided that the failure to so notify the
Agent or so provide a copy to the Agent shall not limit or impair the Borrower's
Obligations hereunder, including, without limitation, its Obligations to
reimburse drawings under or in respect of each such Letter of Credit. Subject to
the other terms and conditions hereof, upon the request of the Borrower, if
First Chicago is the designated Issuer, First Chicago shall issue the applicable
Letter of Credit and if any other Tranche A Lender is the designated Issuer,
such Lender may, but shall not be obligated to, issue such Letter of Credit.
Subject to the terms of this Agreement, the amount, expiry date, date of
issuance, the currency (which may be U.S. Dollars, Canadian Dollars or Pounds
Sterling) and the beneficiary of each Letter of Credit shall be as specified by
the Borrower in a written Issuance Request delivered to the Agent and the
applicable Issuer (by messenger, mail or electronic transmission, including
facsimile transmission) not less than two (2) Business Days prior to the
requested date of issuance. Within ten (10) days after the beginning of each
month, the Agent shall give each Tranche A Lender written notice of all Letters
of Credit issued during the preceding month. The Letters of Credit shall not
have an expiration date later than 5:00 p.m. (Chicago time) on the Tranche A
Revolving Facility Termination Date.
2.2.2 Aggregate Amount Available under Letters of Credit. The aggregate
Dollar Equivalent of the Stated Amount of all Letters of Credit outstanding at
any one time shall not exceed $300,000,000, or, if less, the Tranche A Active
Aggregate Revolving Commitment (the "Letter of Credit Sublimit") and after
issuance of a Letter of Credit, the Dollar Equivalent of the Stated Amount of
all Letters of Credit plus the Dollar Equivalent of the reimbursement
obligations to the Issuers of Letters of Credit with respect to the amounts paid
by such Issuers pursuant to Letters of Credit which reimbursement obligations
have not been repaid by the Borrower and have not been deemed to be automatic
Floating Rate Advances pursuant to Section 2.2.3, plus the aggregate principal
amount of outstanding Tranche A Revolving Advances, plus all Competitive Bid
Advances shall not exceed the Tranche A Active Aggregate Revolving Commitment.
2.2.3 Reimbursement of Issuer; Automatic Advances. The Borrower hereby
irrevocably agrees that it shall provide the Agent with immediately available
and freely transferable funds in an amount equal to the amount (and in the
currency) to be paid by an Issuer upon any drawing under a Letter of Credit by
noon (Chicago time) on the date on which such drawing is to be paid by the
applicable Issuer. Each Issuer shall promptly notify the Borrower and the Agent
on the Business Day (which may be telephonic, promptly confirmed by telecopy)
that a draw request or demand has been made under a Letter of Credit. Any funds
received by the Agent from the Borrower pursuant to the immediately preceding
sentence with respect to a draw or demand under a Letter of Credit shall be
promptly paid by the Agent to the Issuer of such Letter of Credit to reimburse
the Issuer of such Letter of Credit for the amount (and in the currency)
actually disbursed by the Issuer of such Letter of Credit pursuant to such draft
or demand. If the Borrower does not request or is not eligible for a Tranche A
Advance hereunder and does not otherwise provide the Agent with funds, in the
amount (and in the currency) and on the date necessary to settle the
obligations of the Issuer under any draft
29
drawn or demand made under a Letter of Credit (whether at or prior to the
expiration of such Letter of Credit) issued for its account, the Borrower will
be deemed to have given a Committed Borrowing Notice to the Agent requesting
that the Tranche A Lenders make a Tranche A Revolving Advance which is a
Floating Rate Advance on the date on which such drawing is honored in an amount
equal to the Dollar Equivalent of such drawing and, to the extent permitted by
law, the Tranche A Lenders shall make, and the Borrower shall accept, a Floating
Rate Advance (consisting of Tranche A Committed Revolving Loans made by the
Tranche A Lenders pro rata in accordance with their respective Tranche A
Lenders' Percentages) in the Dollar Equivalent of the amount actually disbursed
by the Issuer of such Letter of Credit pursuant to such draft or demand;
provided, that to the extent such Floating Rate Advance cannot be made or
accepted and the Borrower does not provide the Agent with immediately available
and freely transferable funds in such amount and in the relevant currency, the
reimbursement obligation shall bear interest (calculated for the actual number
of days elapsed on the basis of a year consisting of 365, or when appropriate
366, days) until paid at a rate per annum equal to the rate that would have been
in effect if a Floating Rate Advance had been made, with respect hereto. Such
Floating Rate Advance shall be made as of the date of such settlement of such
Letter of Credit. The proceeds of such Floating Rate Advance shall be paid by
the Tranche A Lenders to the Agent for payment to the Issuer of such Letter of
Credit (and the Agent shall promptly pay such proceeds to such Issuer) to
reimburse the Issuer of such Letter of Credit for each Tranche A Lender's
Percentage of the Dollar Equivalent of the amount actually disbursed by the
Issuer of such Letter of Credit pursuant to such draft or demand. In the event
that the Issuer of a Letter of Credit makes the Draw Amount available to the
beneficiary of such Letter of Credit and the Dollar Equivalent of such amount
made available by the Tranche A Lenders to the Agent for payment to the Issuer
is not sufficient to enable the Issuer to obtain Alternative Currency equal to
the entire Draw Amount, the Borrower shall pay the Agent on demand for the
benefit of such Issuer an amount equal to the Dollar Equivalent required to
enable the Issuer to obtain Alternative Currency equal to the Draw Amount. In
the event that the Tranche A Lenders shall have reimbursed the Issuer pursuant
to Section 2.2.4 for any funds disbursed by such Issuer pursuant to any draft
drawn or demand made under a Letter of Credit issued in an Alternative Currency,
at the option of such Issuer, and notwithstanding the first sentence of this
Section 2.2.3, the Borrower shall be obligated to reimburse the Issuer in U.S.
Dollars, rather than in the Alternative Currency.
2.2.4 Lender Participation. Immediately upon issuance by an Issuer of any
Letter of Credit in accordance with the procedures set forth in Section 2.2.1,
and on the Closing Date in the case of the Letters of Credit referred to in
clause (ii) of the definition of Letter of Credit, each Tranche A Lender shall
be deemed to have irrevocably and unconditionally purchased and received from
that Issuer, without recourse or warranty, an undivided interest and
participation to the extent of such Tranche A Lender's Percentage in such Letter
of Credit (including, without limitation, all obligations of the Borrower with
respect thereto other than amounts owing to the Issuer under Section 2.2.6) and
any security therefor held in the Letter of Credit Collateral Account or any
Subsidiary Guaranty pertaining thereto. Accordingly, each Tranche A Lender
hereby irrevocably agrees to reimburse the Issuer of each Letter of Credit for
any funds disbursed by such Issuer pursuant to any draft drawn or demand made
under such Letter of Credit, in an amount and in U. S. Dollars equal to the
product of such Tranche A Lender's Percentage of the Dollar Equivalent of the
amount disbursed by such Issuer
30
with respect to such Letter of Credit. In the event that the Issuer of a Letter
of Credit makes available to the beneficiary of such Letter of Credit the amount
necessary to settle the obligations of such Issuer under any draft or demand
made under such Letter of Credit (a "Draw Amount") and any Tranche A Lender
fails to make available to the Agent for payment to such Issuer such Tranche A
Lender's Percentage of the Dollar Equivalent of such Draw Amount on the date
(the "Draw Date"), such Tranche A Lender shall pay to the Agent for the benefit
of such Issuer on demand an amount, in addition to such Tranche A Lender's
Percentage of the Dollar Equivalent of the Draw Amount, equal to interest on
such Tranche A Lender's Percentage of the Dollar Equivalent of the Draw Amount
for the number of days in the Out of Funds Period at a rate per annum
(calculated for the actual number of days elapsed on the basis of a year
consisting of 365, or when appropriate 366, days) equal to the Federal Funds
Effective Rate; provided, however, that from and after the fifth (5th) day in
any Out of Funds Period the applicable rate of interest shall be the Floating
Rate rather than the Federal Funds Effective Rate. The obligations of a Tranche
A Lender to make payments to and for the account of an Issuer with respect to a
Letter of Credit shall be irrevocable, not subject to any qualification or
exception whatsoever and shall be made in accordance with the terms of this
Agreement under all circumstances and notwithstanding: (i) any lack of validity
or enforceability of this Agreement or any of the other Loan Documents; (ii) the
existence of any claim, setoff, defense or other right which any Obligor may
have at any time against a beneficiary named in any Letter of Credit or any
transferee of any Letter of Credit (or any Person for whom any such transferee
may be acting), the Agent, the Issuer of any Letter of Credit, any Tranche A
Lender, or any other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including, without limitation, any underlying transactions between
any Obligor or any Affiliate of any Obligor and the beneficiary named in any
Letter of Credit); (iii) any draft, certificate or any other document presented
under any Letter of Credit being forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; (v) any failure by
the Agent or any Issuer to make any reports required pursuant to this Agreement
or any of the other Loan Documents; (vi) any inability (whether financial or
otherwise) or unwillingness (for any reason) of any Obligor to perform its
Obligations; (vii) the occurrence of any Default or Unmatured Default; or (viii)
the unavailability of Canadian Dollars or Pounds Sterling.
2.2.5 Letter of Credit Fees. The Borrower hereby agrees to pay to the
Agent for the pro rata benefit of the Tranche A Lenders, as determined by each
Tranche A Lender's Percentage, a Letter of Credit participation fee (i) in the
case of Standby Letters of Credit equal to the Applicable Margin per annum
(calculated for the actual number of days elapsed on the basis of a year
consisting of 365, or when appropriate 366, days) on the daily average of the
Dollar Equivalent of the Stated Amount of each Standby Letter of Credit issued;
and (ii) in the case of Documentary Letters of Credit equal to the Applicable
Documentary Margin per annum (calculated for the actual number of days elapsed
on the basis of a year consisting of 365, or when appropriate 366, days) on the
daily average of the Dollar Equivalent of the Stated Amount of each Documentary
Letter of Credit issued; provided, however, that for purposes of Section 2.2.5,
the Dollar Equivalent of each Letter of Credit in an Alternative Currency will
be deemed to be, on any day (i) during the month the Letter of Credit was
31
issued or renewed, the Dollar Equivalent on the date of issuance or renewal of
such Letter of Credit or (ii) in any month subsequent to the month of issuance
or renewal, the Dollar Equivalent on the first Business Day of such subsequent
month, in each case from and including the date issued to and including the date
of its expiration or earlier termination. The Borrower shall pay to the Agent
the Letter of Credit participation fee due with respect to each outstanding
Letter of Credit on each Payment Date in respect of each Letter of Credit
outstanding during the calendar quarter during which such Payment Date occurs,
commencing on the first Payment Date to occur after such Letter of Credit is
issued, and on the Tranche A Revolving Facility Termination Date. The Agent
shall promptly remit to each Tranche A Lender its Percentage of each Letter of
Credit participation fee after its receipt by the Agent.
2.2.6 Issuer Fees. The Borrower hereby agrees to pay to each Issuer
solely for its benefit and in addition to such Issuer's Percentage of the Letter
of Credit participation fees due under Section 2.2.5, (i) in the case of Standby
Letters of Credit a Letter of Credit fronting fee of 10 basis points per annum
(calculated for the actual number of days elapsed on the basis of a year
consisting of 365, or when appropriate 366, days) on the daily average Dollar
Equivalent of the Stated Amount of each Standby Letter of Credit issued by such
Issuer from and including the date issued to and including the date of its
expiration or earlier termination, (ii) in the case of Documentary Letters of
Credit a Letter of Credit fronting fee of 7.5 basis points per annum (calculated
for the actual number of days elapsed on the basis of a year consisting of 365,
or when appropriate 366, days) on the daily average Dollar Equivalent of the
Stated Amount of each Documentary Letter of Credit issued by such Issuer from
and including the date issued to and including the date of its expiration or
earlier termination, and (iii) a fee for each issuance, amendment or renewal of,
and for each negotiation of a draft drawn under, a Letter of Credit issued by
such Issuer in the amount customarily charged by such Issuer from time to time
or such other amount that may be agreed to in writing from time to time by such
Issuer and the Borrower; provided, however, that for purposes of Section 2.2.6,
the Dollar Equivalent of each Letter of Credit in an Alternative Currency will
be deemed to be, on any day (i) during the month the Letter of Credit was issued
or renewed, the Dollar Equivalent on the date of issuance or renewal of such
Letter of Credit or (ii) in any month subsequent to the month of issuance or
renewal, the Dollar Equivalent on the first Business Day of such subsequent
month, in each case from and including the date issued to and including the date
of its expiration or earlier termination. The Borrower shall pay to the Agent
the Letter of Credit fronting fee due with respect to each outstanding Letter of
Credit on each Payment Date in respect of each Letter of Credit outstanding
during the calendar quarter during which such Payment Date occurs, commencing on
the first Payment Date to occur after such Letter of Credit is issued, and on
the Tranche A Revolving Facility Termination Date. The Agent shall promptly
remit to each Issuer any Letter of Credit fronting fee due to such Issuer after
the Agent's receipt of such fee.
2.2.7 Verification. Neither the Agent, any Issuer nor any Lender shall
have any duty to verify or make any inquiry with regard to the truth or accuracy
of any statement made in any draft or document presented to the Agent or any
Issuer under any Letter of Credit, and neither the Agent, any Issuer nor any
Lender shall have any duty to make any inquiry into the genuineness of any
signature on any such draft or document or into the due authorization of any
party to execute or
32
present such draft or document or to receive payment under any Letter of Credit;
unless, and to the extent, that the Borrower has provided the Agent with
sufficient funds to reimburse the applicable Issuer for any demand or draw under
a Letter of Credit, and thereafter a court of competent jurisdiction determines
that the Agent or such Issuer was grossly negligent (and not simply negligent or
contributorily negligent) or guilty of willful misconduct for making such
payment in which case the maximum liability of the Agent or such Issuer, as the
case may be, shall not exceed the direct damages resulting therefrom. In no
event, with respect to any Letter of Credit, shall the Agent, any Lender or any
Issuer be liable for punitive or consequential damages.
2.2.8 Irrevocable Obligations and Commercial Practices. None of the
Agent, any Issuer nor any Lender shall be responsible in connection with any
Letter of Credit issued hereunder for, and the obligation of the Borrower set
forth in Section 2.2.3 to provide the Agent with funds to reimburse the Issuer
of each Letter of Credit issued for the account of the Borrower for amounts
disbursed by such Issuer pursuant to drafts or demands made under any Letter of
Credit issued shall be irrevocable, not subject to any qualification or
exception whatsoever and shall be made in accordance with the terms of this
Agreement under all circumstances and notwithstanding, (i) payment made pursuant
to any Letter of Credit despite the failure of any draft to bear any reference
or adequate reference to the Letter of Credit, or the failure of any Person to
note the amount of any drawing on the Letter of Credit; (ii) errors, omissions,
interruptions, or delays in transmission or delivery of any messages, in person,
by mail, cable, telegraph, wireless or otherwise whether or not they may be in
cipher; (iii) any use which may be made of any Letter of Credit; (iv) any acts
or omissions of any beneficiary under any Letter of Credit; (v) the form,
validity, sufficiency, or genuineness of documents, or any endorsements(s)
thereon, even if such documents should in fact prove to be in any and all
respects invalid, insufficient, fraudulent, or forged; (vi) the sufficiency or
genuineness of any messages or instructions to issue a Letter of Credit, or any
of the terms thereof, howsoever delivered or transmitted by any Obligor to the
Agent or any Issuer; or (vii) the existence of any claim, setoff, defense or
other right which any Obligor may have at any time against a beneficiary named
in any Letter of Credit or any transferee of any Letter of Credit (or any Person
for whom any such transferee may be acting), the Agent, the Issuer of any Letter
of Credit, any Lender, or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein or any
unrelated transactions (including, without limitation, any underlying
transactions between any Obligor or any Affiliate of any Obligor and the
beneficiary named in any Letter of Credit) other than a defense based on the
gross negligence or willful misconduct of such Issuer as determined by a court
of competent jurisdiction. The happening of any one or more of the contingencies
referred to in the preceding sentence shall not affect, impair, or prevent the
vesting of any of the Agent's, any Issuer's or any Lender's rights or powers
under this Agreement or any other Loan Documents. The Agent, any Issuer or any
Lender may receive, accept, or pay as complying with the terms of any Letter of
Credit, any drafts or other documents, otherwise in order, which may be signed
by, or issued to, the administrator or executor of, or the trustee in bankruptcy
of, or the receiver for any of the property of, the party in whose name such
Letter of Credit provides that any drafts or any other documents should be drawn
or issued. In furtherance and extension but not in limitation of the foregoing
provisions, it is hereby further agreed that any action, inaction, or omission
taken or suffered by the Agent, any Issuer or any Lender under or in connection
with any
33
Letter of Credit or any drafts or documents referenced therein shall be binding
upon the Obligors, the Issuers and the Lenders and shall not place the Agent,
any Issuer or any Lender under any resulting liability to any Obligor or any
Lender. Notwithstanding the foregoing, to the extent that an Obligor has
reimbursed the Agent or the applicable Issuer for any draw or demand under a
Letter of Credit issued for its account and thereafter a court of competent
jurisdiction determines that the Agent or such Issuer did not act in good faith
and in substantial conformity with such Person's customary practices and such
domestic laws and customs or regulations as such Person deemed applicable
thereto or was guilty of gross negligence (and not simply negligence or
contributory negligence) or willful misconduct in honoring such demand or draw,
the Agent or such Issuer, as the case may be, shall be liable to such Obligor
for such action, gross negligence or willful misconduct provided that in any
event the maximum liability of the Agent or such Issuer, as the case may be,
shall not exceed the direct damages resulting therefrom. In no event, with
respect to any Letter of Credit, shall the Agent, any Issuer or any Lender be
liable for punitive or consequential damages.
2.2.9 [Intentionally Omitted].
2.2.10 Letter of Credit Collateral Account. The Borrower hereby agrees
that it will, until the final expiration date of any Letter of Credit and
thereafter as long as any amount is payable to the Tranche A Lenders in respect
of any Letter of Credit, maintain a special collateral account (the "Letter of
Credit Collateral Account") with the Agent, in the name of the Borrower but
under the sole dominion and control of the Agent, for the benefit of the Tranche
A Lenders and in which the Borrower shall have no interest other than as set
forth in Section 8.1. The Agent will invest any funds in U.S. Dollars on deposit
from time to time in the Letter of Credit Collateral Account in short term
investments similar to those described in Section 6.2.7(i), (ii), (iii), (ix),
(x), (xi) and (xii) having a maturity not exceeding 30 days. The Agent shall
have the authority to create additional accounts for deposit of Canadian Dollars
and Pounds Sterling in short term investments similar to those described in
Section 6.2.7(i), (ii), (iii), (ix), (x), (xi) and (xii) having a maturity not
exceeding 30 days. Nothing in this Section 2.2.10 shall (i) obligate the
Borrower to deposit any funds in the Letter of Credit Collateral Account, (ii)
obligate the Agent to require the Borrower to deposit any funds in the Letter of
Credit Collateral Account or (iii) limit the right of the Agent to release any
funds held in the Letter of Credit Collateral Account, other than as required by
Section 8.1. The Borrower hereby grants to the Agent for the benefit of the
Tranche A Lenders a security interest in the Letter of Credit Collateral Account
and any funds or investments in such account.
2.2.11 Currency Fluctuation. If as a result of fluctuations in currency
exchange rates (i) the aggregate Dollar Equivalent of the Stated Amount plus the
Dollar Equivalent of the reimbursement obligations to the Issuers of Letters of
Credit which reimbursement obligations have not been repaid by the Borrower and
have not been deemed to be automatic Floating Rate Advances pursuant to Section
2.2.3 exceeds the Letter of Credit Sublimit by more than $5,000,000 at any time,
the Borrower, at its option, either shall within 5 Business Days prepay
outstanding Tranche A Advances in an amount equal to such excess or shall
deliver to the Agent for deposit into the Letter of Credit Collateral Account,
an amount equal to such excess (or a combination thereof) or (ii) the aggregate
of all outstanding Tranche A Advances plus the Dollar Equivalent of the
aggregate Stated Amount
34
plus the Dollar Equivalent of the reimbursement obligations to the Issuers of
Letters of Credit which reimbursement obligations have not been repaid by the
Borrower and have not been deemed to be automatic Floating Rate Advances
pursuant to Section 2.2.3 exceeds the amount of the Tranche A Active Aggregate
Revolving Commitment, the Borrower shall within 5 Business Days prepay
outstanding Advances in an amount equal to such excess or, if such excess is
greater than the amount of all outstanding Tranche A Advances, shall within 5
Business Days prepay all outstanding Tranche A Advances and deliver to the Agent
for deposit into the Letter of Credit Collateral Account, an amount equal to the
remaining excess after giving effect to such prepayment.
2.3 Competitive Bid Advances.
2.3.1 Competitive Bid Option. In addition to Committed Advances pursuant
to Section 2.1, but subject to the terms and conditions of this Agreement
(including, without limitation, the limitation set forth in Section 2.1.1(iv) as
to the maximum aggregate principal amount of all outstanding Tranche A Revolving
Advances hereunder), the Borrower may, as set forth in this Section 2.3, request
the Tranche A Lenders, prior to the Tranche A Revolving Facility Termination
Date, to make offers to make Competitive Bid Advances to the Borrower. Each
Tranche A Lender may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section 2.3. Competitive Bid Advances shall be
evidenced by the Competitive Bid Notes.
2.3.2 Competitive Bid Quote Request. When the Borrower wishes to request
offers to make Competitive Bid Loans under Section 2.3, it shall transmit to the
Agent by telex or telecopy a Competitive Bid Quote Request so as to be received
no later than (i) 10:00 a.m. (Chicago time) at least four Business Days prior to
the Borrowing Date proposed therein, in the case of a Eurodollar Auction or (ii)
9:00 a.m. (Chicago time) at least one Business Day prior to the Borrowing Date
proposed therein, in the case of an Absolute Rate Auction specifying:
(a) the proposed Borrowing Date, which shall be a Business
Day, for the proposed Competitive Bid Advance;
(b) the aggregate principal amount of such Competitive Bid
Advance;
(c) whether the Competitive Bid Quotes requested are to set
forth a Competitive Bid Margin or an Absolute Rate, or
both;
(d) the Interest Period applicable thereto (which may not end after
the Tranche A Revolving Facility Termination Date); and
(e) whether the Competitive Bid Advance is to be prepayable.
35
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period and for a Eurodollar Auction and an Absolute Rate Auction in a
single Competitive Bid Quote Request. No Competitive Bid Quote Request shall be
given within 3 Business Days (or upon reasonable prior notice to the Tranche A
Lenders, such other number of days as the Borrower and the Agent may agree) of
any other Competitive Bid Quote Request. Each Competitive Bid Quote Request
shall be in a minimum amount of $5,000,000 (and in integral multiples of
$1,000,000 in excess thereof). A Competitive Bid Quote Request that does not
conform substantially to the format of Exhibit "F" hereto shall be rejected, and
the Agent shall promptly notify the Borrower of such rejection by telex or
telecopy.
2.3.3 Invitation for Competitive Bid Quotes. Promptly and in any event
before noon (Chicago time) on the same Business Day of receipt of a Competitive
Bid Quote Request that is not rejected pursuant to Section 2.3.2, the Agent
shall send to each of the Tranche A Lenders by telex or telecopy an Invitation
for Competitive Bid Quotes which shall constitute an invitation by the Borrower
to each Tranche A Lender to submit Competitive Bid Quotes offering to make the
Competitive Bid Loans to which such Competitive Bid Quote Request relates in
accordance with Section 2.3.4.
2.3.4 Submission and Contents of Competitive Bid Quotes. (i) Each Tranche
A Lender may, in its sole discretion, submit a Competitive Bid Quote containing
an offer or offers to make Competitive Bid Loans in response to any Invitation
for Competitive Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section 2.3.4 and must be submitted to the Agent by telex
or telecopy at its offices specified in or pursuant to Article XIII not later
than (a) (I) 12:45 p.m. (Chicago time) in the case of First Chicago and (II)
1:00 p.m. (Chicago time) in the case of each other Tranche A Lender, at least
three Business Days prior to the proposed Borrowing Date, in the case of a
Eurodollar Auction or (b) (I) 8:45 a.m. (Chicago time) in the case of First
Chicago and (II) 9:00 a.m. (Chicago time) in the case of each other Tranche A
Lender on the proposed Borrowing Date, in the case of an Absolute Rate Auction
(or, in either case upon reasonable prior notice to the Tranche A Lenders, such
other time and date as the Borrower and the Agent may agree, provided that First
Chicago shall always be required to submit its Competitive Bid Quotes not less
than fifteen minutes prior to the other Tranche A Lenders). Subject to Articles
IV and VIII, any Competitive Bid Quote so made shall be irrevocable except with
the written consent of the Agent given on the instructions of the Borrower.
(ii) Each Competitive Bid Quote shall in any case specify:
(a) the proposed Borrowing Date, which shall be the same as that
set forth in the applicable Invitation for Competitive Bid Quotes;
(b) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (1) may be greater
than, less than or equal to the Tranche A Commitment of the quoting Tranche
A Lender, (2) must be at least $5,000,000
36
and an integral multiple of $1,000,000, and (3) may not exceed the
principal amount of Competitive Bid Loans for which offers were requested;
(c) in the case of a Eurodollar Auction, the Competitive Bid
Margin offered for each such Competitive Bid Loan;
(d) the minimum or maximum amount, if any, of any Competitive Bid
Loan which may be accepted by the Borrower and/or the limit, if any, as to
the aggregate principal amount of Competitive Bid Loans from such Tranche A
Lender which may be accepted by the Borrower;
(e) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan;
(f) the applicable Interest Period; and
(g) the identity of the quoting Tranche A Lender.
(iii) The Agent shall reject any Competitive Bid Quote that:
(a) is not substantially in the form of Exhibit "H" hereto or does
not specify all of the information required by Section 2.3.4(ii);
(b) contains qualifying, conditional or similar language, other
than any such language contained in Exhibit "H" hereto;
(c) proposes terms other than or in addition to those set forth in
the applicable Invitation for Competitive Bid Quotes; or
(d) arrives after the time set forth in Section 2.3.4(i).
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.3.4(iii), then the Agent shall notify the relevant Tranche A Lender of such
rejection as soon as practical.
2.3.5 Notice to the Borrower. The Agent shall promptly notify the
Borrower of the terms (i) of any Competitive Bid Quote submitted by a Tranche A
Lender that is in accordance with Section 2.3.4 and (ii) of any Competitive Bid
Quote that is in accordance with Section 2.3.4 and amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote submitted by such
Tranche A Lender with respect to the same Competitive Bid Quote Request. Any
such subsequent Competitive Bid Quote shall be disregarded by the Agent unless
such subsequent Competitive Bid Quote specifically states that it is submitted
solely to correct a manifest error in such former Competitive Bid Quote. The
Agent's notice to the Borrower shall specify the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each Interest
37
Period specified in the related Competitive Bid Quote Request and the respective
principal amounts and Competitive Bid Margins or Absolute Rates, as the case may
be, so offered.
2.3.6 Acceptance and Notice by the Borrower. Subject to the receipt of
the notice from the Agent referred to in Section 2.3.5, not later than (i) 2:00
p.m. (Chicago time) at least three Business Days prior to the proposed Borrowing
Date, in the case of a Eurodollar Auction or (ii) 10:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of an Absolute Rate Auction, the
Borrower shall notify the Agent of its acceptance or rejection of the offers so
notified to it pursuant to Section 2.3.5; provided, however, that the failure by
the Borrower to give such notice to the Agent shall be deemed to be a rejection
of all such offers. In the case of acceptance, such notice (a "Competitive Bid
Borrowing Notice") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept or reject any
Competitive Bid Quote in whole or in part (subject to the terms of Section
2.3.4(ii)(d)); provided that:
(a) the aggregate principal amount of each Competitive Bid Advance
may not exceed the applicable amount set forth in the related Competitive
Bid Quote Request;
(b) acceptance of offers for any Competitive Bid Advance with
otherwise identical terms may only be made on the basis of ascending
Competitive Bid Margins or Absolute Rates, as the case may be;
(c) the Borrower may not accept any offer of the type described in
Section 2.3.4(iii) or that otherwise fails to comply with the requirements
of this Agreement for the purpose of obtaining a Competitive Bid Loan under
this Agreement; and
(d) after giving effect to such Competitive Bid Advance, the sum
of the Dollar Equivalent of the Stated Amount of all Letters of Credit,
plus the Dollar Equivalent of reimbursement obligations to the Issuers of
Letters of Credit with respect to the amounts paid by such Issuers pursuant
to Letters of Credit which reimbursement obligations have not been repaid
by the Borrower and have not been deemed to be automatic Floating Rate
Advances pursuant to Section 2.2.3, plus the aggregate principal amount of
all outstanding Tranche A Revolving Advances plus all Competitive Bid
Advances shall not exceed the Tranche A Active Aggregate Revolving
Commitment.
2.3.7 Allocation by the Agent. If offers are made by two or more Tranche
A Lenders with the same Competitive Bid Margins or Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which offers are permitted to be accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Tranche A Lenders as nearly
as possible (in such multiples, not greater than $1,000,000, as the Agent may
deem appropriate) in proportion to the aggregate principal amount of such
offers; provided, however, that no Tranche A Lender shall be allocated a portion
of any Competitive Bid Advance which is less than the minimum amount which such
Tranche A Lender has indicated that it is willing to accept. Allocations by the
38
Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence
of manifest error. The Agent shall promptly, but in any event on the same
Business Day in the case of Eurodollar Bid Rate Advances, and by 11:00 a.m.
(Chicago time) in the case of Absolute Rate Advances, notify each Tranche A
Lender of its receipt of a Competitive Bid Borrowing Notice and the aggregate
principal amount of such Competitive Bid Advance allocated to each participating
Tranche A Lender.
2.3.8 Administration Fees. The Borrower hereby agrees to pay to the Agent
for its sole account administration fees for Competitive Bid Quote Requests in
such amounts as heretofore agreed upon by the Borrower in writing.
2.4 Required Payments; Termination. The aggregate outstanding Tranche B
Advances shall be payable in full on the Tranche B Facility Termination Date.
All Competitive Bid Loans shall be paid in full by the Borrower on the last day
of the applicable Interest Period. In the event the sum of the aggregate
outstanding principal amount of the Tranche A Revolving Advances plus the
Competitive Bid Advances plus the aggregate Dollar Equivalent of the Stated
Amount of all Letters of Credit then outstanding plus the Dollar Equivalent of
all reimbursement obligations to the Issuers of Letters of Credit with respect
to the amounts paid by such Issuers pursuant to Letters of Credit which
reimbursement obligations have not been repaid by the Borrower and have not been
deemed to be automatic Floating Rate Advances pursuant to Section 2.2.3 exceeds
the Tranche A Active Aggregate Revolving Commitment (the amount of such excess
herein the "Excess Exposure"), the Borrower shall (i) first reclassify Tranche A
Inactive Aggregate Revolving Commitment as Tranche A Active Aggregate Revolving
Commitment pursuant to Section 2.6.1 up to the amount of the Excess Exposure,
(ii) second if any Excess Exposure remains after such reclassification, make a
mandatory prepayment of the outstanding principal amount of the Tranche A
Revolving Advances and the Competitive Bid Advances up to the amount of such
remaining Excess Exposure, and (iii) third if any Excess Exposure remains after
payment of the Tranche A Revolving Advances and the Competitive Bid Advances in
full, the Borrower will deliver to the Agent, at its address specified pursuant
to Article XIII, for deposit into the Letter of Credit Collateral Account, an
amount (the "Collateral Shortfall Amount") equal to the lesser of (1) the sum of
the Dollar Equivalent of the aggregate maximum amount remaining available to be
drawn under the Letters of Credit (assuming compliance with all conditions for
drawing thereunder) issued and outstanding as of such time and (2) the remaining
Excess Exposure; provided, that if no Default shall have occurred and be
continuing, the Borrower may, to the extent applicable, eliminate the Excess
Exposure by any combination of the foregoing (i) and (ii) (but until (i) and
(ii) have been accomplished not (iii)) as the Borrower may select. Any
outstanding Tranche A Committed Advances and all other unpaid Obligations in
respect of Letters of Credit and Competitive Bid Advances shall be paid in full
by the Borrower on the Tranche A Revolving Facility Termination Date.
2.5 Types of Committed Advances. The Committed Advances may be Floating
Rate Advances, or Eurodollar Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.9 and 2.10.
39
2.6 Facility Fees, Commitment Fees and Designation of the Tranche A
Active Aggregate Revolving Commitment.
2.6.1 Designation of Tranche A Active and Tranche A Inactive Aggregate
Revolving Commitment. As of the date of this Agreement, the Tranche A Active
Aggregate Revolving Commitment shall be $450,000,000 and the Tranche A Inactive
Aggregate Revolving Commitment shall be $100,000,000. The Borrower may at any
time and from time to time designate that the Tranche A Inactive Aggregate
Revolving Commitment be reclassified as Tranche A Active Aggregate Revolving
Commitment, in whole, or in a minimum amount of $15,000,000 and in integral
multiples of $5,000,000, upon one Business Day's prior written notice to the
Agent. The Agent shall promptly notify each Tranche A Lender of its receipt of
notice from the Borrower electing to so reclassify all or part of the Tranche A
Inactive Aggregate Revolving Commitment.
2.6.2 Commitment Fees. The Borrower hereby agrees to pay to the Agent for
the account of each Tranche A Lender, ratably in the proportion that such
Tranche A Commitment bears to the Tranche A Aggregate Revolving Commitment, a
commitment fee equal to the sum of (i) the Applicable Commitment Fee on the
average daily amount of the Tranche A Inactive Aggregate Revolving Commitment
plus (ii) the Applicable Commitment Fee on the average daily unused amount of
the Tranche A Active Aggregate Revolving Commitment (it being understood that
the Dollar Equivalent of the Stated Amount of all outstanding Letters of Credit
is usage of the Tranche A Active Aggregate Revolving Commitment; provided,
however, that for purposes of Section 2.6.2, the Dollar Equivalent of each
Letter of Credit in an Alternative Currency will be deemed to be, on any day (i)
during the month the Letter of Credit was issued or renewed, the Dollar
Equivalent on the date of issuance or renewal of such Letter of Credit or (ii)
in any month subsequent to the month of issuance or renewal, the Dollar
Equivalent on the first Business Day of such subsequent month in each case from
and including the date issued to and including the date of its expiration or
earlier termination. For purposes of calculating the commitment fee referred to
in subpart (ii) above, outstanding Competitive Bid Loans shall not be deemed
usage of the Tranche A Active Aggregate Revolving Commitment. For purposes of
calculating the commitment fee referred to in subparts (i) and (ii) above, the
Tranche A Active Aggregate Revolving Commitment will be deemed increased, and
the Tranche A Inactive Aggregate Revolving Commitment will be deemed permanently
decreased on the first day of each calendar quarter by the aggregate amount of
all portions of the Tranche A Inactive Aggregate Revolving Commitment activated
during such quarter. Such commitment fees shall be payable quarterly in arrears
on the third Business Day after each Payment Date and on the Tranche A Revolving
Facility Termination Date.
2.6.3 Cancellation of Tranche A. The Borrower may at any time after the
date hereof cancel the Tranche A Aggregate Revolving Commitment, in whole, or in
a minimum aggregate amount of $15,000,000 (and in integral multiples of
$5,000,000) ratably among the Tranche A Lenders upon at least three Business
Days' prior written notice to the Agent, which notice shall specify the amount
of such reduction and whether and to what extent such reduction shall apply to
the Tranche A Active Aggregate Revolving Commitment or the Tranche A Inactive
Aggregate Revolving Commitment; provided, however, no such notice of
cancellation shall be effective to the
40
extent that (i) it would reduce the Tranche A Active Aggregate Revolving
Commitment to an amount which would be less than the outstanding principal
amount of Tranche A Revolving Advances, plus Competitive Bid Advances plus the
Dollar Equivalent of the Stated Amount of all Letters of Credit outstanding plus
the Dollar Equivalent of reimbursement obligations to the Issuers of Letters of
Credit with respect to the amounts paid by such Issuers pursuant to Letters of
Credit which reimbursement obligations have not been repaid by the Borrower and
have not been deemed to be automatic Floating Rate Advances pursuant to Section
2.2.3 at the time such cancellation is to take effect, (ii) it would reduce or
terminate any portion of the Tranche A Active Aggregate Revolving Commitment
before the Tranche A Inactive Aggregate Revolving Commitment is terminated or
reduced to zero. Any notice of cancellation given pursuant to this Section 2.6.3
shall be irrevocable and permanent and shall specify the date upon which such
cancellation is to take effect. The Agent shall promptly notify each Tranche A
Lender of its receipt of notice from the Borrower electing to cancel all or a
portion of the Tranche A Aggregate Revolving Commitment. Each partial
cancellation of the Tranche A Aggregate Revolving Commitment shall cancel each
Tranche A Commitment ratably in proportion to the ratio that such Tranche A
Lender's Tranche A Commitment bears to the Tranche A Aggregate Revolving
Commitment.
2.7 Minimum Amount of Each Advance. Each Eurodollar Committed Advance
shall be in the minimum amount of $10,000,000 (and in multiples of $1,000,000 if
in excess thereof), and each Floating Rate Advance shall be in the minimum
amount of $5,000,000 (and in multiples of $1,000,000 if in excess thereof),
provided, however, that any Floating Rate Advance may be in the amount of the
unused Tranche A Aggregate Revolving Commitment or the unused Tranche B
Commitment, as the case may be.
2.8 Optional Principal Payments. The Borrower may from time to time
pay, without penalty or premium (other than amounts payable as provided in
Section 3.4, if any, as a result of such prepayment being made other than on the
last day of a Eurodollar Interest Period with respect to any Eurodollar Advance
as provided in Section 3.4), all outstanding Advances, or, in a minimum
aggregate amount of $5,000,000 or any integral multiple of $1,000,000 in excess
thereof, any portion of the outstanding Advances upon three Business Days' (or
in the case of outstanding Advances bearing interest at a Floating Rate, one
Business Day's) prior notice to the Agent; provided that a Competitive Bid
Advance which the Borrower indicated was not prepayable in the related
Competitive Bid Quote Request may not be prepaid prior to such last day unless
agreed by the relevant Tranche A Lender.
2.9 Method of Selecting Types and Interest Periods for New Advances.
The Borrower shall select the Type of Advance and, in the case of each Fixed
Rate Advance (other than a Competitive Bid Advance), the Interest Period
applicable to each Advance from time to time; provided, that the Borrower will
not select Eurodollar Interest Periods with regard to Committed Loans so that
more than eight (8) Eurodollar Interest Periods with regard to Tranche A
Committed Loans or more than eight (8) Eurodollar Interest Periods with regard
to Tranche B Loans are in effect at any time. The Borrower shall give the Agent
irrevocable notice (a "Committed Borrowing Notice") not later than 10:00 a.m.
(Chicago time) at least one Business Day before the Borrowing Date of each
Floating Rate Advance and three Business Days before the Borrowing Date for each
Eurodollar Advance (other than a Eurodollar Bid Rate Advance), specifying:
41
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected and whether a Tranche A Advance
or a Tranche B Advance, and
(iv) in the case of each Fixed Rate Advance, the Interest Period
applicable thereto.
Not later than noon (Chicago time) on each Borrowing Date, each Tranche A Lender
if a Tranche A Committed Advance and each Tranche B Lender if a Tranche B
Advance shall make available its Loan or Loans, in funds immediately available
in Chicago to the Agent at its address specified pursuant to Article XIII. The
Agent will make the funds so received from the applicable Lenders available to
the Borrower at the Agent's aforesaid address.
2.10 Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until converted
into Fixed Rate Advances. Each Eurodollar Committed Advance shall continue as a
Eurodollar Committed Advance until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Committed Advance shall be
automatically converted into a Floating Rate Advance unless the Borrower shall
have given the Agent a Conversion/Continuation Notice requesting that, at the
end of such Interest Period, such Eurodollar Committed Advance either continue
as a Eurodollar Committed Advance for the same or another Interest Period or be
converted into a Floating Rate Advance. Subject to the terms of Section 2.7,
the Borrower may elect from time to time to convert all or any part of a Tranche
A Advance of either Type into the other Type of Tranche A Advance or to convert
all or any part of a Tranche B Advance of either Type into the other Type of
Tranche B Advance; provided that any conversion of any Eurodollar Committed
Advance shall be made on, and only on, the last day of the Interest Period
applicable thereto. The Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Tranche A Advance, a
Tranche B Advance or continuation of a Eurodollar Committed Advance not later
than 10:00 a.m. (Chicago time) at least one Business Day, in the case of a
conversion into a Floating Rate Advance or three Business Days, in the case of a
conversion into or continuation of a Eurodollar Advance, prior to the date of
the requested conversion or continuation, specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount, whether a Tranche A Advance or a Tranche
B Advance and Type of the Advance which is to be converted or continued;
and
42
(iii) the amount and Type(s) of Advance(s) into which such Advance
is to be converted or continued and, in the case of a conversion into or
continuation of a Eurodollar Committed Advance, the duration of the
Interest Period applicable thereto.
2.11 Changes in Interest Rate, etc. Each Floating Rate Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a Eurodollar
Committed Advance into a Floating Rate Advance pursuant to Section 2.10 to but
excluding the date it becomes due or is converted into a Eurodollar Committed
Advance pursuant to Section 2.10 hereof, at a rate per annum equal to the
Floating Rate for such day. Changes in the rate of interest on that portion of
any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Fixed Rate
Advance shall bear interest from and including the first day of the Interest
Period applicable thereto to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such Fixed Rate Advance.
No Interest Period of any Tranche A Advance may end after the Tranche A
Revolving Facility Termination Date and no Interest Period of any Tranche B
Advance may end after the Tranche B Facility Termination Date. The Borrower
shall select Interest Periods so that it is not necessary to repay any portion
of a Eurodollar Committed Advance prior to the last day of the applicable
Interest Period in order to make a mandatory repayment required pursuant to
Section 2.4.
2.12 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.9 or 2.10, during the continuance of a Default
or Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
relevant Lenders to changes in interest rates), declare that no Advance may be
made as, converted into or continued as a Fixed Rate Advance. If any Advance is
not paid at maturity, whether by acceleration or otherwise, the Required Lenders
may, at their option, by notice to the Borrower (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the affected Lenders to changes in interest
rates), declare that (i) each Fixed Rate Advance shall bear interest for the
remainder of the applicable Interest Period at the rate otherwise applicable to
such Interest Period plus 2% per annum and (ii) each Floating Rate Advance shall
bear interest at a rate per annum equal to the Floating Rate otherwise
applicable to the Floating Rate Advance plus 2% per annum.
2.13 Method of Payment. All payments of the Obligations hereunder shall
be made, without setoff, deduction, or counterclaim, in immediately available
funds and in the appropriate currency to the Agent at the Agent's address
specified pursuant to Article XIII, or at any other Lending Installation of the
Agent specified in writing by the Agent to the Borrower, by noon (Chicago time)
on the date when due and shall be applied ratably by the Agent among the Tranche
A Lenders or the Tranche B Lenders, whichever is applicable. Each payment
delivered to the Agent for the account of any Lender shall be delivered promptly
by the Agent to such Lender in the same type of funds that the Agent received at
its address specified pursuant to Article XIII or at any Lending Installation
specified in a notice received by the Agent from such Lender.
43
2.14 Notes; Notices. Each Lender is hereby authorized to record the
principal amount of each of its Loans and each repayment on the schedule
attached to its Notes, provided, however, that the failure to so record shall
not affect the Borrower's obligations under such Notes. The Borrower hereby
authorizes the Lenders and the Agent to extend, convert or continue Advances,
effect selections of Types of Advances and to transfer funds based on telephonic
or telecopy notices made by any person or persons the Agent or any Lender in
good faith believes to be acting on behalf of the Borrower. The Borrower agrees
to deliver promptly to the Agent a written confirmation, if such confirmation is
requested by the Agent or any Lender, of each telephonic or telecopy notice
signed by an Authorized Officer. If the written confirmation differs in any
material respect from the action taken by the Agent and the Lenders, the records
of the Agent and the Lenders shall govern absent manifest error.
2.15 Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Committed
Advance on a day other than a Payment Date shall be payable on the date of
conversion. Interest accrued on each Fixed Rate Advance shall be payable on the
last day of its applicable Interest Period, on any date on which the Fixed Rate
Advance is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Eurodollar Rate Advance having an Interest Period
longer than three months shall also be payable on the last day of each three-
month interval during such Interest Period. Interest on Eurodollar Advances
shall be calculated for actual days elapsed on the basis of a 360-day year.
Commitment fees and interest on Floating Rate Advances and Absolute Rate
Advances shall be calculated for actual number of days elapsed on the basis of a
year consisting of 365, or where appropriate 366, days. Interest shall be
payable for the day an Advance is made but not for the day of any payment on the
amount paid if payment is received prior to noon (local time) at the place of
payment. If any payment of principal of or interest on an Advance shall become
due on a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such payment.
2.16 Notification of Tranche A Advances, Tranche B Advances, Interest
Rates, Prepayments and Commitment Reductions. Promptly after receipt thereof,
the Agent will notify each affected Lender of the contents of each Aggregate
Commitment reduction notice, Borrowing Notice, Conversion/Continuation Notice,
and repayment notice received by it hereunder. The Agent will notify each
Lender of the interest rate applicable to each of such Lender's Eurodollar
Committed Advances promptly upon determination of such interest rate and will
give each Lender prompt notice of each change in the Alternate Base Rate. Each
Reference Bank agrees to furnish timely information for the purpose of
determining the Eurodollar Rate.
2.17 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this
44
Agreement shall apply to any such Lending Installation and the Notes shall be
deemed held by each Lender for the benefit of such Lending Installation. Each
Lender may, by written or telecopy notice to the Agent and the Borrower,
designate a Lending Installation through which Loans will be made by it and for
whose account Loan payments are to be made.
2.18 Non-Receipt of Funds by the Agent. Unless the Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
2.19 Withholding Tax Exemption. At least five Business Days prior to the
first date on which interest or fees are payable hereunder for the account of
any Lender, each Lender (or Lending Installation) that is not incorporated under
the laws of the United States of America, or a state thereof, agrees that it
will deliver to each of the Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender (or Lending Installation) is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes. Each Lender (or Lending Installation) which
so delivers a Form 1001 or 4224 further undertakes to deliver to each of the
Borrower and the Agent two additional copies of such form (or a successor form)
on or before the date that such form expires (currently, three successive
calendar years for Form 1001 and one calendar year for Form 4224) or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the Agent, in
each case certifying that such Lender (or Lending Installation) is entitled to
receive payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender (or Lending Installation) from duly completing and delivering any such
form with respect to it and such Lender (or Lending Installation) advises the
Borrower and the Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
2.20 Maximum Interest Rate. Nothing contained in this Agreement or the
Notes shall require any Obligor to pay interest to any Lender at a rate
exceeding the maximum rate permitted by
45
applicable law with respect to such Lender. This Section 2.20 is not intended to
limit the rate of interest payable for the account of any Lender to the maximum
rate permitted by the laws of any state if a higher rate is permitted with
respect to such Lender by supervening provisions of U.S. federal law and it is
specifically provided that Chapter 15 of Texas Revised Civil Statutes Article
5069 (the Texas Credit Code), which regulates certain revolving loan accounts
and revolving tri-party accounts, shall not be applicable to this Agreement, the
Notes or any of the Debt arising hereunder. If the amount of interest payable
for the account of any Lender on any interest payment date in respect of the
immediately preceding interest computation period (together with any fees or
charges which would constitute interest under applicable law) would exceed the
maximum amount permitted by applicable law to be charged by such Lender, the
amount of interest payable for its account on such interest payment date shall
be automatically reduced to such maximum permissible amount. If the amount of
interest payable for the account of any Lender in respect of any interest
computation period is reduced pursuant to the third sentence of this Section
2.20 and the amount of interest payable for its account in respect of any
subsequent interest computation period would be less than the maximum amount
permitted by applicable law to be charged by such Lender, then the amount of
interest payable for its account in respect of such subsequent interest
computation period shall be automatically increased to such maximum permissible
amount; provided that at no time shall the aggregate amount by which interest
paid for the account of any Lender has been increased pursuant to this sentence
exceed the aggregate amount by which interest paid for its account has
theretofore been reduced pursuant to the third sentence of this Section 2.20.
2.21 Agent's Fees. In order to compensate First Chicago for the cost and
expense of acting as Agent under this Agreement, the Borrower hereby agrees to
pay to First Chicago the fees agreed to between the Borrower and First Chicago
with respect to its activities in structuring and administering this Agreement.
2.22 Procedures with respect to the Tranche A Aggregate Revolving
Commitment. So long as no Default or Unmatured Default has occurred and is
continuing, the Borrower may request from time to time, and subject to the terms
and conditions hereinafter set forth, that the Tranche A Aggregate Revolving
Commitment be increased by giving written notice thereof to the Agent; provided,
however, that any such notice must be given no later than 60 days prior to the
then Tranche A Revolving Facility Termination Date. Each such notice (a "Notice
of Commitment Increase") shall be in the form of Exhibit C-2 and specify
therein:
(i) the effective date of such increase, which date (the
requested "Commitment Increase Effective Date") shall be no earlier than
five Business Days after receipt by the Agent of such notice;
(ii) the amount of the requested increase; provided, however, that
after giving effect to such requested increase, the Tranche A Aggregate
Revolving Commitment shall not exceed $750,000,000;
46
(iii) the identity of the then Tranche A Lenders, if any, which
have agreed with the Borrower to increase their respective Tranche A
Commitments in an amount such that their respective Percentage after giving
effect to such requested increase will be the same or greater than their
respective Percentages prior to giving effect to such requested increase
(each such then Tranche A Lender being a then "Increasing Lender"), each
other Tranche A Lender which has agreed to increase its Tranche A
Commitment in an amount such that its Tranche A Lender's Percentage after
giving effect to such a requested increase will be less than its Tranche A
Lender's Percentage prior to giving effect to such requested increase (each
such Tranche A Lender being a "Partially Increasing Lender") and the
identity of each financial institution not already a Tranche A Lender, if
any, which has agreed with the Borrower to become a Tranche A Lender to
effect such requested increase in the Tranche A Aggregate Revolving
Commitment (each such assignee shall be reasonably acceptable to the Agent
and each such assignee being a then "New Lender" and each Tranche A Lender
which has not agreed to increase its Tranche A Commitment being a "Reducing
Lender");
(iv) the amount of the respective Tranche A Commitments of the
then existing Tranche A Lenders and such New Lenders from and after the
effective date of such increase; and
(v) the amount of the requested increase that will be the Tranche
A Active Aggregate Revolving Commitment and the amount that will be the
Tranche A Inactive Aggregate Revolving Commitment.
On or before each Commitment Increase Effective Date:
(i) the Borrower, each Increasing Lender, each Partially
Increasing Lender and each then New Lender shall execute and deliver to the
Agent for its acceptance, as to form, documentation embodying the
provisions of the Notice of Commitment Increase relating to the increase in
the Tranche A Aggregate Revolving Commitment to be effected on such
Commitment Increase Effective Date; and
(ii) upon acceptance of such documentation by the Agent, which
acceptance shall not be unreasonably withheld, and so long as no Default or
Unmatured Default has occurred and is continuing, (A) the Agent shall give
prompt notice of such acceptance to each Co-Agent and each Lender, (B) it
shall become effective, and the Tranche A Aggregate Revolving Commitment
shall be increased to the amount specified therein, on such Commitment
Increase Effective Date, (C) the Borrower shall execute and deliver to each
then New Lender a Tranche A Committed Note payable to the order of such
Lender in the face principal amount equal to such Tranche A Lenders'
Commitment and a Competitive Bid Note and (D) the Borrower shall execute
and deliver to each Increasing Lender and each Partially Increasing Lender,
against receipt by the Borrower of such Lender's then existing Tranche A
Committed Note, a new Tranche A Committed Note in the face principal amount
47
equal to such Tranche A Lenders' Commitment after giving effect to such
Commitment increase.
On each Commitment Increase Effective Date:
(i) each then New Lender and each then Increasing Lender shall,
by wire transfer of immediately available funds, deliver to the Agent such
Lenders' New Funds Amount for such Commitment Increase Effective Date,
which amount, for each such Lender, shall constitute Tranche A Committed
Revolving Loans made by such Lender to the Borrower pursuant to Section 2.1
on such Commitment Increase Effective Date; and
(ii) the Agent shall, by wire transfer of immediately available
funds, pay to each then Reducing Lender and to each Partially Increasing
Lender its Reduction Amount for such Commitment Increase Effective Date,
which amount, for each such Lender, shall constitute a prepayment by the
Borrower pursuant to Section 2.8, ratably in accordance with the respective
principal amounts thereof, of the principal amounts of all then outstanding
Tranche A Committed Revolving Loans of such Lender.
Effective as of each Commitment Increase Effective Date, the Notes then or
theretofore delivered to each then New Lender, and the new Notes then or
theretofore delivered to each then Increasing Lender and each then Partially
Increasing Lender, shall evidence such Tranche A Lender's ownership of its
Tranche A Lender's Percentage, effective as of such Commitment Increase
Effective Date, of all Tranche A Loans then outstanding. Also effective as of
each Commitment Increase Effective Date, each then New Lender and each then
Increasing Lender shall be deemed to have purchased and had transferred to it,
and each then Reducing Lender and each Partially Increasing Lender shall be
deemed to have sold and transferred to such New Lenders and Increasing Lenders,
such undivided interest and participation in such Reducing Lender's and such
Partially Increasing Lender's interest and participation in all then outstanding
Letters of Credit, the obligations of the Borrower with respect thereto and any
security therefor and any guaranty pertaining thereto at any time existing as is
necessary so that such undivided interests and participations of all Tranche A
Lenders (including each then New Lender) shall accord with their respective
Tranche A Lender's Percentages after giving effect to the increase in the
Tranche A Aggregate Revolving Commitment on such Commitment Increase Effective
Date.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If any change in, or introduction of, any law or
any governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, or the compliance of any Lender or Issuer therewith,
48
(i) subjects any Lender or Issuer or any applicable Lending
Installation to any additional tax, duty, charge or withholding on or from
payments due from the Borrower (excluding federal taxation of the overall
net income of any Lender or Issuer or applicable Lending Installation), or
changes the basis of taxation of payments to any Lender in respect of its
Loans or Letters of Credit or participations therein or other amounts due
it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or Issuer or any applicable Lending Installation (other than
reserves and assessments taken into account in determining the interest
rate applicable to Fixed Rate Advances), or
(iii) imposes any other condition the direct result of which is to
increase the cost to any Lender or Issuer or any applicable Lending
Installation of making, funding, maintaining or participating in the Loans
or Letters of Credit or reduces any amount receivable by any Lender or
Issuer or any applicable Lending Installation in connection with the Loans
or Letters of Credit, or requires any Lender or Issuer or any applicable
Lending Installation to make any payment calculated by reference to the
amount of the Loans or Letters of Credit held or interest received by it,
by an amount deemed material by such Lender,
then, within 15 days of demand by such Lender or Issuer, the Borrower shall pay
such Lender or Issuer that portion of such increased expense incurred or
reduction in an amount received which such Lender or Issuer reasonably
determines is attributable to making, funding and maintaining its Loans, Letters
of Credit, participations therein and its Commitment. Any Lender or Issuer
claiming or reasonably anticipating any additional amounts payable pursuant to
Section 3.1(i) shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by the
Borrower or the Agent or to change the jurisdiction of its applicable Lending
Installation or Issuing Office or to contest any tax imposed if the making of
such a filing or change or contesting such tax would avoid the need for or
reduce the amount of any such additional amounts that may thereafter accrue and
would not be otherwise disadvantageous to such Lender or Issuer in its opinion.
The Borrower shall not be obligated to compensate any Lender or Issuer pursuant
to this Section 3.1 for any amounts attributable to a period more than 90 days
prior to the giving of notice by such Lender or Issuer to the Borrower of its
intention to seek compensation under this Section 3.1.
3.2 Changes in Capital Adequacy Regulations. If a Lender or Issuer
determines that the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender, such Issuer, or any
corporation controlling such Lender or Issuer is increased as a result of a
Change, then, within 15 days of demand by such Lender or Issuer, the Borrower
shall pay such Lender or Issuer the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Lender or Issuer reasonably determines is
49
attributable to this Agreement, its Loans, its Letters of Credit or its
obligation to make Loans or issue Letters of Credit or participate in Letters of
Credit hereunder (after taking into account such Lender's or Issuer's policies
as to capital adequacy being applied with respect to customers similarly
situated to Borrower with whom such Lender or Issuer has a contractual right to
so charge such amounts). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or Issuer or any Lending Installation or
Issuing Office or any corporation controlling any Lender or Issuer. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement. The Borrower shall not be obligated to compensate
any Lender or Issuer pursuant to this Section 3.2 for any amounts attributable
to a period more than 90 days prior to the giving of notice by such Lender or
Issuer to the Borrower of its intention to seek compensation under this
Section 3.2.
3.3 Availability of Types of Advances. If any Lender determines that
maintenance of any of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, the Agent shall suspend the availability of the
affected Type of Advance and require any Eurodollar Advances of the affected
Type to be converted into Floating Rate Advances. If the Required Lenders
determine that (i) deposits of a type or maturity appropriate to match fund
Eurodollar Advances are not available, the Agent shall suspend the availability
of the affected Type of Advance with respect to any Eurodollar Advances made
after the date of any such determination until such time as deposits of a Type
or maturity appropriate to match fund Eurodollar Advances are made available, or
(ii) after giving effect to amounts payable under Sections 3.1 and 3.2 an
interest rate applicable to a Type of Advance does not accurately reflect the
cost of making a Eurodollar Advance of such Type, then, if for any reason
whatsoever the provisions of Section 3.1 are inapplicable, the Agent shall
suspend the availability of the affected Type of Advance with respect to any
Eurodollar Advances made after the date of any such determination.
3.4 Funding Indemnification. If any payment of a Fixed Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or any Eurodollar
Committed Advance is converted to a Floating Rate Advance on a date which is not
the last day of the applicable Interest Period or a Fixed Rate Advance is not
made on the date specified by the Borrower for any reason other than default by
the Lenders, the Borrower will indemnify each Lender for any loss or cost
incurred by it directly resulting therefrom, including, without limitation, any
loss or cost in liquidating or employing deposits acquired to fund or maintain
the Fixed Rate Advance; provided that the foregoing shall not permit
50
prepayment of a Competitive Bid Advance (i) which the Borrower has indicated in
the related Competitive Bid Quote Request is not to be prepayable and (ii) which
the relevant Lender has not agreed to permit to be prepaid.
3.5 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation to
reduce any liability of the Borrower to such Lender under Sections 3.1 and 3.2
or to avoid the unavailability of a Type of Advance under Section 3.3, so long
as such designation is not disadvantageous to such Lender in its opinion. If
any amount becomes due under Section 3.1, 3.2 or 3.4, each affected Lender or
Issuer shall consult with the Borrower as to how it intends to calculate the
amount due and shall deliver a written statement of such Lender or Issuer as to
the amount due, if any, under Section 3.1, 3.2 or 3.4. Such written statement
shall set forth in reasonable detail the basis for claiming such amount and
calculations upon which such Lender or Issuer determined such amount and shall
be final, conclusive and binding on the Borrower in the absence of manifest
error; provided that the determination of such amount shall be made in good
faith and in a manner consistent with such Lender's standard practice and that
such Lender's policies as to imposing such increased costs are being applied
with respect to customers similarly situated to Borrower with whom such Lender
or Issuer has a contractual right to so charge such amounts. Determination of
amounts payable under such Sections in connection with a Fixed Rate Loan shall
be calculated as though each Lender funded its Fixed Rate Loan through the
purchase of a deposit of the Type and maturity corresponding to the deposit used
as a reference in determining the Fixed Rate applicable to such Loan, whether in
fact that is the case or not. Unless otherwise provided herein, the amount
specified in the written statement shall be payable within ten (10) Business
Days after receipt by the Borrower of the written statement. The obligations of
the Borrower under Sections 3.1, 3.2 and 3.4 shall survive payment of the
Obligations and termination of this Agreement.
3.6 Replacement of Lenders. If any Lender is unable to make a Fixed
Rate Loan pursuant to Section 3.3, is subject to increased costs pursuant to
Section 3.1, 3.2 or 3.4, fails to designate an alternate Lending Installation
pursuant to Section 3.1 or 3.5, or is owed or reasonably anticipates being owed
additional amounts pursuant to Section 3.1 and fails to take action to the
extent required under Subsection 3.1 to avoid or reduce any such additional
amounts, the Borrower shall have the right, if no Default then exists, to
replace such Lender with another financial institution reasonably acceptable to
the Agent and any Issuing Bank provided that (i) such financial institution
shall unconditionally offer in writing (with a copy to the Agent) to purchase,
in accordance with Section 12.3.2 all of such Lender's rights and obligations
under this Agreement and the Notes, without recourse or expense to, or warranty
by, such Lender being replaced for a purchase price equal to the aggregate
outstanding principal amount of the Notes payable to such Lender plus such
Lender's Tranche A Percentage, if any, of any outstanding reimbursement
obligations with respect to any outstanding Letters of Credit plus any accrued
but unpaid interest on such Notes and such reimbursement obligations plus
accrued but unpaid fees in respect of such Lender's Commitment hereunder to the
date of such purchase on a date therein specified, (ii) the obligations of the
Borrower owing pursuant to Section 3.1, 3.2 and 3.4 to the Lender being
replaced, shall be paid in full to the Lender being replaced concurrently with
such replacement, (iii) the replacement financial
51
institution shall execute a Notice of Assignment pursuant to which it shall
become a party hereto as provided in Section 12.3.2 and shall pay the processing
fee required pursuant to such section, and (iv) upon compliance with the
provisions for assignment provided in Section 12.3 and the payment of amounts
referred to in clause (i), the replacement financial institution shall
constitute a "Lender" hereunder and the Lender being so replaced shall no longer
constitute a "Lender" hereunder; provided that (x) if such Lender accepts such
an offer and such financial institution fails to purchase on such specified date
in accordance with the terms of such offer, the Borrower shall continue to be
obligated to pay the increased cost, amounts, expenses and taxes under Sections
3.1, 3.2, 3.4 and 3.5 above to such Lender and (y) if such Lender fails to
accept such purchase offer, the Borrower shall not be obligated to pay such
Lender such increased cost pursuant to such sections from and after the date of
such purchase offer; provided, further that notwithstanding the foregoing, no
Lender which is an Issuer of an outstanding Letter of Credit may be replaced
pursuant to this Section 3.6 while such Letter of Credit is outstanding.
3.7 Currency.
(i) Payments in Agreed Currency. The Borrower shall make payment
relative to each Advance and each Letter of Credit in the currency (the
"Agreed Currency") in which the Advance or Letter of Credit was effected.
If any payment is received on account of any Advance or Letter of Credit in
any currency (the "Other Currency") other than the Agreed Currency (whether
voluntarily or pursuant to an order or judgment or the enforcement thereof
or the realization of any security or the liquidation of the Borrower or
otherwise howsoever), such payment shall constitute a discharge of the
liability of such Borrower hereunder and under the other Loan Documents in
respect of such obligation only to the extent of the amount of the Agreed
Currency which the relevant Issuer, Lender or Agent, as the case may be, is
able to purchase with the amount of the Other Currency received by it on
the Business Day next following such receipt in accordance with its normal
procedures and after deducting any premium and costs of exchange.
(ii) Conversion of Agreed Currency into Judgment Currency. If, for
the purpose of obtaining or enforcing judgment in any court in any
jurisdiction, it becomes necessary to convert into a particular currency
(the "Judgment Currency") any amount due in the Agreed Currency then the
conversion shall be made on the basis of the rate of exchange prevailing on
the Business Day next preceding the day on which judgment is given and in
any event the Borrower shall be obligated to pay the Issuer, the Agents and
the Lenders any deficiency in accordance with subsection 3.7(i). For the
foregoing purposes "rate of exchange" means the rate at which the relevant
Issuer, Lender or Agent, as applicable, in accordance with its normal
banking procedures is able on the relevant date to purchase the Agreed
Currency with the Judgment Currency after deducting any premium and costs
of exchange.
(iii) Circumstances Giving Rise to Payment. If (i) any Issuer,
Lender or Agent receives any payment or payments on account of the
liability of the Borrower hereunder pursuant to any judgment or order in
any Other Currency, and (ii) the amount of the Agreed
52
Currency which the relevant Issuer, Lender or Agent, as applicable, is able
to purchase on the Business Day next following such receipt with the
proceeds of such payment or payments in accordance with its normal
procedures, and after deducting any premiums and costs of exchange, is less
than the amount of the Agreed Currency due in respect of such obligations
immediately prior to such judgment or order, then Borrower on demand shall,
and Borrower hereby agrees to, pay to the Issuers, Lenders and the Agents
amounts equal to the deficiency and any loss, cost or expense arising out
of or in connection with such deficiency.
(iv) Separate Obligation. The agreement provided for in subsection
3.7(iii) shall constitute an obligation separate and independent from all
other obligations contained in this Agreement, shall give rise to a
separate and independent cause of action, shall apply irrespective of any
indulgence granted by the Issuers, Lenders or the Agents or any of them
from time to time, and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due hereunder or under any judgment or order. The agreements and
obligations of the Borrower in this Section 3.7 shall survive the payment
of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions Precedent to Effectiveness. The effectiveness of this
Credit Agreement and the obligation of each Lender to make Loans hereunder and
the obligation of each Issuer to issue the Letters of Credit hereunder pursuant
to the terms and conditions of this Agreement are subject to the conditions
precedent that the Borrower furnishes the following with sufficient copies for
the Lenders:
(i) Copies of the articles of incorporation of the Borrower,
Xxxxxx NGL, Inc., Xxxxxx Gas Liquids, Inc., and NGC Oil Trading and
Transportation, Inc. and each corporate partner of Natural Gas
Clearinghouse and Xxxxxx Petroleum Company, Limited Partnership and of the
partnership agreement of each of Natural Gas Clearinghouse and Xxxxxx
Petroleum Company, Limited Partnership or partner of Natural Gas
Clearinghouse and Xxxxxx Petroleum Company, Limited Partnership which is a
partnership, together with all amendments, and a certificate of good
standing for each of the Borrower, Xxxxxx NGL, Inc., Xxxxxx Gas Liquids,
Inc., and NGC Oil Trading and Transportation, Inc. and each corporate
partner of Natural Gas Clearinghouse and Xxxxxx Petroleum Company, Limited
Partnership, certified with respect to each of the Borrower, Xxxxxx NGL,
Inc., Xxxxxx Gas Liquids, Inc., and NGC Oil Trading and Transportation,
Inc. and each corporate partner of Natural Gas Clearinghouse and Xxxxxx
Petroleum Company, Limited Partnership by the appropriate governmental
officer in its jurisdiction of incorporation or organization, as the case
may be; provided that in lieu of delivering any such documents which were
previously provided to the Agent pursuant to the Original Credit Agreement
and which documents so provided have
53
not changed, the Borrower may furnish a certificate in form and substance
satisfactory to the Agent which states that such documents were so
delivered and have not changed.
(ii) Copies, certified by the Secretary or Assistant Secretary of
each of the Borrower, Xxxxxx NGL, Inc., Xxxxxx Gas Liquids, Inc., and NGC
Oil Trading and Transportation, Inc. and each partner of Natural Gas
Clearinghouse and Xxxxxx Petroleum Company, Limited Partnership, of its by-
laws and of its Board of Directors' resolutions (and resolutions of other
bodies, if any are deemed necessary by counsel for any Lender) authorizing
the execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each of the Borrower, Xxxxxx NGL, Inc., Xxxxxx Gas
Liquids, Inc., and NGC Oil Trading and Transportation, Inc. and each
partner of Natural Gas Clearinghouse and Xxxxxx Petroleum Company, Limited
Partnership, which shall identify by name and title and bear the signature
of the officers of the Borrower, Xxxxxx NGL, Inc.; Xxxxxx Gas Liquids,
Inc.; and NGC Oil Trading and Transportation, Inc. or partner of Natural
Gas Clearinghouse and Xxxxxx Petroleum Company, Limited Partnership
authorized to sign the Loan Documents and to make borrowings and obtain
Letters of Credit hereunder, upon which certificate the Agent and the
Lenders shall be entitled to rely until informed of any change in writing
by the Borrower; provided that in lieu of delivering any such incumbency
certificates for Obligors for which such certificates were previously
provided to the Agent pursuant to the Original Credit Agreement and which
certificates so provided have not changed, the Borrower may furnish a
certificate in form and substance satisfactory to the Agent which states
that such certificates were so delivered and have not changed.
(iv) A written opinion of (A) the General Counsel or Corporate
Counsel of the Borrower substantially in the form of Exhibit "B-1", (B)
Xxxxxx & Xxxxxx, L.L.P., counsel to the Obligors, substantially in the form
of Exhibit "B-2" and (C) Xxxxx, Xxxxx & Xxxxx, special counsel to the
Agent, substantially in the form of Exhibit "I" hereto, each dated as of
the Closing Date and addressed to the Agent and the Lenders.
(v) Notes payable to the order of each of the Lenders (other than
the outstanding Notes under the Original Credit Agreement).
(vi) Consent, Acknowledgment and Agreement from each of Natural
Gas Clearinghouse, NGC Oil Trading and Transportation, Inc., NGC Futures,
Inc., Electric Clearinghouse, Inc., Kansas Gas Supply Corporation, NGC
Great Britain, Ltd., NGC Canada, Inc., Xxxxxx Energy Resources, Limited
Partnership, Xxxxxx Gas Liquids, Inc., Xxxxxx Gas Marketing, Inc., Xxxxxx
Intrastate Gas Supply, Inc., Xxxxxx NGL, Inc., Xxxxxx NGL Pipeline Company,
Xxxxxx Petroleum Company, Limited Partnership, WPC LP, Inc. and WTLPS, Inc.
54
(vii) A copy of the Destec Contract and the AES Contract, each
certified as being true, complete and correct by an officer of the
Borrower.
(viii) Such other documents as the Agent, any Lender or its counsel
may have reasonably requested.
4.2 Additional Condition to Effectiveness. The effectiveness of the
provisions of this Credit Agreement relating to Destec, Destec's Subsidiaries,
the Destec Transaction, AES, the AES Contract and the AES Transaction and the
obligation of each Tranche B Lender to make Tranche B Loans hereunder are
subject to the additional condition that the Agent shall have received on or
before September 30, 1997, a certificate of an officer of the Borrower to the
effect that the conditions to closing set forth in the Destec Contract have been
satisfied, and concurrently with the consummation of the Destec Transaction,
Destec shall have delivered a Subsidiary Guaranty.
4.3 Each Advance. The Lenders shall not be required to make any Advance
(other than an Advance that, after giving effect thereto and to the application
of the proceeds thereof, does not increase the aggregate amount of outstanding
Advances) and no Issuer shall be obligated to issue a Letter of Credit, unless
on the applicable Borrowing Date or Issuance Date, as the case may be:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V and
the representations in Sections 11 and 15 of each of the Subsidiary
Guaranties are true and correct in all material respects as of such
Borrowing Date or Issuance Date, as the case may be, except to the extent
any such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall be true
and correct on and as of such earlier date.
Each Committed Borrowing Notice (other than a Committed Borrowing Notice
deemed given pursuant to Section 2.2.3) and Competitive Bid Borrowing Notice
with respect to each such Advance and each Issuance Request with respect to a
Letter of Credit shall constitute a representation and warranty by the Borrower
that the conditions contained in Sections 4.3(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders, the Agent and each
Issuer that:
55
5.1 Corporate or Partnership Existence and Standing. Each of the
Borrower and its Subsidiaries is duly incorporated or organized, as the case may
be, validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization and is in good standing and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except where failure to have such authority would not have a Material
Adverse Effect.
5.2 Authorization and Validity. Each Obligor has the corporate or
partnership power and authority to execute and deliver the Loan Documents to
which it is a party and to perform its obligations thereunder. Except to the
extent that the failure to so qualify would not have a Material Adverse Effect,
each of the Borrower and its Subsidiaries has all requisite power, and is in all
respects duly qualified and licensed under all applicable laws to own its assets
and properties as now owned and to carry on its business as now conducted. The
execution and delivery by each Obligor of the Loan Documents to which it is a
party and the performance of its obligations thereunder have been duly
authorized by proper corporate and partnership proceedings, and the Loan
Documents constitute legal, valid and binding obligations of each Obligor party
thereto, enforceable against such Obligor in accordance with their terms, except
as enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
5.3 No Conflict; Government Consent. Neither the execution and delivery
by the Obligors of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on any Obligor or any of its Subsidiaries or any partner of any Obligor
or the Borrower's or any Subsidiary's or any partner's articles of
incorporation, by-laws or partnership agreement or the provisions of any
indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the Property of the Borrower or
any Subsidiary pursuant to the terms of any such indenture, instrument or
agreement that is a Material Agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with the
execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents or, to the extent that
any such consent or other action may be required, it has been validly procured
and all waiting periods with respect thereto have expired.
5.4 Financial Statements. The March 31, 1997 consolidated financial
statements of the Borrower and its Subsidiaries were prepared in accordance with
generally accepted accounting principles in effect on the date such statements
were prepared and fairly present the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended.
56
5.5 Material Adverse Change. Since March 31, 1997, there has been no
change in the business, Property, financial condition or results of operations
of the Borrower and its Subsidiaries which could reasonably be expected to have
a Material Adverse Effect.
5.6 Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns or reports which are
required to be filed and have paid all taxes due pursuant to said returns or
pursuant to any assessment received by the Borrower or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. No tax liens have been filed and no claims
are being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of any
taxes or other governmental charges are adequate in all material respects. The
Borrower knows of no pending investigation of the Borrower or any of its
Subsidiaries by any taxing authority, nor of any pending but unassessed tax
liability which could reasonably be expected to have a Material Adverse Effect.
5.7 Litigation and Contingent Obligations. Except as set forth on
Schedule "4" hereto, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect. Other than any liability incident to such litigation, arbitration or
proceedings, the Borrower has no material contingent obligations not provided
for or disclosed in the financial statements referred to in Section 5.4. To the
knowledge of the Borrower there are no outstanding judgments individually or in
the aggregate in excess of Twenty-Five Million Dollars ($25,000,000) (net of any
insurance coverage which is reasonably expected to be paid by the insurer) which
have not been stayed, against the Borrower, any of its Subsidiaries or any of
their respective Properties.
5.8 Subsidiaries. Schedule "1" hereto contains an accurate list of all
of the existing Subsidiaries of the Borrower on the Closing Date, setting forth
their respective jurisdictions of incorporation or organization and the
percentage of their respective capital stock or other equity owned by the
Borrower or other Subsidiaries of the Borrower. All of the issued and
outstanding shares of capital stock of such Subsidiaries which are corporations
have been duly authorized and issued and are fully paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $25,000,000. Neither the Borrower nor any other member
of the Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in excess of $25,000,000 in the
aggregate. Except for such matters as would not singly or in the aggregate have
or reasonably be expected to have a Material Adverse Effect, each Single
Employer Plan complies in all material respects with all applicable requirements
of law and regulations, no Reportable Event has occurred with respect to any
Single Employer Plan, except in connection with the Merger, neither the Borrower
nor any other members of the Controlled Group has withdrawn from any
Multiemployer Plan with respect to which it has any unsatisfied liability or
initiated steps
57
to do so, and except in connection with the Merger, no steps have been taken to
reorganize or terminate any Single Employer Plan.
5.10 Accuracy of Information. All factual information contained in the
NGC Corporation Amended and Restated Credit Facilities Confidential Information
Memorandum dated March 1997 (the "Information Memorandum") is true and accurate
in all material respects (taken as a whole) on the Closing Date and is not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time. In addition, the
Information Memorandum contains estimates and projections and such estimates and
projections are based upon information that was available at such time and
believed to be correct and upon assumptions believed to be reasonable and the
Borrower does not warrant that such estimates and projections will ultimately
prove to have been accurate. All written factual information furnished by the
Borrower or any of its Subsidiaries on or after the Closing Date to the Agent or
any Lender for purposes of or in connection with this Agreement or any
transaction contemplated hereby will be, true and accurate in all material
respects (taken as a whole) on the date as of which such information is dated,
certified or delivered and will not be incomplete by omitting to state any
material fact necessary to make such information (taken as a whole) not
misleading at such time. In addition, any estimates or projections provided in
connection therewith will be based on information that is then currently
available and believed to be correct and on assumptions believed to be
reasonable, but the Borrower does not warrant that such estimates or projections
will ultimately prove to have been accurate.
5.11 Regulation U. Margin stock (as defined in Regulation U) constitutes
less than 25% of those assets of the Borrower and its Subsidiaries which are
subject to any limitation on sale, pledge, or other restriction hereunder. The
Borrower is not engaged principally, and does not as one of its important
activities engage, in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulations G, U, or
X of the Board of Governors of the Federal Reserve System), and no part of the
proceeds of any extension of credit under this Agreement will be used to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock other than the purchase
of margin stock from time to time in connection with transactions (i) authorized
by the board of directors of the Borrower, (ii) either (A) authorized by the
board of directors or other governing body of the Person which stock is being
acquired or (B) involving less than 5% of the stock of any Person and (iii)
which would not cause the Borrower to fail to be in compliance with the
following sentence. Neither the Borrower nor any Person acting on its behalf has
taken or will take any action which could reasonably be expected to cause this
Agreement or any of the Notes to violate any of said Regulations G, U, or X, or
any other regulation of the Board of Governors of the Federal Reserve System or
to violate the Securities Exchange Act of 1934, in each case as now in effect or
as the same may hereafter be in effect.
5.12 Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
58
businesses or the ownership of their respective Property, except where the
failure to so comply would not have a Material Adverse Effect.
5.13 Environmental Matters. The Borrower, each of its Subsidiaries, and
their respective Properties are in compliance with all Environmental Laws except
where the failure to be in compliance could not reasonably be expected to have a
Material Adverse Effect and neither the Borrower nor any of its Subsidiaries is
subject to any liability or obligation for remedial action thereunder or in
connection therewith which could reasonably be expected to have a Material
Adverse Effect. There is no pending or, to the best of the Borrower's
knowledge, threatened investigation or inquiry by any Tribunal of the Borrower,
any of its Subsidiaries, or any of their respective Properties (i) pertaining to
any violation of any Environmental Law relating to Hazardous Materials, or (ii)
which could reasonably be expected to result in any requirement that the
Borrower or any of its Subsidiaries conduct any clean-up or remediation
activities with respect to any Hazardous Materials, which could reasonably be
expected to have a Material Adverse Effect. There are no Hazardous Materials
located on or under any of the properties of the Borrower or any of its
Subsidiaries (other than petroleum products which are located thereon in the
ordinary course of business and in a manner which does not constitute a
violation of applicable Environmental Law) which could reasonably be expected to
have a Material Adverse Effect. Neither the Borrower nor any of its
Subsidiaries has caused or permitted any Hazardous Material to be disposed of on
or under or released from any of its properties which disposal or release could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries has any knowledge of any violation of any
Environmental Law by any previous owner of any of its properties that could
reasonably be expected to have a Material Adverse Effect.
5.14 Ownership of Properties; Liens. Except as set forth on Schedule "2"
hereto, on the date of this Agreement, the Borrower and its Subsidiaries will
have marketable title or valid leasehold interests, free of all Liens other than
those permitted by Section 6.2.9, to all of the Property and assets reflected in
the financial statements described in Section 5.4, except that with respect to
properties acquired subsequent to the date hereof, the Borrower represents only
that (i) the same will be acquired only after appropriate due diligence
regarding title to the same, and (ii) the title to all such property so acquired
will be acceptable to a reasonably prudent person engaged in the acquisition,
ownership and operation of the type of property interest involved and subject
only to defects existing as of the date of acquisition which are not material or
for which appropriate adjustments in the cost of acquisition shall have been
made.
5.15 Investment Company Act. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
5.16 Public Utility Holding Company Act. Each of the Borrower and each
of its Subsidiaries is not subject to, or is exempt from, regulation as a
"holding company", a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company", in each case as such
59
terms are defined in the Public Utility Holding Company Act of 1935, as amended
and the rules and regulations thereunder.
5.17 Insurance. As of the Closing Date, the certificate provided
pursuant to Section 4.1(x) of the Original Credit Agreement and signed by an
Authorized Representative of the Borrower, that attests to the existence and
adequacy of, and summarizes, the property and casualty insurance program carried
by the Borrower and that has been furnished by the Borrower to the Agent and the
Lenders, is complete and accurate in all material respects.
5.18 Solvency. (i) Immediately after the consummation of the Destec
Transaction and immediately following the making of each Loan, if any, and
issuance of any Letter of Credit, if any, made or issued, as the case may be, on
the date hereof and after giving effect to the application of the proceeds of
such Loans and Letters of Credit, (a) the value of the assets of the Borrower
and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed
the debts and liabilities, subordinated, contingent or otherwise, of the
Borrower and its Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the property of the Borrower and the Subsidiaries on a
consolidated basis will be greater than the amount that will be required to pay
the probable liability of the Borrower and its Subsidiaries on a consolidated
basis on their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
the Borrower and its Subsidiaries on a consolidated basis will be able to pay
their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries will,
incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be payable on or in respect
of its Debt or the Debt of any such Subsidiary.
5.19 Default. Neither the Borrower nor any of its Subsidiaries is in
default under the provisions of any Material Agreement or of any instrument
evidencing any material obligation, indebtedness, or liability of the Borrower
or any of its Subsidiaries, or of any agreement relating thereto, or in default
under or in violation of any order, writ, injunction, decree, regulation, or
demand of any Tribunal, which default or violation could reasonably be expected
to have a Material Adverse Effect.
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ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Affirmative Covenants.
6.1.1 Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary of the Borrower, a system of accounting established and administered
in accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) As soon as available, and in any event within sixty (60) days
after the end of each of the first three quarterly periods of each of its
fiscal years, (i) a consolidated statement of income of the Borrower and
its Subsidiaries for such quarter and a consolidated statement of income
and a consolidated statement of cash flows of the Borrower and its
Subsidiaries for the period commencing with the beginning of the Borrower's
fiscal year to the end of such quarter, (ii) a consolidated balance sheet
of the Borrower and its Subsidiaries as of the close of business for such
quarter, (iii) consolidating statements of income of the Borrower and its
Subsidiaries for such quarter and consolidating statements of income and
consolidating statements of cash flows of the Borrower and its Subsidiaries
for the period commencing with the beginning of the Borrower's fiscal year
to the end of such quarter prepared on a business segment basis, showing
gas, liquids, electric power and corporate, or such other segments as
agreed from time to time by the Agent, as business segments, (iv)
consolidating balance sheets of the Borrower and its Subsidiaries as of the
close of business for such quarter prepared on a business segment basis,
showing gas, liquids, electric power and corporate, or such other segments
as agreed from time to time by the Agent, as business segments, and (v) a
computation of the ratios and amounts required to be maintained by Sections
6.3.1, 6.3.2 and 6.3.3, all in reasonable detail, prepared in accordance
with generally accepted accounting principles and certified by an
Authorized Officer to the effect that they present fairly the financial
condition and results of the operations of the Borrower at the date and for
the period indicated therein, subject to changes resulting from year-end
audit adjustments.
(ii) As soon as available and in any event within 120 days after the
close of each of its fiscal years, an unqualified (except for
qualifications relating to changes in accounting principles or practices
reflecting changes in generally accepted principles of accounting and
required or approved by the Borrower's independent certified public
accountants) audit report certified by independent certified public
accountants, acceptable to the Agent, prepared in accordance with generally
accepted accounting principles on a consolidated basis for the Borrower and
its Subsidiaries, including a balance sheet as of the end of such period
and related statements of income, retained earnings and cash flows,
accompanied by a
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computation made by such accountants of the ratios and amounts required to
be maintained by Sections 6.3.1, 6.3.2 and 6.3.3.
(iii) Together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit "C" hereto
signed by an Authorized Officer of the Borrower (a "Compliance
Certificate") certifying that the statements fairly present the Borrower's
financial condition and results of operations showing the calculations
necessary to determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with respect to any
Single Employer Plan, a statement, signed by an Authorized Officer of the
Borrower, describing said Reportable Event and the action which the
Borrower proposes to take with respect thereto.
(v) Promptly after becoming aware thereof, written notice of any
litigation which could reasonably be expected to result in a judgment
against the Borrower or any of its Subsidiaries in excess of $25,000,000,
net of insurance coverage which is reasonably expected to be paid by the
insurer, or other event or condition which could reasonably be expected to
have a Material Adverse Effect.
(vi) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy statements
so furnished.
(vi) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports which
the Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission.
(vii) Promptly, notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default.
(ix) Such other information (including non-financial information) as
the Agent or any Lender may from time to time reasonably request.
6.1.2 Use of Proceeds. The Borrower will, and will cause each Subsidiary
of the Borrower to, use the proceeds of the Tranche A Advances to provide (i)
funds to complete the Destec Transaction and for paying the expenses of
consummating the Destec Transaction, (ii) funds for working capital needs and
other general corporate purposes, including Acquisitions provided that any
Acquisition is approved by the board of directors of the target or selling
company and by any required shareholder vote (to the extent such approval or
vote is required by applicable law or by the organizational documents,
regulations or by-laws of the target or selling company), other than purchases
which comply with the second sentence of Section 5.11, and (iii) to repay
outstanding
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Tranche A Advances. The Borrower will use the Tranche B Advances to provide
funds to complete the Destec Transaction and for paying the expenses of
consummating the Destec Transaction. The Borrower will not, nor will it permit
any Subsidiary of the Borrower to, use any of the proceeds of the Advances to
purchase or carry any "margin stock" (as defined in Regulation U) in violation
of Regulation U.
6.1.3 Additional Subsidiary Guaranties. The Borrower will cause any
Subsidiary of the Borrower (other than any Project Financing Subsidiary) which
after the date hereof has (i) consolidated fixed assets plus net working capital
with a book value equal to or greater than $100,000,000 as determined in a
manner consistent with the most recent financial statements provided pursuant to
Section 6.1.1 or (ii) 15% or more of the Consolidated EBITD for the calendar
quarter immediately prior to the quarter in which such determination is made
(unless such Consolidated EBITD for such Subsidiary for such quarter is less
than $10,000,000 or unless such Person is not a Subsidiary of the Borrower for
the entire calendar quarter) to become a Guarantor with respect to, and be
jointly and severally liable with all other Guarantors for, all the Obligations
by executing and delivering to the Lenders a guaranty substantially in the form
of the applicable Subsidiary Guaranty except to the extent that such Person
becomes a Subsidiary of the Borrower pursuant to an Acquisition and is subject
at the time of such Acquisition to restrictions adversely affecting its ability
to enter into a Subsidiary Guaranty; provided however, in the event that any
Subsidiary of the Borrower provides a Guaranty with respect to any Debt of the
Borrower other than the Obligations or of the Institutionally Targeted Capital
Securities, such Subsidiary shall also concurrently become a Guarantor with
respect to, and be jointly and severally liable with all other Guarantors for,
all the Obligations by executing and delivering to the Lenders a guaranty
substantially in the form of the applicable Subsidiary Guaranty (an "Additional
Guaranty") and, in the event that any such Subsidiary no longer provides a
Guaranty with respect to such other Debt of the Borrower or the Institutionally
Targeted Capital Securities, so long as such Additional Guaranty is not
otherwise required pursuant to this Section 6.1.3, the Additional Guaranty shall
concurrently terminate. Notwithstanding anything to the contrary in this
Section 6.1.3, no Subsidiary of Destec shall be required to deliver a Guaranty
pursuant to this Section 6.1.3 to the extent (i) it does not incur any Debt or
issue any Guaranty after the effective date of the Destec Transaction and (ii)
the eighteenth month anniversary of the effective date of the Destec Transaction
has not yet occurred; provided, that if within such eighteen month period a
Destec Subsidiary which has provided a Subsidiary Guaranty pursuant to this
Section 6.1.3 is (A) sold or otherwise transferred and ceases to be a Subsidiary
of the Borrower or (B) sells or transfers assets and as a result thereof is not
(after giving effect to such sales and transfers) a Subsidiary which would be
obligated to deliver a Subsidiary Guaranty under this Section 6.1.3, then so
long as no Default has occurred and is continuing, such Subsidiary Guaranty
shall be automatically released upon such sale or other transfer in the case of
the foregoing (A) or upon request of the Borrower in the case of the foregoing
(B). In addition, a Subsidiary Guaranty delivered by a Guarantor pursuant to
this Agreement may be released and terminated upon written request of the
Borrower provided that (A) such Guarantor as of the end of the most recent
calendar quarter prior to the quarter in which such request is made satisfies
the Guarantor Discontinuance Test, (B) at the time of such release no Default
shall have occurred and be continuing and (C) upon the effectiveness of such
termination all other Guaranties
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of such Subsidiary with respect to any Debt of the Borrower (other than the
Obligations) or the Institutionally Targeted Capital Securities shall
concurrently terminate and be of no further force or effect. The Administrative
Agent is hereby authorized by each of the Lenders to provide to the Borrower on
behalf of the Lenders written confirmation of the release and termination of any
Subsidiary Guaranty pursuant to either of the three preceding sentences. The
Administrative Agent and the Lenders acknowledge and agree that each of the NGC
Storage, Inc., Hub Service, Inc., and NGC Anadarko Gathering Systems, Inc.
Subsidiary Guaranties have been released and terminated.
6.1.4 Conduct of Business. The Borrower will, and will cause each
Subsidiary of the Borrower to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted or contemplated (after giving effect to the Destec
Transaction) and to do all things reasonably necessary to remain duly
incorporated, validly existing and in good standing as a domestic corporation in
its jurisdiction of incorporation or as a partnership in its jurisdiction of
organization, as the case may be, to maintain all requisite authority to conduct
its business in each jurisdiction in which its business is conducted (except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect) and to keep in full force and effect its respective existence,
rights, leases, patents, and all other licenses or rights necessary to comply
with all Laws or other provisions of any Material Agreement (except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect); provided, however, that nothing in this Section 6.1.4 shall prevent the
abandonment and retirement of property used or useful in the conduct of the
business of the Borrower or any of its Subsidiaries, if, in the reasonable
opinion of the Borrower or the applicable Subsidiary of the Borrower, such
abandonment or retirement of property is in the interest of the Borrower or such
Subsidiary and not prejudicial to the Lenders.
6.1.5 Taxes and Other Charges. The Borrower will, and will cause each
Subsidiary of the Borrower to, pay when due all taxes, assessments and
governmental charges and levies upon it or its income, profits or Property, as
well as all lawful claims for labor, materials, and supplies, which, if unpaid
could become a Lien or charge on such Property, or any part thereof, except,
with regard to any of the foregoing, which are being contested in good faith by
appropriate proceedings diligently pursued and with respect to which adequate
reserves as required by Agreement Accounting Principles have been set aside.
6.1.6 Insurance. The Borrower will, and will cause each Subsidiary of the
Borrower to, maintain with financially sound and reputable insurance companies
insurance on their Property in such amounts and covering such risks as is
consistent with prudent industry practice, and the Borrower will furnish to any
Lender upon reasonable request full information as to the insurance carried,
including, without limitation, certificates of insurers, brokers and agents, as
to such insurance.
6.1.7 Compliance with Laws. The Borrower will, and will cause each
Subsidiary of the Borrower to, comply with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject,
including, without limitation, all Environmental Laws, and
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obtain, keep, and comply with, all necessary permits, approvals, certificates
and licenses in effect and remain in compliance therewith, except in any such
case where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
6.1.8 Maintenance of Properties. The Borrower will, and will cause each
Subsidiary of the Borrower to, maintain, preserve, protect and keep its Property
in good repair, working order and condition in accordance with prudent industry
practices, and make all necessary and proper repairs, renewals and replacements
so that its business is carried on in accordance with prudent industry
practices; provided, however, that nothing in this Section 6.1.8 shall prevent
the abandonment and retirement of property used or useful in the conduct of the
business of the Borrower or any of its Subsidiaries, if, in the reasonable
opinion of the Borrower or the applicable Subsidiary, such abandonment or
retirement of property is in the interest of the Borrower or such Subsidiary and
would not have a Material Adverse Effect.
6.1.9 Inspection. The Borrower will, and will cause each Subsidiary of the
Borrower to, permit the Agent and the Lenders, by their respective
representatives and agents, to visit and inspect (so long as no Default shall
have occurred, at their own risk, cost and expense) any of the Property,
corporate books and financial records of the Borrower and each Subsidiary of the
Borrower, to audit and examine and make copies of the books of accounts and
other financial records (and after the occurrence and during the continuance of
a Default, other records) of the Borrower and each Subsidiary of the Borrower,
and to discuss the affairs, finances and accounts of the Borrower and each
Subsidiary of the Borrower with, and to be advised as to the same by, their
respective officers upon reasonable advance notice, and at such reasonable times
(during normal business hours) and intervals as the Agent and the Lenders may
designate; provided, however, that during such time as no Default has occurred
and is continuing, visits, inspections and audits by the Agent and the Lenders
shall be conducted on the same date and not more often than once during any
calendar quarter, unless otherwise agreed by the Borrower.
6.1.10 Maintenance of Books and Records. The Borrower will maintain, and
will cause each of its Subsidiaries to maintain, proper books of record and
account in which the Borrower and each of its Subsidiaries will make full, true,
and correct entries, in accordance with Agreement Accounting Principles, of all
dealings and transactions with respect to which pursuant to any Law or Agreement
Accounting Principles the Borrower is required to maintain written records in
relation to its business and activities.
6.1.11 Compliance with ERISA. The Borrower will comply, and will cause
each of its Subsidiaries to comply, with all applicable minimum funding
requirements and all other applicable requirements of ERISA except where a
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.2 Negative Covenants.
6.2.1 [Intentionally Omitted].
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6.2.2 Debt. The Borrower will not, nor will it permit any Subsidiary of
the Borrower to, create, incur or suffer to exist any Debt, except:
(i) The Obligations;
(ii) Debt existing on the date hereof (not otherwise permitted
pursuant to this Section 6.2.2) and included in the financial statements
referred to in Section 5.4 or in Schedule "2" hereto;
(iii) The Existing Xxxxxx Subordinated Debt;
(iv) Debt incurred under Capitalized Leases or secured by a purchase
money Lien permitted by Section 6.2.9(iv) provided that both before and
after giving effect to any incurrence of any such obligation or Debt there
exists no Default or Unmatured Default;
(v) Debt of (A) a Subsidiary of the Borrower due to the Borrower or
any other Subsidiary of the Borrower or (B) the Borrower due to any
Subsidiary of the Borrower;
(vi) To the extent not otherwise permitted by this Section 6.2.2,
Debt of Subsidiaries of the Borrower in an amount not to exceed in the
aggregate for all such Debt at any one time outstanding $150,000,000,
provided, that both before and after giving effect to any incurrence of
such Debt there exists no Default or Unmatured Default, provided further
that no Subsidiary of the Borrower shall enter into or permit to exist any
agreement with respect to any such Debt which restricts or prohibits, or
which has the effect of restricting or prohibiting the declaration or
payment of dividends or other distributions or advances by that Subsidiary
to the Borrower and its other Subsidiaries;
(vii) Project Financing;
(viii) To the extent not otherwise permitted by this Section 6.2.2,
Debt of the Borrower up to an amount such that both before and after the
incurrence of such Debt there will not exist a Default or an Unmatured
Default;
(ix) Debt of any Person which is outstanding at the time such Person
becomes a Subsidiary of the Borrower as a result of a permitted
Acquisition;
(x) Renewals, extensions, amendments, refinancing, rearrangements,
modifications, restatements, defeasances, purchases or supplements of any
Debt referred to in Subsection 6.2.2(i) through (ix), provided that no such
renewal, extension, amendment, refinancing, rearrangement, modification,
restatement or supplement shall increase the amount of the outstanding
Existing Xxxxxx Subordinated Debt; and
(xi) Debt in respect of the facility referred to in clause (iv)(a) of
Section 6.2.8.
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6.2.3 Merger. The Borrower will not, nor will it permit any Subsidiary of
the Borrower to, merge or consolidate with or into any other Person, unless both
before and after giving effect to such merger or consolidation, there exists no
Default or Unmatured Default; provided that (i) if any Subsidiary of the
Borrower party to such a merger or consolidation is a Guarantor, the Subsidiary
Guaranty of such Guarantor shall remain in force and effect and (ii) if the
Borrower is a party to such a merger or consolidation, the Borrower is the
surviving Person or if the Borrower is not the surviving Person, the surviving
Person shall expressly assume in writing in form and substance reasonably
satisfactory to the Agent all of the liabilities and obligations of the Borrower
hereunder, under the Notes and under the other Loan Documents.
6.2.4 Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary of the Borrower to, lease, sell or otherwise dispose of its Property,
to any other Person except:
(i) sales of inventory, Natural Gas, electricity, crude oil, natural
gas liquids and other forms of energy in the ordinary course of business,
(ii) sales or other dispositions of notes receivable or accounts
receivable as permitted by Section 6.2.5,
(iii) leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than Property otherwise
permitted to be sold, leased, or otherwise disposed of pursuant to this
Section 6.2.4) during the twelve-month period ending with the month in
which any such lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the Property of the Borrower and its Subsidiaries,
provided, that for purposes of this clause (iii), the sale or other
disposition by a Subsidiary of the Borrower of stock or other equity
interests in itself to a Person other than the Borrower or one or more of
its Subsidiaries shall be considered a sale or other disposition of
Property with a value equal to the difference between (A) the product of
the Borrower's direct and indirect percentage of ownership of such
Subsidiary times the book value of such Subsidiary before such sale or
other disposition minus (B) the product of the percentage of the Borrower's
direct and indirect ownership of such Subsidiary times the sum of the book
value of such Subsidiary after giving effect to such sale or other
disposition plus any assets acquired in connection with such sale or other
disposition,
(iv) sales of assets which are concurrently leased back,
(v) sales or exchanges of fixed assets which are intended to be and
are replaced within 180 days of such sale or other disposition by fixed
assets having a substantially similar or greater fair market value,
(vi) dispositions of assets which are obsolete or no longer used or
useful in the business of the Borrower or any of its Subsidiaries,
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(vii) leases, sales or other dispositions of its Property by (A) the
Borrower to any of its Subsidiaries or (B) any Subsidiary of the Borrower
to the Borrower or any other Subsidiary of the Borrower,
(viii) sales or other dispositions of any ownership interest, whether
in whole or in part, in any fractionators within twelve (12) months of the
consummation of the Newco Combination to comply with requirements of
governmental authorities in connection with the Newco Combination, or
(ix) the AES Transaction, or
(x) the sale of any of Destec's assets or any of Destec's
Subsidiaries, in whole or in part, within 18 months of the effective date
of the Destec Transaction;
provided that the parties understand and agree that any merger otherwise
permitted by Section 6.2.3 (including the Newco Combination) shall not
constitute a disposition of assets.
6.2.5 Sale of Accounts. The Borrower will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse, with an aggregate outstanding principal
amount (in the case of notes) and an aggregate outstanding face amount (in the
case of accounts receivable) in excess, for all such sales and other
dispositions on or after the date hereof of $150,000,000 at any time and from
time to time outstanding.
6.2.6 [Intentionally Omitted]
6.2.7 Investments and Acquisitions. The Borrower will not, nor will it
permit any Subsidiary of the Borrower to, make or suffer to exist any
Investments, except:
(i) Short-term obligations of, or fully guaranteed by, the United
States of America.
(ii) Commercial paper rated A-l or better by S&P or P-l or better by
Xxxxx'x Investors Service, Inc.
(iii) Certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus
in excess of $100,000,000 or any Lender.
(iv) Other Investments (not otherwise permitted pursuant to this
Section 6.2.7) in existence on the date hereof and included in the
financial statements provided pursuant to Section 5.4 or in Schedule "1"
hereto.
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(v) Loans or advances to Xxxxxx pursuant to the Xxxxxx Intercompany
Credit Agreement.
(vi) Advances, loans, extensions of credit or capital contributions by
the Borrower or any of its Subsidiaries to or on behalf of the Borrower or
any Subsidiary or Affiliate of the Borrower (including, but not limited to,
the purchase of the Existing Xxxxxx Subordinated Debt), provided that both
before and after giving effect to any such advance, loan, extension of
credit or capital contribution, there exists no Default or Unmatured
Default.
(vii) Contributions of capital to any Person, or investments in, or
purchases or other acquisitions (in accordance with Regulation U) of, the
stock, partnership interests, notes, debentures or other securities of any
Person, or any commitment for any of the foregoing.
(viii) Repurchase agreements with the Agent or any Lender, or banks
that are insured by the Federal Deposit Insurance Corporation and having a
capital and an unimpaired surplus of at least One Hundred Million Dollars
($100,000,000), and with members of the Association of Primary Dealers in
United States Government Securities, the underlying securities of which are
of the type described in (i) above, and each of which is secured at all
times by obligations of the same type that have fair market value,
including accrued interest, at least equal to the amount of such repurchase
agreement, including accrued interest.
(ix) Obligations of any state within the United States of America, any
nonprofit corporation or any instrumentality of the foregoing, provided
that at the time of their purchase, such obligations are rated in one of
the two highest letter rating categories (e.g. in the case of S&P, either
its AAA or AA category) by a nationally recognized securities credit rating
agency.
(x) Obligations issued by political subdivisions or municipalities of
any state within the United States of America, any nonprofit corporation or
any instrumentality of the foregoing, that are rated in one of the two
highest letter rating categories (e.g. in the case of S&P, either its AAA
or AA category) by a nationally recognized securities credit rating agency.
(xi) Eurodollar deposits with the overseas branch of any domestic bank
or any Lender having a capital and surplus of at least One Hundred Million
Dollars ($100,000,000).
(xii) Participations having a term of no more than 90 days with (i)
any Lender or (ii) any financial institution, the unsecured debt of which
is rated in one of the two highest letter rating categories (e.g. in the
case of S&P, either its AAA or AA category) by a nationally recognized
securities credit rating agency, in loans made or owned by such Lender or
other financial institution to Persons which have open market commercial
paper rated in
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either of the two highest short-term rating categories by a nationally
recognized securities credit rating agency.
6.2.8 Contingent Obligations. The Borrower will not, nor will it permit
any Subsidiary of the Borrower to, make or suffer to exist any Guaranty, except:
(i) endorsement of instruments for deposit or collection in the
ordinary course of business,
(ii) the Subsidiary Guaranties,
(iii) Guaranties of the Existing Xxxxxx Subordinated Debt, which
Guaranties are subordinated to the Obligations in a manner satisfactory to
the Agent, acting reasonably,
(iv) Guaranties of obligations in respect of letters of credit (other
than Letters of Credit) or Debt with respect to reimbursement of draws (a)
under a letter of credit and reimbursement facility in an amount not to
exceed $350,000,000 in the aggregate pursuant to which one or more letters
of credit will be issued in favor of CUSA to support the obligations of the
Borrower and/or any of its Subsidiaries under the Natural Gas Purchase and
Sale Agreement between the Borrower and/or any of its Subsidiaries and CUSA
and (b) in addition to the letters of credit described in the foregoing
clause (a), not to exceed in the aggregate at any time outstanding an
amount equal to the excess, if any, of (1) $300,000,000 over (2) the Stated
Amount of Letters of Credit plus unreimbursed obligations in respect of
drawings under Letters of Credit,
(v) the Xxxxxx Guaranties set forth in Schedule 5,
(vi) Guaranties of (A) Debt of the Borrower and its Subsidiaries
otherwise permitted pursuant to the terms of this Agreement, (B)
obligations of the Borrower and its Subsidiaries under leases that do not
constitute Capitalized Lease Obligations at the time such leases are
entered into, and (C) other obligations of the Borrower and its
Subsidiaries (other than (1) Guaranties of Debt of Persons other than the
Borrower and its Subsidiaries, (2) Guaranties of obligations set forth in
agreements, undertakings or other arrangements by which the Borrower and
its Subsidiaries agree to maintain the net worth, working capital or any
other financial condition of any other Person, (3) Guaranties of the type
referred to in clause (a) of the definition of the term Guaranty and not
otherwise permitted by clause (iv) of this Section 6.2.8, and (4)
completion guaranties or similar assurances that a project performs as
planned) of a type normally incurred in the industry and incurred in the
ordinary course of business; and
(vii) to the extent not included above, Guaranties of other
obligations (including, without limitation, agreements containing
completion guaranties or similar assurances that a project performs as
planned and excluding Guaranties of the type referred to in clause (a)
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of the definition of Guaranty not otherwise permitted by clause (iv) of
this Section 6.2.8) which obligations are otherwise permitted pursuant to
the terms of this Agreement not to exceed in the aggregate at any time the
greater of $150,000,000 or 5% of the Borrower's tangible assets on a
consolidated basis at such time.
6.2.9 Liens. The Borrower will not, nor will it permit any Subsidiary of
the Borrower to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not
materially affect the marketability of the same or interfere with the use
thereof in the business of the Borrower or its Subsidiaries;
(ii) Liens existing on the date hereof (not otherwise permitted
pursuant to this Section 6.2.9) and described in Schedule "2" hereto;
(iii) Permitted Liens;
(iv) (a) Liens created by Capitalized Leases permitted by Section
6.2.2(iv) provided that the Liens created by any such Capitalized Lease
attach only to the property leased to the Borrower or one of its
Subsidiaries pursuant thereto, and (b) purchase money Liens securing Debt
(including such Liens securing Debt incurred within 12 months of the date
on which such Property was acquired) permitted by Section 6.2.2(iv)
provided that all such Liens attach only to the property purchased with the
proceeds of the Debt secured thereby, (c) Liens on receivables or notes
created in connection with a receivables or notes sale permitted by Section
6.2.5 and Liens on rights of the Borrower or any of its Subsidiaries
related to such receivables or notes which are transferred to the purchaser
of such receivables or notes in connection with such permitted sale,
provided that such Liens secure only the obligations of the Borrower or any
of its Subsidiaries in connection with such sale and (d) Liens created by
leases that do not constitute Capitalized Leases at the time such leases
are entered into provided that the Liens created thereby attach only to the
property leased to the Borrower or one of its Subsidiaries pursuant
thereto;
(v) Liens on cash and short-term investments (a) deposited by the
Borrower or any of its Subsidiaries in margin accounts with futures
contract brokers authorized to trade on the New York Mercantile Exchange to
secure its obligations with respect to futures contracts for the purchase
or sale of natural gas, natural gas liquids, domestic crude, Xxxxx crude,
propane, heating oil, unleaded gasoline and/or jet fuel or (b) pledged by
the Borrower or any of its Subsidiaries to secure its obligations pursuant
to one or more Fixed Price Contracts or other such contracts with respect
to other commodities or interest rate or currency rate management
contracts;
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(vi) Liens on (A) Property owned by a Project Financing Subsidiary or
(B) equity interests in a Project Financing Subsidiary (including in each
case a pledge of a partnership interest, common stock or a membership
interest in a limited liability company) securing Debt incurred in
connection with a Project Financing;
(vii) Liens on Property of a Person which exist at the time such
Person becomes a Subsidiary of the Borrower as a result of a permitted
Acquisition which Liens were not granted in contemplation of such Person
becoming a Subsidiary of the Borrower; and
(viii) extensions, renewals or replacements of any Lien referred to in
Sections 6.2.9(i) through (vii), provided that the principal amount of the
Debt or obligation secured thereby is not increased and that any such
extension, renewal or replacement Lien is limited to the Property
originally encumbered thereby.
6.2.10 Consolidated Net Fixed Price Book Deficit. The Borrower will not
permit the Consolidated Net Fixed Price Book Deficit as of any date for the
period beginning on the first day of the Prompt Month and ending on the last day
of the last month after such date for which there is any Natural Gas Projected
Contract Exposure to exceed $15,000,000.
6.2.11 [Intentionally omitted.]
6.2.12 Affiliates. The Borrower will not, and will not permit any
Subsidiary of the Borrower to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate (other than the Borrower or any of its
Subsidiaries and other than dividends to shareholders of the Borrower) except
upon terms no less favorable to the Borrower or such Subsidiary than the
Borrower or such Subsidiary would obtain in a comparable arms-length transaction
and except the transactions and payments contemplated in and made pursuant to
the Destec Contract or the Merger Agreement or the Newco Combination Agreement
and together with, in each case, the other agreements attached as Exhibits
thereto and except transactions and payments between Destec and its Affiliates
pursuant to agreements in effect at the time of the effectiveness of the Destec
Transaction.
6.2.13 Judgments. The Borrower will not allow any final judgment for the
payment of money in excess of Twenty-Five Million Dollars ($25,000,000) with
respect to the Borrower or any Subsidiary of the Borrower (other than any
Project Financing Subsidiary) rendered against the Borrower or any Subsidiary of
the Borrower to remain undischarged or unbonded for a period of thirty (30) days
during which such execution shall not be effectively stayed or deferred.
6.3 Financial Covenants.
6.3.1 Net Worth. The Borrower will maintain at all times, Consolidated
Tangible Net Worth of not less than the sum of (i) $400 million, plus (ii) 50%
of the Borrower's Consolidated Net Income, if positive, for each fiscal quarter
ending after March 14, 1995, plus (iii) 50% of the
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aggregate net proceeds of all issuances of equity securities made by the
Borrower after March 14, 1995; provided that for purposes of this Section 6.3.1,
the Institutionally Targeted Capital Securities will not constitute equity of
the Borrower and its Subsidiaries.
6.3.2 Leverage Ratio. The Borrower will not permit its Leverage Ratio to
exceed 60%; provided that notwithstanding the foregoing, until the earlier of
(i) the end of the quarter which ends the quarter containing the date which is
18 months from the effective date of the Destec Transaction, and (ii) the
effective date of the AES Transaction, the Leverage ratio shall not exceed 65%;
provided further that for purposes of determining the Leverage Ratio pursuant to
this Section 6.3.2, the Institutionally Targeted Capital Securities are deemed
to be included in stockholders' equity.
6.3.3 Coverage Ratio. The Borrower will maintain for each Rolling Period
ending as of the last day of each calendar quarter a ratio of (i) Consolidated
EBITD minus Maintenance Capital Expenditures to (ii) Scheduled Debt Service of
not less than 2.0 to 1.0.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1 Any representation or warranty made or deemed made by the Borrower or
any of its Subsidiaries to the Lenders, any Issuer or the Agent under or in
connection with this Agreement or any other Loan Document shall be incorrect in
any material respect on the date as of which made or deemed made.
7.2 The failure or refusal of any Obligor to (a) pay the principal of any
of the Obligations, or any part thereof, as it becomes due in accordance with
the terms of the Loan Documents, or (b) pay interest on any of the Obligations,
or any part thereof, or any other amount or fee under the terms of this
Agreement and the other Loan Documents, within five (5) Business Days after it
becomes due.
7.3 The breach by the Borrower of any of the terms or provisions of
Section 6.1.2, 6.1.9, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.2.8 or 6.2.9.
7.4 The breach by the Borrower (other than a breach which constitutes a
Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of this
Agreement or any other Loan Document or by any Obligor of any other Loan
Document and, if capable of being remedied, such breach shall remain unremedied
for 30 days after the earlier of (i) an Authorized Officer of the Borrower
obtaining knowledge of such breach, or (ii) written notice thereof being given
to the Borrower by any Lender, the Agent or any Issuer.
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7.5 (a) Failure of any Obligor or any Subsidiary (other than any Project
Financing Subsidiary) of an Obligor to pay when due (subject to any applicable
grace period), whether by acceleration or otherwise, any Debt (other than the
Obligations and other than the Existing Xxxxxx Subordinated Debt and other than
the CUSA Assumed Debt) aggregating for all of the Obligors and their respective
Subsidiaries in excess of $40,000,000 in principal amount; (b) the default by
any Obligor or any Subsidiary (other than any Project Financing Subsidiary) of
an Obligor in the performance of any term, provision or condition contained in
any agreement under which any Debt (other than the Obligations and other than
the Existing Xxxxxx Subordinated Debt and other than the CUSA Assumed Debt)
aggregating for all of the Obligors and their respective Subsidiaries (other
than any Project Financing Subsidiary) in excess of $40,000,000 in principal
amount was created or is governed, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to permit the
holder or holders of such Debt to cause such Debt to become due prior to its
stated maturity and such default, event or condition continues for more than 30
days; provided, however, that in the event the rights of any holder or holders
of such Debt to accelerate such Debt have been terminated by cure of such
default or written waiver by the holder of such Debt, such default shall not
thereafter constitute a Default hereunder until such time as the right of such
holder or holders to accelerate such Debt again arises; (c) any Debt (other than
the Obligations and other than the Existing Xxxxxx Subordinated Debt and other
than the CUSA Assumed Debt) of any of the Obligors or any of their respective
Subsidiaries aggregating for all of the Obligors and their respective
Subsidiaries in excess of $40,000,000 in principal amount shall be declared to
be due and payable or required to be prepaid (other than by a regularly
scheduled payment) prior to the stated maturity thereof; (d) any of the Existing
Xxxxxx Subordinated Debt shall be declared to be due and payable or required to
be prepaid prior to the stated maturity thereof and shall not be paid (or such
acceleration rescinded) within 30 days of the date on which it is required to be
so paid; or (e) demand for payment shall be made for all or any part of the CUSA
Assumed Debt prior to the stated maturity thereof and such payment shall not be
made (or such demand rescinded) on or before the earlier of (i) 30 days
following such demand or (ii) the date upon which the holder thereof commences
proceedings to collect such payment.
7.6 The Borrower or any of its Subsidiaries (other than any Project
Financing Subsidiary) or any Guarantor shall (i) have an order for relief
entered with respect to it under the Federal bankruptcy laws as now or hereafter
in effect, (ii) make an assignment for the benefit of creditors, (iii) apply
for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate action to authorize or effect any of the foregoing actions
set forth in this Section 7.6, (vi) not pay, or admit in writing its inability
to pay, its debts generally as they become due. or (vii) fail to contest in good
faith any appointment or proceeding described in Section 7.7.
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7.7 Without the application, approval or consent of the Borrower or any of
its Subsidiaries (other than any Project Financing Subsidiary), or any
Guarantor, a receiver, trustee, examiner, liquidator or similar official shall
be appointed for the Borrower or such Subsidiary or such Guarantor or any
Substantial Portion of the Property of any of the foregoing, or a proceeding
described in Section 7.6(iv) shall be instituted against the Borrower or any of
its Subsidiaries (other than any Project Financing Subsidiary) or any Guarantor
and such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 consecutive days.
7.8 The failure of the Borrower or any Subsidiary of the Borrower (other
than any Project Financing Subsidiary) to have stayed or discharged within a
period of thirty (30) days after the commencement thereof any attachment,
sequestration, or similar proceeding against any of its assets having a fair
market value of $25,000,000 or more.
7.9 Any Change in Control shall occur.
7.10 Any Subsidiary Guaranty shall fail to remain in full force or effect
or any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Subsidiary Guaranty, or any Guarantor shall fail to
comply with any of the terms or provisions of any Subsidiary Guaranty to which
it is a party, or any Guarantor denies that it has any further liability under
any Subsidiary Guaranty to which it is a party, or gives notice to such effect;
provided, however, that no termination of a Subsidiary Guaranty resulting from
the merger of one Subsidiary of the Borrower which has executed a Subsidiary
Guaranty into another Subsidiary of the Borrower which has executed a Subsidiary
Guaranty shall constitute a Default so long as the Subsidiary Guaranty of the
corporation surviving such merger remains in full force and effect and that any
release or termination of a Subsidiary Guaranty pursuant to Section 6.1.3 shall
not constitute a Default.
7.11 Subsidiaries. The Borrower shall cease to own, directly or indirectly,
free and clear of Liens, at least the following percentage (or such lesser
percentage of such Person as was owned at the time such Person reached either of
the thresholds described in (i)(A) or (i)(B) below, without giving effect to
transfers made in contemplation of such Person's reaching such threshold) of the
issued and outstanding capital stock or other equity of a Guarantor, other than
as a result of the merger of such Guarantor into another Subsidiary of the
Borrower or as a result of a transfer that did not result in a Default under
this Section 7.11 at the time made: (i) 80% of a Guarantor at any time either
(A) having fixed assets and net working capital with a book value equal to or
greater than $100,000,000 or (B) contributing 15% or more of the Consolidated
EBITD for an entire calendar quarter or (ii) 51% of any Guarantor other than a
Guarantor referred to in the foregoing clause (i); provided, however, that the
failure to own a Guarantor that has been released, or whose Subsidiary Guaranty
has been terminated, pursuant to Section 6.1.3 shall not constitute a Default.
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ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration.
(a) If any Default described in Section 7.6 (other than 7.6 (ii) and other
than 7.6(v) hereof as to any of the matters in 7.6(ii) hereof) or 7.7 occurs,
(i) the obligations of the Lenders to make Loans hereunder and the obligations
of the Issuers to issue Letters of Credit shall automatically terminate and the
Obligations shall immediately become due and payable without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives and without any election or action on the part of the Agent,
any Lender or any Issuer and (ii) the Borrower will be and become thereby
unconditionally obligated, without the need for demand or the necessity of any
act or evidence, to deliver to the Agent from time to time, for deposit into the
Letter of Credit Collateral Account, an amount (the "Collateral Shortfall
Amount") equal to the excess, if any, of
(A) 100% of the sum of the aggregate maximum amount remaining
available to be drawn under the Letters of Credit (assuming compliance with
all conditions for drawing thereunder) issued and outstanding as of such
time, over
(B) the amount on deposit in the Letter of Credit Collateral Account
at such time that is free and clear of all rights and claims of third
parties and that has not been applied by the Lenders against the
Obligations;
provided, however, that so long as no Default shall have occurred and be
continuing, if the amount on deposit in the Letter of Credit Collateral Account
exceeds the Collateral Shortfall Amount, then the Agent shall return to the
Borrower an amount of such deposit equal to such excess, and the Lenders and
Issuers hereby authorize the Agent to do so.
(b) If any Default occurs and is continuing (other than a Default described
in Section 7.6(i) or 7.6(iii) through (vii) or 7.7), (i) the Required Lenders
may terminate or suspend the obligations of the Lenders to make Loans and the
obligation of the Issuers to issue Letters of Credit hereunder, or declare the
Obligations to be due and payable, or both, whereupon the Obligations shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrower hereby expressly waives and (ii)
the Required Lenders may, upon notice delivered to the Borrower and in addition
to the continuing right to demand payment of all amounts payable under this
Agreement, make demand on the Borrower to deliver (and the Borrower will,
forthwith upon demand by the Required Lenders and without necessity of further
act or evidence, be and become thereby unconditionally obligated to deliver), to
the Agent, at its address specified pursuant to Article XIII, for deposit into
the Letter of Credit Collateral Account an amount equal to the Collateral
Shortfall Amount.
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(c) If at any time while any Default is continuing, the Agent determines
that the Collateral Shortfall Amount at such time is greater than zero, the
Agent may make demand on the Borrower to deliver (and the Borrower will,
forthwith upon demand by the Agent and without necessity of further act or
evidence, be and become thereby unconditionally obligated to deliver), to the
Agent as additional funds to be deposited and held in the Letter of Credit
Collateral Account an amount equal to such Collateral Shortfall Amount at such
time.
(d) The Agent may at any time or from time to time after funds are
deposited in the Letter of Credit Collateral Account, apply such funds to the
payment of the Obligations and any other amounts as shall from time to time have
become due and payable by the Borrower to the Lenders under the Loan Documents;
provided, that such amounts will not be applied to Obligations (other than
Obligations in respect of Letters of Credit) until all Letters of Credit have
terminated and all Obligations in respect of Letters of Credit have been paid in
full.
(e) Neither the Borrower nor any Person claiming on behalf of or through
the Borrower shall have any right to withdraw any of the funds held in the
Letter of Credit Collateral Account. After all of the Obligations have been
indefeasibly paid in full, any funds remaining in the Letter of Credit
Collateral Account shall be returned by the Agent to the Borrower or paid to
whoever may be legally entitled thereto at such time.
(f) The Agent shall exercise reasonable care in the custody and
preservation of any funds held in the Letter of Credit Collateral Account and
shall be deemed to have exercised such care if such funds are accorded treatment
substantially equivalent to that which the Agent accords its own property, it
being understood that the Agent shall not have any responsibility for taking any
necessary steps to preserve rights against any Persons with respect to any such
funds.
8.2 Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements (including consents and
waivers) supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrower hereunder or waiving any Default hereunder; provided,
however, that no such supplemental agreement shall, without the consent of each
Lender affected thereby:
(i) Extend the maturity of any Loan or Note or forgive all or any portion
of the principal amount, interest or fees thereof, or reduce the rate
or extend the time of payment of interest or fees thereon or any
participation fee on any Letter of Credit.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Tranche A Revolving Facility Termination Date, or the
Tranche B Facility Termination Date or reduce the amount of, or
extend the payment date for, the mandatory payments required under
Section 2.4, or increase the amount of the Commitment of any Lender
hereunder, or permit the Borrower to assign its rights
77
under this Agreement or change the definition of Tranche A Aggregate
Revolving Commitment or Tranche B Aggregate Commitment.
(iv) Amend this Section 8.2.
(v) Release any Guarantor of any Obligation from its Subsidiary Guaranty
or release any Subsidiary Guaranty other than a release pursuant to
Section 6.1.3.
(vi) Permit the Borrower to assign its rights or obligations under the
Loan Documents.
(vii) Amend the parenthetical phrase in the first sentence of the
definition of Eurodollar Interest Period.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of or modify the fee required under Section 12.3.2 without obtaining the consent
of any other party to this Agreement. No amendment of any provision of this
Agreement relating to any Issuer shall be effective without the consent of such
Issuer. The Issuer of any Letter of Credit may waive or modify the fee required
under Section 2.2.6 with respect to such Letter of Credit without obtaining the
consent of any other party to this Agreement.
8.3 Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then only
to the extent specifically set forth in such writing. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent, the Issuers and the Lenders until the Obligations have
been paid in full and all Commitments have terminated.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations; Obligations. All representations and
warranties of the Borrower contained in this Agreement shall survive delivery of
the Notes and the making of the Loans and issuance of Letters of Credit herein
contemplated.
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9.2 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 Taxes. Any taxes (excluding federal income taxes on the overall net
income of any Lender) or other similar assessments or charges made by any
governmental or revenue authority in respect of the Loan Documents shall be paid
by the Borrower, together with interest and penalties, if any.
9.4 Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent, each Issuer and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Agent,
each Issuer and the Lenders relating to the subject matter thereof.
9.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any
of its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective permitted successors and assigns.
9.7 Expenses; Indemnification of Agent, Issuers and Lenders. The Borrower
shall reimburse the Agent for any reasonable costs, internal charges and out-of-
pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Agent, which attorneys may be employees of the Agent) paid or
incurred by the Agent in connection with the preparation, negotiation,
execution, delivery, review, amendment, modification, and administration of the
Loan Documents. The Borrower also agrees to reimburse the Agent, the Issuers
and the Lenders for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' fees and time charges of attorneys for
the Agent, the Issuers and the Lenders, which attorneys may be employees of the
Agent, the Issuers or the Lenders) paid or incurred by the Agent or any Lender
in connection with the collection and enforcement of the Loan Documents.
Neither the Agent, any Issuer, any Lender nor any of their respective officers,
directors, employees, or agents (each, an "Indemnified Party") shall be liable
for any action in good faith taken or omitted to be taken by such Indemnified
Party pursuant to, in connection with, or in any way related to this Agreement
or any other Loan Document including, without limitation, an Indemnified Party's
own negligence or co-negligence except to the extent such action or omission
constitutes willful misconduct or gross negligence on the part of such
Indemnified Party (or its officers, directors, employees or authorized
79
agents) or is adjudicated by a court of competent jurisdiction to constitute
gross negligence or willful misconduct on the part of such Indemnified Party (or
its officers, directors, employees or authorized agents). The Borrower agrees to
the fullest extent permitted by applicable Law, to indemnify and to hold
harmless each Indemnified Party from and against any and all losses, claims,
damages, penalties, judgments, expenses and liabilities to Persons not party to
this Agreement including all actions with respect thereto (including, without
limitation, any alleged violations of applicable federal or state securities
laws committed by any Person other than such Indemnified Party or any such loss
resulting from such Indemnified Party's negligence), and reasonable attorneys'
fees and costs (including, without limitation, all expenses of litigation and
preparation therefor) which any of them may pay or incur arising out of or in
connection with this Agreement, the other Loan Documents and the transactions
contemplated hereby and thereby or the direct or indirect application of the
proceeds of any Loan or Letter of Credit, or the performance by such Indemnified
Party of its obligations hereunder and under the other Loan Documents; provided,
however, that the indemnification provided for herein shall not apply to any
such loss (i) adjudicated by a court of competent jurisdiction to have resulted
from the willful misconduct or gross negligence of such Indemnified Party, (ii)
arising out of any claim made by any Lender against the Agent or another Lender
under this Agreement or the other Loan Documents, or (iii) arising out of any
claim made by any Participant against a Lender which does not result from a
breach by any Obligor of any term or provision of this Agreement or any other
Loan Document. The obligations of the Borrower under this Section shall survive
the termination of this Agreement.
9.8 Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Lenders.
9.9 [Intentionally Omitted].
9.10 Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.11 Nonliability of Lenders. The relationship between the Borrower and
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent, any Issuer nor any Lender shall have any fiduciary responsibilities
to the Borrower. Neither the Agent, any Issuer nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower's business or operations.
9.12 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS OF LAWS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
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9.13 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF
THE AGENT, ANY ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION.
9.14 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, EACH ISSUER AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
9.15 Confidential Information. The Agent and each Lender agree that all
documentation and other information made available by the Borrower to the Agent
or such Lender under the terms of this Agreement shall (except to the extent
such documentation or other information is publicly available or hereafter
becomes publicly available other than by action of the Agent or such Lender, or
was theretofore known or hereinafter becomes known to the Agent or such Lender
on a nonconfidential basis independent of any disclosure thereto by the
Borrower) be held in confidence by the Agent or such Lender in accordance with
prudent banking procedures and used solely in the administration and enforcement
of the Loans and Letters of Credit from time to time outstanding and in the
prosecution or defense of legal proceedings arising in connection herewith;
provided that (i) the Agent or such Lender may disclose documentation and
information to the Agent and/or to any other Lender which is a party to this
Agreement or any Affiliates thereof and (ii) the Agent or such Lender may
disclose such documentation or other information to any other bank or other
Person to which such Lender sells or proposes to make an assignment or sell a
participation in its Loans hereunder if such other bank or Person, prior to such
disclosure, agrees in writing to be bound by the terms of the confidentiality
statement customarily employed by the Agent or such Lender in connection with
such potential transfers provided that the terms of such confidentiality
statement are no less restrictive than those contained in the confidentiality
agreement executed by the Borrower and the Agent or such Lender.
Notwithstanding the foregoing, nothing contained herein shall be construed to
prevent the Agent or any Lender from (a) making disclosure of any information
(i) if required to do so by applicable law or regulation, (ii) to any
governmental agency or regulatory body having or claiming to have authority to
regulate or oversee any aspect of the Agent's or Lender's business or that of
the Agent's or Lender's corporate parent or affiliates in connection with the
exercise of such authority or claimed authority, (iii) pursuant to any subpoena
or if otherwise
81
compelled in connection with any litigation or administrative proceeding, (iv)
to correct any false or misleading information which may become public
concerning such Person's relationship to the Borrower, or (v) to the extent the
Agent or such Lender or its counsel deems necessary or appropriate to enforce
any remedy provided in the Loan Documents, the Notes or this Agreement or
otherwise available by law; or (b) making, on a confidential basis, such
disclosures as such Lender reasonably deems necessary or appropriate to its
legal counsel or accountants (including outside auditors). If the Agent or such
Lender is compelled to disclose such confidential information in a proceeding
requesting such disclosure, the Agent or such Lender shall seek to obtain
assurance that such confidential treatment will be accorded such information;
provided, however, the Agent or such Lender shall have no liability for the
failure to obtain such treatment. Notwithstanding anything in this Agreement to
the contrary, each Lender agrees that to the extent it acquires information from
or on behalf of the Borrower or any of its Subsidiaries that may provide a
competitive advantage with regard to the sale or purchase of commodities or
derivative products, such Lender will take all reasonable care to keep such
information confidential as to the officers, agents or employees of such Lender
or any Affiliate thereof that are involved in such Lender's or Affiliate's
commodity trading activities.
ARTICLE X
THE AGENT
10.1 Appointment and Authority of Agent and Issuers. In order to expedite
the various transactions contemplated by this Agreement, each Lender hereby
designates and appoints First Chicago to act as its agent hereunder, and
authorizes First Chicago and each Issuer to take such action on its behalf under
the provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Agent or such Issuer, as the case may
be, by the terms of this Agreement or any other Loan Document, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement or any other Loan
Document, neither the Agent nor any Issuer shall have any duties or
responsibilities, except those expressly set forth herein or therein, or any
fiduciary relationship with any Lender or any Obligor, and no implied covenants,
functions, responsibilities, duties, obligations, or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agent or any Issuer. Should the Agent fail or refuse to take any action
requested hereunder by the Required Lenders, the Agent shall resign and the
Required Lenders shall promptly appoint a successor to the Agent hereunder. At
any time that no Person or Persons are acting as agent hereunder, the Obligors
are authorized to deal directly with each Lender for all purposes hereunder
including, without limitation, the remittances of amounts then required to be
paid hereunder and, in respect to any request or the like purportedly delivered
by the Required Lenders to the Obligors, the Obligors shall receive written
evidence thereof. The Agent is hereby expressly authorized as agent on behalf
of the Lenders, without hereby limiting any implied authority:
82
(a) To receive on behalf of each Lender any payment of principal or
interest on the Advances paid to the Agent, and to promptly distribute to each
Lender its pro rata share of all payments so received;
(b) To receive all documents and items to be furnished hereunder;
(c) To act as nominee for and on behalf of all of the Lenders in and under
this Agreement and the other Loan Documents;
(d) To arrange for the means whereby the funds of the Lenders are to be
made available to the Borrower;
(e) To distribute to the Lenders information, requests, payments,
prepayments, documents, and other items received from the Obligors and others;
(f) To execute and deliver to the Obligors and others requests, demands,
approvals, and consents received from the Lenders;
(g) To the extent permitted by this Agreement, to exercise on behalf of
each Lender all remedies of the Lenders or the Agent upon the occurrence of any
Default or Unmatured Default specified in this Agreement, to the extent
requested by the Required Lenders; and
(h) To take such other actions as may be requested by the Required Lenders,
subject to the limitations of Section 8.2.
10.2 Capacity of the Agent and each Issuer. With respect to its commitment
to lend hereunder and the Loans made by it, the Agent and each Issuer in their
respective capacities as a Lender and not as the Agent or an Issuer, as the case
may be, shall have the same rights and powers hereunder as the other Lenders and
may exercise the same rights and power as though it were not the Agent or an
Issuer.
10.3 No Liability of the Agent or Issuers and Indemnity. Neither the
Agent, any Issuer nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (i) liable for any action taken
or omitted to be taken by it or them hereunder or otherwise in connection with
the Loan Documents (except for its or such Person's own willful misconduct or
gross negligence in not performing a specific administrative duty hereunder), or
(ii) responsible in any manner to any Lender for any recitals, statements,
representations, or warranties made by any Obligor or any officer thereof
contained in any Loan Document or in any certificate, report, statement, or
other document referred to or provided for in, or received by the Agent or any
Issuer under or in connection with, any Loan Document or for the value,
validity, effectiveness, genuineness, enforceability, or sufficiency of any Loan
Document or for any failure of any Obligor to perform its obligations under any
Loan Document. Neither the Agent nor any Issuer shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
83
any of the agreements or conditions contained in any Loan Document, or to
inspect the properties, books, or records of any Obligor. To the extent that
the Agent or any Issuer is not reimbursed or indemnified by the Obligors, each
of the Lenders will indemnify the Agent and each Issuer to the fullest extent
permitted by applicable Law pro rata based upon their respective Percentages
from and against any and all demands, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or disbursements of any
kind whatsoever which may at any time be imposed on, incurred by, or asserted
against the Agent or such Issuer in any way relating to or arising out of this
or any other Loan Document, or any documents contemplated by or referred to
herein, or therein, or the transactions contemplated hereby, or thereby, or any
action taken or omitted by the Agent or such Issuer under or in connection with
any of the foregoing, including resulting from the Agent's or such Issuer's own
negligence (and including, without limitation, any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements resulting from any violations or alleged violation of applicable
federal or state securities laws, committed by any Person other than the Agent
or such Issuer) but not gross negligence or willful misconduct. The agreements
in this Section 10.3. shall survive the termination of this Agreement.
10.4 Employees of Agent and Issuers. The Agent and the Issuers may execute
any and all duties hereunder by or through agents or employees and shall be
entitled to advice of counsel pertaining to all matters hereunder. The Borrower
has agreed to reimburse the Agent for actual out-of-pocket expenses incurred by
the Agent and its agents in acting under this Agreement and each other Loan
Document and to pay any reasonable legal and out-of-pocket expenses incurred by
the Agent in connection with the development, preparation, negotiation, and
execution of the Loan Documents, or the enforcement of the rights of the Agent,
the Issuers and the Lenders thereunder. Each Lender agrees to reimburse the
Agent and each Issuer, when applicable, in the amount of its pro rata share
based upon its Percentage of any out-of-pocket expenses incurred for the benefit
of the Lenders and not reimbursed by the Obligors.
10.5 Reliance. The Agent and each Issuer shall be entitled to rely on any
conversation, notice, consent, certificate, schedule, affidavit, letter,
telegram, teletype message, statement, order, or other document believed to be
genuine and correct and to have been signed or sent by the proper Person or
Persons and, in respect of legal matters, upon an opinion of counsel selected by
the Agent or such Issuer. The Agent, each Issuer and the Obligors may deem and
treat the original Lenders hereunder as the owners of their respective pro rata
shares of the Obligations for all purposes hereof notwithstanding any assignment
or transfer of any interest therein by any Lender in accordance with the
provisions of Article XII. Any request, authority, or consent of any holder of
any of the Notes shall be conclusive and binding on any subsequent holder,
transferee, or assignee of such Note. The Agent and each Issuer shall be fully
justified in failing or refusing to take any action hereunder or under any other
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent and each Issuer shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or under any other Loan Document in accordance
with a request of the Required Lenders, or of all of the Lenders in the
circumstances required by
84
Section 10.7, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders and their successors and
assigns. Each Lender expressly acknowledges that neither the Agent, any Issuer
nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Agent or any Issuer hereinafter taken shall be deemed to
constitute any representation or warranty by the Agent or any Issuer to any
Lender. Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Agent hereunder, neither the Agent nor any
Issuer shall have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
financial and other condition or creditworthiness of any Obligor or any of its
Subsidiaries which may come into the possession of the Agent, any Issuer or any
of their respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
10.6 Several Commitments. Except as expressly provided in this Section
10.6, the obligations of the Lenders under this Agreement are several. The
default by any Lender in making its Loan in accordance with its commitment
hereunder shall not relieve the other Lenders of their obligations hereunder.
In the event of any default by any Lender in advancing its pro rata share of any
Advance, a non-defaulting Lender shall be obligated to advance its pro-rata
share of such Advance but shall not be obligated to advance the amount which the
defaulting Lender was required to advance hereunder. Nothing in this Section
10.6 shall be construed as releasing, modifying, or waiving the obligation of
each Lender to forward or deposit its pro rata share of any Advance pursuant to
the terms of this Section 10.6 and this Agreement.
10.7 Notice of Default. Neither the Agent nor any Issuer shall be deemed
to have knowledge or notice of the occurrence of any Default or Unmatured
Default unless the Agent or such Issuer has received notice from a Lender or an
Obligor referring to this Agreement or other relevant Loan Document, describing
such Default or Unmatured Default and stating that such notice is a "notice of
default." Notwithstanding the provisions of the immediately preceding sentence,
in the event that the Agent, any Issuer or any Lender knows of any Default or
Unmatured Default such Person shall, as soon as practicable, give notice of same
to each other Lender. In the event that the Agent receives such a notice, the
Agent shall give notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Unmatured Default as shall be reasonably
directed by the Required Lenders; provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action (unless directions from
the Required Lenders are required therefore under Article VIII), with respect to
such Default or Unmatured Default as it shall deem advisable in the best
interests of the Lenders.
10.8 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, any Issuer or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent, any Issuer or any other Lender and based on
such documents and information as it
85
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
10.9 Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent has been
appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. Upon any such resignation, the Required Lenders shall have
the right to appoint with the consent of the Borrower which such consent shall
not be unreasonably withheld or delayed, on behalf of the Borrower and the
Lenders, a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders within thirty days after the resigning Agent's giving
notice of its intention to resign, then the resigning Agent may appoint with the
consent of the Borrower which such consent shall not be unreasonably withheld or
delayed, on behalf of the Borrower and the Lenders, a successor Agent. If the
Agent has resigned and no successor Agent has been appointed, the Lenders may
perform all the duties of the Agent hereunder and the Borrower shall make all
payments in respect of the Obligations to the applicable Lender or Issuer and
for all other purposes shall deal directly with the Lenders. No successor Agent
shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning Agent. Upon the
effectiveness of the resignation of the Agent, the resigning Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation of an Agent, the
provisions of this Article X shall continue in effect for the benefit of such
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder and under the other Loan Documents.
10.10 The Co-Agents have no duties hereunder in their capacities as Co-
Agents.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or not
collected or available) and any other Debt at any time held or owing by any
Lender to or for the credit or account of the Borrower may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or not the
Obligations, or any part hereof, shall then be due.
86
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans of a particular Type (other than payments
received pursuant to Sections 3.1, 3.2 or 3.4 and other than in respect of its
Competitive Bid Advances) in an amount greater than its Percentage, such Lender
agrees, promptly upon demand, to purchase a portion of the Loans held by the
other Lenders of such Type of Loans so that after such purchase each Lender of
such Type of Loans will hold its ratable proportion of such Type of Loans. If
any Lender, whether in connection with setoff or amounts which might be subject
to setoff or otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to their Percentages.
In case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower, the
Agent, the Issuers and the Lenders and their respective successors and permitted
assigns, except that (i) the Borrower shall not have the right to assign its
rights or obligations under the Loan Documents and (ii) any assignment by any
Lender must be made in compliance with Section 12.3. Notwithstanding clause
(ii) of this Section, any Lender may at any time, without the consent of the
Borrower or the Agent, assign all or any portion of its rights under this
Agreement and its Notes to a Federal Reserve Bank; provided, however, that no
such assignment shall release the transferor Lender from its obligations
hereunder. The Agent and the Borrower may treat the payee of any Note as the
owner thereof for all purposes hereof unless and until such payee complies with
Section 12.3 in the case of an assignment thereof. Any assignee or transferee
of a Note agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Note held by
such Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall remain
solely responsible to the other parties hereto for the
87
performance of such obligations, such Lender shall remain the holder of any
such Note for all purposes under the Loan Documents, all amounts payable by
the Borrower under this Agreement shall be determined as if such Lender had
not sold such participating interests, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees payable
with respect to any such Loan or Commitment, postpones any date fixed for
any regularly-scheduled payment of principal of, or interest or fees on,
any such Loan or Commitment, releases any Guarantor of any such Loan or
Letter of Credit or releases any substantial portion of collateral, if any,
securing any such Loan or Letter of Credit.
12.2.3 Benefit of Setoff. The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 11.1 in
respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan Documents, provided
that each Lender shall retain the right of setoff provided in Section 11.1
with respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1,
agrees to share with each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in accordance
with Section 11.2 as if each Participant were a Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary course
of its business and in accordance with applicable law, at any time assign
to one or more banks or other entities ("Purchasers") all or any part of
its rights and obligations under the Loan Documents subject, in the case of
assignments to a Purchaser which is not a Lender prior to such assignment,
to a minimum of $15,000,000 or such lesser amount as may be consented to by
the Borrower, the Agent and, in the case of an assignment of any interest
in the Tranche A Revolving Facility, the Issuers of any outstanding Letters
of Credit. Such assignment shall be substantially in the form of Exhibit
"D" hereto or in such other form as may be agreed to by the parties
thereto. The consent of the Borrower, the Agent and, in the case of an
assignment of any interest in the Tranche A Revolving Facility, the Issuers
of any outstanding Letters of Credit shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a
Lender (or in the case of an assignment of any interest in the Tranche A
Revolving Facility, a Tranche A Lender), or an Affiliate thereof; provided,
however, that if a Default has occurred and is continuing, the consent of
the
88
Borrower shall not be required. Such consent of the Borrower and the Agent
shall not be unreasonably withheld; such consent of each Issuer may be
given or withheld in its sole discretion.
12.3.2 Effect; Effective Date. Upon (i) delivery to the Agent of a
notice of assignment, substantially in the form attached as Exhibit "I" to
Exhibit "D" hereto (a "Notice of Assignment"), together with any consents
required by Section 12.3.1, and (ii) payment of a $2,500 fee to the Agent
for processing such assignment, such assignment shall become effective on
the effective date specified in such Notice of Assignment. The Notice of
Assignment shall contain a representation by the Purchaser to the effect
that none of the consideration used to make the purchase of the Commitment
and Loans under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in
and under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser shall, to the
extent that rights and obligations hereunder have been assigned it pursuant
to such assignment, be a Lender party to this Agreement and any other Loan
Document executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as if
it were an original party hereto, and no further consent or action by the
Borrower, the Lenders or the Agent shall be required to release the
transferor Lender with respect to the percentage of the Aggregate
Commitment and Loans assigned to such Purchaser. Upon the consummation of
any assignment to a Purchaser pursuant to this Section 12.3.2, the
transferor Lender, the Agent and the Borrower shall make appropriate
arrangements so that replacement Notes are issued to such transferor Lender
and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their Commitment,
as adjusted pursuant to such assignment and each replaced Note shall be
returned to the Borrower marked "canceled and replaced." Notwithstanding
any assignment hereunder, the agreements and Obligations of the Borrower
contained in Section 3.1, 3.2, 3.4 or 9.7 with respect to the transferor
Lender shall survive such assignment and be enforceable by such transferor
Lender, in accordance with the terms of this Agreement, with respect to
acts and circumstances occurring prior to such transfer. Notwithstanding
any assignment hereunder, the agreements and obligations of the transferor
Lender pursuant to Section 10.3 shall survive such assignment and be
enforceable by the Agent or any Issuer with respect to acts and
circumstances occurring prior to such transfer.
12.4 Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, provided
such Participant, Purchaser, Transferee or other Person has signed a
confidentiality agreement substantially similar to the provisions of Section
9.15.
12.5 Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State
89
thereof, the transferor Lender shall cause such Transferee, concurrently with
the effectiveness of such transfer, to comply with the provisions of Section
2.19.
ARTICLE XIII
NOTICES
13.1 Giving Notice. Except as otherwise permitted by Section 2.13 with
respect to Borrowing Notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted on any Business Day (answerback confirmed in the case of
telexes).
13.2 Change of Address. The Borrower, the Agent, any Issuer and any Lender
may each change the address for service of notice upon it by a notice in writing
to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent and the Lenders
and each party has notified the Agent by telex or telephone, that it has taken
such action.
90
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
NGC CORPORATION
By:_________________________
Print Name:_________________
Title:______________________
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Senior Vice President and
Chief Financial Officer
Telephone No.: (000) 000-0000
with a copy to:
Attn: Senior Vice President and General
Counsel
00
Xxxxxxx X Xxxxxxx X THE FIRST NATIONAL BANK OF
--------- --------- CHICAGO, Individually and as Agent
Commitments Commitments
$62,799,999.92 $30,000,000.00
By:_____________________________
Print Name:_____________________
Title:__________________________
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Petroleum and Mining Division
Telecopy No.: 000-000-0000
with a copy to:
The First National Bank of Chicago
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
92
Tranche A Tranche B ABN AMRO BANK, N.V.
--------- ---------
Commitments Commitments
$11,338,461.54 $0.00
By:_________________________
Print Name:_________________
Title:______________________
By:_________________________
Print Name:_________________
Title:______________________
Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn:_______________________
Telecopy No.: 000-000-0000
93
Tranche A Tranche B BANK OF MONTREAL
--------- ---------
Commitments Commitments
$25,384,615.38 $0.00
By:___________________________
Print Name:___________________
Title:________________________
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn:_________________________
Telecopy No.: 000-000-0000
94
Tranche A Tranche B THE BANK OF NEW YORK
--------- ---------
Commitments Commitments
$24,030,769.23 $26,000,000.00
By:____________________________
Print Name:____________________
Title:_________________________
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn:__________________________
Telecopy No.:__________________
00
Xxxxxxx X Xxxxxxx X THE BANK OF NOVA SCOTIA
--------- ---------
Commitments Commitments
$25,384,615.38 $26,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn:________________________
Telecopy No.:________________
00
Xxxxxxx X Xxxxxxx X XXXX XX XXXXXXXX
--------- ---------
Commitments Commitments
$25,384,615.38 $0.00
By:__________________________
Print Name:__________________
Title:_______________________
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:________________________
Telecopy No.:________________
with a copy to:
BANK OF XXXXXXXX
0000 Two Xxxxx Center
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: Xx. Xxx X. XxXxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
97
Tranche A Tranche B THE BANK OF TOKYO-MITSUBISHI,
--------- --------- LTD., HOUSTON AGENCY
Commitments Commitments
$22,676,923.08 $26,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx, P.E.
Telecopy No.: 713/658-0116
98
Tranche A Tranche B THE CHASE MANHATTAN BANK
--------- ---------
Commitments Commitments
$42,307,692.31 $29,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
000 Xxxxxx, 0xx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn:________________________
Telecopy No.:________________
00
Xxxxxxx X Xxxxxxx X XXXXXXXXXX XXXX, XXX XXXX BRANCH
--------- ---------
Commitments Commitments
$11,338,461.54 $26,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:________________________
Telecopy No.:________________
000
Xxxxxxx X Xxxxxxx X CIBC INC.
--------- ---------
Commitments Commitments
$25,384,615.38 $26,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
Attn:________________________
Telecopy No.:________________
with a copy to:
Canadian Imperial Bank of Commerce
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
000
Xxxxxxx X Xxxxxxx X CAISSE NATIONALE DE CREDIT
--------- --------- AGRICOLE
Commitments Commitments
$23,338,461.54 $26,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
00 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn:________________________
Telecopy No.:________________
000
Xxxxxxx X Xxxxxxx X CREDIT LYONNAIS NEW YORK BRANCH
--------- ---------
Commitments Commitments
$25,384,615.38 $26,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
Attn:________________________
Telecopy No.:________________
with a copy to:
Credit Lyonnais Houston Representative Xxxxxx
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn:________________________
Telephone No.:_______________
Telecopy No.:________________
000
Xxxxxxx X Xxxxxxx X THE FIRST NATIONAL BANK OF BOSTON
--------- ---------
Commitments Commitments
$25,384,615.38 $12,500,000.00
By:__________________________
Print Name:__________________
Title:_______________________
000 Xxxxxxx Xxxxxx
Mail Stop 010802
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn:________________________
Telecopy No.:________________
000
Xxxxxxx X Xxxxxxx X THE FUJI BANK, LIMITED, HOUSTON
--------- --------- AGENCY
Commitments Commitments
$11,338,461.54 $26,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
One Houston Center, Suite 4100
1221 XxXxxxxx
Xxxxxxx, Xxxxx 00000
Attn:________________________
Telecopy No.:________________
000
Xxxxxxx X Xxxxxxx X THE INDUSTRIAL BANK OF JAPAN, LTD
--------- ---------
Commitments Commitments
$11,338,461.54 $12,500,000.00
By:__________________________
Print Name:__________________
Title:_______________________
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:________________________
Telecopy No.:________________
000
Xxxxxxx X Xxxxxxx X LTCB TRUST COMPANY
--------- ---------
Commitments Commitments
$11,338,461.54 $0.00
By:__________________________
Print Name:__________________
Title:_______________________
New York, New York
Attn:________________________
Telecopy No.:________________
with a copy to:
LTCB
0000 Xxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxx
Telephone No.: 214/000-0000
Telecopy No.: 214/969-5357
107
Tranche A Tranche B MELLON BANK, N.A. (WEST)
--------- ---------
Commitments Commitments
$11,338,461.54 $0.00
By:__________________________
Print Name:__________________
Title:_______________________
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxx Xxxxxx
Telecopy No.: 713/650-3409
000
Xxxxxxx X Xxxxxxx X NATIONAL WESTMINSTER BANK PLC
--------- --------- (NEW YORK BRANCH)
Commitments Commitments
$25,384,615.38 $0.00
By:__________________________
Print Name:__________________
Title:_______________________
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
Telecopy No.: 212/602-4118
NATIONAL WESTMINSTER BANK PLC
(NASSAU BRANCH)
By:__________________________
Print Name:__________________
Title:_______________________
109
Tranche A Tranche B NATIONSBANK OF TEXAS, N.A.
--------- ---------
Commitments Commitments
$42,307,692.31 $29,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
Attn:________________________
Telecopy No.:________________
110
Tranche A Tranche B PNC BANK, N.A.
--------- ---------
Commitments Commitments
$11,338,461.54 $0.00
By:__________________________
Print Name:__________________
Title:_______________________
Attn:________________________
Telecopy No.:________________
000
Xxxxxxx X Xxxxxxx X XXXXX XXXX XX XXXXXX
--------- ---------
Commitments Commitments
$25,384,615.38 $26,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
Financial Square, 00 Xxx Xxxx
Xxx Xxxx, XX 00000-0000
Attn: Loan Administrator
Telecopy No.: (000) 000-0000
Telepone No.: (000) 000-0000
112
Tranche A Tranche B SOCIETE GENERALE, SOUTHWEST
--------- ---------- AGENCY
Commitments Commitments
$25,384,615.38 $12,500,000.00
By:__________________________
Print Name:__________________
Title:_______________________
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn:________________________
Telecopy No.:________________
000
Xxxxxxx X Xxxxxxx X SOUTHWEST BANK OF TEXAS, N.A.
--------- ---------
Commitments Commitments
$2,030,769.23 $2,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
Attn:________________________
Telecopy No.:________________
000
Xxxxxxx X Xxxxxxx X THE TORONTO-DOMINION BANK
--------- ---------
Commitments Commitments
$11,338,461.54 $26,000,000.00
By:__________________________
Print Name:__________________
Title:_______________________
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx Xxxxxx
Telecopy No.: 212/262-1929
000
Xxxxxxx X Xxxxxxx X WESTDEUTSCHE LANDESBANK
--------- --------- GIROZENTRALE
Commitments Commitments
$11,338,461.54 $12,500,000.00
By:__________________________
Print Name:__________________
Title:_______________________
1211 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Telecopy No.: 212/852-6307
By:__________________________
Print Name:__________________
Title:_______________________
116
