CREDIT AGREEMENT
dated as of August 13, 1996
XXXXXXXX RESOURCES, INC.,
XXXXXXXX OIL & GAS, INC.,
XXXXXXXX OIL & GAS - LOUISIANA, INC.,
XXXXXXXX OFFSHORE ENERGY, INC.,
XXXXXXXX NATURAL GAS, INC.,
BLACK STONE OIL COMPANY,
THE BANKS PARTY HERETO,
BANK ONE, TEXAS, N.A., CO-AGENT
AND
THE FIRST NATIONAL BANK OF CHICAGO, AS AGENT
TABLE OF CONTENTS
SECTION 1. Definitions.................................................... 2
1.1 Certain Definitions................................. 2
1.2 Other Definitions; Rules of Construction............ 13
SECTION 2. The Commitments................................................ 13
2.1 Advances............................................ 13
SECTION 3. The Advances................................................... 16
3.1 Disbursement of Advances............................ 16
3.2 Conditions of Advances.............................. 17
3.3 Letter of Credit Reimbursement Payments............. 19
3.4. Withholding Tax Exemption........................... 21
SECTION 4. Payment and Prepayment; Fees; Change in
Circumstances.................................................. 22
4.1 Principal Payments.................................. 22
4.2 Interest Payment.................................... 23
4.3 Fees................................................ 24
4.4 Payment Method...................................... 25
4.5 No Setoff or Deduction.............................. 25
4.6 Payment on Non-Business Day; Payment
Computations........................................ 25
4.7. Yield Protection.................................... 25
4.8. Changes in Capital Adequacy Regulations............. 26
4.9. Availability of Types of Advances................... 26
4.10. Funding Indemnification............................. 27
4.11. Bank Statements; Survival of Indemnity.............. 27
SECTION 5. Security....................................................... 27
5.1 Security Documents.................................. 27
5.2 Guaranty............................................ 28
5.3 Additional Security Documents....................... 29
SECTION 6. Representations and Warranties................................. 29
6.1 Corporate Existence and Power....................... 29
6.2 Corporate Authority................................. 29
6.3 Binding Effect...................................... 29
6.4 Subsidiaries........................................ 29
6.5 Liens............................................... 30
6.6 Litigation.......................................... 30
6.7 Financial Condition................................. 30
6.8 Use of Advances..................................... 30
6.9 Security Documents.................................. 30
6.10 Consents, Etc....................................... 31
SECTION PAGE
6.11 Taxes............................................... 31
6.12 Title to Properties................................. 31
6.13 ERISA............................................... 31
6.14 Environmental and Safety Matters.................... 31
6.15 Direct Benefit...................................... 32
6.16 Solvency............................................ 32
6.17 Disclosure.......................................... 32
SECTION 7. Covenants...................................................... 33
7.1 Affirmative Covenants............................... 33
(a) Preservation of Corporate Existence,
Etc....................................... 33
(b) Compliance with Laws, Etc................. 33
(c) Maintenance of Properties;
Insurance................................. 33
(d) Reporting Requirements.................... 34
(e) Access to Records, Books, Etc............. 36
7.2 Negative Covenants.................................. 37
(a) Current Ratio..............................37
(b) Tangible Net
Worth......................................37
(c) Interest Coverage Ratio....................37
(d) Indebtedness.............................. 37
(e) Liens..................................... 38
(f) Merger; Acquisitions; Etc................. 39
(g) Disposition of Assets; Etc................ 39
(h) Nature of Business........................ 39
(i) Investments and Advances.................. 39
(j) Dividends................................. 40
(k) Transactions with Affiliates.............. 40
(l) Payments and Modification of Debt..........40
(m) Additional Covenants.......................40
(n) Financial Contracts........................41
SECTION 8. Default........................................................ 41
8.1 Events of Default................................... 41
8.2 Remedies............................................ 43
8.3 Distribution of Proceeds............................ 44
8.4 Letter of Credit Liabilities........................ 45
CREDIT AGREEMENT Page ii
SECTION PAGE
SECTION 9. The Agent and the Banks........................................ 45
9.1 Appointment; Nature of Relationship................. 45
9.2 Powers.............................................. 46
9.3 General Immunity.................................... 46
9.4 No Responsibility for Loans, Recitals, Etc. ........ 46
9.5 Action on Instruction of Banks...................... 46
9.6 Employment of Agents and Counsel.................... 46
9.7 Reliance on Documents; Counsel...................... 47
9.8 Agent's Reimbursement and Indemnification........... 47
9.9 Notice of Default .................................. 47
9.10 Rights as a Bank.................................... 47
9.11 Bank Credit Decision................................ 47
9.12 Successor Agent..................................... 48
9.13 Pro Rata Sharing by Banks........................... 48
9.14 Determination of Borrowing Base, Etc................ 49
9.15 Co-Agent............................................ 49
SECTION 10. Miscellaneous.................................................. 50
10.1 Amendments; Etc..................................... 50
10.2 Notices............................................. 50
10.3 Conduct No Waiver; Remedies Cumulative.............. 51
10.4 Reliance on and Survival of Various
Provisions.......................................... 51
10.5 Expenses; Indemnification........................... 51
10.6 Successors and Assigns.............................. 53
10.7 CHOICE OF LAW....................................... 56
10.8 Table of Contents and Headings...................... 56
10.9 Construction of Certain Provisions.................. 57
10.10 Integration and Severability........................ 57
10.11 Interest Rate Limitation............................ 57
10.12 Counterparts........................................ 57
10.13 Independence of Covenants........................... 57
10.14 Consent to Jurisdiction............................. 58
10.15 JURY TRIAL WAIVER....................................58
10.16 Joint and Several Obligations; Contribution
Rights; Savings Clause.............................. 58
10.17 Consents to Renewals, Modifications and
Other Actions and Events............................ 60
10.18 Waivers, Etc........................................ 61
CREDIT AGREEMENT Page iii
10.19 Confidentiality..................................... 62
EXHIBITS
A.....................Consent and Amendment of Security Documents
B.....................Revolving Credit Note
C.....................Term Note
D.....................Request for Loan
E.....................Assignment and Acceptance
F.....................Assumption Agreement
SCHEDULES
5.1...................Excluded Collateral
6.4...................Subsidiaries
7.2(d)................Permitted Indebtedness
7.2(e)................Permitted Liens
7.2(i)................CRI Guaranteed Indebtedness
CREDIT AGREEMENT Page iv
CREDIT AGREEMENT
THIS AGREEMENT, dated as of August 13, 1996, is among XXXXXXXX RESOURCES,
INC. a Nevada corporation ("CRI"), XXXXXXXX OIL & GAS, INC., a Nevada
corporation ("COG"), XXXXXXXX OIL & GAS - LOUISIANA, INC., a Nevada corporation
("COGL"), XXXXXXXX OFFSHORE ENERGY, INC., a Delaware corporation ("XXX"),
XXXXXXXX NATURAL GAS, INC., a Nevada corporation ("CNG") and BLACK STONE OIL
COMPANY, a Texas corporation ("Black Stone") (CRI, COG, COGL, XXX, CNG and Black
Stone may hereinafter collectively be referred to as the "Borrowers"), the
lenders party hereto from time to time (collectively, the "Banks" and
individually, a "Bank"), BANK ONE, TEXAS, N.A., as co-agent for the Banks (in
such capacity, the "Co-Agent") and THE FIRST NATIONAL BANK OF CHICAGO, as agent
for the Banks (in such capacity, the "Agent").
RECITALS
A. CRI, COG, COGL and XXX, as borrowers, the banks party thereto, Bank One,
Texas, N.A., as co-agent for such banks and The First National Bank of Chicago,
as agent for such banks executed a Credit Agreement dated as of May 1, 1996 (the
"Existing Credit Agreement"), which amended and restated a Credit Agreement
dated as of July 31, 1995, which in turn amended and restated a Credit Agreement
dated as of September 30, 1994, as amended, and which in turn amended and
restated a Credit Agreement dated as of November 15, 1993, as amended.
B. The Borrowers have requested that the Banks amend and restate the
Existing Credit Agreement as herein provided, replacing and refinancing the
indebtedness thereunder with a three year secured revolving credit facility
providing for revolving credit loans in the aggregate principal amount of
$166,000,000, increasing up to $200,000,000 with the consent of all Banks, and
converting to a two year term loan, and a $1,000,000 letter of credit facility
participated in by certain Banks, and the Banks are willing to establish such a
credit facility and loans in favor of the Borrowers and amend and restate the
Existing Credit Agreement on the terms and conditions herein set forth.
AGREEMENT
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree that the Existing Credit Agreement shall be
amended and restated as follows:
SECTION 1. Definitions
1.1 Certain Definitions. As used herein, the following terms shall have
the following respective meanings:
"Advances" shall mean the Loans and the Letter of Credit Advances.
"Advance Date" shall mean each date for the making, continuation or
conversion of an Advance as specified in the notice delivered by the Borrowers,
or any of them, permitted by this Agreement.
"Affiliate", when used with respect to any Person shall mean any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person or any other Person which is owned 5% or more by
such Person or any Subsidiary or other Affiliate of such Person. For purposes of
this definition "control" (including the correlative meanings of the terms
"controlled by" and "under common control with"), with respect to any Person,
shall mean possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise.
"Applicable Margin" shall mean, with respect to any Eurodollar Loan,
Floating Rate Loan and Commitment Fee, as the case may be, the applicable
percentage set forth in the table below based upon a fraction, expressed as a
percentage, determined as of the last day of each fiscal quarter of CRI, the
numerator of which is the daily average of the Advances outstanding during such
fiscal quarter and the denominator of which is the daily average of the
Borrowing Base during such fiscal quarter (the "Utilization Percentage"):
================================================================================
Utilization Eurodollar Floating Commitment
Percentage "UP" Rate Loan Rate Loan Fee under
Section 4.3(a)
--------------------------------------------------------------------------------
UP to 90% 2.00% 0.50% .50%
--------------------------------------------------------------------------------
UP to 75% and 1.75% 0.50% .375%
less than 90%
--------------------------------------------------------------------------------
UP to 55% and 1.50% 0.25% .375%
less than 75%
--------------------------------------------------------------------------------
UP to 55% 1.25% 0% .25%
================================================================================
The Utilization Percentage shall be determined by the Agent at the end of each
fiscal quarter and shall remain in effect for the following fiscal quarter of
CRI, and the Agent shall adjust the Applicable Margin upon such determination,
provided that (a) the Agent shall also determine the
CREDIT AGREEMENT Page 2
Utilization Percentage promptly after any public offering of common stock of CRI
and adjust the Applicable Margin upon such determination and (b) the Applicable
Margin in effect on the first day of any Interest Period of any Eurodollar Loan
shall remain in effect for the entire Interest Period. Notwithstanding the above
or anything else in this Agreement, upon and during the continuance of any Event
of Default, the Applicable Margin shall be based on the highest possible
Applicable Margin described in the table above, regardless of the Utilization
Percentage.
"Bank Obligations" shall mean all indebtedness, obligations and
liabilities, whether now or hereafter arising, of the Borrowers to the Agent or
any Bank pursuant to any of the Loan Documents.
"Borrowing Base" shall mean an amount equal to the value of the Collateral
determined by the Agent and the Co-Agent (or by each of the Banks as described
in Section 9.14) in their sole discretion, based on the Agent's, the Co-Agent's
or each Bank's, as the case may be, customary and standard practices in lending
to oil and gas companies generally, including without limitation their standard
engineering criteria and oil and gas lending criteria (and it is acknowledged
and agreed that such customary and standard practices, including without
limitation such engineering criteria and oil and gas lending criteria, shall be
determined by the Agent, the Co-Agent and each Bank, as the case may be, in
their sole discretion, and such determination shall be conclusive and binding).
"Borrowing Base Deficiency" is defined in Section 4.1(c).
"Business Day" shall mean (i) with respect to any borrowing, payment or
rate selection of Eurodollar Loans, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York 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 and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"Change in Control" shall mean the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of more than 50% of the outstanding shares of voting stock
of CRI.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations thereunder.
"CNG/CRI Guaranty Formula" shall mean, as of any date, the sum of (a) an
amount equal to 70% of the amount of Eligible CNG Accounts Receivable (other
than those described in clause (b)) plus (b) an amount equal to 90% of the
amount of Eligible CNG
CREDIT AGREEMENT Page 3
Accounts Receivable supported by letters of credit confirmed by a financial
institution acceptable to the Agent in its reasonable discretion; provided,
that, the amount of Eligible CNG Accounts Receivable described in this clause
(b) included in the CNG Borrowing Base may not exceed 50% of the aggregate
amount of Eligible CNG Accounts Receivable.
"Collateral" shall have the meaning ascribed thereto in Section 5.1(a)
hereof.
"Commitments" shall mean the Loan Commitments and the L/C Commitments.
"Consent and Amendment of Security Documents" shall mean the consent and
amendment of security documents entered into by the Borrowers and the Agent
pursuant to this Agreement in substantially the form of Exhibit A, as amended or
modified from time to time.
"Consolidated" or "consolidated" shall mean, when used with reference to
any financial term in this Agreement, the aggregate for two or more Persons of
the amount signified by such term for all such Persons determined on a
consolidated basis and in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period, total interest
and related expense (including, without limitation, that portion of any
capitalized lease obligation attributable to interest expense in conformity with
GAAP, amortization of debt discount, all capitalized interest, the interest
portion of any deferred payment obligations, all commissions, discounts and
other fees and charges owed with respect to letters of credit (other than
letters of credit for CNG utilized for purchasing natural gas in aggregate
amount not exceeding $1,000,000) and bankers acceptance financing, the net costs
and net payments under any interest rate hedging, cap or similar agreement or
arrangement, prepayment charges, agency fees, administrative fees, commitment
fees and capitalized transaction costs allocated to interest expense) paid,
payable or accrued during such period, without duplication for any period, with
respect to all outstanding Indebtedness of CRI and its Subsidiaries, all as
determined for CRI and its Subsidiaries on a consolidated basis for such period
in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the net income of CRI
and its Subsidiaries for such period, determined in accordance with GAAP, minus,
to the extent not deducted from such net income, the amount of allowable cash
dividends paid during such period on the 1994 Preferred Stock and on the 1995
Preferred Stock.
"Contingent Liabilities" of any Person shall mean, as of any date, all
obligations of such Person or of others for which such Person is contingently
liable, as obligor, guarantor, surety or in any other capacity, or in respect of
which obligations such Person assures a creditor against loss or agrees to take
any action to prevent any such loss (other than endorsements of negotiable
instruments for collection in the ordinary course of business and
indemnifications typical and customary in the ordinary course of such Person's
oil and gas business in connection with operating agreements and other
agreements executed in the ordinary course of such
CREDIT AGREEMENT Page 4
Person's oil and gas business), including without limitation all reimbursement
obligations of such Person in respect of any letters of credit, surety bonds or
similar obligations and all obligations of such Person to advance funds to, or
to purchase assets, property or services from, any other Person in order to
maintain the financial condition of such other Person.
"Continuing Directors" of any Person shall mean the directors of such
Person on the Effective Date and each other director of such Person if such
other director's nomination for election to the Board of Directors of such
Person is recommended by a majority of the then Continuing Directors of such
Board of Directors.
"CPI" shall mean Crosstex Pipeline, Inc., a Texas corporation.
"Current Assets" and "Current Liabilities" shall mean all assets or
liabilities of CRI and its Subsidiaries, on a consolidated basis respectively,
which should be classified as current assets and current liabilities in
accordance with GAAP; provided that the calculation of Current Assets shall not
include receivables of the Borrowers owing by any Affiliate in excess of 90 days
or subject to any dispute or offset or otherwise unacceptable, advances by the
Borrowers to any Affiliate or any asset classified as a Current Asset solely
because it is held for sale, and Current Liabilities shall not include the
current maturities of any Indebtedness of any Borrower for borrowed money which
by its terms has a final maturity more than one year from the date of any
calculation of Current Liabilities.
"Default" shall mean any Event of Default or any event or condition which
might become an Event of Default with notice or lapse of time or both.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"EBITDA" shall mean, for any period, the Consolidated Net Income for such
period taken as a single accounting period, plus, to the extent deducted in
determining such Consolidated Net Income, all depreciation, amortization and
depletion expense, and other non cash charges, Consolidated Interest Expense and
income taxes, provided that in determining Consolidated Net Income as used in
this definition the following shall be excluded, without duplication: (a) the
income of any Person accrued prior to the date such Person is merged into or
consolidated with a Borrower or such Person's assets are acquired by a Borrower,
(b) the proceeds of any insurance policy, (c) gains or losses from the sale,
exchange, transfer or other disposition of property or assets of any Borrower or
any of their Subsidiaries and related tax effects in accordance with GAAP and
(d) any extraordinary or non-recurring gains of any Borrower or any of their
Subsidiaries, and related tax effects in accordance with GAAP.
"Effective Date" shall mean the effective date specified in the final
paragraph of this Agreement.
CREDIT AGREEMENT Page 5
"Eligible CNG Accounts Receivable" shall mean, as of any date, those trade
accounts receivable owned by CNG which are payable in Dollars, valued at the
face amount thereof less sales, excise or similar taxes and less returns,
discounts, claims, credits and allowances of any nature at any time issued,
including without limitation rebates and advertising allowances receivable,
owing, granted, outstanding, available or claimed, but shall not include any
such account receivable (a) that is not a bona fide existing obligation created
by the sale and actual delivery of inventory, goods or other property or the
furnishing of services or other good and sufficient consideration to customers
of CNG in the ordinary course of business, (b) that is more than 60 days past
due, (c) that is subject to any known dispute, contra-account, defense, offset
or counterclaim or any lien, encumbrance or security interest, (d) that is
payable by any Person located outside the United States (which shall not be
deemed to include any territories of the United States) and is not supported by
a letter of credit issued by banks acceptable to the Agent in its reasonable
discretion, (e) that is payable by the United States or any of its departments,
agencies or instrumentalities, (f) that is payable by any Person that is the
subject of any proceeding seeking to adjudicate it a bankrupt or insolvent or
seeking liquidation, winding up or reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief or protection of debtors or
seeking the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property, or that is not
generally paying its debts as they become due or has admitted in writing its
inability to pay its debts generally or has made a general assignment for the
benefit of creditors, (g) which is evidenced by a promissory note or other
instrument, (h) that is payable by any Person, whose aggregate accounts owing to
CNG are in excess of 10% of all Eligible CNG Accounts Receivable (but only to
the extent of the amount in excess of 10%), unless such receivable is secured by
a letter of credit, or (i) for which the prospect of payment or performance is
or will be impaired as determined by the Agent in its reasonable discretion.
"Environmental Laws" at any date shall mean all provisions of law, statute,
ordinances, rules, regulations, judgments, writs, injunctions, decrees, orders,
awards and standards promulgated by the government of the United States of
America or any foreign government or by any state, province, municipality or
other political subdivision thereof or therein or by any court, agency,
instrumentality, regulatory authority or commission of any of the foregoing
concerning the protection of, or regulating the discharge of substances into,
the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with any successor statute thereto and the
regulations thereunder.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) which (i) together with the Borrowers or any Subsidiary, would be
treated as a single employer under Section 414(b) or (c) of the Code or (ii) for
purposes of liability under Section 412(C)(11) of the Code, the lien created
under Section 412(n) of the Code or for a tax imposed for failure
CREDIT AGREEMENT Page 6
to meet minimum funding standards under Section 4971 of the Code, a member of
the same affiliated service group (within the meaning of Section 401(m) of the
Code) as the Borrowers or any Subsidiary, or any other trade or business
described in clause (i) above.
"Eurodollar Base Rate" shall mean, with respect to a Eurodollar Loan for
the relevant Eurodollar Interest Period, the rate determined by the Agent to be
the rate at which First Chicago offers to place deposits in Dollars with
first-class banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such Eurodollar
Interest Period, in the approximate amount of First Chicago's relevant
Eurodollar Loan and having a maturity approximately equal to such Eurodollar
Interest Period.
"Eurodollar Interest Period" or "Interest Period" shall mean, with respect
to a Eurodollar Loan, a period of one, two, three or six months commencing on a
Business Day selected by the Borrowers pursuant to this Agreement. Such
Eurodollar Interest Period shall end on the day which corresponds numerically to
such date one, two, three or six months thereafter, provided, however, that if
there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such Eurodollar Interest Period shall end on the last
Business Day of such next, second, third or sixth 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
calendar month, such Eurodollar Interest Period shall end on the immediately
preceding Business Day.
"Eurodollar Loan" shall mean a Loan which bears interest at a Eurodollar
Rate.
"Eurodollar Rate" shall mean, with respect to a Eurodollar 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 (expressed as a decimal) applicable to
such Eurodollar Interest Period, plus (ii) the Applicable Margin.
"Event of Default" shall mean any of the events or conditions described in
Section 8.1.
"Federal Funds Rate" shall mean, 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.
CREDIT AGREEMENT Page 7
"First Chicago" shall mean The First National Bank of Chicago, a national
banking association, as a Bank under this Agreement.
"Floating Rate" shall mean the per annum rate equal to the sum of (a) with
respect to Revolving Credit Loans, the Term Loan and any other amounts owing
hereunder, the Applicable Margin, plus (b) the greater of (i) the per annum rate
announced by the Agent from time to time as its "corporate base rate", and (ii)
the sum of one-half percent (1/2%) per annum plus the Federal Funds Rate, such
Floating Rate to change simultaneously with any change in such "corporate base
rate" or Federal Funds Rate, as the case may be;
all as conclusively determined in good faith by the Agent, such sum to be
rounded up, if necessary, to the nearest whole multiple of 1/16 of 1%.
"Floating Rate Loan" shall mean any Loan bearing interest at the Floating
Rate.
"GAAP" shall mean generally accepted accounting principles applied on a
basis consistent with that reflected in the financial statements referred to in
Section 6.7 hereof.
"Hydrocarbons" shall mean oil, gas casinghead, gas, drip gasoline, natural
gas and condensates and all other liquid or gaseous hydrocarbons.
"Indebtedness" of any Person shall mean, as of any date, (a) all
obligations of such Person for borrowed money, (b) all obligations which are
secured by any lien or encumbrance existing on property owned by such Person
whether or not the obligation secured thereby shall have been assumed by such
Person, other than those obligations which are incurred in the ordinary course
of business and are not required to be shown as a liability on a balance sheet
in accordance with GAAP, (c) all obligations as lessee under any lease which, in
accordance with GAAP, is or should be capitalized on the books of the lessee,
(d) the deferred purchase price for goods, property or services acquired by such
Person, and all obligations of such Person to purchase such goods, property or
services where payment therefor is required regardless of whether or not
delivery of such goods or property or the performance of such services is ever
made or tendered, other than unsecured trade payables incurred in the ordinary
course of business, (e) all obligations of such Person to advance funds to, or
to purchase property or services from, any other Person in order to maintain the
financial condition of such Person, (f) all obligations of such Person in
respect of any interest rate or currency swap, rate cap or other similar
transaction (valued in an amount equal to the highest termination payment, if
any, that would be payable by such Person upon termination for any reason on the
date of termination), and (g) all obligations of such Person or of others for
which such Person is contingently liable, as guarantor, surety or in any other
similar capacity, or in respect of which obligations such Person assures a
creditor against loss or agrees to take any action to prevent any such loss
(other than endorsements of negotiable instruments for collection in the
ordinary course of business), including without limitation all reimbursement
obligations of such Person in respect of any letters of credit, surety bonds or
similar obligations and all obligations of such
CREDIT AGREEMENT Page 8
Person to advance funds to, or to purchase assets, property or services from,
any other Person in order to maintain the condition, financial or otherwise, of
such other Person.
"Interest Payment Date" shall mean (a) with respect to each Eurodollar
Loan, the last day of each Eurodollar Interest Period with respect to such
Eurodollar Loan and, in the case of any Eurodollar Interest Period exceeding
three months, those days that occurred during such Eurodollar Interest Period at
intervals of three months after the first day of such Eurodollar Interest
Period, (b) in all other cases, the last Business Day of each month, commencing
with the first such day after the Effective Date, and (c) the Termination Date
with respect to Revolving Credit Loans and the Maturity Date - Term Loan with
respect to the Term Loan.
"L/C Bank" shall mean The First National Bank of Chicago and Bank One,
Texas, N.A.
"L/C Commitments" shall mean, with respect to each L/C Bank, the commitment
of each such L/C Bank to participate in Letters of Credit pursuant to Section
2.1(d) and Section 3.3, in amounts not exceeding an aggregate principal amount
outstanding at any time the respective L/C Commitment amount for each L/C Bank
set forth next to the name of each such L/C Bank on the signature pages hereof,
as such amount may be reduced from time to time.
"Lending Installation" shall mean, with respect to a Bank or the Agent, any
office, branch, subsidiary or affiliate of such Bank or the Agent.
"Letter of Credit" shall mean a standby letter of credit having a stated
expiry date not later than twelve months after the date of issuance and not
later than the fifth Business Day before the Termination Date, issued by the
Agent on behalf of the L/C Banks for the account of the Borrowers under an
application and related documentation acceptable to the Agent requiring, among
other things, immediate reimbursement by the Borrowers to the Agent in respect
of all drafts or other demand for payment honored thereunder and all expenses
paid or incurred by the Agent relative thereto.
"Letter of Credit Advance" shall mean any issuance of a Letter of Credit
pursuant to this Agreement.
"Letter of Credit Documents" shall have the meaning ascribed thereto in
Section 3.3(b)(i).
"Lien" shall mean any pledge, assignment, hypothecation, mortgage, security
interest, deposit arrangement, option, conditional sale or title retaining
contract, sale and leaseback transaction, financing statement filing, lessor's
or lessee's interest under any lease, subordination of any claim or right, or
any other type of lien, charge, encumbrance, preferential arrangement or other
claim or right.
CREDIT AGREEMENT Page 9
"Loan Commitments" shall mean, with respect to each Bank, the commitment of
each such Bank to make Revolving Credit Loans and the Term Loan pursuant to
Sections 2.1(a) and (b), in amounts not exceeding in aggregate principal amount
outstanding at any time the respective Loan Commitment amount for each Bank set
forth next to the name of each such Bank on the signature pages hereof or
established pursuant to Section 10.6, as the case may be, as such amount may be
reduced from time to time.
"Loan Documents" shall mean this Agreement, the Notes, the Security
Documents, the environmental certificate and any other agreement, instrument or
document executed at any time pursuant to, in connection with, or otherwise
relating to this Agreement.
"Loans" mean the Revolving Credit Loans and the Term Loan.
"Material Adverse Effect" shall mean a material adverse effect on or change
in (a) the business, property (including without limitation the Collateral),
operations or condition, financial or otherwise, of the Borrowers on a
consolidated basis, (b) the ability of any Borrower to perform its obligations
under any Loan Document or (c) the validity or enforceability or the rights and
remedies of the Agent or any Bank under any Loan Document.
"Maturity Date - Term Loan" shall mean, with respect to the Term Loan, the
earlier to occur of (a) the second anniversary of the date the Term Loan is
made, which in any event shall be no later than the fifth anniversary of the
Effective Date, and (b) the date on which the Term Loan shall be accelerated
pursuant to Section 8.2.
"Mortgages" shall have the meaning ascribed thereto in Section 5.1.
"Multiemployer Plan" shall mean any "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"1995 Preferred Stock" shall mean the 1,500,000 shares of Series 1995
Convertible Preferred Stock issued by CRI.
"1994 Preferred Stock" shall mean the 600,000 shares of Series 1994
Convertible Preferred Stock issued by CRI.
"Notes" means the Revolving Credit Notes and the Term Notes.
"Oil and Gas Interests" shall mean all leasehold interests, mineral fee
interest, overriding royalty and royalty interests, net revenue and net working
interest and all other rights and interests relating to Hydrocarbons, including
without limitation any reserves thereof.
"Overdue Rate" shall mean (a) in respect of principal of Floating Rate
Loans, a rate per annum that is equal to the sum of three percent (3%) per annum
plus the Floating Rate,
CREDIT AGREEMENT Page 10
(b) in respect of principal of Eurodollar Loans, a rate per annum that is equal
to the sum of three percent (3%) per annum plus the per annum rate in effect
thereon until the end of the then current Eurodollar Interest Period for such
Loan and, thereafter, a rate per annum that is equal to the sum of three percent
(3%) per annum plus the Floating Rate, and (c) in respect of other amounts
payable by the Borrowers hereunder (other than interest), a per annum rate that
is equal to the sum of three percent (3%) per annum plus the Floating Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" shall mean the Liens permitted by Section 7.2(e) hereof.
"Person" shall include an individual, a corporation, an association, a
partnership, a trust or estate, a joint stock company, an unincorporated
organization, a joint venture, a government (foreign or domestic), and any
agency or political subdivision thereof, or any other entity.
"Plan" shall mean, with respect to any Person, any employee benefit or
other plan (other than a Multiemployer Plan) maintained by such Person for its
employees and covered by Title IV of ERISA or to which Section 412 of the Code
applies.
"Pro Rata Share" shall mean, as to obligations of the Banks, the loan
percentage set forth opposite its name on the signature pages hereof or
otherwise established pursuant to Section 10.6, and, as to obligations of the
L/C Banks, the letter of credit percentage set forth opposite its name on the
signature pages hereof. As to obligations owing to the Banks, shall mean: (a) in
the case of payments of principal and interest on the Loans, in an amount with
respect to each Bank equal to the product of such amount received times the
ratio which the outstanding principal balance of its Note or Notes bears to the
outstanding principal balance of all Notes, (b) in the case of amounts payable
with respect to Letters of Credit, an amount with respect to each L/C Bank equal
to the product of such amount received and the ratio its L/C Commitment bears to
the aggregate L/C Commitments, and (c) in the case of all other amounts payable
hereunder (other than as otherwise noted with respect to fees) and other
amounts, in an amount with respect to each Bank equal to the product of such
amount received times the ratio which the Commitment of such Bank bears to the
Commitments of all Banks.
"Proved Developed Reserves" shall mean all Oil and Gas Interests which, to
the satisfaction of the Agent, are estimated, with reasonable certainty, and as
demonstrated by geological and engineering data acceptable to the Agent, to be
economically recoverable from existing xxxxx requiring no more than minor
workover operations from existing completion intervals open for production and
which are producing, and have proven reserves of, Hydrocarbons.
CREDIT AGREEMENT Page 11
"Reportable Event" shall mean a reportable event as described in Section
4043(b) of ERISA including those events as to which the thirty (30) day notice
period is waived under Part 2615 of the regulations promulgated by the PBGC
under ERISA.
"Required Banks" shall mean Banks holding not less than 66-2/3% of the
aggregate principal amount of the Advances then outstanding (or 66-2/3% of the
Commitments if no Loans are then outstanding).
"Reserve Requirement" means, with respect to a Eurodollar Interest Period,
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Revolving Credit Advance" shall mean any Revolving Credit Loan or any
Letter of Credit Advance.
"Revolving Credit Loan" means any loan under Section 3.1 evidenced by the
Revolving Credit Notes and made pursuant to Section 2.1(a).
"Revolving Credit Note" shall mean any promissory note of the Borrowers
evidencing the Revolving Credit Loans, in substantially the form annexed hereto
as Exhibit B, as amended or modified from time to time and together with any
promissory note or notes issued in exchange or replacement therefor.
"Security Agreements" shall have the meaning ascribed thereto in Section
5.1.
"Security Documents" shall have the meaning ascribed thereto in
Section 5.1.
"Subsidiary" of any Person shall mean any other Person (whether now
existing or hereafter organized or acquired) in which (other than directors
qualifying shares required by law) at least a majority of the securities or
other ownership interests of each class having ordinary voting power or
analogous right (other than securities or other ownership interests which have
such power or right only by reason of the happening of a contingency), at the
time as of which any determination is being made, are owned, beneficially and of
record, by such Person or by one or more of the other Subsidiaries of such
Person or by any combination thereof. Unless otherwise specified, reference to
"Subsidiary" shall mean a Subsidiary of CRI.
"Swap Agreement" shall mean any interest rate or oil and gas commodity swap
agreement, interest cap or collar agreement or other financial agreement or
arrangement designed to protect the Borrowers against fluctuations in interest
rates or oil and gas prices.
"Tangible Net Worth" of any Person shall mean, as of any date, (a) the
amount of any capital stock or similar ownership liability plus (or minus in the
case of a deficit) the capital surplus and retained earnings of such Person and
the amount of any foreign currency
CREDIT AGREEMENT Page 12
translation adjustment account shown as a capital account of such Person, less
(b) the net book value of all items of the following character which are
included in the assets of such Person: (i) goodwill, including without
limitation, the excess of cost over book value of any asset, (ii) organization
or experimental expenses, (iii) unamortized debt discount and expense, (iv)
stock discount and expense, (v) patents, trademarks, trade names and copyrights,
(vi) treasury stock, (vii) deferred taxes and deferred charges, (viii)
franchises, licenses and permits, and (ix) all other assets which are deemed
intangible assets under GAAP; provided, that such calculation of Tangible Net
Worth under this definition shall not include receivables of such Person which
are owing by any Affiliate or advances by such Person to any Affiliate.
"Term Loan" means any borrowing under Section 3.1 evidenced by the Term
Note and made pursuant to Section 2.1(b).
"Term Note" means any promissory note of the Borrowers evidencing the Term
Loan, in substantially the form annexed hereto as Exhibit C, as amended or
modified from time to time and together with any promissory note or notes issued
in exchange or replacement therefor.
"Termination Date" shall mean the earlier to occur of (a) the third
anniversary of the Effective Date or such earlier date as the Borrowers may
elect, with five Business Days prior written notice to the Banks, to convert the
Revolving Credit Advances to the Term Loan under Section 2.1(b), and (b) the
date on which the Commitments shall be terminated pursuant to Section 2.1(a) or
8.2.
"Total Liabilities" of any Person shall mean, as of any date, all
obligations which, in accordance with GAAP, are or should be classified as
liabilities on a balance sheet of such Person.
"Type" shall mean, with respect to any Advance, its nature as a Floating
Rate Loan, Eurodollar Loan or Letter of Credit Advance.
1.2 Other Definitions; Rules of Construction. As used herein, the terms
"Agent", "Banks", "Blackstone", "CNG", "CRI", "COG", "COGL", "XXX", "Borrowers"
and "this Agreement" shall have the respective meanings ascribed thereto in the
introductory paragraph of this Agreement. Such terms, together with the other
terms defined in Section 1.1, shall include both the singular and the plural
forms thereof and shall be construed accordingly. All computations required
hereunder and all financial terms used herein shall be made or construed in
accordance with GAAP unless such principles are inconsistent with the express
requirements of this Agreement.
CREDIT AGREEMENT Page 13
SECTION 2. The Commitments.
2.1 Advances. (a) Each Bank agrees, for itself only, to lend and to relend,
subject to the terms and conditions of this Agreement, the Borrowers at any time
and from time to time from the Effective Date until the Termination Date amounts
equal to such Bank's Pro Rata Share of such aggregate Revolving Credit Loans as
any Borrower may from time to time request, provided that no Revolving Credit
Loans may be made if the aggregate outstanding amount of all Revolving Credit
Loans to all Borrowers would exceed the lesser of the Loan Commitments or the
Borrowing Base. Each Loan made hereunder shall be evidenced by the Notes, which
shall mature and bear interest as set forth in Section 4 hereof and in such
Notes. On the Effective Date, the Borrowers shall issue and deliver to each Bank
a Revolving Credit Note in the principal amount of such Banks' Loan Commitment
for the period beginning on the Effective Date. Each Loan which is a Floating
Rate Loan shall be in a minimum amount of $500,000 and in integral multiples of
$100,000 and each Loan which is a Eurodollar Loan shall be in a minimum amount
of $3,000,000 and in integral multiples of $1,000,000. No more than ten
Eurodollar Interest Periods shall be permitted to exist at any one time. Subject
to the terms and conditions of this Agreement, the Borrowers may borrow, prepay
pursuant to Section 4.1(b) and reborrow under this Section 2.1(a).
Notwithstanding anything in this Agreement to the contrary, the eurodollar loans
outstanding as of the Effective Date under the Existing Credit Agreement of
$77,500,000 with an interest period ending August 22, 1996 and of $80,000,000
with an interest period ending September 20, 1996 (the "Existing Eurodollar
Loans") will be considered Eurodollar Loans under this Agreement but will
continue to be funded by The First National Bank of Chicago and Bank One, Texas,
N.A. in the amounts for which they are funded under the Existing Credit
Agreement until the expiry of those existing interest periods on August 22, 1996
and September 20, 1996, respectively, provided that the Commitment of each Bank
shall be deemed used by its Pro Rata Share of such Existing Eurodollar Loans as
if each Bank had funded such Existing Eurodollar Loan in accordance with its Pro
Rata Share under this Agreement.
(b) Each Bank further agrees, for itself only, subject to the terms
and conditions of this Agreement, to make its Pro Rata Share of a single term
loan to the Borrowers on the Termination Date, but not at any time thereafter,
in an amount not to exceed the lesser of (i) the amount of the Borrowing Base as
of the Termination Date and (ii) the aggregate outstanding principal amount of
the Revolving Credit Advances.
(c) The Banks and the Borrowers agree, with the prior written consent
of all Banks, the aggregate amount of the Loan Commitments may be increased to
an amount not to exceed $200,000,000 if requested by the Borrowers, provided
that such increase in the aggregate Loan Commitments shall increase the Loan
Commitment of each Bank only by an amount agreed to by such Bank and by all
other Banks and any such increase shall be in the sole discretion of the Banks,
and shall be accompanied by the execution and delivery of such
CREDIT AGREEMENT Page 14
documents and instruments as required in connection therewith by the Banks. If
the Required Banks, but not all the Banks, have consented to an increase in the
aggregate Loan Commitments in excess of $166,000,000 but less than or equal to
an amount equal to $200,000,000, the Borrowers and the Required Banks shall have
the right to seek a satisfactory lender or lenders (which may be one or more of
the other Banks) to purchase the Note(s) and assume the Loan Commitment(s), if
any, of any Bank which has not agreed to so increase the aggregate Loan
Commitments, with the consent of the Agent, provided that all amounts owing to
such Bank which is being replaced have been paid in full and such replacement
shall be made pursuant to an Assignment and Acceptance and otherwise pursuant to
the procedures described in Section 10.6.
(d) Each L/C Bank agrees, for itself only, subject to the terms and
conditions set forth herein, to participate in Letters of Credit issued for the
account of any Borrower at any time and from time to time from the Effective
Date until the Termination Date in amounts equal to such L/C Bank's Pro Rata
Share of such aggregate Letters of Credit as any Borrower may from time to time
request, provided that the aggregate Letters of Credit Advances may not exceed
the lesser of $1,000,000 or the CNG/CRI Guaranty Formula. Nothing in this
Agreement shall be construed to require or authorize any L/C Bank to issue any
Letter of Credit, it being recognized that the Agent has the sole obligation
under this Agreement to issue Letters of Credit on behalf of the L/C Banks, and
the L/C Commitment of each L/C Bank with respect to Letter of Credit Advances is
expressly conditioned upon the Agent's performance of such obligations. Upon
such issuance by the Agent, each L/C Bank shall automatically acquire a pro rata
risk participation interest in such Letter of Credit Advance based on its
respective L/C Commitment. If the Agent shall honor a draft or other demand for
payment presented or made under any Letter of Credit, the Agent shall provide
notice thereof to each L/C Bank on the date such draft or demand is honored
unless the Borrowers shall have satisfied their reimbursement obligation under
Section 3.3 by payment to the Agent on such date. Each L/C Bank, not later than
the Business Day after the Agent shall have given the notice specified in the
previous sentence, shall make its Pro Rata Share of the amount paid by the Agent
available in immediately available funds at the principal office of the Agent
for the account of the Agent. If and to the extent such L/C Bank shall not have
made any required Pro Rata Share available to the Agent, such L/C Bank and the
Borrowers severally agree to pay to the Agent forthwith on demand such amount
together with interest thereon, for each day from the date such amount was paid
by the Agent until such amount is so made available to the Agent at (i) the
Floating Rate for such day in the case of the Company and (ii) the rate per
annum equal to the Federal Funds Rate for such day in the case of any L/C Bank.
The failure of any L/C Bank to make its Pro Rata Share of any such amount paid
by the Agent available to the Agent shall not relieve any other L/C Bank of its
obligation to make available its Pro Rata Share of such amount, but no L/C Bank
shall be responsible for failure of any other L/C Bank to make such Pro Rata
Share available to the Agent.
CREDIT AGREEMENT Page 15
(e) The Borrowers shall have the right to terminate or reduce the
Commitments at any time and from time to time, provided that (i) the Borrowers
shall give notice of such termination or reduction to the Agent specifying the
amount and effective date thereof, (ii) each partial reduction of the
Commitments shall be in a minimum amount of $1,000,000 and in integral multiples
of $1,000,000 and shall reduce the Commitments of all of the Banks
proportionally in accordance with the respective Commitment amounts of each such
Bank, (iii) no such termination or reduction, either in whole or part and
including without limitation any termination, shall be permitted with respect to
any portion of the Commitments as to which a request for a Revolving Credit
Advances is then pending, and (iv) the Commitments may not be terminated if any
Revolving Credit Advances are then outstanding and may not be reduced below the
principal amount of Revolving Credit Advances then outstanding. The Commitments
or any portion thereof so terminated or reduced may not be reinstated. Any
Borrower may request Revolving Credit Advances without the consent of any other
Borrower, and each Borrower consents to and approves any Revolving Credit
Advances requested by any other Borrower. The Revolving Credit Advances
hereunder replace the revolving credit loans and letters of credit outstanding
pursuant to Section 2.1(a) of the Existing Credit Agreement and provide
additional credit as described above.
SECTION 3. The Advances.
3.1 Disbursement of Advances. (a) Borrowers shall give notice to the Agent
of each requested Advance in substantially the form of Exhibit D hereto, which
notice given shall be received by the Agent not later than 10:00 a.m. (Chicago
time), (i) three Business Days prior to the date such Loan is requested to be
made if such Loan is to be made as a Eurodollar Loan, (ii) one Business Day
prior to the date such Loan is requested to be made if such Loan is to be made
as a Floating Rate Loan, (iii) three Business Days prior to the date any Letter
of Credit Advance is requested to be made, and (iv) five Business Days prior to
the date the Term Loan is requested to be made. Each such notice given shall be
irrevocable and binding on the Borrowers, any such notice must specify the
Advance Date, which shall be a Business Day, the aggregate amount of such
Advance, the Type of Advance selected, in the case of any Eurodollar Loan, the
Eurodollar Interest Period applicable thereto, and in the case of any Letter of
Credit Advance such other information with respect thereto as may be required by
the Agent. The Agent shall provide notice of such requested Loan to each Bank on
the same Business Day such notice is received from the Borrowers. Subject to the
terms and conditions of this Agreement, the Agent shall, on the date any Letter
of Credit Advance is requested to be made, issue the related Letter of Credit on
behalf of the L/C Banks for the account of the Borrowers, provided that in the
case of each Letter of Credit Advance the Borrowers provide such information as
may be necessary for the issuance thereof by the Agent and execute any document
in connection therewith as may be requested by the Agent. Notwithstanding
anything herein to the contrary, the Agent may decline to issue any requested
Letter of Credit on the basis that the beneficiary, the purpose of issuance or
the terms or conditions of drawing are illegal or contrary to a policy of the
Agent.
CREDIT AGREEMENT Page 16
(b) Floating Rate Loans shall continue as Floating Rate Loans unless
and until such Floating Rate Loans are converted into Eurodollar Loans. Each
Eurodollar Loan of any Type shall continue as a Eurodollar Loan of such Type
until the end of the then applicable Interest Period therefor, at which time
such Eurodollar Loan shall be automatically converted into a Floating Rate Loan
unless the Borrower shall have given the Agent a Conversion/Continuation Notice
requesting that, at the end of such Interest Period, such Eurodollar Loan either
continue as a Eurodollar Loan of such Type for the same or another Interest
Period or be converted into a Loan of another Type. Subject to the terms of
Section 2.1, the Borrower may elect from time to time to convert all or any part
of a Loan of any Type into any other Type or Types of a Loan; provided that any
conversion of any Eurodollar Loan shall be made on, and only on, the last day of
the Interest Period applicable thereto. The Borrowers shall give the Agent
irrevocable notice (a "Conversion/Continuation Notice") of each conversion of a
Loan or continuation of a Eurodollar Loan not later than 10:00 a.m. (Chicago
time) at least one Business Day, in the case of a conversion into a Floating
Rate Loan, or three Business Days, in the case of a conversion into or
continuation of a Eurodollar Loan, 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 and Type of the Loan which is to be
converted or continued, and
(iii)the amount and Type(s) of Loan(s) into which such Loan is to be
converted or continued and, in the case of a conversion into or
continuation of a Eurodollar Loan, the duration of the Interest
Period applicable thereto.
(c) Subject to the terms and conditions of this Agreement, the
proceeds of such requested Loan shall be made available to the Borrowers by
depositing the proceeds thereof, in immediately available funds, on the Advance
Date for such Loan in an account maintained and designated by the Borrowers at
the principal office of the Agent. Each Bank, on the Advance Date of each such
Loan shall make its Pro Rata Share of such Loan available in immediately
available funds at the principal office of the Agent for disbursement to the
Borrowers. Unless the Agent shall have received notice from any Bank prior to
the date of any requested Loan under this Section 3.1 that such Bank will not
make available to the Agent such Bank's Pro Rata Share, the Agent may assume
that such Bank has made such share available to the Agent on the Advance Date of
such Loan in accordance with this Section 3.1(b). If and to the extent such Bank
shall not have so made such Pro Rata Share available to the Agent, the Agent may
(but shall not be obligated to) make such amount available to the Borrowers on
the relevant Advance Date, and such Bank agrees to pay to the Agent forthwith on
demand such amount together with interest thereon, for each day from the date
such amount is made available to the Borrowers by the Agent until the date such
amount is paid to the Agent, at the Federal
CREDIT AGREEMENT Page 17
Funds Rate. If such Bank shall pay to the Agent such amount, such amount so paid
shall constitute a Loan by such Bank as a part of such borrowing for purposes of
this Agreement. The failure of any Bank to make its Pro Rata Share of any such
Loan available to the Agent shall not relieve any other Bank of its obligations
to make available its Pro Rata Share of such Loan on the Advance Date of such
Loan, but no Bank shall be responsible for failure of any other Bank to make
such Pro Rata Share available to the Agent on the Advance Date of any such Loan.
(d) Each Bank may book its Loans at any Lending Installation selected
by such Bank and may change its Lending Installation from time to time. All
terms of this Agreement shall apply to any such Lending Installation and the
Notes shall be deemed held by each Bank for the benefit of such Lending
Installation. Each Bank may, by written or telex notice to the Agent and the
Borrowers, designate a Lending Installation through which Loans will be made by
it and for whose account Loan payments are to be made.
3.2 Conditions of Advances. The Banks and the Agent shall not be obligated
to make any Advance hereunder at any time unless:
(a) Prior to or simultaneously with the first Advance hereunder, there
shall have been delivered to each Bank the following documents, in form and
substance satisfactory to the Agent and the following additional conditions
shall have been satisfied:
(i) The favorable opinion of such counsel for the Borrowers as
shall be approved by the Required Banks, with respect to the matters as
requested by the Banks, all in form and substance satisfactory to the Required
Banks;
(ii) certified copies of such corporate documents of each
Borrower, including each Borrower's articles of incorporation, by-laws and a
good standing certificate, and such documents evidencing necessary corporate
action with respect to this Agreement, the Loans, the Notes and the Security
Documents, and certifying to the incumbency of, and attesting to the genuineness
of the signatures of, those officers authorized to act on behalf of each
Borrower, as the Banks shall request;
(iii) the Security Documents required as of the Effective Date
under Section 5.1 duly executed on behalf of the Borrowers, together with
evidence of the recordation, filing and other action in such jurisdictions as
the Banks may deem necessary or appropriate with respect to the Security
Documents and evidence of the first-priority of the Banks' liens and security
interests under the Security Documents, subject only to Permitted Liens,
including without limitation such additional mortgages, security agreements,
pledge agreements, other documents and opinions of counsel required by the Banks
and original stock certificates and assignments separate from certificate of
each Person whose stock is required to be pledged;
CREDIT AGREEMENT Page 18
(iv) the Notes duly executed on behalf of the Borrowers, and it
is acknowledged and agreed that the Notes: (A) are issued in exchange and
replacement for the promissory notes issued pursuant to the Existing Credit
Agreement, (B) shall not be deemed a novation or to have satisfied such
promissory notes and (C) evidence the same indebtedness evidenced by such
promissory notes plus additional indebtedness;
(v) the Consent and Amendment of Security Documents duly executed
by the Borrowers;
(vi) Payment of such fees agreed to among the Borrowers and the
Agent;
(vii) the execution by the Borrowers of the Agent's standard
environmental certificate;
(viii) the Banks shall have determined that the Loans to be made
are equal to or less than the Borrowing Base;
(ix) copies of all agreements relating to any material
Indebtedness for borrowed money, any preferred stock, any joint ventures or
partnerships or any other material documents requested by the Banks;
(x) the originals of all promissory notes payable to any
Borrower, other than promissory notes in an aggregate amount less than $50,000;
and
(xi) such other agreements, documents, conditions and
certificates as reasonably requested by the Banks, including without limitation,
releases and terminations of all other Liens which are not permitted hereunder,
amendments of existing Security Documents, the establishment of all primary bank
accounts of each Borrower at a Bank (and each agrees to maintain such accounts
at a Bank), all in form and substance satisfactory to the Banks.
(b) The aggregate outstanding principal amount of all Revolving Credit
Loans or the Term Loan, whichever is outstanding, after giving effect to the
proposed Loan, does not exceed the lesser of the Commitments or the Borrowing
Base, and the aggregate outstanding principal amount of all Letter of Credit
Advances, after giving effect to the proposed Letter of Credit Advance, does not
exceed the lesser of $1,000,000 or the CNG/CRI Guaranteed Formula.
(c) On and as of the date of each such Advance, the representations
and warranties contained in Section 6 hereof shall be true and correct in all
material respects as if made on such date; provided, however, that for purposes
of this Section 3.2(c) the representations and warranties contained in
Section 6.7 hereof shall be deemed made with
CREDIT AGREEMENT Page 19
respect to both the financial statements referred to therein and the most recent
financial statements delivered pursuant to Section 7.1(d)(ii) and (iii).
(d) No Default or event or condition which could cause a Material
Adverse Effect has occurred and is continuing or will exist upon the
disbursement of such Advance.
Acceptance of the proceeds of any Advance hereunder by the Borrowers shall be
deemed to be a certification by the Borrowers at such time with respect to the
matters set forth in subparagraphs (b), (c) and (d) of this Section 3.2.
3.3 Letter of Credit Reimbursement Payments. (a)(i) The Borrowers agree to
pay to the Agent, on the day on which the Agent shall honor a draft or other
demand for payment presented or made under any Letter of Credit, an amount equal
to the amount paid by the Agent in respect of such draft or other demand under
such Letter of Credit and all expenses paid or incurred by the Agent relative
thereto.
(ii) The Borrowers agree that each reimbursement amount not paid
pursuant to the first sentence of Section 3.3(a)(i) shall bear interest, payable
on demand by the Agent, at the Floating Rate, and effective on the date each
such reimbursement amount is not paid, each L/C Bank severally agrees that it
shall unconditionally and irrevocably, without regard to the occurrence of any
Default or Event of Default, to the extent of such L/C Bank's Pro Rata Share,
purchase a participating interest in each reimbursement amount. Each L/C Bank
will immediately transfer to the Agent, in same day funds, the amount of its
participation. Each L/C Bank shall share on a pro rata basis (calculated by
reference to the L/C Bank Commitments) in any interest which accrues thereon and
in all repayments thereof. If and to the extent that any L/C Bank shall not have
so made the amount of such participating interest available to the Agent, such
L/C Bank and the Borrowers agree to pay to the Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the Agent until the date such amount is paid to the Agent, at (x) in the case of
the Borrowers, the Floating Rate and (y) in the case of such L/C Bank, the
Federal Funds Rate.
(b) The reimbursement obligations of the Borrowers under this Section
3.3 shall be absolute, unconditional and irrevocable and shall remain in full
force and effect until all obligations of the Borrowers to the Agent and the L/C
Banks hereunder shall have been satisfied, and such obligations of the Borrowers
shall not be affected, modified or impaired upon the happening of any event,
including without limitation any of the following, whether or not with notice
to, or the consent of, the Borrowers:
(i) Any lack of validity or enforceability of any Letter of
Credit or any documentation relating to any Letter of Credit or to any
transaction related in any way to such Letter of Credit (the "Letter of Credit
Documents");
CREDIT AGREEMENT Page 20
(ii) Any amendment, modification, waiver or consent, or any
substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to any of the Letter of Credit Documents;
(iii) The existence of any claim, setoff, defense or other right
which the Borrowers may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Persons or entities for whom any such
beneficiary or any such transferee may be acting) , the Agent or any L/C Bank or
any other Person or entity, whether in connection with any of the Letter of
Credit Documents, the transactions contemplated herein or therein or any
unrelated transactions;
(iv) Any draft or other statement or document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;
(v) Payment by the Agent to the beneficiary under any Letter of
Credit against presentation of documents which do not comply with the terms of
the Letter of Credit, including failure of any documents to bear any reference
or adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the part of the
Agent or any L/C Bank or any party to any of the Letter of Credit Documents to
enforce, assert or exercise any right, power or remedy conferred upon the Agent,
any L/C Bank or any such party under this Agreement or any of the Letter of
Credit Documents, or any other acts or omissions on the part of the Agent, any
L/C Bank or any such party; or
(vii) Any other event or circumstance that would, in the absence
of this clause, result in the release or discharge by operation of law or
otherwise of the Borrowers from the performance or observance of any obligation,
covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which any of the Borrowers has or may have against
the beneficiary of any Letter of Credit shall be available hereunder to any of
the Borrowers against the Agent or any L/C Bank. Nothing in this Section 3.3
shall limit the liability, if any, of the L/C Banks to the Borrowers pursuant to
Section 10.5(c).
(c) For purposes of this Agreement, a Letter of Credit Advance (i)
shall be deemed outstanding in an amount equal to the sum of the maximum amount
available to be drawn under the related Letter of Credit on or after the date of
determination and on or before the stated expiry date thereof plus the amount of
any draws under such Letter of Credit that have not been reimbursed as provided
in this Section 3.3 and (ii) shall be deemed outstanding at all times on and
before such stated expiry date or such earlier date on which all
CREDIT AGREEMENT Page 21
amounts available to be drawn under such Letter of Credit have been fully drawn,
and thereafter until all related reimbursement obligations have been paid
pursuant to Section 3.3.
(d) Each L/C Bank's obligation to purchase participating interests
pursuant to Section 2.1(d) and this Section 3.3, and to comply with the terms of
Section 2.1(d) and this Section 3.3, shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which such L/C
Bank or the Borrowers may have against the Agent, the Borrowers or anyone else
for any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of the Borrowers; (iv) any breach of this Agreement by the Borrowers
or any other L/C Bank; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
3.4. 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 Bank, each Bank 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
Borrowers and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case that such Bank is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Bank
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Borrowers 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 Borrowers or the Agent,
in each case certifying that such Bank 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 Bank from duly completing and
delivering any such form with respect to it and such Bank advises the Borrowers
and the Agent that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax.
CREDIT AGREEMENT Page 22
SECTION 4. Payment and Prepayment; Fees; Change in Circumstances.
4.1 Principal Payments.
(a) Unless earlier payment is required under this Agreement, the
Borrowers shall pay (i) the entire outstanding principal amount of the Revolving
Credit Advances on the Termination Date, and (ii) the Term Loan in consecutive
quarterly installments each in an amount equal to 5% of the original outstanding
principal amount of the Term Loan, commencing with the date three months after
the Termination Date and each three months thereafter until the Maturity Date -
Term Loan and shall pay the entire remaining outstanding principal amount of the
Term Loan on the Maturity Date - Term Loan.
(b) The Borrowers may from time to time prepay all or a portion of the
Advances without premium or penalty, provided, however, that (i) the Borrowers
shall have given not less than one Business Day's prior written notice thereof
to the Agent, (ii) other than mandatory payments, each such prepayment, in the
case of prepayment of Floating Rate Loans, shall be in the minimum amount of
$500,000 and in integral multiples of $100,000 and, in the case of prepayment of
Eurodollar Loans, shall be in the minimum amount of $1,000,000 and in integral
multiples thereof, (iii) any prepayment of any Eurodollar Loan shall be
accompanied by any amount required pursuant to Section 4.10.
(c) If it should be determined by the Agent at any time and from time
to time that the principal amount of the Revolving Credit Loans or the Term
Loan, whichever is outstanding, exceeds the lesser of the then Borrowing Base or
the Loan Commitments (such condition defined herein as a "Borrowing Base
Deficiency"), the Borrowers shall promptly do one of the following:
(i) In addition to all other payments of principal and interest
required to be paid on the Revolving Credit Loans and the Term Loan, whichever
is outstanding, prepay, upon demand and without premium or penalty, the
Revolving Credit Notes or the Term Notes, whichever are outstanding, in an
amount by which, in the determination of the Agent, such aggregate principal
amount outstanding exceeds the lesser of the then Borrowing Base or the Loan
Commitments; or
(ii) Xxxxx x xxxx and security interest to the Agent, for the
benefit of the Banks, in form and substance satisfactory to the Required Banks,
in additional interests in Proved Developed Reserves of the Borrowers which, in
the determination of the Required Banks, will increase the Borrowing Base by an
amount such that the then aggregate principal amount of the Loans does not
exceed the lesser of the then Borrowing Base or the Loan Commitments; or
(iii) Any combination of the foregoing acceptable to the Required
Banks.
CREDIT AGREEMENT Page 23
(d) If it should be determined by the Agent at any time and from time
to time that the aggregate outstanding amount of the Letter of Credit Advances
exceeds the lesser of $1,000,000 or the CNG/CRI Guaranty Formula, the Borrowers
shall promptly provide cash collateral for the Letter of Credit Advances
pursuant to Section 8.4 in the amount of such excess.
(e) In addition to all other payments required hereunder, upon any
sale or other disposition of any assets when a Default exists, or if such sale
or other disposition would cause a Default, the Borrowers shall prepay the
Advances by an amount equal to 100% of the net proceeds (net only of reasonable
and customary costs of such sale or other disposition) of such sale or
disposition, which prepayment is due upon receipt of such net proceeds.
(f) In addition to all other payments required hereunder, upon any
sale or other disposition of any assets when a Borrowing Base Deficiency exists,
or if such sale or other disposition would cause a Borrowing Base Deficiency,
the Borrower shall prepay the Advances by the amount of the Borrowing Base
Deficiency from the net proceeds (net only of any reasonable and customary costs
of such sale or other disposition) of such sale or disposition, which prepayment
is due upon receipt of such net proceeds.
All determinations made pursuant to this Section 4.1 shall be made by the
Agent or the Required Banks, as the case may be, and shall be conclusively
binding on the parties absent manifest error.
4.2 Interest Payment. (a) The Borrowers shall pay interest to the Banks on
the unpaid principal amount of each Revolving Credit Loan and the Term Loan for
the period commencing on the date such Loan is made until such Loan is paid in
full, on each Interest Payment Date and at maturity (whether at stated maturity,
by acceleration or otherwise), and thereafter on demand, at the following rates
per annum: (i) during such periods that such Loan is a Floating Rate Loan, the
Floating Rate, and (ii) during such periods that such Loan is a Eurodollar Loan,
the Eurodollar Rate applicable to such Loan for each related Eurodollar Interest
Period.
(b) Notwithstanding the foregoing paragraph (a), the Borrowers hereby
agree, if requested by the Required Banks, to pay interest on demand at the
Overdue Rate on the outstanding principal amount of any Loan and any other
amount payable by the Borrowers hereunder (other than interest) upon and during
the continuance of any Default.
4.3 Fees. (a) The Borrowers agree to pay to the Agent, for the pro rata
account of the Banks, a commitment fee computed at the per annum rate equal to
the Applicable Margin on the amount by which the Loan Commitments exceed the
aggregate outstanding principal amount of the Revolving Credit Loans, for the
period from the Effective Date until the Termination Date, and the Borrowers
agree to pay to the Agent, for the pro rata account of the L/C Banks, a
commitment fee computed at the per annum rate equal to the Applicable Margin
CREDIT AGREEMENT Page 24
on the amount by which the L/C Commitments exceed the aggregate outstanding
amount of the Letter of Credit Advances, for the period from the Effective Date
until the Termination Date. Such fees shall be paid quarterly, on the last day
of each March, June, September and December commencing on the first such date
after the Effective Date, and on the Termination Date.
(b) The Borrowers agree (i) to pay to the Agent, for the benefit of
the L/C Banks, a fee equal to 1-1/2% per annum of the maximum amount available
to be drawn under each Letter of Credit at the time such fee is to be paid for
the period from and including the date of issuance of such Letter of Credit to
and including the stated expiry date of such Letter of Credit, provided that the
amount payable for any quarter under this clause (i) shall be not less than
$500, and (ii) to pay an additional fee to the Agent for its own account
computed at the rate of one-quarter of one percent (1/4 of 1%) per annum of such
maximum amount for such period. Such fees shall be payable quarterly in advance,
payable on the date of the issuance of any Letter of Credit and each three month
interval thereafter. Such fees are nonrefundable and the Borrowers shall not be
entitled to any rebate of any portion thereof if such Letter of Credit does not
remain outstanding through the date for which such fees have been paid. The
Borrowers further agree to pay to the Agent, on demand, such other customary
administrative fees, charges and expenses of the Agent in respect of the
issuance, negotiation, acceptance, amendment, transfer and payment of each
Letter of Credit or otherwise payable pursuant to the application and related
documentation under which such Letter of Credit is issued.
(c) In connection with any increase in the Loan Commitments pursuant
to Section 2.1(c), the Borrowers agree to pay to the Agent, for the pro rata
account of the Banks which increase their Loan Commitment, a facility fee
computed at a per annum rate equal to 0.20% payable on any increase in such
Bank's Loan Commitment, payable on the date of any such increase.
(d) The Borrowers agree to pay to the Agent agency and servicing fees
for its services under this Agreement in such amounts as it may from time to
time be agreed upon between the Borrowers and the Agent, which fee shall be
retained solely by the Agent.
4.4 Payment Method. All payments to be made by the Borrowers hereunder will
be made in Dollars and in immediately available funds to the Agent at its
address set forth in Section 10.2 not later than 11:00 a.m. Chicago time on the
date on which such payment shall become due. Payments received after 11:00 a.m.
Chicago time shall be deemed to be payments made prior to 11:00 a.m. Chicago
time on the next succeeding Business Day. At the time of making each such
payment, the Borrowers shall specify to the Agent that obligation of the
Borrowers hereunder to which such payment is to be applied, or, in the event
that the Borrowers fail to so specify or if an Event of Default shall have
occurred and be continuing, the Agent may apply such payments as it may
determine in its sole discretion. On the day such payments are received, the
Agent shall remit to the Banks their respective Pro Rata Shares of such
payments, in immediately available funds.
CREDIT AGREEMENT Page 25
4.5 No Setoff or Deduction. All payments of principal of and interest on
the Advances and other amounts payable by the Borrowers hereunder shall be made
by the Borrowers without setoff or counterclaim, and free and clear of, and
without deduction or withholding for, or on account of, any present or future
taxes, levies, imposts, duties, fees, assessments, or other charges of whatever
nature, imposed by any governmental authority, or by any department, agency or
other political subdivision or taxing authority.
4.6 Payment on Non-Business Day; Payment Computations. Except as otherwise
provided in this Agreement to the contrary, whenever any installment of
principal of, or interest on, any Advances outstanding hereunder or any other
amount due hereunder, becomes due and payable on a day which is not a Business
Day, the maturity thereof shall be extended to the next succeeding Business Day
and, in the case of any installment of principal, interest shall be payable
thereon at the rate per annum determined in accordance with this Agreement
during such extension. Computations of interest and other amounts due under this
Agreement shall be made on the basis of a year of 360 days for the actual number
of days elapsed, including the first day but excluding the last day of the
relevant period.
4.7. Yield Protection. If 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 Bank
therewith,
(i) subjects any Bank or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due
from the Borrowers (excluding federal taxation of the
overall net income of any Bank or applicable Lending
Installation), or changes the basis of taxation of payments
to any Bank in respect of its Loans 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 Bank or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurodollar Loans), or
(iii)imposes any other condition the result of which is to
increase the cost to any Bank or any applicable Lending
Installation of making, funding or maintaining loans or
reduces any amount receivable by any Bank or any applicable
Lending Installation in connection with loans, or requires
any Bank or any applicable Lending Installation to make any
payment calculated by reference to the amount of loans held
or interest received by it, by an amount deemed material by
such Bank,
CREDIT AGREEMENT Page 26
then, within 30 days of demand by such Bank, the Borrowers shall pay such Bank
that portion of such increased expense incurred or reduction in an amount
received which such Bank determines is attributable to making, funding and
maintaining its Loans and its Commitment.
4.8. Changes in Capital Adequacy Regulations. If a Bank determines the
amount of capital required or expected to be maintained by such Bank, any
Lending Installation of such Bank or any corporation controlling such Bank is
increased as a result of a Change, then, within 15 days of demand by such Bank,
the Borrowers shall pay such Bank the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Bank determines is attributable to this Agreement, its Advances or its Loan
Commitment or L/C Commitment (after taking into account such Bank's policies as
to capital adequacy). "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 Bank or any Lending Installation or any
corporation controlling any Bank. "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.
4.9. Availability of Types of Advances. If any Bank determines that
maintenance 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, or if the Required Banks determine that (i) deposits of
a type and maturity appropriate to match fund Eurodollar Loans are not available
or (ii) the interest rate applicable to a Type of Advance does not accurately
reflect the cost of making or maintaining such Advance, then the Agent shall
suspend the availability of the affected Type of Advance and require any
Eurodollar Loans of the affected Type to be repaid.
4.10. Funding Indemnification. If any payment of a Eurodollar Loan occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Eurodollar Loan is not
made on the date specified by the Borrowers for any reason other than default by
the Banks, the Borrowers will indemnify each Bank for any loss or cost incurred
by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Eurodollar
Loan.
4.11. Bank Statements; Survival of Indemnity. To the extent reasonably
possible, each Bank shall designate an alternate Lending Installation with
respect to its Eurodollar Loans
CREDIT AGREEMENT Page 27
to reduce any liability of the Borrowers to such Bank under Sections 4.7 and 4.8
or to avoid the unavailability of a Type of Advance under Section 4.9, so long
as such designation is not disadvantageous to such Bank. Each Bank shall deliver
a written statement of such Bank to the Borrowers (with a copy to the Agent) as
to the amount due, if any, under Sections 4.7, 4.8 or 4.10. Such written
statement shall set forth in reasonable detail the calculations upon which such
Bank determined such amount and shall be final, conclusive and binding on the
Borrowers in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar Loan shall be calculated as
though each Bank funded its Eurodollar Loan through the purchase of a deposit of
the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar 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 of any Bank shall be payable on demand after receipt by the
Borrowers of such written statement. The obligations of the Borrowers under
Sections 4.7, 4.8 and 4.10 shall survive payment of the Bank Obligations and
termination of this Agreement.
SECTION 5. Security.
5.1 Security Documents. To secure all indebtedness, obligations and
liabilities under this Agreement, the Notes, the Security Documents, the
Advances, any Swap Agreements among any Borrower and any Lender and to secure
all other Indebtedness and obligations of the Borrowers to the Agent and the
Banks pursuant thereto, whether direct or indirect, absolute or contingent, due
or to become due, now existing or hereafter arising, the Borrowers shall:
(a) Execute and deliver to the Agent, promptly upon the request of the
Agent or the Required Banks, such indentures of mortgage, deeds of trust,
security agreements, financing statements and assignment of production and other
agreements, including without limitation any amendments to any such documents
previously executed and delivered in favor of the Agent or any Bank (as amended
or modified from time to time, the "Mortgages" and together with the Security
Agreements, and all agreements and documents described in this Section 5.1(a) or
in 5.1(b), 5.2 or 5.3 and all other agreements and documents securing any of the
Bank Obligations at any time or otherwise executed by any Borrower with or in
favor of the Agent and the Banks, and including without limitation the Letter of
Credit Documents, as amended or modified from time to time, the "Security
Documents"), in form and substance satisfactory to the Required Banks, granting
the Agent, for the benefit of the Banks, a first- priority, perfected and
enforceable lien and security interest, subject only to the Permitted Liens, in
the following (collectively, with all other assets described in Section 5.1(b),
the "Collateral"): all oil, gas and mineral properties and all other assets of
the Borrowers as requested at any time by the Required Banks, including without
limitation all leasehold and royalty interests and all other rights in
connection therewith, and all interests in machinery, equipment, materials,
improvements, hereditaments, appurtenances and other property, real, Personal
and/or mixed, now or hereafter a part of or obtained in or used in connection
with such properties and all interests in and to any and all oil, gas and other
minerals now in storage or now or hereafter
CREDIT AGREEMENT Page 28
located in, under, on or produced from, such properties and an assignment of
production from such properties to the Agent;
(b) Execute and deliver to the Agent, on or before the Effective Date,
such security agreements, pledge agreements, financing statements and other
agreements, including without limitation the Consent and Amendment of Security
Documents confirming the continuing effectiveness of Security Documents
previously executed and delivered to the Agent or any Bank (as amended or
modified from time to time, the "Security Agreements"), in form and substance
satisfactory to the Required Banks, granting to the Agent, for the benefit of
the Banks, a first-priority, perfected and enforceable lien and security
interest, subject only to the Permitted Liens, in all other assets, whether
real, personal or mixed, and whether now owned or hereafter existing and
wherever located, of the Borrowers; provided, however, that the Borrowers shall
not be required to xxxxx x xxxx on, or security interest in, the assets
described on Schedule 5.1 for so long as they are contractually prohibited from
doing so, and the Borrowers represent that they are contractually prohibited
from granting liens on, or security interest in, the assets described on
Schedule 5.1 and agree not to enter into any further restrictions with respect
thereto.
5.2 Guaranty. If at any time after the Effective Date any Borrower forms
or acquires any Subsidiary with the prior written consent of the Required Banks,
the Borrowers shall cause each such Subsidiary to deliver a guaranty agreement
executed by each such Subsidiary in form and substance satisfactory to the
Required Banks, and to deliver other Security Documents executed by such
Subsidiary granting a first priority, perfected and enforceable lien and
security interest in all of its assets, together with such corporate documents
and opinions required by the Required Banks.
5.3 Additional Security Documents. If at any time requested by the Agent or
the Required Banks, the Borrowers shall execute and deliver such additional
documents, and shall take such other action, as the Agent or the Required Banks
may reasonably consider necessary or proper to evidence or perfect the liens and
security interests described in Section 5.1 hereof and grant the guaranties
described in Section 5.2.
SECTION 6. Representations and Warranties.
Each of the Borrowers represents and warrants that:
6.1 Corporate Existence and Power. It is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and is duly qualified to do business and in good standing in each
additional jurisdiction where failure to so qualify would have a Material
Adverse Effect. It has all requisite corporate power to own its properties and
to carry on its business as now being conducted and as proposed to be conducted,
and to execute and deliver this Agreement, the Notes and the Security Documents
and to engage in the transactions contemplated by this Agreement, the Notes and
the Security Documents.
CREDIT AGREEMENT Page 29
6.2 Corporate Authority. The execution, delivery and performance by it of
this Agreement, the Notes and the Security Documents are within its corporate
powers, have been duly authorized by all necessary corporate action and are not
in contravention of any law, rule or regulation, or any judgment, decree, writ,
injunction, order or award of any arbitrator, court or governmental authority,
or of the terms of its charter or by-laws, or of any contract or undertaking to
which it is a party or by which it or its property may be bound or affected.
6.3 Binding Effect. This Agreement is, and the Notes and the Security
Documents to which it is a party when delivered hereunder will be, legal, valid
and binding obligations of each Borrower, enforceable against each in accordance
with their respective terms.
6.4 Subsidiaries. All Subsidiaries of CRI are duly organized, validly
existing and in good standing under the laws of their jurisdictions of
incorporation and are duly qualified to do business in each jurisdiction where
failure to so qualify would have a Material Adverse Effect. All outstanding
shares of capital stock of each class of each Subsidiary of CRI have been and
will be validly issued and are and will be fully paid and nonassessable and are
and will be owned, beneficially and of record, by CRI, free and clear of any
Liens. Schedule 6.4 is a complete list of all Subsidiaries of CRI. Each of COG,
XXX and CNG is and will remain a wholly-owned Subsidiary of CRI, COGL is and
will remain a wholly-owned Subsidiary of COG, Black Stone is and will remain a
wholly-owned subsidiary of COG, and CPI is and, without the prior written
consent of the Agent, will remain a wholly-owned Subsidiary of CNG. Xxxxxxxx
Management Corporation, a Nevada corporation, has no material assets and the
Borrowers agree that it will not have any material assets at any time. Crosstex
Pipeline, Inc. has no material assets and the Borrowers agree that it will not
have any material assets at any time and will not have revenues of more than
$50,000 in any 12 month period.
6.5 Liens. The properties of each Borrower and each Subsidiary of any
Borrower (including without limitation the Collateral) are not subject to any
Lien except Permitted Liens.
6.6 Litigation. There is no action, suit or proceeding pending or, to the
best of its knowledge, threatened against or affecting it before or by any
court, governmental authority, or arbitrator which would be reasonably likely to
result in, either individually or collectively, a Material Adverse Effect and,
to the best of the Borrowers' knowledge, there is no basis for any such action,
suit or proceeding.
6.7 Financial Condition. The consolidated balance sheet of CRI and its
Subsidiaries and the consolidated statements of income and cash flow of CRI and
its Subsidiaries for the fiscal year ended December 31, 1995 and reported on by
Xxxxxx Xxxxxxxx, LLP, and the interim consolidated balance sheet of CRI and its
Subsidiaries and the interim consolidated statements of income and cash flow of
CRI and its Subsidiaries for the fiscal quarter of CRI ended March 31, 1996,
copies of which have been furnished to the Banks, fairly present, and the
financial statements of CRI and its Subsidiaries to be delivered pursuant to
Section 7.1(d)
CREDIT AGREEMENT Page 30
will fairly present, the consolidated financial position of CRI and its
Subsidiaries as of the respective dates thereof, and the consolidated results of
operations of CRI and its Subsidiaries for their respective periods indicated,
all in accordance with generally accepted accounting principles consistently
applied. There has been no event or development which has had or would be
reasonably likely to have a Material Adverse Effect since December 31, 1995.
There is no material Contingent Liability of CRI or any of its Subsidiaries that
is not reflected in such financial statements or in the notes thereto.
6.8 Use of Advances. The Advances will be used for working capital and
general corporate purposes, including acquisitions. No Borrower extends or
maintains, in the ordinary course of business, credit for the purpose, whether
immediate, incidental, or ultimate, of buying or carrying margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of each Advance will be used for the
purpose, whether immediate, incidental, or ultimate, of buying or carrying any
such margin stock or maintaining or extending credit to others for such purpose.
After applying the proceeds of the Advances, such margin stock will not
constitute more than 25% of the value of the assets that are subject to any
provisions of this Agreement or any Security Document that may cause the
Advances to be secured, directly or indirectly by margin stock.
6.9 Security Documents. The Security Documents create a valid and
enforceable first-priority lien on and perfected security interest in all right,
title and interest of each Borrower in and to the Collateral described therein,
securing all amounts intended to be secured thereby (including without
limitation all principal of and interest on the Notes) subject only to the
Permitted Liens. The respective net revenue interests of each Borrower in and to
the Oil and Gas Interests as set forth in the Security Documents are true and
correct and accurately reflect the interests to which each Borrower is legally
entitled, subject only to the Permitted Liens.
6.10 Consents, Etc. No consent, approval or authorization of or
declaration, registration or filing with any governmental authority or any
nongovernmental Person or entity, including without limitation any creditor or
stockholder of it, is required on the part of it in connection with the
execution, delivery and performance of this Agreement, the Notes, the Security
Documents or the transactions contemplated hereby or as a condition to the
legality, validity or enforceability of this Agreement, the Notes or any of the
Security Documents.
6.11 Taxes. It has filed all tax returns (federal, state and local)
required to be filed and has paid all taxes shown thereon to be due, including
interest and penalties, or has established adequate financial reserves on its
books and records for payment thereof, except where the failure to do so would
not have a Material Adverse Effect.
6.12 Title to Properties. It has good and defensible title to, and a valid
indefeasible ownership interest in, all of its properties and assets (including,
without limitation, the Collateral subject to the Security Documents) free and
clear of any Lien except the Permitted
CREDIT AGREEMENT Page 31
Liens, and it is the owner of all the Collateral described in the Security
Documents to which it is a party. All xxxxx on any of the mortgaged premises
have been drilled, operated, shut-in, abandoned or suspended in accordance with
good oil and gas field practices and in compliance with all applicable laws,
permits, statutes, orders, licenses, rules and regulations. All leases with
respect to any Oil and Gas Interests owned by any Borrower are in good standing
and are in full force and effect, all royalties, rents, taxes, assessments and
other payments thereunder or with respect thereto have been properly and timely
paid and all conditions necessary to keep such leases in full force have been
fully performed, including without limitation any condition to maintain
continuous production or other activity with respect thereto. The Borrowers have
delivered to the Agent title opinions with respect to at least 80% of the value
of the assets included in the Borrowing Base.
6.13 ERISA. CRI and its Subsidiaries and their Plans are in compliance in
all material respects with those provisions of ERISA and of the Code which are
applicable with respect to any Plan. No prohibited transaction (as defined in
Section 406 of ERISA and Section 9975 of the Code) and no reportable event (as
defined in ERISA) has occurred with respect to any Plan. Neither CRI, any of its
Subsidiaries nor any of its ERISA Affiliates is an employer with respect to any
multiemployer plan (as defined in Section 4001(a)(3) of ERISA). CRI, its
Subsidiaries and the ERISA Affiliates have met the minimum funding requirements
under ERISA and the Code with respect to each of the respective Plans, if any,
and have not incurred any liability to the PBGC or any Plan. There is no
unfunded benefit liability with respect to any Plan.
6.14 Environmental and Safety Matters. It is in compliance in all material
respects with all federal, state and local laws, ordinances and regulations
relating to safety and industrial hygiene or to the environmental condition,
including without limitation all Environmental Laws in jurisdictions in which it
owns any interest in or operates, a well, a facility or site, or arranges for
disposal or treatment of hazardous substances, solid waste, or other wastes,
accepts for transporting any hazardous substances, solid waste, or other wastes,
or holds any interest in real property or otherwise, except where any such
noncompliance would not have a Material Adverse Effect. No demand, claim,
notice, suit, suit in equity, action, administrative action, investigation or
inquiry whether brought by any governmental authority, private Person or entity
or otherwise, arising under, relating to or in connection with any Environmental
Laws is pending or, to the best of any Borrower's knowledge, threatened against
it, any real property in which it holds or has held an interest or any past or
present operation of it. It (a) does not know of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic substances, radioactive materials, hazardous wastes or
related materials into the environment, (b) has not received any notice of any
toxic substances, radioactive materials, hazardous waste or related materials
in, or upon any of its properties in violation of any Environmental Laws, and
(c) does not know of any basis for any such investigation, notice or violation.
No material release, threatened release or disposal of hazardous waste, solid
waste or other wastes is occurring or has occurred on, under or to any
CREDIT AGREEMENT Page 32
real property in which it holds any interest or performs any of its operations,
in violation of any Environmental Law which would have a Material Adverse
Effect.
6.15 Direct Benefit. The initial Advances hereunder and all additional
Advances are for the direct benefit of each of the Borrowers, and the initial
Advances hereunder are used to refinance and replace indebtedness owing,
directly or indirectly, by the Borrowers to the Banks under the Existing Credit
Agreement. The Borrowers are engaged as an integrated group in the business of
oil and gas exploration and related fields, and any benefits to any Borrower is
a benefit to all of them, both directly or indirectly, inasmuch as the
successful operation and condition of the Borrowers is dependent upon the
continued successful performance of the functions of the integrated group as a
whole.
6.16 Solvency. Each of the following is true for each Borrower and the
Borrowers on a consolidated basis: (a) the fair saleable value of its property
is (i) greater than the total amount of its liabilities (including contingent
liabilities), and (ii) greater than the amount that would be required to pay its
probable aggregate liability on its then existing debts as they become absolute
and matured; (b) its property is not unreasonable in relation to its business or
any contemplated or undertaken transaction; and (c) it does not intend to incur,
or believe that it will incur, debts beyond its ability to pay such debts as
they become due.
6.17 Disclosure. This Agreement and all other documents, certificates,
reports or statements or other information furnished to any Bank or the Agent in
writing by or on behalf of any Borrower in connection with the negotiation or
administration of this Agreement or any transactions contemplated hereby when
read together do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained herein
and therein not misleading. There is no fact known to any Borrower which has
caused, or which likely would in the future in the reasonable judgment of the
Borrowers cause, a Material Adverse Effect (except for any economic conditions
which affect generally the industry in which the Borrowers and their
Subsidiaries conduct business), which has not been set forth in this Agreement
or in the other documents, certificates, statements, reports and other
information furnished in writing to the Banks by or on behalf of any Borrower in
connection with the transactions contemplated hereby.
SECTION 7. Covenants.
7.1 Affirmative Covenants. Each Borrower covenants and agrees that, until
the payment in full of the principal of and accrued interest on the Notes, the
expiration of this Agreement and all Letters of Credit and the payment and
performance of all other obligations of the Borrowers under this Agreement, the
Notes and the Security Documents, unless the Required Banks shall otherwise
consent in writing, each of the Borrowers shall:
CREDIT AGREEMENT Page 33
(a) Preservation of Corporate Existence, Etc. Preserve and maintain
its corporate existence, rights and privileges and its material licenses,
franchises and permits, and qualify and remain qualified as a validly existing
corporation in good standing in each jurisdiction in which such qualification is
necessary under applicable law.
(b) Compliance with Laws, Etc. Comply in all material respects with
all applicable laws, rules, regulations and orders of any governmental
authority, whether federal, state, local or foreign (including without
limitation ERISA, the Code and Environmental Laws), in effect from time to time;
and pay and discharge promptly when due all taxes, assessments and governmental
charges or levies imposed upon it or upon its income, revenues or property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise, which, if unpaid, might
give rise to Liens upon such properties or any portion thereof, except to the
extent that payment of any of the foregoing is then being contested in good
faith by appropriate legal proceedings and with respect to which adequate
financial reserves have been established on its books and records.
(c) Maintenance of Properties; Insurance. Maintain, preserve and
protect all property that is material to the conduct of its business and keep
such property in good repair, working order and condition and from time to time
make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times in
accordance with customary and prudent business practices for similar businesses;
comply with all applicable permits, statutes, laws, orders, licenses, rules and
regulations relating to the Oil and Gas Interests owned by it, unless any non
compliance would not cause a Material Adverse Effect, and ensure that all xxxxx
and other properties operated by it, either in its own name or as a partner, are
operated in accordance with prudent oil and gas field practices; comply with all
of its duties and obligations under, and take all actions to maintain,
consistent with prudent oil and gas practices, all leases and other rights in
full force and effect; and, in addition to that insurance required under the
Security Documents, maintain in full force and effect insurance with responsible
and reputable insurance companies or associations in such amounts, on such terms
and covering such risks, including fire and other risks insured against by
extended coverage, as is usually carried by companies engaged in similar
businesses and owning similar properties similarly situated and maintain in full
force and effect public liability insurance, insurance against claims for
personal injury or death or property damage occurring in connection with any of
its activities or any of any properties owned, occupied or controlled by it, in
such amount as it shall reasonably deem necessary, and maintain such other
insurance as may be required by law or as may be reasonably requested by the
Banks for purposes of assuring compliance with this Section 7.1(c).
(d) Reporting Requirements. Furnish to each Bank, in form and sub-
stance satisfactory to the Required Banks, the following:
CREDIT AGREEMENT Page 34
(i) Promptly and in any event within three calendar days after
becoming aware of the occurrence of (A) any Default, (B) the
commencement of any material litigation against, by or affecting the
Borrowers and, upon request by any Bank, any material developments
therein, or (C) any development in the business or affairs of the
Borrowers which has resulted in, or which is likely in the reasonable
judgment of the Borrowers to result in (including without limitation
the entering into of any material contract and/or undertaking by the
Borrowers) a Material Adverse Effect or (D) any "reportable event" (as
defined in ERISA) under, or the institution of steps by the Borrowers
or any Subsidiary to withdraw from, or the institution of any steps to
terminate, any Plan, a statement of the chief financial officer of the
Borrowers setting forth details of such Default or such event or
condition or such litigation and the action which CRI or any
Subsidiary has taken and proposes to take with respect thereto;
(ii) As soon as available and in any event within 45 days after
the end of each fiscal quarter of CRI, the consolidated balance sheets
of CRI and its Subsidiaries as of the end of such quarter, and the
related consolidated statements of income and cash flow for the period
commencing at the end of the previous fiscal year and ending with the
end of such quarter, setting forth in each case in comparative form
the corresponding figures for the corresponding date or period of the
preceding fiscal year, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by an appropriate officer of
the Borrowers as having been prepared in accordance with generally
accepted accounting principles, together with a certificate of an
appropriate officer of the Borrowers with a computation in reasonable
detail calculating the covenants contained in Sections 7.2(a), (b),
(c), (i), (j) and (l) hereof;
(iii) As soon as available and in any event within 120 days after
the end of each fiscal year, a copy of the consolidated balance sheet
of CRI and its Subsidiaries for such fiscal year and related
statements of income and cash flow with a customary audit report
thereon by Xxxxxx Xxxxxxxx LLP or other independent certified public
accountants selected by CRI and acceptable to the Banks, without
qualifications unacceptable to the Banks, together with a certificate
of such accountants stating that they have reviewed this Agreement and
stating further that in making their review in accordance with
generally accepted accounting principles nothing came to their
attention that made them believe that any Default exists, or if their
examination has disclosed the existence of any Default, specifying the
nature, period of existence and status thereof, together with a
certificate of an appropriate officer of the Borrowers with a
computation in reasonable detail calculating the covenants contained
in Sections 7.2(a), (b), (c), (i), (j) and (l) hereof;
CREDIT AGREEMENT Page 35
(iv) Upon the request of the Required Banks or the Agent, a
schedule of all oil, gas, and other mineral production attributable to
all material Oil and Gas Interests of the Borrowers, and in any event
all such Oil and Gas Interests included in the Borrowing Base;
(v) Promptly, all title or other information received after the
Effective Date by any Borrower which discloses any material defect in
the title to any material asset included in the Borrowing Base;
(vi) As soon as practicable and in any event within 30 days after
the sending or filing thereof, copies of all such financial statements
and reports as it shall send to its security holders and of all final
prospectuses under the Securities Act of 1933 (other than Form S-8),
reports on Forms 10-Q, 10-K and 8-K and all similar regular and
periodic reports filed by it (i) with any federal department, bureau,
commission or agency from time to time having jurisdiction with
respect to the sale of securities or (ii) with any securities
exchange;
(vii) (A) As soon as available and in any event within 90 days
after each January 1, commencing with January 1, 1997, an annual
reserve report as of such January 1 with respect to all Hydrocarbon
reserves of the Borrowers prepared by an independent engineering firm
of recognized standing acceptable to the Required Banks in accordance
with accepted industry practices and otherwise acceptable and in form
and substance satisfactory to the Required Banks, and including
without limitation all assets included in the Borrowing Base, and (B)
as soon as available and in any event within 90 days after September
1, 1996 and after each July 1 thereafter, a reserve report as of
September 1, 1996 or such July 1, as the case may be, with respect to
all Hydrocarbon reserves of the Borrowers prepared by the Borrowers in
accordance with accepted industry practices and otherwise acceptable
and in form and substance satisfactory to the Required Banks, and
including without limitation all assets included in the Borrowing
Base;
(viii) On or within 30 days after the request of the Agent or the
Required Banks, an updated reserve report with respect to all
Hydrocarbon reserves of the Borrowers prepared by an independent
engineering firm of recognized standing acceptable to the Required
Banks in accordance with accepted industry practices and otherwise
acceptable and in form and substance satisfactory to the Required
Banks, and including without limitation all assets included in the
Borrowing Base;
(ix) Promptly, any management letter from the auditors for any
Borrower and all other information respecting the business, properties
or the condition or operations, financial or otherwise, including,
without limitation,
CREDIT AGREEMENT Page 36
geological and engineering data of any Borrower and any title work
with respect to any Oil and Gas Interests of any Borrower as any Bank
may from time to time reasonably request;
(x) At all times after the date ninety (90) days after the
Effective Date, if requested by the Required Banks, provide title
opinions and other opinions of counsel, in each case in form and
substance acceptable to the Required Banks, with respect to at least
eighty (80%) percent of the value of the assets included in the
Borrowing Base; and
(xi) As soon as available and in any event within 45 days after
the end of each fiscal quarter, (A) the balance sheet of CNG as of the
end of each fiscal quarter, and the related statements of income for
the period commencing at the end of the previous fiscal year and
ending with the end of such month, setting forth in each case in
comparative form the corresponding figures for the corresponding date
or period of the preceding fiscal year, all in reasonable detail and
duly certified (subject to year-end audit adjustments) by an
appropriate officer of CNG as having been prepared in accordance with
generally accepted accounting principles, (B) a schedule of accounts
receivable of CNG, certified by an appropriate officer of CNG, as of
the end of such fiscal quarter, indicating the totals of accounts
receivable by type, and by age, describing any returns, defenses,
setoffs or other pertinent information in connection therewith,
together with evidence of letters of credit supporting Eligible CNG
Accounts Receivable, and (C) a computation, certified by an
appropriate officer of CNG, of the CNG/CRI Guaranty Formula as of the
end of such month.
(e) Access to Records, Books, Etc. At any reasonable time and
from time to time, permit any Bank or any agents or representatives
thereof, at the Borrowers' own expense, to examine and make copies of
and abstracts from the records and books of account of, and visit the
properties of, the Borrowers, and to discuss the affairs, finances and
accounts of the Borrowers with their respective officers and
employees. Without limiting the foregoing, the Borrowers agree that at
any reasonable time and from time to time, the Borrowers will permit
any Bank or any agents or representatives thereof to inspect, at the
office of the Borrowers listed on its signature page hereto, all
opinions with respect to title and other material work received by the
Borrowers with respect to any asset included in the Borrowing Base.
7.2 Negative Covenants. Until payment in full of the principal of and
accrued interest on the Notes, the expiration of this Agreement and all Letters
of Credit and the payment and performance of all other obligations of the
Borrowers and each Guarantor under this Agreement, the Notes and the Security
Documents, each Borrower agrees that, unless the Required Banks shall otherwise
consent in writing, none of them shall:
CREDIT AGREEMENT Page 37
(a) Current Ratio. Permit or suffer the ratio of (i) the sum of
Current Assets plus the unused availability under the revolving credit facility
established by Section 2.1(a), to (ii) Current Liabilities at any time to be
less than 1.0 to 1.0.
(b) Tangible Net Worth. Permit or suffer Consolidated Tangible Net
Worth of CRI and its Subsidiaries, at any time, to be less than the sum of (i)
$25,000,000, plus (ii) 50% of Consolidated Net Income for each fiscal year,
commencing with the fiscal year ending December 31, 1996, and to be added as of
the last day of each such fiscal year, provided that if such Consolidated Net
Income is negative in any fiscal year the amount added pursuant to this clause
(ii) shall be zero and shall not reduce the amount added pursuant to this clause
(ii) for any other fiscal year, plus (iv) 75% of the net cash proceeds of any
equity offering or other sale of equity of CRI or any of its Subsidiaries.
(c) Interest Coverage Ratio. Permit or suffer, as of the last day of
any fiscal quarter of CRI, the ratio of (i) EBITDA, as calculated for the four
fiscal quarters then ending, to (ii) Consolidated Interest Expense, as
calculated for the four fiscal quarters then ending, to be less than 2.5 to 1.0.
(d) Indebtedness. Create, incur, assume, guaranty or in any manner
become liable in respect of, or suffer to exist, any Indebtedness other than:
(i) The Advances;
(ii) The Indebtedness described in Schedule 7.2(d) hereto,
including any refinancing or extension thereof but no increase in the
amount thereof shall be permitted;
(iii) Other Indebtedness in aggregate outstanding amount not to
exceed $1,000,000;
(iv) Unsecured insurance premium financing incurred in the
ordinary course of business;
(v) Indebtedness pursuant to any Swap Agreement with any Bank,
any Person with an investment grade debt rating acceptable to the
Agent and any other Person acceptable to the Agent; and
(vi) Indebtedness permitted pursuant to Section 7.2(i).
(e) Liens. Create, incur or suffer to exist, any Lien to exist on any
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, other than:
CREDIT AGREEMENT Page 38
(i) Liens for taxes not delinquent or for taxes being contested
in good faith by appropriate proceedings and as to which adequate
financial reserves have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA) created and
maintained in the ordinary course of business which are not material
in the aggregate, and which would not have a Material Adverse Effect
and which constitute (A) pledges or deposits under worker's
compensation laws, unemployment insurance laws or similar legislation,
(B) good faith deposits in connection with bids, tenders, contracts or
leases to which any Borrower is a party for a purpose other than
borrowing money or obtaining credit, including rent security deposits,
(C) liens imposed by law, such as those of carriers, warehousemen,
operators and mechanics, if payment of the obligation secured thereby
is not yet due, (D) Liens securing taxes, assessments or other
governmental charges or levies not yet subject to penalties for
nonpayment, and (E) pledges or deposits to secure public or statutory
obligations of any Borrower, or surety, customs or appeal bonds to
which such Borrower is a party;
(iii) Liens created pursuant to the Security Documents and Liens
expressly permitted by the Security Documents;
(iv) Each Lien described on Schedule 7.2(e) hereto may be
suffered to exist upon the same terms as those existing on the date
hereof, but no increase in the amount of Indebtedness secured thereby;
and
(v) Liens securing Indebtedness permitted pursuant to Section
7.2(d)(iii) created to secure payment of a portion of the purchase
price of, or existing at the time of acquisition of, any tangible
fixed asset acquired by any Borrower if the outstanding principal
amount of the Indebtedness secured by such Lien does not at any time
exceed the purchase price paid by such Borrower for such assets,
provided that such Lien does not encumber any other asset at any time
owned by such Borrower.
(f) Merger; Acquisitions; Etc. Purchase or otherwise acquire, whether
in one or a series of transactions, unless the Required Banks shall otherwise
consent in writing, all or any substantial portion of the business assets,
rights, revenues or property, real, personal or mixed, tangible or intangible,
of any Person, or all or any substantial portion of the capital stock of or
other ownership interest in any other Person, provided that Borrowers may make
such purchases or other acquisitions provided that the aggregate amount paid or
payable or otherwise transferred for all such purchases or other acquisitions
after the Effective Date shall not exceed $20,000,000 in aggregate amount in any
fiscal year; nor merge or consolidate or amalgamate with any other Person or
take any other action having a similar effect, nor enter into any joint venture
or similar arrangement with any other Person, other than a joint venture or
CREDIT AGREEMENT Page 39
similar arrangement in connection with oil and gas drilling ventures, oil and
gas leases, natural gas transportation or processing or otherwise in connection
with oil and gas properties in the ordinary course of business.
(g) Disposition of Assets; Etc. Without the prior written consent of
the Required Banks, sell, lease, license, transfer, assign or otherwise dispose
of any Collateral or any of its other business, assets, rights, revenues or
property, real, personal or mixed, tangible or intangible, whether in one or a
series of transactions, other than (i) inventory sold in the ordinary course of
business upon customary credit terms, and (ii) if no Default has occurred and is
continuing or would be caused thereby, other sales of assets in aggregate amount
not to exceed $5,000,000 in any twelve month period, provided that in connection
with any such sales in excess of $1,000,000 in aggregate amount in any twelve
month period all the proceeds thereof will simultaneously reduce the Borrowing
Base by a like amount.
(h) Nature of Business. Make any substantial change in the nature of
its business from that engaged in on the date of this Agreement or engage in any
other businesses other than those in which it is engaged on the date of this
Agreement.
(i) Investments and Advances. Purchase or otherwise acquire any
capital stock of or other ownership interest in, or debt securities of or other
evidences of Indebtedness of, any other Person; nor make any loan or advance of
any of its funds or property or make any other extension of credit to, or make
any investment or acquire any interest whatsoever in, any other Person, except
(i) loans and advances to officers of the Borrowers, provided that the aggregate
amount of all such loans and advances does not exceed $5,000, (ii) loans and
advances among the Borrowers only, (iii) other loans and advances, provided that
the aggregate amount of all such loans and advances, together with Indebtedness
allowed under Section 7.2(d)(iii), shall not exceed $1,000,000 and (iv) loans
and advances by CRI to CNG in an aggregate amount not to exceed $5,000,000, the
proceeds of which shall be used in connection with the purchase of pipeline and
marketing operations and to provide ongoing working capital for such entity; nor
incur any Contingent Liability except for guarantees by CRI of obligations of
CNG to purchase natural gas in an aggregate amount outstanding at any time not
to exceed the lesser of (A) $2,000,000 minus the aggregate outstanding Letters
of Credit or (B) the CNG/CRI Guaranty Formula minus the aggregate outstanding
Letters of Credit and (v) the indebtedness described on Schedule 7.2(i), if any.
(j) Dividends. With respect to CRI only, make, pay, declare or
authorize any dividend, payment or other distribution in respect of any class of
its capital stock or any dividend, payment or distribution in connection with
the redemption, repurchase, defeasance, conversion, retirement or other
acquisition, directly or indirectly, of any shares of its capital stock, (all of
the foregoing defined herein as "Restricted Payments"), except (i) Restricted
Payments payable solely in shares of capital stock of CRI and (ii) cash
dividends in respect to the 1994 Preferred Stock only in aggregate amount not to
exceed $549,000 in any twelve month period and only if both before the payment
of such cash dividend and after giving
CREDIT AGREEMENT Page 40
effect to the payment of such cash dividend no Default or Event of Default shall
have occurred and be continuing and (iii) cash dividends in respect to the 1995
Preferred Stock only in an aggregate amount not to exceed $1,372,500 in any
twelve month period and only if both before the payment of such dividend and
after giving effect to the payment of such dividend no Default or Event of
Default shall have occurred and be continuing. For purposes of this Agreement,
"capital stock" shall include capital stock (preferred, common or other) and any
securities exchangeable for or convertible into capital stock and any warrants,
rights or other options to purchase or otherwise acquire capital stock or such
securities.
(k) Transactions with Affiliates. Enter into or be a party to any
transaction or arrangement with any Affiliate (including, without limitation,
the purchase from, sale to or exchange of property with, or the rendering of any
service by or for, any Affiliate), except in the ordinary course of and pursuant
to the reasonable requirements of the Borrowers' business and upon fair and
reasonable terms no less favorable to such Borrower than would be obtained in a
comparable arms-length transaction with a Person other than an Affiliate and
except the loans and advances described in Section 7.2(i).
(l) Payments and Modification of Debt. Other than Indebtedness to the
Banks and the Agent pursuant hereto, make, or permit any Subsidiary to make, any
optional payment, prepayment or redemption, directly or indirectly, of any of
its Indebtedness or enter into any agreement or arrangement providing for the
defeasance of any such Indebtedness, or amend or modify, or consent or agree to
any amendment or modification of, any instrument or agreement under which any of
its Indebtedness is issued or created or otherwise related thereto, provided
that this Section 7.2(l) shall not prohibit the prepayment of such Indebtedness
if no Default exists or would exist after giving effect to such prepayment and
the aggregate amount of all such prepayments since the Effective Date does not
exceed $2,000,000 in aggregate amount.
(m) Additional Covenants. If at any time any Borrower shall enter into
or be a party to any instrument or agreement, including all such instruments or
agreements in existence as of the date hereof and all such instruments or
agreements entered into after the date hereof, relating to or amending any terms
or conditions applicable to any of its Indebtedness which includes covenants,
terms, conditions or defaults not substantially provided for in this Agreement
or more favorable to the lender or lenders thereunder than those provided for in
this Agreement, then the Borrowers shall promptly so advise the Agent and the
Banks. Thereupon, if the Agent shall request, upon notice to the Borrowers, the
Agent and the Banks shall enter into an amendment to this Agreement or an
additional agreement (as the Agent may request), providing for substantially the
same covenants, terms, conditions and defaults as those provided for in such
instrument or agreement to the extent required and as may be selected by the
Agent. In addition to the foregoing, any covenants, terms, conditions or
defaults in any existing agreements or other documents evidencing or relating to
any Indebtedness of any Borrower not substantially provided for in this
Agreement or more favorable to the holders of such Indebtedness, are hereby
incorporated by reference into this Agreement to the same extent as
CREDIT AGREEMENT Page 41
if set forth fully herein, and no subsequent amendment, waiver or modification
thereof shall effect any such covenants, terms, conditions or defaults as
incorporated herein.
(n) Financial Contracts. Enter into any Swap Agreement (or any other
agreement, device or arrangement providing for payments relating to fluctuations
of interest rates, exchange rates or commodity prices) for purposes of financial
speculation or otherwise not in the ordinary course of business of the
Borrowers, and any Swap Agreement with respect to fluctuations in interest rates
shall be entered into by the Borrowers only with respect to Indebtedness for
borrowed money of the Borrowers.
SECTION 8. Default.
8.1 Events of Default. The occurrence of any one of the following events or
conditions shall be deemed an "Event of Default" hereunder unless waived by the
Required Banks pursuant to Section 10.1:
(a) Any Borrower shall fail to pay within 2 Business Days of when due
any principal of or interest on the Notes (whether pursuant to Section 4.1 or
otherwise), any fees or any other amount payable hereunder or under any Security
Document; or
(b) Any representation or warranty made by any Borrower in Section 6
hereof, in any Security Document or in any other document or certificate
furnished by or on behalf of any Borrower in connection with this Agreement,
shall prove to have been incorrect in any material respect when made; or
(c) (i) Any Borrower shall fail to perform or observe any term,
covenant or agreement contained in Sections 7.1(b), 7.1(c) (other than the
agreement to maintain continuous insurance coverage), 7.1(d), 7.2(a), 7.2(b),
7.2(c) or 7.2(l) hereof or in any Security Document, any other Loan Document or
any other agreement among the Borrowers, the Banks and the Agent, or any of
them, and such failure shall remain unremedied for 30 calendar days after the
earlier of the date notice thereof shall have been given to Borrowers by the
Agent or any Bank or any Borrower knows of such failure, or (ii) any Borrower
shall fail to perform or observe any other term, covenant, or agreement
contained in this Agreement; or
(d) Any Borrower shall fail to pay any part of the principal of, the
premium, if any, or the interest on, or any other payment of money due under any
of its Indebtedness (other than Indebtedness hereunder), beyond any period of
grace provided with respect thereto, which individually or together with other
such Indebtedness as to which any such failure exists has an aggregate
outstanding principal amount in excess of $1,000,000; or if any Borrower fails
to perform or observe any other term, covenant or agreement contained in any
agreement, document or instrument evidencing or securing any such Indebtedness,
or under which any such Indebtedness was issued or created, beyond any period of
grace, if any, provided with respect thereto if the effect of such failure is
either (i) to cause, or permit the
CREDIT AGREEMENT Page 42
holders of such Indebtedness (or a trustee on behalf of such holders) to cause,
any payment in respect of such Indebtedness to become due prior to its due date
or (ii) to permit the holders of such Indebtedness (or a trustee on behalf of
such holder) to elect a majority of the board of directors of any Borrower; or
(e) A judgment or order for the payment of money, which together with
other such judgments or orders exceeds the aggregate amount of $1,000,000, shall
be rendered against any Borrower and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order and such
judgment or order shall have remained unsatisfied and such proceedings shall
have remained unstayed for a period of 30 consecutive days, or (ii) for a period
of 30 consecutive days, such judgment or order shall have remained unsatisfied
and a stay of enforcement thereof, by reason of pending appeal or otherwise,
shall not have been in effect; or
(f) The occurrence or existence with respect to any Borrower or any
Guarantor or any of their ERISA Affiliates of any of the following: (i) any
"prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any Reportable Event shall occur with respect
to any Plan, (iii) the filing under ERISA of a notice of intent to terminate any
Plan or the termination of any Plan, (iv) any event or circumstance exists which
might constitute grounds entitling the PBGC to institute proceedings under ERISA
for the termination of, or the appointment of a trustee to administer, any Plan,
or the institution of the PBGC of any such proceedings, or (v) complete or
partial withdrawal under ERISA from any Multiemployer Plan or the
reorganization, insolvency, or termination of any Multiemployer Plan, and in
each of the foregoing cases, such event or condition, together with all other
events or conditions, if any, could in the opinion of the Banks subject any
Borrower to any tax, penalty, or other liability to a Plan, the PBGC, or
otherwise (or any combination thereof); or
(g) Any Borrower shall generally not pay its debts as they become due,
or shall admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors, or shall institute, or
there shall be instituted against any Borrower, any proceeding or case seeking
to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief or protection of debtors or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property, and, if such proceeding is
instituted against any Borrower and is being contested by such Borrower in good
faith by appropriate proceedings, such proceedings shall remain undismissed or
unstayed for a period of 30 days; or any Borrower shall take any action
(corporate or other) to authorize or further any of the actions described above
in this subsection; or
CREDIT AGREEMENT Page 43
(h) Any event of default described in any Security Document shall have
occurred and be continuing, or any material provision of any Security Document
shall at any time for any reason cease to be valid and binding and enforceable
against any obligor thereunder, or the validity, binding effect or
enforceability thereof shall be contested or repudiated by any Person, or any
obligor, shall deny that it has any or further liability or obligation
thereunder, or any Security Document shall be terminated, invalidated or set
aside, or be declared ineffective or inoperative or in any way cease to give or
provide to the Agent and the Banks the benefits purported to be created thereby;
or
(i) (A) CNG, COG or XXX shall fail to be a wholly-owned Subsidiary of
CRI, (B) COGL shall fail to be a wholly-owned subsidiary of COG, (C) Black Stone
shall fail to be a wholly-owned Subsidiary of COG, or (D) the Board of Directors
of CRI shall not consist of a majority of the Continuing Directors of CRI; or
(j) Any Change in Control shall occur.
8.2 Remedies.
(a) Upon the occurrence and during the continuance of any Event of
Default, the Agent may, and upon being directed to do so by the Required Banks,
shall, by notice to the Borrowers terminate the Commitments or declare the
outstanding principal of, and accrued interest on, the Notes and all other
amounts due under this Agreement and all other Loan Documents, to be immediately
due and payable, or demand immediate delivery of cash collateral, and the
Borrowers agree to deliver such cash collateral upon such demand, in an amount
equal to the maximum amount that may be available to be drawn at any time prior
to the stated expiry of all outstanding Letters of Credit, or all of the above,
whereupon the Commitments shall terminate forthwith and all such amounts shall
become immediately due and payable, or both, as the case may be, provided that
in the case of any event or condition described in Section 8.1(g), the
Commitments shall automatically terminate forthwith and all such amounts shall
automatically become immediately due and payable without notice; in each case
without demand, presentment, protest, diligence, notice of dishonor or other
formality, all of which are hereby expressly waived.
(b) Upon the occurrence and during the continuance of such Event of
Default, the Agent may, and upon being directed to do so by the Required Banks,
shall, in addition to the remedies provided in Section 8.2(a), enforce its
rights either by suit in equity, or by action at law, or by other appropriate
proceedings, whether for the specific performance (to the extent permitted by
law) of any covenant or agreement contained in this Agreement or in any then
outstanding Note or any Security Document or in aid of the exercise of any power
granted in this Agreement, any then outstanding Notes or any Security Document,
and may enforce the payment of any then outstanding Notes and any of the other
rights of the Agent and the Banks in any other agreement or available at law or
in equity.
CREDIT AGREEMENT Page 44
(c) Upon the occurrence and during the continuance of any Event of
Default hereunder, each Bank may at any time and from time to time, without
notice to the Borrowers (any requirement for such notice being expressly waived
by the Borrowers) set off and apply against any and all of the obligations of
any Borrower now or hereafter existing under this Agreement, any of the Notes or
the Security Documents, any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Bank to or for the credit or the account of any Borrower and
any property of any Borrower from time to time in possession of such Bank,
irrespective of whether or not any Bank shall have made any demand hereunder and
although such obligations may be contingent and unmatured. The rights of the
Banks under this Section 8.2(c) are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which the Banks may
have.
8.3 Distribution of Proceeds. All proceeds of any realization on the
Collateral received by the Agent pursuant to the Security Documents or any
payments on any of the liabilities secured by the Security Documents received by
the Agent or any Bank upon and during the continuance of any Event of Default
shall be allocated and distributed as follows:
(a) First, to the payment of all costs and expenses, including without
limitation all attorneys' fees, of the Agent in connection with the enforcement
of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all costs, expenses and fees, including
without limitation, commitment fees and attorneys' fees, owing to the Banks
pursuant to the Bank Obligations on a pro rata basis in accordance with the Bank
Obligations consisting of fees, costs and expenses owing to the Banks under the
Bank Obligations for application to payment of such liabilities;
(c) Third, to the Banks on a pro rata basis in accordance with the
Bank Obligations consisting of interest and principal (including without
limitation any cash collateral for any outstanding Letters of Credit) owing to
the Banks under the Bank Obligations and to any Bank owing pursuant to any Swap
Agreement to which it is a party (whether pursuant to a termination thereof or
otherwise), for application to payment of such liabilities;
(d) Fourth, to the payment of any and all other amounts owing to the
Banks on a pro rata basis in accordance with the total amount of such
Indebtedness owing to each of the Banks, for application to payment of such
liabilities; and
(e) Fifth, to the Borrowers or such other Person as may be legally
entitled thereto.
8.4 Letter of Credit Liabilities. For the purposes of payments and
distributions under Section 8.3, the full amount of Bank Obligations on account
of any Letter of Credit then
CREDIT AGREEMENT Page 45
outstanding but not drawn upon shall be deemed to be then due and owing. Amounts
distributable to the L/C Banks on account of such Bank Obligations under such
Letter of Credit shall be deposited in a separate interest bearing collateral
account in the name of and under the control of the Agent and held by the Agent
first as security for such Letter of Credit Bank Obligations and then as
security for all other Bank Obligations and the amount so deposited shall be
applied to the Letter of Credit Bank Obligations at such times and to the extent
that such Letter of Credit Bank Obligations become absolute liabilities and if
and to the extent that the Letter of Credit Bank Obligations fail to become
absolute Bank Obligations because of the expiration or termination of the
underlying Letters of Credit without being drawn upon then such amounts shall be
applied to the remaining Bank Obligations in the order provided in Section 8.3.
Each Borrower hereby grants to the Agent, for the benefit of the Banks, a lien
and security interest in all such funds deposited in such separate interest
bearing collateral account, as security for all the Bank Obligations as set
forth above.
SECTION 9. The Agent, the Co-Agent and the Banks.
9.1 Appointment; Nature of Relationship. The First National Bank of Chicago
is hereby appointed by the Banks as the Agent hereunder and under each other
Loan Document, and each of the Banks irrevocably authorizes the Agent to act as
the contractual representative of such Bank with the rights and duties expressly
set forth herein and in the other Loan Documents. The Agent agrees to act as
such contractual representative upon the express conditions contained in this
Section 9. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Bank by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the representative of the Banks
with only those duties as are expressly set forth in this Agreement and the
other Loan Documents. In its capacity as the Banks' contractual representative,
the Agent (i) does not hereby assume any fiduciary duties to any of the Banks,
(ii) is a "representative" of the Banks within the meaning of Section 9-105 of
the Uniform Commercial Code and (iii) is acting as an independent contractor,
the rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Banks hereby agrees to
assert no claim against the Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Bank hereby
waives.
9.2 Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Banks, or any obligation to the Banks
to take any action thereunder except any action specifically provided by the
Loan Documents to be taken by the Agent.
9.3 General Immunity. Neither the Agent nor any of its directors, officers,
agents or employees shall be liable to the Borrowers, any Borrower, the Banks or
any Bank for any action taken or omitted to be taken by it or them hereunder or
under any other Loan
CREDIT AGREEMENT Page 46
Document or in connection herewith or therewith except for its or their own
gross negligence or willful misconduct.
9.4 No Responsibility for Loans, Recitals, etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Bank; (iii) the satisfaction of any condition specified in Section 3.2 or
otherwise hereunder; (iv) the validity, enforceability, effectiveness,
sufficiency or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; or (v) the value, sufficiency,
creation, perfection or priority of any interest in any collateral security. The
Agent shall have no duty to disclose to the Banks information that is not
required to be furnished by the Borrowers to the Agent at such time, but is
voluntarily furnished by the Borrowers to the Agent (either in its capacity as
Agent or in its individual capacity).
9.5 Action on Instructions of Banks. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and under any other
Loan Document in accordance with written instructions signed by the Required
Banks, and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Banks and on all holders of Notes. The
Banks hereby acknowledge that the Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Banks. The Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the Banks
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
9.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Banks, except as to money or securities received by it or its authorized agents,
for the default or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care. The Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its duties
hereunder and under any other Loan Document.
9.7 Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper Person or Persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
CREDIT AGREEMENT Page 47
9.8 Agent's Reimbursement and Indemnification. The Banks agree to reimburse
and indemnify the Agent ratably in proportion to their respective Commitments
(or, if the Commitments have been terminated, in proportion to their Commitments
immediately prior to such termination) (i) for any amounts not reimbursed by the
Borrowers for which the Agent is entitled to reimbursement by the Borrowers
under the Loan Documents, (ii) for any other expenses incurred by the Agent on
behalf of the Banks, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of any of
the terms thereof or of any such other documents, provided that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. The obligations of the Banks
under this Section 9.8 shall survive payment of the Bank Obligations and
termination of this Agreement.
9.9 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Agent has received written notice from a Bank or a Borrower referring to this
Agreement describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the Banks.
9.10 Rights as a Bank. In the event the Agent is a Bank, the Agent shall
have the same rights and powers hereunder and under any other Loan Document as
any Bank and may exercise the same as though it were not the Agent, and the term
"Bank" or "Banks" shall, at any time when the Agent is a Bank, unless the
context otherwise indicates, include the Agent in its individual capacity. The
Agent may accept deposits from, lend money to, and generally engage in any kind
of trust, debt, equity or other transaction, in addition to those contemplated
by this Agreement or any other Loan Document, with any Borrower or any of their
respective Subsidiaries in which any Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Bank.
9.11 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
the financial statements prepared by the Borrowers 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 Bank
also acknowledges that it will, independently and without reliance upon the
Agent or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
9.12 Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Banks and the Borrowers, such resignation to be effective
upon the
CREDIT AGREEMENT Page 48
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 Banks shall have the right to
appoint, on behalf of the Borrowers and the Banks, a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks within thirty
days after the resigning Agent's giving notice of its intention to resign, then
the resigning Agent may appoint, on behalf of the Borrowers, and the Banks, a
successor Agent. If the Agent has resigned and no successor Agent has been
appointed, the Banks may perform all the duties of the Agent hereunder and the
Borrowers shall make all payments in respect of the Bank Obligations to the
applicable Bank and for all other purposes shall deal directly with the Banks.
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 $50,000,000.
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 Section 9 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.
9.13 Pro Rata Sharing by Banks. Each Bank agrees with every other Bank
that, in the event that it shall receive and retain any payment on account of
the Borrowers's obligations under this Agreement, the Notes or the Security
Documents in a greater proportion than that received by any other Bank, whether
such payment be voluntary, involuntary or by operation of law, by application of
set-off of any indebtedness or otherwise, then such Bank shall promptly purchase
a participation interest from the other Banks, without recourse, for cash and at
face value, ratably in accordance with its Pro Rata Share, in such an amount
that each Bank shall have received payment in respect of such obligations in
accordance with its Pro Rata Share; provided, that if any such purchase be made
by any Bank and if any such excess payment relating thereto or any part thereof
is thereafter recovered from such Bank, appropriate adjustment in the related
purchase from the other Banks shall be made by rescission and restoration of the
purchase price as to the portion of such excess payment so recovered. It is
further agreed that, to the extent there is then owing by the Borrowers to any
Bank indebtedness other than that evidenced by this Agreement, the Notes and the
Security Documents to which such Bank may apply any involuntary payments of
indebtedness by the Borrowers, including those resulting from exercise of rights
of set-off or similar rights, such Bank shall apply all such involuntary
payments first to obligations of the Borrowers to the Banks hereunder and under
the Notes and the Security Documents and then to such other indebtedness owed to
it by the Borrowers. In addition, it is further agreed that any and all proceeds
resulting from a sale or other disposition of any collateral which may be
hereafter granted for the benefit of the Banks to secure the obligations of the
Borrowers hereunder, shall be applied first to obligations of the Borrowers to
the Banks hereunder and under the Notes and the Security Documents, and then
CREDIT AGREEMENT Page 49
ratably to any other indebtedness owed by the Borrowers to the Banks which is
secured by such collateral.
9.14 Determination of Borrowing Base, Etc. Any redetermination of the
Borrowing Base shall be made mutually by the Agent and the Co-Agent and
submitted to the Banks. The redetermined Borrowing Base shall then be effective
when approved by the Required Banks, provided that if such redetermined
Borrowing Base is not approved by the Required Banks within 10 days after it is
submitted to the Banks, each Bank shall submit to the Agent, on or within 10
days after the Agent notifies the Banks that the Required Banks have not
approved such redetermined Borrowing Base, its determination of the Borrowing
Base, and the redetermined Borrowing Base will be based on the weighted average
of the redetermined Borrowing Base of each Bank which properly submits such
redetermination to the Agent, weighted according to each Bank's Loan Commitment.
The Borrowing Base may be re- evaluated from time to time as determined by the
Required Banks, and will be re-evaluated upon the request of the Borrowers
(provided that the Borrowers cannot request any re-evaluation of the Borrowing
Base more than four times in any twelve month period), and, in addition, at
least twice annually as follows: upon receipt of the reserve reports referred to
in Section 7.1(d)(vii) hereof (and in connection with such twice annual
re-evaluations of the Borrowing Base, the Agent and the Co-Agent shall submit
the redetermined Borrowing Base as required under the first sentence of this
Section 9.14 on or prior to 30 days after the receipt of each (a) reserve report
referred to in Section 7.1(d)(vii) (A) hereof and (b) reserve report referred to
in Section 7.1(d)(vii)(B). Except for the scheduled re-evaluations of the
Borrowing Base, each Bank requesting a re-evaluation of the Borrowing Base
agrees to give notice to the Agent, the Co- Agent and the Borrowers of such
request. All parties hereto acknowledge that as of the Effective Date the
Borrowing Base is equal to $166,000,000.
9.15 Co-Agent. Other than as specified in Section 9.14, Bank One, Texas,
N.A., as Co-Agent hereunder, shall have no duties or liabilities.
SECTION 10. Miscellaneous.
10.1 Amendments; Etc. (a) This Agreement and any term or provision hereof
may be amended, waived or terminated by an instrument in writing executed by the
Borrowers and the Required Banks, and (i) to the extent any rights or duties of
the Agent may be affected thereby, the Agent, (ii) to the extent any of the
rights or duties of the Co-Agent may be affected thereby, the Co-Agent, and
(iii) to the extent any amendment, modification, termination, waiver or consent
would allow any Borrower to obtain a Letter of Credit if it would otherwise be
unable to obtain such amendment, modification, termination, waiver or consent,
the L/C Banks, provided, that, notwithstanding anything in this Agreement to the
contrary, except by an instrument in writing executed by the Borrowers and all
of the Banks, no such amendment, waiver or termination shall authorize or permit
the extension of the time or times of payment of the principal of, or interest
on, the Notes or the reduction in principal amount thereof or the
CREDIT AGREEMENT Page 50
rate of interest thereon, or any fees payable hereunder, or increase or extend
the respective Commitments of any Bank, or release any Borrower from any of its
obligations hereunder or under any other Loan Document, or release any material
amount of the Collateral from the Liens granted pursuant hereto, or amend this
Section 10.1.
(b) Any such amendment, waiver or termination shall be effective only
in the specific instance and for the specific purpose for which given.
(c) Notwithstanding anything herein to the contrary, any Bank that has
failed to fund any Advance or other amount required to be funded by such Bank
hereunder shall not be entitled to vote (whether to consent or to withhold its
consent) with respect to any amendment, modification, termination or waiver of
any provision of any Loan Document or a departure therefrom or any direction
from the Banks to the Agent and, for purposes of determining the Required Banks,
the Commitments and Advances of such Bank shall be disregarded.
10.2 Notices. (a) Except as otherwise provided in Section 10.2(c) hereof,
all notices, requests, consents and other communications hereunder shall be in
writing and shall be delivered or sent to the Borrowers, the Banks and the Agent
at the respective addresses for notices set forth on the signature pages hereof,
or to such other address as may be designated by the Borrowers, the Agent or any
Bank by notice to the other parties hereto. All notices shall be deemed to have
been given at the time of actual delivery thereof to such address, or if sent by
the Agent or any Bank to the Borrowers by certified or registered mail, postage
prepaid, to such address, on the fifth day after the date of mailing.
(b) Notices by the Borrowers to the Agent with respect to requests for
Advances pursuant to Section 3.1 and notices of prepayment pursuant to Section
4.1(c) shall be irrevocable and binding on the Borrowers.
(c) Any notice to be given by the Borrowers to the Agent pursuant to
Section 4.1(c) or Section 3.1 and any notice to be given by the Agent or any
Bank hereunder, may be given by telephone, by telex or by facsimile transmission
and must be immediately confirmed in writing in the manner provided in Section
10.2(a). Any such notice given by telephone, telex or facsimile transmission
shall be deemed effective upon receipt thereof by the party to whom such notice
is given.
10.3 Conduct No Waiver; Remedies Cumulative. No course of dealing on the
part of the Agent or the Banks, nor any delay or failure on the part of the
Agent or any Bank in exercising any right, power or privilege hereunder shall
operate as a waiver of such right, power or privilege or otherwise prejudice the
Agent's or the Banks' rights and remedies hereunder; nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege. No right or remedy conferred upon or
reserved to the Agent or the Banks under this Agreement is intended to be
exclusive of any other
CREDIT AGREEMENT Page 51
right or remedy, and every right and remedy shall be cumulative and in addition
to every other right or remedy given hereunder or now or hereafter existing
under any applicable law. Every right and remedy given by this Agreement or by
applicable law to the Agent or the Banks may be exercised from time to time and
as often as may be deemed expedient by them.
10.4 Reliance on and Survival of Various Provisions. All terms, covenants,
agreements, representations and warranties of the Borrowers made herein or in
any certificate or other document delivered pursuant hereto shall be deemed to
be material and to have been relied upon by the Banks, notwithstanding any
investigation heretofore or hereafter made by any Bank or on any Bank's behalf,
and those covenants and agreements of the Borrowers set forth in Section 10.5
hereof shall survive the repayment in full of the Advances and other obligations
of the Borrowers hereunder and under Security Documents and the termination of
the Commitments. 10.5 Expenses; Indemnification. (a) The Borrowers agree to pay
and save the Agent harmless from liability for the payment of the reasonable
fees and expenses of any counsel the Agent shall employ, in connection with the
preparation, execution and delivery of this Agreement, the Notes and the
Security Documents and the consummation of the transactions contemplated hereby
and in connection with any amendments, waivers or consents and other matters in
connection therewith, and all reasonable costs and expenses of the Agent and the
Banks (including reasonable fees and expenses of counsel) in connection with any
enforcement of this Agreement, the Notes or the Security Documents.
(b) Each of the Borrowers hereby indemnifies and agrees to hold
harmless the Banks and the Agent, and their respective officers, directors,
employees and agents, from and against any and all claims, damages, losses,
liabilities, costs or expenses of any kind or nature whatsoever which the Banks
or the Agent or any such Person may incur or which may be claimed against any of
them by reason of or in connection with any Letter of Credit, and neither any
Bank nor the Agent or any of their respective officers, directors, employees or
agents shall be liable or responsible for: (i) the use which may be made of any
Letter of Credit or for any acts or omissions of any beneficiary in connection
therewith; (ii) the validity, sufficiency or genuineness of documents or of any
endorsement thereon, even if such documents should in fact prove to be in any or
all respects invalid, insufficient, fraudulent or forged; (iii) payment by the
Agent to the beneficiary under any Letter of Credit against presentation of
documents which do not comply with the terms of any Letter of Credit, including
failure of any documents to bear any reference or adequate reference to such
Letter of Credit; (iv) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit; or (v) any other event or
circumstance whatsoever arising in connection with any Letter of Credit;
provided, however, that the Borrowers shall not be required to indemnify the L/C
Banks and the Agent and such other Persons, and the L/C Banks and the Agent
shall be liable to the Borrowers to the extent, but only to the extent, of any
direct, as opposed to consequential or incidental, damages suffered by any
Borrower which were caused by (A) the Agent's wrongful dishonor of any Letter of
Credit after the presentation to it by the beneficiary thereunder of a draft or
other demand for
CREDIT AGREEMENT Page 52
payment and other documentation strictly complying with the terms and conditions
of such Letter of Credit, or (B) the payment by the Agent to the beneficiary
under any Letter of Credit against presentation of documents which do not comply
with the terms of the Letter of Credit to the extent, but only to the extent,
that such payment constitutes gross negligence or wilful misconduct of the
Agent. It is understood that in making any payment under a Letter of Credit the
Agent will rely on documents presented to it under such Letter of Credit as to
any and all matters set forth therein without further investigation and
regardless of any notice or information to the contrary, and such reliance and
payment against documents presented under a Letter of Credit substantially
complying with the terms thereof shall not be deemed gross negligence or wilful
misconduct of the Agent in connection with such payment. It is further
acknowledged and agreed that a Borrower may have rights against the beneficiary
or others in connection with any Letter of Credit with respect to which the
Agent is alleged to be liable and it shall be a precondition of the assertion of
any liability of the Agent under this Section that such Borrower shall first
have taken reasonable steps to enforce remedies in respect of the alleged loss
against such beneficiary and any other parties obligated or liable in connection
with such Letter of Credit and any related transactions.
(c) In consideration of the execution and delivery of this Agreement
by each Bank and the extension of the Commitments, the Borrowers hereby
indemnify, exonerate and hold the Agent, each Bank and each of their respective
officers, directors, employees and agents (collectively, the "Indemnified
Parties") free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to:
(i) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Advance;
(ii) the entering into and performance of this Agreement and any
other agreement or instrument executed in connection herewith by any of the
Indemnified Parties (including any action brought by or on behalf of the
Borrowers as the result of any determination by the Required Banks not to fund
any Advance in compliance with this Agreement);
(iii) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrowers or any of their
Subsidiaries of any portion of the stock or assets of any Person, whether or not
the Agent or such Bank is party thereto;
(iv) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to any release
by the Borrowers or any of their Subsidiaries of any hazardous material or any
violations of Environmental Laws; or
CREDIT AGREEMENT Page 53
(v) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real property
owned or operated by the Borrowers or any Subsidiary thereof of any Hazardous
Material (including any losses, liabilities, damages, injuries, costs, expenses
or claims asserted or arising under any Environmental Law), regardless of
whether caused by, or within the control of, the Borrowers or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the activities of the Indemnified
Party on the property of the Borrowers conducted subsequent to a foreclosure on
such property by the Banks or by reason of the relevant Indemnified Party's
gross negligence or wilful misconduct or breach of this Agreement, and if and to
the extent that the foregoing undertaking may be unenforceable for any reason,
the Borrowers hereby agree to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The Borrowers shall be obligated to indemnify the Indemnified
Parties for all Indemnified Liabilities subject to and pursuant to the foregoing
provisions, regardless of whether the Borrowers or any of their Subsidiaries had
knowledge of the facts and circumstances giving rise to such Indemnified
Liability.
10.6 Successors and Assigns. (a) This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, provided that the Borrowers may not, without the prior consent of the
Banks, assign their rights or obligations hereunder or under the Notes and the
Banks shall not be obligated to make any Advance hereunder to any entity other
than the Borrowers.
(b) Any Bank may sell a participation interest to any financial
institution or institutions, and such financial institution or institutions may
further sell, a participation interest (undivided or divided) in, the Advances
and such Bank's rights and benefits under this Agreement, the Notes and the
Security Documents and to the extent of that participation, such participant or
participants shall have the same rights and benefits against the Borrowers under
Section 6.2(c) as it or they would have had if participation of such participant
or participants were the Bank making the Advances to the Borrowers hereunder,
provided, however, that (i) such Bank's obligations under this Agreement shall
remain unmodified and fully effective and enforceable against such Bank, (ii)
such Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Bank shall remain the holder of its
Note for all purposes of this Agreement, (iv) the Borrowers, the Agent and the
other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement, and (v)
such Bank shall not grant to its participant any rights to consent or withhold
consent to any action taken by such Bank or the Agent under this Agreement other
than action requiring the consent of all of the Banks hereunder. The Agent from
time to time in its sole discretion may appoint agents for the purpose of
servicing and administering this Agreement and the transactions contemplated
hereby and enforcing or exercising any rights or remedies of the Agent provided
under this Agreement, the Notes, or otherwise. In furtherance of such agency,
the Agent may from time to time direct that the Borrowers provide notices,
reports and other documents contemplated by this Agreement
CREDIT AGREEMENT Page 54
(or duplicates thereof) to such agent. The Borrowers hereby consent to the
appointment of such agent and agree to provide all such notices, reports and
other documents and to otherwise deal with such agent acting on behalf of the
Agent in the same manner as would be required if dealing with the Agent itself.
(c) Each Bank may, with the prior consent of the Borrowers (which
consent shall not be unreasonably withheld and may not be withheld upon the
occurrence and during the continuance of any Event of Default which is not cured
or waived within 30 days after the occurrence of such Event of Default) and the
Agent, assign to one or more banks or other entities all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the Advances owing to it and the Note or Notes
and the Security Documents held by it); provided, however, that (i) each such
assignment shall be of a uniform, and not a varying, percentage of all rights
and obligations, (ii) except in the case of an assignment of all of a Bank's
rights and obligations under this Agreement, (A) the amount of the Commitment of
the assigning Bank being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $5,000,000, and in integral multiples of
$1,000,000 thereafter, or such lesser amount as the Borrowers and the Agent may
consent to and (B) after giving effect to each such assignment, the amount of
the Commitment of the assigning Bank shall in no event be less than $5,000,000,
and (iii) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance in the form of Exhibit E hereto (an "Assignment and Acceptance"),
together with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder and (y) the Bank assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all of
the remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(d) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrowers or
the performance or observance by the Borrowers of any of their obligations under
this Agreement or any other
CREDIT AGREEMENT Page 55
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 6.7 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance on the Agent, such assigning Bank or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Bank.
(e) The Agent shall maintain at its address designated on the
signature pages hereof a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Banks and the Commitment of, and principal amount of the Advances owing to,
each Bank from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrowers or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee, together with any Note or Notes subject to such
assignment, the Agent shall, if such Assignment and Acceptance has been
completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrowers. Within five Business Days after its receipt of such
notice, the Borrowers, at their own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note or Notes a new Note to the order of
such assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Bank has retained a
Commitment hereunder, a new Note to the order of the assigning Bank in an amount
equal to the Commitment retained by it hereunder. Such new Note or Notes shall
be in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit B or C hereto, as the case may be.
(g) The Banks may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 10.6, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrowers provided that such proposed assignee or
participant has agreed to hold such information confidential under the terms
described in Section 10.19.
CREDIT AGREEMENT Page 56
(h) Additional lenders may also become Banks hereunder, with the prior
written consent of the Borrowers and the Agent, by executing an Assumption
Agreement substantially in the form of Exhibit F hereto, provided that without
the prior written consent of all Banks, the aggregate Commitments of all Banks
may not exceed $200,000,000. Any Bank, subject to the prior written approval of
the Required Banks, the Agent and the Borrowers and subject to being paid in
full for all outstanding liabilities owing to such Bank, may be terminated as a
Bank hereunder and upon such termination the Borrowers shall have the option to
select a bank to replace such terminated bank and to assume the rights and
obligations of such terminated Bank hereunder, provided that such replacement
bank is acceptable to the Agent and executes an Assumption Agreement
substantially in the form of Exhibit F hereto. Upon any Bank being added hereto
or terminated, a new schedule will be distributed by the Agent to all Banks and
the Borrowers showing the Commitment amount and the Pro Rata Share of each Bank.
(i) Notwithstanding any other provisions set forth in this Agreement,
any Bank may at any time create a security interest in, or assign, all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System; provided that such creation of a security interest or
assignment shall not release such Bank from its obligations under this
Agreement.
10.7 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 THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
10.8 Table of Contents and Headings. The table of contents and the headings
of the various subdivisions hereof are for the convenience of reference only and
shall in no way modify any of the terms or provisions hereof.
10.9 Construction of Certain Provisions. All computations required
hereunder and all financial terms used herein shall be made or construed in
accordance with GAAP unless such principles are inconsistent with the express
requirements of this Agreement. If any provision of this Agreement refers to any
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person, whether or not expressly specified in such
provision.
10.10 Integration and Severability. This Agreement embodies the entire
agreement and understanding between the Borrowers and the Banks, and supersedes
all prior agreements and understandings, relating to the subject matter hereof.
In case any one or more of the obligations of the Borrowers under this
Agreement, the Notes or any Security Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining obligations of the Borrowers shall not in any way be affected or
CREDIT AGREEMENT Page 57
impaired thereby, and such invalidity, illegality or unenforceability in one
jurisdiction shall not affect the validity, legality or enforceability of the
obligations of the Borrowers under this Agreement, the Notes or any Security
Documents in any other jurisdiction.
10.11 Interest Rate Limitation. Notwithstanding any provisions of this
Agreement, the Notes or any Security Documents, in no event shall the amount of
interest paid or agreed to be paid by the Borrowers exceed an amount computed at
the highest rate of interest permissible under applicable law. If, from any
circumstances whatsoever, fulfillment of any provision of this Agreement, the
Notes or any Security Documents at the time performance of such provision shall
be due, shall involve exceeding the interest rate limitation validly prescribed
by law which a court of competent jurisdiction may deem applicable hereto, then,
ipso facto, the obligations to be fulfilled shall be reduced to an amount
computed at the highest rate of interest permissible under applicable law, and
if for any reason whatsoever the Banks shall ever receive as interest an amount
which would be deemed unlawful under such applicable law such interest shall be
automatically applied to the payment of principal of the Advances outstanding
and other obligations of the Borrowers hereunder (whether or not then due and
payable) and not to the payment of interest, or shall be refunded to the
Borrowers if such principal has been paid in full. Anything herein to the
contrary notwithstanding, the obligations of the Borrowers under this Agreement
shall be subject to the limitation that payments of interest shall not be
required to the extent that receipt of any such payment by the Banks would be
contrary to provisions of law applicable to the Banks which limits the maximum
rate of interest which may be charged or collected by the Banks.
10.12 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
10.13 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitations of, another covenant shall not avoid
the occurrence of an Event of Default or any event or condition which with
notice or lapse of time, or both, could become such an Event of Default if such
action is taken or such condition exists.
10.14 Consent to Jurisdiction. Notwithstanding the place where any
liability originates or arises, or is to be repaid, any suit, action or
proceeding arising out of or relating to this Agreement, any Security Documents,
or the Notes may be instituted in any court of competent jurisdiction in the
State of Illinois, each Borrower hereby irrevocably waives any objection which
it may have or hereafter has to the laying of such venue of any such suit,
action or proceeding and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum, and each Borrower hereby irrevocably
submits its Person and property to the jurisdiction of any such court in any
such suit, action or proceedings. Nothing in this
CREDIT AGREEMENT Page 58
Section 10.14 shall affect the right of the Bank to bring proceedings against
the Borrowers or any of their property in the courts of any other court of
competent jurisdiction.
10.15 JURY TRIAL WAIVER. THE AGENT, THE BANKS AND EACH BORROWER, AFTER
CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY
JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE NOTES,
THE SECURITY DOCUMENTS, OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE NOTES OR THE SECURITY DOCUMENTS
OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF ANY OF THEM. NEITHER THE AGENT, THE BANKS NOR ANY BORROWER SHALL SEEK
TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR
HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED
IN ANY RESPECT OR RELINQUISHED BY EITHER THE AGENT AND THE BANKS OR THE
BORROWERS EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
10.16 Joint and Several Obligations; Contribution Rights; Savings Clause.
(a) Notwithstanding anything to the contrary set forth herein or in any Note or
in any other Loan Document, the obligations of the Borrowers hereunder and under
the Notes and the other Loan Documents are joint and several.
(b) If any Borrower makes a payment in respect of the Bank Obligations
it shall have the rights of contribution set forth below against the other
Borrowers; provided that such Borrower shall not exercise its right of
contribution until all the Bank Obligations shall have been finally paid in full
in cash. If any Borrower makes a payment in respect of the Bank Obligations that
is smaller in proportion to its Payment Share (as hereinafter defined) than such
payments made by the other Borrowers are in proportion to the amounts of their
respective Payment Shares, the Borrower making such proportionately smaller
payment shall, when permitted by the preceding sentence, pay to the other
Borrowers an amount such that the net payments made by the Borrower in respect
of the Bank Obligations shall be shared among the Borrowers pro rata in
proportion to their respective Payment Shares. If any Borrower receives any
payment that is greater in proportion to the amount of its Payment Shares than
the payments received by the other Borrowers are in proportion to the amounts of
their respective Payment Shares, the Borrower receiving such proportionately
greater payment shall, when permitted by the second preceding sentence, pay to
the other Borrowers an amount such that the payments received by the Borrowers
shall be shared among the Borrowers pro rata in proportion to their respective
Payment Shares. Notwithstanding anything to the contrary contained in this
paragraph or in this Agreement, no liability or obligation of any Borrower that
CREDIT AGREEMENT Page 59
shall accrue pursuant to this paragraph shall be paid nor shall it be deemed
owed pursuant to this paragraph until all of the Bank Obligations shall be
finally paid in full in cash.
For purposes hereof, the "Payment Share" of each Borrower shall be the
sum of (a) the aggregate proceeds of the Bank Obligations received by such
Borrower plus (b) the product of (i) the aggregate Bank Obligations remaining
unpaid on the date such Bank Obligations become due and payable in full, whether
by stated maturity, acceleration, or otherwise (the "Determination Date")
reduced by the amount of such Bank Obligations attributed to all or such
Borrowers pursuant to clause (a) above, times (ii) a fraction, the numerator of
which is such Borrower's net worth on the effective date of this Agreement
(determined as of the end of the immediately preceding fiscal reporting period
of such Borrower), and the denominator of which is the aggregate net worth of
all Borrowers on such effective date.
(c) It is the intent of each Borrower, the Agent and the Banks that
each Borrower's maximum Bank Obligations shall be in, but not in excess of:
(i) in a case or proceeding commenced by or against such Borrower
under the Bankruptcy Code on or within one year from the date on which any of
the Bank Obligations are incurred, the maximum amount that would not otherwise
cause the Bank Obligations (or any other obligations of such Borrower to the
Agent and the Banks) to be avoidable or unenforceable against such Borrower
under (A) Section 548 of the Bankruptcy Code or (B) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such
Borrower under the Bankruptcy Code subsequent to one year from the date on which
any of the Bank Obligations are incurred, the maximum amount that would not
otherwise cause the Bank Obligations (or any other obligations of such Borrower
to the Agent and the Banks) to be avoidable or unenforceable against such
Borrower under any state fraudulent transfer or fraudulent conveyance act or
statute applied in any such case or proceeding by virtue of Section 544 of the
Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such
Borrower under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws), the maximum amount that would not otherwise cause
the Bank Obligations (or any other obligations of such Borrower to the Agent and
the Banks) to be avoidable or unenforceable against such Borrower under such
law, statute or regulation including, without limitation, any state fraudulent
transfer or fraudulent conveyance act or statute applied in any such case or
proceeding.
(d) The Borrowers acknowledge and agree that they have requested that
the Banks make credit available to the Borrowers with each Borrower expecting to
derive
CREDIT AGREEMENT Page 60
benefit, directly and indirectly, from the Advances and other credit extended by
the Banks to the Borrowers.
10.17 Consents to Renewals, Modifications and Other Actions and
Events. This Agreement and all of the obligations of the Borrowers hereunder
shall remain in full force and effect without regard to and shall not be
released, affected or impaired by: (a) any amendment, assignment, transfer,
modification of or addition or supplement to the Bank Obligations, this
Agreement, any Note or any other Loan Document; (b) any extension, indulgence,
increase in the Bank Obligations or other action or inaction in respect of any
of the Loan Documents or otherwise with respect to the Bank Obligations, or any
acceptance of security for, or guaranties of, any of the Bank Obligations or
Loan Documents, or any surrender, release, exchange, impairment or alteration of
any such security or guaranties including without limitation the failing to
perfect a security interest in any such security or abstaining from taking
advantage or of realizing upon any guaranties or upon any security interest in
any such security; (c) any default by any Borrower under, or any lack of due
execution, invalidity or unenforceability of, or any irregularity or other
defect in, any of the Loan Documents; (d) any waiver by the Banks or any other
Person of any required performance or otherwise of any condition precedent or
waiver of any requirement imposed by any of the Loan Documents, any guaranties
or otherwise with respect to the Bank Obligations; (e) any exercise or
non-exercise of any right, remedy, power or privilege in respect of this
Agreement or any of the other Loan Documents; (f) any sale, lease, transfer or
other disposition of the assets of any Borrower or any consolidation or merger
of any Borrower with or into any other Person, corporation, or entity, or any
transfer or other disposition by any Borrower or any other holder of any shares
of capital stock of any Borrower; (g) any bankruptcy, insolvency, reorganization
or similar proceedings involving or affecting any Borrower; (h) the release or
discharge of any Borrower from the performance or observance of any agreement,
covenant, term or condition under any of the Bank Obligations or contained in
any of the Loan Documents by operation of law; or (i) any other cause whether
similar or dissimilar to the foregoing which, in the absence of this provision,
would release, affect or impair the obligations, covenants, agreements and
duties of any Borrower hereunder, including without limitation any act or
omission by the Agent, or the Bank or any other any Person which increases the
scope of such Borrower's risk; and in each case described in this paragraph
whether or not any Borrower shall have notice or knowledge of any of the
foregoing, each of which is specifically waived by each Borrower. Each Borrower
warrants to the Agent and the Banks that it has adequate means to obtain from
each other Borrower on a continuing basis information concerning the financial
condition and other matters with respect to the Borrowers and that it is not
relying on the Agent or the Banks to provide such information either now or in
the future.
10.18 Waivers, Etc. Each Borrower unconditionally waives: (a) notice
of any of the matters referred to in Section 10.17 above; (b) all notices which
may be required by statute, rule or law or otherwise to preserve any rights of
the Agent or the Banks including, without limitation, presentment to and demand
of payment or performance from the other Borrowers and protect for non-payment
or dishonor; (c) any right to the exercise by the Agent
CREDIT AGREEMENT Page 61
or the Banks of any right, remedy, power or privilege in connection with any of
the Loan Documents; (d) any requirement that the Agent or the Banks in the event
of any default by any Borrower, first make demand upon or seek to enforce
remedies against, such Borrower or any other Borrower before demanding payment
under or seeking to enforce this Agreement against any other Borrower; (f) any
right to notice of the disposition of any security which the Agent or the Banks
may hold from any Borrower or otherwise and any right to object to the
commercial reasonableness of the disposition of any such security; and (g) all
errors and omissions in connection with the Agent's or any Bank's administration
of any of the Bank Obligations, any of the Loan Documents, or any other act or
omission of the Agent or any Bank which changes the scope of the Borrower's
risk, except as a result of the gross negligence or willful misconduct of the
Agent or any Bank. The obligations of each Borrower hereunder shall be complete
and binding forthwith upon the execution of this Agreement and subject to no
condition whatsoever, precedent or otherwise, and notice of acceptance hereof or
action in reliance hereon shall not be required.
10.19 Confidentiality. The Banks and the Agent shall hold all
confidential information obtained pursuant to the requirements of this Agreement
which has been identified as such by any Borrower in accordance with their
customary procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure to its examiners, affiliates, outside auditors, counsel and other
professional advisors in connection with this Agreement or as reasonably
required by any bona fide transferee or participant in connection with the
contemplated transfer of any Note or participation therein or as required or
requested by any governmental agency or representative thereof or pursuant to
legal process. Without limiting the foregoing, it is expressly understood that
such confidential information shall not include information which, at the time
of disclosure is in the public domain or, which after disclosure, becomes part
of the public domain or information which any Bank or the Agent had obtained
prior to the time of disclosure and identification by any Borrower under this
Section 10.19, or information received by any Bank or the Agent from a third
party. Nothing in this Section 10.19 or otherwise shall prohibit any Bank or the
Agent from disclosing any confidential information to the other Banks or the
Agent or render any of them liable in connection with any such disclosure.
CREDIT AGREEMENT Page 62
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of this 13th day of August, 1996, which shall
be the Effective Date of this Agreement.
Address for Notices:
XXXXXXXX RESOURCES, INC.
0000 XXX Xxxxxxx, Xxxxx 0000 By:/s/M. XXX XXXXXXX
Xxxxxx, Xxxxx 00000 M. Xxx Xxxxxxx, its president and chief
Attention: M. Xxx Xxxxxxx executive officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Address for Notices:
XXXXXXXX OIL & GAS, INC.
0000 XXX Xxxxxxx, Xxxxx 0000 By:/s/M. XXX XXXXXXX
Xxxxxx, Xxxxx 00000 M. Xxx Xxxxxxx, its chairman and chief
Attention: M. Xxx Xxxxxxx executive officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Address for Notices:
XXXXXXXX OIL & GAS - LOUISIANA, INC.
0000 XXX Xxxxxxx, Xxxxx 0000 By:/s/M. XXX XXXXXXX
Xxxxxx, Xxxxx 00000 M. Xxx Xxxxxxx, its president and chief
Attention: M. Xxx Xxxxxxx executive officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
CREDIT AGREEMENT Page 63
XXXXXXXX OFFSHORE ENERGY, INC.
0000 XXX Xxxxxxx, Xxxxx 0000 By:/s/M. XXX XXXXXXX
Xxxxxx, Xxxxx 00000 M. Xxx Xxxxxxx, its president and chief
Attention: M. Xxx Xxxxxxx executive officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
XXXXXXXX NATURAL GAS, INC.
0000 XXX Xxxxxxx, Xxxxx 0000 By:/s/M. XXX XXXXXXX
Xxxxxx, Xxxxx 00000 M. Xxx Xxxxxxx, its president and chief
Attention: M. Xxx Xxxxxxx executive officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BLACK STONE OIL COMPANY
0000 XXX Xxxxxxx, Xxxxx 0000 By:/s/M. XXX XXXXXXX
Xxxxxx, Xxxxx 00000 M. Xxx Xxxxxxx, its president and chief
Attention: M. Xxx Xxxxxxx executive officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
CREDIT AGREEMENT Page 64
One First National Plaza THE FIRST NATIONAL BANK OF CHICAGO,
Suite 0362 as a Bank and as Agent
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx By: /s/XXXX XXXXX
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000 Its: Authorized Agent
Loan Commitment Amount: $30,000,000
Loan Pro Rata Share: 18.0722891%
L/C Commitment Amount: $500,000
L/C Pro Rata Share: 50%
CREDIT AGREEMENT Page 65
0000 Xxxx Xxxxxx BANK ONE, TEXAS, NA,
Xxxxxx, Xxxxx 00000 as a Bank and as Co-Agent
Attention: Xxxx Xxxxxxx
Telephone No: (000) 000-0000 By: /s/XXXX XXXXXXX
Facsimile No: (000) 000-0000
Loan Commitment Amount: $30,000,000 Its: Vice President
Loan Pro Rata Share: 18.0722891%
L/C Commitment Amount: $500,000
L/C Pro Rata Share: 50%
CREDIT AGREEMENT Page 00
XXX-XXXX XXXX X.X.
Xxxxx Xxxxxxxx, Xxxxx 0000 By: ABN AMRO NORTH AMERICA INC.,
as agent
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx By: /s/XXXXX XXXXXXX
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000 Its: Sr. Vice President
Loan Commitment Amount: $15,000,000
Loan Pro Rata Share: 9.0361445%
L/C Commitment Amount: $0 And: /s/H. XXXX XXXXXX
L/C Pro Rata Share: 0%
Its: Vice President and Director
CREDIT AGREEMENT Page 67
000 Xxxxxxx Xxxxxx THE FIRST NATIONAL BANK OF BOSTON
Boston, MA 02110
Attention: Xxxxx Xxxxxx By: /s/XXXXX XXXXXX
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000 Its: Vice President and Director
Loan Commitment Amount: $15,000,000
Loan Pro Rata Share: 9.0361445%
L/C Commitment Amount: $0
L/C Pro Rata Share: 0%
CREDIT AGREEMENT Page 68
000 Xxxxxxxxx Xxxxxx, Xxx. 0000 XXXX XX XXXXXXXX, as a Bank and a Lead
Xxxxxxx, Xxxxx 00000 Manager
Attention: Xxxxxx Xxxxxxx
Telephone No: (000) 000-0000 By: /s/XXXXXX XXXXXXX
Facsimile No: (000) 000-0000
Loan Commitment Amount: $15,000,000 Its: Director, U.S. Corporate Banking
Loan Pro Rata Share: 9.0361445%
L/C Commitment Amount: $0
L/C Pro Rata Share: 0%
CREDIT AGREEMENT Page 69
1200 Xxxxx Street, Ste. 3100 BANQUE PARIBAS
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx By:/s/XXXXXX X. XXXXXXXX
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000 Its: Group Vice President
Loan Commitment Amount: $15,000,000
Loan Pro Rata Share: 9.0361445%
L/C Commitment Amount: $0 By: /s/XXXX X. XXXXX
L/C Pro Rata Share: 0%
Its: Vice President
CREDIT AGREEMENT Page 70
0000 Xxxxxxxxxx Xxxxxx, Xxx. 0000 CREDIT LYONNAIS NEW YORK BRANCH
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxxxx Xxxxx Xxxxxxx By: /s/PASCAL POUPETTE
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000 Its: Senior Vice President
Loan Commitment Amount: $10,000,000
Loan Pro Rata Share: 6.0240963%
L/C Commitment Amount: $0
L/C Pro Rata Share: 0%
CREDIT AGREEMENT Page 71
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx CHRISTIANIA BANK OG KREDITKASSE
New York, New York 10036
Attention: Xxxxx Xxxxxxxx By: /s/XXXXXXX XXXXX XXXXXXXX
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000 Its: Vice President
Loan Commitment Amount: $10,000,000
Loan Pro Rata Share: 6.0240963% By: /s/XXXX X. XXXXXXX
L/C Commitment Amount: $0
L/C Pro Rata Share: 0% Its: First Vice President
CREDIT AGREEMENT Page 72
000 Xxxxxx Xxxxxx, Xxx. 0000 XXXXXXX XXXXXXXX (XXXXX), INC.
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxx By: /s/XXXXXXXX X. XXXXXX
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000 Its: Vice President
Loan Commitment Amount: $10,000,000
Loan Pro Rata Share: 6.0240963%
L/C Commitment Amount: $0
L/C Pro Rata Share: 0%
CREDIT AGREEMENT Page 73
Loan Commitment Amount: $8,000,000 MEESPIERSON N.V.
Loan Pro Rata Share: 4.8192771%
L/C Commitment Amount: $0 By: /s/XXXXX XXXXXX
L/C Pro Rata Share: 0% Xxxxx Xxxxxx
Its: Vice President
Address for Operations Notices:
Mees Pierson N.V.
Loan Administration
Coolsingel 93
P. O. Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Primary: Xxx xx Xxxx - Xxxx Xxxxxxx - Rotterdam Office
Telephone: (000) 00 00 000 0000
Telefax: (000) 00 00 000 0000
Copy to: MeesPierson N.V.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Secondary: Xxxxxxx Xxxxxxx-MeesPierson-Dallas Office
Telephone: (000) 000-0000
Telefax: (000) 000-0000
ADDRESSES FOR OTHER NOTICES:
MeesPierson N.V.
Coolsingel 93
P. O. Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Xxxxxx van der Klaauw
Telephone: (000) 00 00 000 0000
Fax: (000) 00 00 000 0000
MeesPierson N.V.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
CREDIT AGREEMENT Page 74
2121 San Jacinto, Ste. 0000 XXXXXXXX XXXX XX XXXXXX
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx By/s/Xxxx Xxxxxxx
Telephone No. (000) 000-0000 Its: Vice President
Loan Commitment Amount: $8,000,000
Loan Pro Rata Share: 4.8192771%
L/C. Commitment Amount $0
L/C Pro Rata Share: 0%
Lending Office for Floating Rate Loans
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000)000-0000
Lending Office for Eurodollar Loans
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000)000-0000
CREDIT AGREEMENT Page 75
