364-DAY CREDIT AGREEMENT
$200,000,000 CREDIT
AND COMPETITIVE BID FACILITY
AMONG
OCEAN ENERGY, INC.,
CREDIT SUISSE FIRST BOSTON,
Individually and as Administrative Agent,
CREDIT SUISSE FIRST BOSTON,
as Auction Administrative Agent,
BANK OF AMERICA, N.A.,
Individually, and as Syndication Agent,
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
Individually, and as Documentation Agent,
AND
THE OTHER BANKS SIGNATORY HERETO
November 9, 1999
-----------------
CREDIT SUISSE FIRST BOSTON,
as Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Section 1. Definitions and Accounting Matters.......................1
1.1 Certain Defined Terms....................................1
1.2 Accounting Terms and Determinations.....................18
1.3 Types of Loans..........................................18
1.4 Miscellaneous...........................................18
Section 2. Commitments; Competitive Bid Facility...................18
2.1 Committed Loans.........................................18
(a) Revolving Loans..................................18
(b) Term Loans.......................................19
2.2 Extension of Revolving Commitment Termination Date and
Revolving Commitments............................19
2.3 Reductions and Changes of Commitments...................21
2.4 Fees....................................................22
2.5 Affiliates; Lending Offices.............................22
2.6 Several Obligations.....................................22
2.7 Repayment of Loans; Evidence of Debt....................23
2.8 Use of Proceeds.........................................23
2.9 Competitive Bid Procedure...............................23
Section 3. Borrowings, Prepayments and Selection of
Interest Rates...................................25
3.1 Borrowings..............................................25
3.2 Prepayments.............................................26
3.3 Selection of Interest Rates.............................26
Section 4. Payments of Principal and Interest......................26
4.1 Repayment of Loans......................................26
4.2 Interest................................................27
Section 5. Payments; Pro Rata Treatment; Computations, Etc.........27
5.1 Payments................................................27
5.2 Pro Rata Treatment......................................28
5.3 Computations............................................28
5.4 Minimum and Maximum Amounts.............................28
5.5 Certain Actions, Notices, Etc...........................29
5.6 Non-Receipt of Funds by Administrative Agent............30
5.7 Sharing of Payments, Etc................................30
Section 6. Yield Protection and Illegality.........................31
6.1 Additional Costs........................................31
6.2 Limitation on Types of Loans............................32
6.3 Illegality..............................................33
6.4 Substitute Alternate Base Rate Loans....................33
6.5 Compensation............................................34
6.6 [Intentionally omitted].................................34
6.7 Capital Adequacy........................................34
6.8 Limitation on Additional Charges; Substitute Banks;
Non-Discrimination...............................35
Section 7. Conditions Precedent....................................35
7.1 Initial Loans...........................................35
7.2 Initial and Subsequent Loan.............................37
Section 8. Representations and Warranties..........................38
8.1 Corporate Existence.....................................38
8.2 Corporate Power and Authorization.......................38
8.3 Binding Obligations.....................................38
8.4 No Legal Bar or Resultant Lien..........................39
8.5 No Consent..............................................39
8.6 Financial Condition.....................................39
8.7 Investments and Guaranties..............................39
8.8 Liabilities and Litigation..............................40
8.9 Taxes and Governmental Charges..........................40
8.10 Title to Properties.....................................40
8.11 Defaults................................................40
8.12 Location of Businesses and Offices......................40
8.13 Compliance with Law.....................................41
8.14 Margin Stock............................................41
8.15 Subsidiaries............................................41
8.16 ERISA...................................................41
8.17 Investment Company Act..................................42
8.18 Public Utility Holding Company Act......................42
8.19 Environmental Matters...................................42
8.20 Claims and Liabilities..................................43
8.21 Solvency................................................43
8.22 Year 2000...............................................43
Section 9. Affirmative Covenants...................................43
9.1 Financial Statements and Reports........................43
9.2 Officers' Certificates..................................45
9.3 Taxes and Other Liens...................................45
9.4 Maintenance.............................................46
9.5 Further Assurances......................................46
9.6 Performance of Obligations..............................46
9.7 Reimbursement of Expenses...............................46
9.8 Insurance...............................................47
9.9 Accounts and Records....................................48
9.10 Notice of Certain Events................................48
9.11 ERISA Information and Compliance........................49
Section 10. Negative Covenants......................................50
10.1 Debts, Guaranties and Other Obligations.................50
10.2 Liens...................................................53
10.3 Dividend Payment Restrictions...........................56
10.4 Mergers and Sales of Assets.............................56
10.5 Proceeds of Loans.......................................57
10.6 ERISA Compliance........................................57
10.7 Total Leverage Ratio....................................57
10.8 Senior Leverage Ratio...................................57
10.9 Minimum Net Worth.......................................57
10.10 Nature of Business......................................57
10.11 Covenants in Other Agreements...........................58
Section 11. Defaults................................................58
11.1 Events of Default.......................................58
11.2 [Intentionally omitted].................................60
11.3 [Intentionally omitted].................................60
11.4 Right of Setoff.........................................60
Section 12. Agents..................................................61
12.1 Appointment, Powers and Immunities......................61
12.2 Reliance by Agents......................................62
12.3 Defaults................................................62
12.4 Rights as a Bank........................................62
12.5 Indemnification.........................................63
12.6 Non-Reliance on Agents and Other Banks..................63
12.7 Failure to Act..........................................64
12.8 Resignation or Removal of Administrative Agent..........64
Section 13. Miscellaneous...........................................64
13.1 Waiver..................................................64
13.2 Notices.................................................65
13.3 Indemnification.........................................65
13.4 Amendments, Etc.........................................66
13.5 Successors and Assigns..................................66
13.6 Limitation of Interest..................................70
13.7 Survival................................................71
13.8 Captions................................................71
13.9 Counterparts............................................71
13.10 GOVERNING LAW; FORUM SELECTION; CONSENT TO JURISDICTION.71
13.11 WAIVER OF JURY TRIAL; PUNITIVE DAMAGES..................72
13.12 Severability............................................72
13.13 [Intentionally omitted].................................72
13.14 Confidential Information................................73
13.15 Tax Forms...............................................73
13.16 Entire Agreement........................................74
EXHIBITS:
Exhibit A Unrestricted Subsidiaries
Exhibit B Form of Request for Extension of Credit
Exhibit C Subsidiaries (with Addresses)
Exhibit D Form of Compliance Certificate
Exhibit E Assignment and Acceptance
Exhibit F Form of Competitive Bid Request
Exhibit G Form of Notice to Banks of Competitive Bid Request
Exhibit H Form of Competitive Bid
Exhibit I Form of Competitive Bid Administrative Questionnaire
Exhibit J Form of Certificate of Extension
Exhibit K Form of Guaranty Agreement
Exhibit L Disclosure Statement
Exhibit M Commitments
364-DAY CREDIT AGREEMENT
This 364-DAY CREDIT AGREEMENT, dated as of November 9, 1999 (the Effective
Date"), is by and among OCEAN ENERGY, INC. ("the Company"), a corporation duly
organized and validly existing under the laws of the State of Texas, each of the
banks which is or which may from time to time become a signatory hereto
(individually, a "Bank" and, collectively, the "Banks"), CREDIT SUISSE FIRST
BOSTON ("CSFB"), as Administrative Agent for the Banks (in such capacity,
together with its successors in such capacity, "Administrative Agent"), CREDIT
SUISSE FIRST BOSTON, as Auction Administrative Agent for the Banks (in such
capacity, the "Auction Administrative Agent"), BANK OF AMERICA, N.A. ("Bank of
America"), as Syndication Agent for the Banks (in such capacity, the
"Syndication Agent"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION ("Chase"),
as Documentation Agent for the Banks (in such capacity, the "Documentation
Agent").
The parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.1 Certain Defined Terms. As used herein, the following terms shall have the
following meanings (all terms defined in this Section 1.1 or in other provisions
of this Agreement in the singular to have the same meanings when used in the
plural and vice versa):
"Accepting Banks" shall have the meaning set forth in Section 2.2(c).
"Additional Costs" shall have the meaning ascribed to such term in Section 6.1
hereof.
"Affiliate" shall mean, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person and, if such Person is an individual, any member of the immediate family
(including parents, siblings, spouse, children, stepchildren, grandchildren,
nephews and nieces) of such individual and any trust whose principal beneficiary
is such individual or one or more members of such immediate family and any
Person who is controlled by any such member or trust. As used in this
definition, "control" (including, with correlative meanings, "controlled by" and
"under common control with") shall mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise).
"Agents" shall mean the Administrative Agent, the Auction Administrative Agent,
the Documentation Agent and the Syndication Agent, together with any successors
in any such capacities.
"Agreement" shall mean this 364-Day Credit Agreement, as such agreement from
time to time may be amended, amended and restated, supplemented or otherwise
modified.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to the
higher of (a)the Prime Rate in effect on such day or (b) 1/2 of 1% plus the
Federal Funds Rate in effect for such day (rounded upwards, if necessary, to the
nearest 1/16th of 1%). For purposes hereof, "Federal Funds Rate" shall mean, for
any period, a fluctuating interest rate per annum equal for each day during such
period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
Administrative Agent from three Federal funds brokers of recognized standing
selected by it. For purposes of this Agreement, any change in the Alternate Base
Rate due to a change in the Federal Funds Rate shall be effective on the
effective date of such change in the Federal Funds Rate. If for any reason
Administrative Agent shall have determined (which determination shall be
conclusive and binding, absent manifest error) that it is unable to ascertain
the Federal Funds Rate for any reason, including, without limitation, the
inability or failure of Administrative Agent to obtain sufficient bids or
publications in accordance with the terms hereof, the Alternate Base Rate shall
be the Prime Rate until the circumstances giving rise to such inability no
longer exist. For the purposes hereof, "Prime Rate" shall mean the prime rate as
announced from time to time by Administrative Agent, and thereafter entered in
the minutes of Administrative Agent's Loan and Discount Committee. Without
notice to the Company or any other Person, the Prime Rate shall change
automatically from time to time as and in the amount by which said prime rate
shall fluctuate. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer.
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate. For purposes of this Agreement any
change in the Alternate Base Rate due to a change in the Prime Rate shall be
effective on the date such change in the Prime Rate is announced.
"Alternate Base Rate Loans" shall mean Loans which bear interest at a rate based
upon the Alternate Base Rate.
"Applicable Lending Office" shall mean, for each Bank and for each Type of Loan,
such office of such Bank (or of an Affiliate of such Bank) as such Bank may from
time to time specify to Administrative Agent and the Company as the office by
which its Loans of such Type are to be made and/or issued and maintained.
"Applicable Margin" shall mean, on any day, with respect to any Alternate Base
Rate Loan or Eurodollar Loan, the applicable per annum percentage set forth at
the appropriate intersection in the table shown below, based on the Rating as of
the close of business on the preceding Business Day:
=============================== ================================ ============================
Alternate Base Rate Eurodollar Loan
Rating Loan Applicable Margin Applicable Margin
------------------------------- -------------------------------- ----------------------------
------------------------------- -------------------------------- ----------------------------
BBB-/Baa3 and higher 0.000% 1.075%
------------------------------- -------------------------------- ----------------------------
------------------------------- -------------------------------- ----------------------------
BB+/Ba1 0.250% 1.250%
------------------------------- -------------------------------- ----------------------------
------------------------------- -------------------------------- ----------------------------
BB/Ba2 0.500% 1.500%
------------------------------- -------------------------------- ----------------------------
------------------------------- -------------------------------- ----------------------------
BB-/Ba3 and lower 0.750% 1.750%
=============================== ================================ ============================
"Assignment and Acceptance" shall have the meaning set forth in Section 13.5(b).
"Bankruptcy Code" shall mean the United States Bankruptcy Code, as amended, and
any successor statute.
"Business Day" shall mean any day other than a day on which commercial banks are
authorized or required to close in Houston, Texas or New York, New York, and
where such term is used in the definition of "Quarterly Date" in this Section
1.1 or if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, or an Interest Period for, a Eurodollar Loan or a
notice by the Company with respect to any such borrowing, payment, prepayment or
Interest Period, a day which is also a day on which dealings in Dollar deposits
are carried out in the relevant interbank market.
"Capital Lease Obligations" shall mean, as to any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP and, for purposes of this Agreement, the amount
of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.
"Certificate of Extension" shall mean a certificate of Company, executed by a
Responsible Officer and delivered to the Administrative Agent, in substantially
the form of Exhibit J, which requests an extension of the then scheduled
Revolving Commitment Termination Date pursuant to Section 2.2.
"Change of Control" shall mean a change resulting when any Unrelated Person or
any Unrelated Persons acting together which would constitute a Group together
with any Affiliates or Related Persons thereof (in each case also constituting
Unrelated Persons) shall at any time either (i) Beneficially Own more than 35%
of the aggregate voting power of all classes of Voting Stock of the Company or
(ii) during any period of two consecutive years ending on or after the Effective
Date, as determined as of the last day of each calendar quarter after the
Effective Date, the individuals (the "Incumbent Directors") who at the beginning
of such period constituted the Board of Directors of the Company (other than
additions thereto or removals therefrom from time to time thereafter approved by
a vote of the Board of Directors in accordance with the Company's by-laws) shall
cease for any reason to constitute 51% or more of the Board of Directors of the
Company. As used herein (a) "Beneficially Own" means "beneficially own" as
defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended, or any
successor provision thereto; provided, however, that, for purposes of this
definition, a Person shall not be deemed to Beneficially Own securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person or
any of such Person's Affiliates until such tendered securities are accepted for
purchase or exchange; (b) "Group" means a "group" for purposes of Section 13(d)
of the Securities Exchange Act of 1934, as amended; (c) "Unrelated Person" means
at any time any Person other than the Company or any Subsidiary and other than
any trust for any employee benefit plan of the Company or any Subsidiary of the
Company; (d) "Related Person" of any Person shall mean any other Person owning
(1) 5% or more of the outstanding common stock of such Person or (2) 5% or more
of the Voting Stock of such Person; and (e) "Voting Stock" of any Person shall
mean capital stock of such Person which ordinarily has voting power for the
election of directors (or persons performing similar functions) of such Person,
whether at all times or only so long as no senior class of securities has such
voting power by reason of any contingency.
"Chapter 1D" shall mean Chapter 1D of Article 5069 of the Texas Credit Title,
Title 79, Vernon's Texas Civil Statutes, as amended (formerly Article 5069-1.04,
Vernon's Texas Civil Statutes, as amended).
"Code" shall mean the Internal Revenue Code of 1986, as amended, or any
successor statute, together with all regulations, rulings and interpretations
thereof or thereunder by the Internal Revenue Service.
"Commitment Percentage" shall mean, as to any Bank, the percentage equivalent of
a fraction the numerator of which is the amount of such Bank's Commitment and
the denominator of which is the aggregate amount of the Commitments of all
Banks.
"Commitment" shall mean, as to any Bank, such Bank's Revolving Commitment or
Term Commitment then in effect, as the case may be.
"Committed Loans" shall mean the Revolving Loans and the Term Loans provided for
in Section 2.1 hereof.
"Competitive Bid" shall mean an offer by a Bank to make a Competitive Loan
pursuant to Section 2.9 hereof.
"Competitive Bid Administrative Questionnaire" shall mean a questionnaire
substantially in the form of Exhibit I hereto.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a Bank
pursuant to Section 2.9 hereof, the fixed rate of interest, in each case,
offered by the Bank making such Competitive Bid.
"Competitive Bid Request" shall have the meaning ascribed to such term in
Section 2.9 hereof.
"Competitive Loans" shall mean loans provided for in Section 2.9 hereof.
"Consolidated Net Worth" means, with respect to the Company and its
Subsidiaries, the sum of preferred stock (if any), par value of common stock,
capital in excess of par value of common stock and retained earnings, less
treasury stock (if any), goodwill, cost in excess of fair value of net assets
acquired and all other assets that are properly classified as intangible assets,
but plus any expenses associated with the Merger occurring prior to December 31,
1999 and not in excess of $30,000,000 in the aggregate, and the amount of
noncash write downs occurring on or after January 1, 1999 of long-lived assets
in compliance with GAAP or SEC guidelines, and excluding any extraordinary or
non-recurring net gains or losses together with any related provision for taxes
on such gain or loss, realized in connection with any extraordinary or
nonrecurring gains or losses, and plus or minus, as appropriate, foreign
currency translation adjustments, all as determined on a consolidated basis.
"Declining Banks" shall have the meaning set forth in Section 2.2(c).
"Default" shall mean an Event of Default or an event which with notice or lapse
of time or both would, unless cured or waived, become an Event of Default.
"Disclosure Statement" shall mean the Disclosure Statement delivered to
Administrative Agent by the Company and attached as Exhibit L hereto.
"Dividend Payment" shall mean, with respect to any Person, dividends (in cash,
property or obligations) on, or other payments or distributions on account of,
or the redemption of, or the setting apart of money for a sinking or other
analogous fund for the purchase, redemption, retirement or other acquisition of,
any shares of any class of capital stock of such Person, or the exchange or
conversion of any shares of any class of capital stock of such Person for or
into any obligations of or shares of any other class of capital stock of such
Person or any other property, but excluding dividends to the extent payable in,
or exchanges or conversions for or into, shares of common stock of the Company
or options or warrants to purchase common stock of the Company.
"Dollars" and "$' shall mean lawful money of the United States of America.
"EBITDAX" shall mean net earnings (excluding material gains and losses on sales
and retirement of assets, non-cash write downs, charges resulting from
accounting convention changes and deductions for exploration expenses) before
deduction for federal and state taxes, interest expense (including capitalized
interest), operating lease rentals or depreciation, depletion and amortization
expense, all determined in accordance with GAAP; provided, however, for the
purpose of any calculation, that (i) for the fiscal quarter ending March 31,
1998, EBITDAX shall be deemed to equal $159,765,000, (ii) for the fiscal quarter
ending June 30, 1998, EBITDAX shall be deemed to equal $142,023,000, (iii) for
the fiscal quarter ending September 30, 1998, EBITDAX shall be deemed to equal
$107,171,000, (iv) for the fiscal quarter ending December 31, 1998, EBITDAX
shall be deemed to equal $122,134,000, and (v) for the fiscal quarter ending
March 31, 1999, EBITDAX shall be deemed to equal $117,296,000.
"Environmental Claim" means any third party (including Governmental Authorities
and employees) action, lawsuit, claim or proceeding (including claims or
proceedings at common law or under the Occupational Safety and Health Act or
similar laws relating to safety of employees) which seeks to impose liability
for (i) noise; (ii) pollution or contamination of the air, surface water, ground
water or land or the clean-up of such pollution or contamination; (iii) solid,
gaseous or liquid waste generation, handling, treatment, storage, disposal or
transportation; (iv) exposure to Hazardous Substances; (v) the safety or health
of employees or (vi) the manufacture, processing, distribution in commerce or
use of Hazardous Substances. An "Environmental Claim" includes, but is not
limited to, a common law action, as well as a proceeding to issue, modify or
terminate an Environmental Permit, or to adopt or amend a regulation to the
extent that such a proceeding attempts to redress violations of an applicable
permit, license, or regulation as alleged by any Governmental Authority.
"Environmental Liabilities" includes all liabilities arising from any
Environmental Claim, Environmental Permit or Requirement of Environmental Law
under any theory of recovery, at law or in equity, and whether based on
negligence, strict liability or otherwise, including but not limited to:
remedial, removal, response, abatement, investigative, monitoring, personal
injury and damage to property or injuries to persons, and any other related
costs, expenses, losses, damages, penalties, fines, liabilities and obligations,
and all costs and expenses necessary to cause the issuance, reissuance or
renewal of any Environmental Permit including reasonable attorneys' fees and
court costs.
"Environmental Permit" means any permit, license, approval or other
authorization under any applicable Legal Requirement relating to pollution or
protection of health or the environment, including laws, regulations or other
requirements relating to emissions, discharges, releases or threatened releases
of pollutants, contaminants or hazardous substances or toxic materials or wastes
into ambient air, surface water, ground water or land, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants or Hazardous Substances.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all rules, regulations and interpretations by the
Internal Revenue Service or the Department of Labor thereunder.
"ERISA Affiliate" shall mean any trade or business (whether or not incorporated)
which is a member of a group of which any Obligor is a member and which is under
common control within the meaning of the regulations under Section 414 of the
Code.
"Eurodollar Base Rate" shall mean, with respect to any Interest Period for any
Eurodollar Loan, the lesser of (A) the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m., London, England time, on the
date that is two (2) Business Days prior to the beginning of the relevant
Interest Period by reference to the British Bankers Association Interest
Settlement Rates for deposits in U.S. dollars (as set forth by the Bloomberg
Information Service or any successor thereto or any other service selected by
the Administrative Agent that has been nominated by the British Bankers
Association as an authorized information vendor for the purpose of displaying
such rates) for a period equal to such Interest Period or (B) the Highest Lawful
Rate; provided that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provisions of this definition, LIBOR shall be the
lesser of (A) the interest rate per annum determined by the Administrative Agent
to be the average of the rates per annum at which deposits in U.S. dollars are
offered for such relevant Interest Period to major banks in the London interbank
market in London, England by the Administrative Agent at approximately
11:00 a.m., London, England time, on the date that is two (2) Business Days
prior to the beginning of such Interest Period or (B) the Highest Lawful Rate.
Each determination of the Eurodollar Base Rate shall be conclusive and binding,
absent manifest error, and may be computed using any reasonable averaging and
attribution method.
"Eurodollar Loans" shall mean Loans the interest on which is determined on the
basis of rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.1.
"Eurodollar Rate" shall mean, for any Interest Period for any Eurodollar Loan, a
rate per annum determined by Administrative Agent to be equal to the Eurodollar
Base Rate for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such term in Section 11.1
hereof.
"Facility Amount" shall mean the aggregate amount of the Commitments (which
amount shall initially be $200,000,000), as such amount may be reduced from time
to time pursuant to the terms of this Agreement.
"Facility Fee Percentage" shall mean, on any date, the applicable per annum
percentage set forth at the appropriate intersection in the table shown below,
based on the Rating as of the close of business on the preceding Business Day:
=================================== =================================
Rating Facility Fee Percentage
----------------------------------- ---------------------------------
----------------------------------- ---------------------------------
BBB-/Baa3 and higher 0.175%
----------------------------------- ---------------------------------
----------------------------------- ---------------------------------
BB+/Ba1 and lower 0.250%
=================================== =================================
"Financial Statements" shall mean the financial statement or statements,
together with the notes and schedules thereto, described or referred to in
Sections 8.6 and 9.1.
"GAAP" shall mean as to a particular Person, such accounting practice as, in the
opinion of KPMG Peat Marwick or other independent accountants of recognized
national standing retained by such Person and acceptable to the Majority Banks,
conforms at the time to generally accepted accounting principles, consistently
applied. Generally accepted accounting principles means those principles and
practices (a) which are recognized as such by the Financial Accounting Standards
Board, (b) which are applied for all periods after the date hereof in a manner
consistent with the manner in which such principles and practices were applied
to the most recent audited financial statements of the relevant Person furnished
to the Banks, except only for such changes in principles and practices with
which the applicable independent public accountants concur and which are
disclosed to the Banks in writing, and (c) which are consistently applied for
all periods after the date hereof so as to reflect properly the financial
condition and results of operations of such Person.
"Governmental Authority" shall mean any sovereign governmental authority, the
United States of America, any State of the United States and any political
subdivision of any of the foregoing, and any central bank, agency,
instrumentality, department, commission, board, bureau, authority, court or
other tribunal or quasi-governmental authority in each case whether executive,
legislative, judicial, regulatory or administrative, having jurisdiction over
the Company, any of its Subsidiaries, any of their respective property,
Administrative Agent or any Bank.
"Granting Bank" shall have the meaning specified in Section 13.5(i).
"Guarantee" by any Person means any obligation, contingent or otherwise, of any
such Person directly or indirectly guaranteeing any Indebtedness of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise, other
than agreements to purchase assets, goods, securities or services at an arm's
length price in the ordinary course of business) or (ii) entered into for the
purpose of assuring in any other manner the holder of such Indebtedness of the
payment thereof or to protect such holder against loss in respect thereof (in
whole or in part), provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" shall mean Ocean Energy, Inc., a Louisiana corporation.
"Guaranty Agreement" shall mean the guaranty agreement substantially in the form
of Exhibit K, with appropriate insertions and deletions, executed or to be
executed by the Guarantor, as such agreement from time to time may be amended,
amended and restated, supplemented or otherwise modified.
"Havre" shall mean Havre Pipeline Company, LLC, a Texas limited liability
company.
"Hazardous Substance" shall mean petroleum products, and any hazardous or toxic
waste or substance defined or regulated as such from time to time by any law,
rule, regulation or order described in the definition of "Requirements of
Environmental Law".
"Highest Lawful Rate" shall mean, on any day, the maximum nonusurious rate of
interest permitted for that day by whichever of applicable federal or Texas law
permits the higher interest rate, stated as a rate per annum. On each day, if
any, that Chapter 1D establishes the Highest Lawful Rate, the Highest Lawful
Rate shall be the "applicable interest rate ceiling" (as defined in Chapter 1D)
for that day.
"Hydrocarbons" shall mean oil, gas, casinghead gas, drip gasoline, natural
gasoline, condensate and all other liquid or gaseous hydrocarbons and related
minerals, in each case whether in a natural or a processed state.
"Indebtedness" shall mean, as to any Person, without duplication: (i)
indebtedness of such Person for borrowed money (whether by loan or the issuance
and sale of debt securities) or for the deferred purchase or acquisition price
of property or services, including, without limitation, obligations payable out
of Hydrocarbon production; (ii) obligations, whether fixed or contingent, of
such Person in respect of letters of credit, acceptances or similar instruments
issued or accepted by banks and other financial institutions for the account of
such Person or any other Person; (iii) Capital Lease Obligations of such Person;
(iv) Redemption Obligations of such Person and other obligations of such Person
to redeem or otherwise retire shares of capital stock of such Person or any
other Person, in each case to the extent that the redemption obligations will
arise prior to the stated maturity of the Obligations; (v) indebtedness of
others of the type described in clause (i), (ii), (iii) or (iv) above secured by
a Lien on the property of such Person, whether or not the respective obligation
so secured has been assumed by such Person, to the extent of the fair market
value of such property; and (vii) indebtedness of others of the type described
in clause (i), (ii), (iii) or (iv) above Guaranteed by such Person, to the
extent of such Guarantee.
"Interest Period" shall mean:
(a) With respect to any Eurodollar Loan, the period commencing on (i) the date
such Loan is made or converted into or continued as a Eurodollar Loan or (ii) in
the case of a roll-over to a successive Interest Period, the last day of the
immediately preceding Interest Period and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Company may select as provided in Section 5.5 hereof, except
that each such Interest Period which commences on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month shall
end on the last Business Day of the appropriate subsequent calendar month.
(b) With respect to any other Competitive Loan, the period commencing on the
date such Loan is made and ending on the date specified in the Competitive Bid
in which the offer to make the Competitive Loan was extended; provided, however,
that each such period shall have a duration of not less than seven calendar days
or more than 180 calendar days.
Notwithstanding the foregoing: (i) each Interest Period which would otherwise
end on a day which is not a Business Day shall end on the next succeeding
Business Day (or, in the case of an Interest Period for Eurodollar Loans, if
such next succeeding Business Day falls in the next succeeding calendar month,
on the next preceding Business Day); (ii) with respect to each Bank, no Interest
Period applicable to any Eurodollar Loan or any Competitive Loan shall extend
beyond the then scheduled Stated Maturity Date applicable to each such Bank, and
(iii) no Interest Period for any Eurodollar Loans shall have a duration of less
than one month and, if the Interest Period therefor would otherwise be a shorter
period, such Loans shall not be available hereunder.
"Investments" shall mean with respect to any Person any advance, loan or other
extension of credit or capital contribution (other than prepaid expenses in the
ordinary course of business) to (by means of transfers of property or assets or
otherwise) purchase or own any stocks, bonds, notes, debentures or other
securities of, or incur contingent liability with respect to (except for the
endorsement of checks in the ordinary course of business and except for the
Indebtedness and Liens permitted under this Agreement), any other Person.
"Legal Requirement" shall mean any law, statute, ordinance, decree, requirement,
order, judgment, rule, regulation (or interpretation of any of the foregoing)
of, and the terms of any license or permit issued by, any Governmental
Authority, now or hereafter in effect.
"Lien" shall mean, with respect to any asset, any mortgage, lien, pledge,
charge, collateral assignment, security interest or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, a Person shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan Documents" shall mean this Agreement, the Guaranty Agreement, all
instruments, certificates and agreements now or hereafter executed or delivered
to Administrative Agent or any Bank pursuant to any of the foregoing, and all
amendments, modifications, renewals, extensions, increases and rearrangements
of, and substitutions for, any of the foregoing.
"Loans" shall mean Committed Loans and Competitive Loans.
"Majority Banks" shall mean (a) prior to the termination of the Commitments,
Banks having greater than 50% of the aggregate amount of the Commitments and (b)
after the termination of the Commitments, Banks having greater than 50% of the
aggregate principal amount of the Loans.
"Margin Regulations" shall mean, as applicable, Regulations U and X of the Board
of Governors of the Federal Reserve System, as from time to time in effect.
"Material Adverse Effect" shall mean a material adverse effect on the business,
condition (financial or otherwise), operations or properties (including proven
oil and gas reserves) of the Company and its Subsidiaries, taken as a whole, or
on the ability of the Company to perform its material obligations under any Loan
Document to which it is a party.
"Merger" shall mean that certain merger among Seagull and Old Ocean Energy
pursuant to that certain Agreement and Plan of Merger, dated November 24, 1998,
as amended by Amendment No. 1 to Agreement and Plan of Merger, dated as of
December 9, 1998, among such parties.
"Net Cash Proceeds" shall mean the cash or cash equivalent proceeds received by
the Company or any Subsidiary as a result of any Public Debt Transaction of
Company or any Subsidiary, in each case after deducting all of the following, as
applicable, (I) all brokerage commissions, legal fees, accounting fees and other
fees, costs and expenses paid, reimbursed or accrued by the Company or any of
its Subsidiaries and allocable to such transaction, and (ii) any reserves
maintained by the Company or any of its Subsidiaries for any indemnity or other
obligations in connection with such transaction.
"95 Indenture" shall mean that certain Indenture among the Company (as successor
by merger to Old Ocean Energy), as issuer, Guarantor (as successor by merger to
UMC), as initial subsidiary guarantor, and U.S. Bank Trust National Association
(formerly known as First Bank of New York, National Association), as trustee,
dated as of October 30, 1995, providing for the issuance of the Company's
$150,000,000 10-3/8% Senior Subordinated Notes due 2005, as amended by (i) the
First Supplemental Indenture thereto dated as of November 4, 1997, (ii) the
Second Supplemental Indenture thereto dated as of March 27, 1998 and (iii) the
Third Supplemental Indenture thereto dated as of March 30, 1999, and all notes
or securities issued under any of the foregoing, any subsidiary guarantees
issued pursuant to the terms of any of the foregoing, and all amendments and
supplements to the foregoing permitted hereunder.
"96 Indenture" shall mean that certain indenture dated as of September 26, 1996"
among the Company (as successor by merger to Old Ocean Energy), as issuer, the
subsidiary guarantor named therein, and State Street Bank and Trust Company, as
trustee, providing for the issuance of the Company's $160,000,000 9-3/4% Senior
Subordinated Notes due 2006, as amended by (i) the First Supplemental Indenture
thereto dated as of March 27, 1998 and (ii) the Second Supplemental Indenture
thereto dated as of March 30, 1999, and all notes or securities issued under any
of the foregoing, any subsidiary guarantees issued pursuant to the terms of any
of the foregoing, and all amendments and supplements to the foregoing permitted
hereunder.
"97 Indenture" shall mean that certain Indenture dated as of July 2, 1997 among
the Company (as successor by merger to Old Ocean Energy), as issuer, the
subsidiary guarantor named therein, and State Street Bank and Trust Company, as
trustee, providing for the issuance of the Company's $200,000,000 8-7/8% Senior
Subordinated Notes due 2007, as amended by (i) the First Supplemental Indenture
thereto dated as of March 27, 1998 and (ii) the Second Supplemental Indenture
thereto dated as of March 30, 1999, and all notes or securities issued under any
of the foregoing, any subsidiary guarantees issued pursuant to the terms of any
of the foregoing, and all amendments and supplements to the foregoing permitted
hereunder.
"98 Senior Subordinated Indenture" shall mean that certain Indenture dated as of
July 8, 1998 among the Company (as successor by merger to Old Ocean Energy), as
issuer, the subsidiary guarantor named therein, U.S. Bank Trust National
Association, as trustee, providing for the issuance of the Company's
$250,000,000 8-3/8% Senior Subordinated Notes due 2008, as amended by the First
Supplemental Indenture thereto dated as of March 30, 1999, and all notes or
securities issued under any of the foregoing, any subsidiary guarantees issued
pursuant to the terms of any of the foregoing, and all amendments and
supplements to the foregoing permitted hereunder.
"Obligations" shall mean, as at any date of determination thereof, the sum of
the following: (i) the aggregate principal amount of Loans outstanding hereunder
plus (ii) all other liabilities, obligations and indebtedness of the Company,
any Subsidiary of the Company or any other Obligor under any Loan Document.
"Obligor" shall mean the Company and the Guarantor.
"Offer to Purchase" shall have the meaning set forth in Section 7.1(j).
"Offer Agreement" shall have the meaning set forth in Section 7.1(j).
"Old Ocean Energy" shall mean Ocean Energy, Inc., a Delaware corporation.
"Organizational Documents" shall mean, with respect to a corporation, the
certificate of incorporation, articles of incorporation and bylaws of such
corporation; with respect to a partnership, the partnership agreement
establishing such partnership; with respect to a joint venture, the joint
venture agreement establishing such joint venture; with respect to a limited
liability company, the certificate of formation and operating agreement (or
comparable documents) of such limited liability company; and with respect to a
trust, the instrument establishing such trust; in each case including any and
all modifications thereof.
"Original Revolving Commitment Termination Date" means November 7, 2000.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" shall mean an individual, a corporation, a company, a bank, a voluntary
association, a partnership, a trust, an unincorporated organization, any
Governmental Authority or any other entity.
"Plan" shall mean an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code and is either (a) maintained by the Company or any ERISA Affiliate for
employees of the Company or any ERISA Affiliate or (b) maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which the Company or any ERISA Affiliate
is then making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
"Post-Default Rate" shall mean, in respect of any principal of any Loan or any
other amount payable by the Company under this Agreement or any other Loan
Document which is not paid when due (whether at stated maturity, by
acceleration, or otherwise), a rate per annum during the period commencing on
the due date until such amount is paid in full equal to the lesser of (a) the
sum of (x) with respect to Eurodollar Loans, 2% per annum plus the applicable
Eurodollar Rate then in effect plus the Applicable Margin for Eurodollar Loans
until the expiration of the applicable Interest Period, (y) with respect to
Competitive Loans, 2% per annum plus the applicable fixed rate offered by the
applicable Bank and accepted by the Company in accordance with Section 2.9
hereof, and (z) with respect to Alternate Base Rate Loans and with respect to
Eurodollar Loans after the expiration of the applicable Interest Period (and
also with respect to indebtedness other than Loans), 2% plus the Alternate Base
Rate as in effect from time to time plus the Applicable Margin for Alternate
Base Rate Loans or (b) the Highest Lawful Rate.
"Principal Office" shall mean the principal office of Administrative Agent,
presently located at 00 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
10010-3629, Attention: Xxxxx Xxxxxxxxx, Phone: (000) 000-0000, Fax: (212)
000-0000.
"Public Debt Transaction" shall have the meaning set forth in Section
2.3(a)(ii).
"Quarterly Dates" shall mean the last day of each March, June, September and
December, provided that, if any such date is not a Business Day, then the
relevant Quarterly Date shall be the next succeeding Business Day.
"Rating" shall mean the senior unsecured debt rating for the Company publicly
announced by Standard & Poor's Ratings Group or Xxxxx'x Investors Service, Inc.,
or their respective successors. In the event the ratings are not equivalent, the
higher rating shall be treated as the "rating" hereunder; provided, that if such
ratings differ by more than one (1) level, the Rating shall be the average,
rounded upwards, of the two ratings. In the event that there is no Rating
published by either Standard & Poor's Ratings Group or Xxxxx'x Investors
Service, Inc. or their respective successors, then the Rating shall be deemed to
be BB-/Ba3.
"Redemption Obligations" shall mean with respect to any Person all mandatory
redemption obligations of such Person with respect to preferred stock or other
equity securities issued by such Person or put rights in favor of the holder of
such preferred stock or other equity securities, to the extent that such
redemption obligations or put rights will arise prior to the stated maturity of
the Obligations. Notwithstanding the foregoing, customary redemption obligations
and put rights associated with a Change of Control or sale of assets shall not
constitute Redemption Obligations.
Reference Banks" shall mean CSFB and such other Banks (up to a maximum of two
(2) additional Banks) as the Company, with the approval of Administrative Agent
(which approval shall not be unreasonably withheld), may from time to time
designate.
"Register" shall have the meaning set forth in Section 13.5(d).
"Regulation D" shall mean Regulation D of the Board of Governors of the Federal
Reserve System as the same may be amended or supplemented from time to time and
any successor or other regulation relating to reserve requirements.
"Regulatory Change" shall mean, with respect to any Bank, any change on or after
the date of this Agreement in Legal Requirements (including Regulation D) or the
adoption or making on or after such date of any interpretation, directive or
request applying to a class of banks including such Bank under any Legal
Requirements (whether or not having the force of law) by any Governmental
Authority.
"Relevant Party" shall mean the Company and each other party to any of the Loan
Documents other than (a) the Banks and (b) the Agents.
"Replacement Banks" shall have the meaning set forth in Section 2.2(c)(ii).
"Request for Extension of Credit" shall mean a request for extension of credit
duly executed by any Responsible Officer of the Company, appropriately completed
and substantially in the form of Exhibit B attached hereto.
"Requirements of Environmental Law" means all requirements imposed by any law
(including for example and without limitation The Resource Conservation and
Recovery Act and The Comprehensive Environmental Response, Compensation, and
Liability Act), rule, regulation, or order of any federal, state or local
executive, legislative, judicial, regulatory or administrative agency, board or
authority in effect at the applicable time which relate to (i) noise; (ii)
pollution, protection or clean-up of the air, surface water, ground water or
land; (iii) solid, gaseous or liquid waste generation, treatment, storage,
disposal or transportation; (iv) exposure to Hazardous Substances; (v) the
safety or health of employees or (vi) regulation of the manufacture, processing,
distribution in commerce, use, discharge or storage of Hazardous Substances.
"Reserve Requirement" shall mean, for any Eurodollar Loan for any Interest
Period therefor, the stated maximum rate for all reserves (including any
marginal, supplemental or emergency reserves) required to be maintained during
such Interest Period under Regulation D by any member bank of the Federal
Reserve System or any Bank against "Eurocurrency liabilities" (as such term is
used in Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect and include any other reserves required to be
maintained by such member banks by reason of any Regulatory Change against (i)
any category of liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined as provided in the definition of "Eurodollar
Base Rate" in this Section 1.1 or (ii) any category of extensions of credit or
other assets which include Eurodollar Loans. Any determination by Administrative
Agent of the Reserve Requirement shall be conclusive and binding, absent
manifest error, and may be made using any reasonable averaging and attribution
method.
"Responsible Officer" shall mean the chairman of the board, the president, any
executive vice president, the vice president of finance and administration, the
chief executive officer or the chief operating officer or any equivalent officer
(regardless of title) and in the case of the Company, any other vice president,
and in respect of financial or accounting matters, shall also include the chief
financial officer, the treasurer and the controller or any equivalent officer
(regardless of title).
"Restricted Subsidiary" shall mean each Subsidiary of the Company that, at the
particular time in question, (i) owns directly or indirectly any material assets
or any interest in any other Restricted Subsidiary and (ii) has been designated
as a Restricted Subsidiary by the Company or has not been designated as an
Unrestricted Subsidiary by the Company either (a) on Exhibit A attached hereto
or (b) in accordance with the terms and provisions of this Agreement. The
Unrestricted Subsidiaries on the Effective Date are listed on Exhibit A attached
hereto and each other Subsidiary of Company as of the Effective Date shall be a
Restricted Subsidiary. A Restricted Subsidiary shall remain such (even if it no
longer owns directly or indirectly any interest in any of the material assets or
any interest in any other Restricted Subsidiary) until designated as an
Unrestricted Subsidiary in accordance with the terms and provisions of this
Agreement.
"Revolving Commitment" shall mean, as to any Bank, the obligation, if any, of
such Bank to make Revolving Loans in an aggregate principal amount at any one
time outstanding up to but not exceeding the amount, if any, set forth opposite
such Bank's name on Exhibit M under the caption "Commitment" (as the same may be
reduced from time to time pursuant to Sections 2.2(c), 2.3 and 6.8(c)).
"Revolving Commitment Termination Date" shall mean the earliest of:
(a) the Original Revolving Commitment Termination Date, or such other later date
as may result from any extension requested by Company and consented to by the
Banks pursuant to Section 2.2;
(b) the date on which all of the Commitments are terminated in full or reduced
to zero pursuant to Section 2.3; and
(c) the date on which the Commitments otherwise are terminated in full and
reduced to zero pursuant to the terms of Section 11.1.
Upon the occurrence of any event described in clause (b) or (c), the Revolving
Commitments shall terminate automatically and without any further action.
"Revolving Credit Agreement" shall mean that certain Revolving Credit Agreement,
dated as of March 30, 1999, by and among the Company, each of the banks which is
or which may from time to time become a signatory thereto, Bank of America
National Trust and Savings Association, as Documentation Agent, Bank One, Texas,
N.A., as Syndication Agent, Societe Generale, Southwest Agency and Bank of
Montreal, as Managing Agents for the Banks, The Chase Manhattan Bank, as Auction
Administrative Agent for the Banks, and Chase Bank of Texas, National
Association, as Administrative Agent, as such agreement from time to time may be
amended, amended and restated, supplemented or otherwise modified.
"Revolving Loans" shall mean the loans provided for in Section 2.1(a) hereof.
"Seagull" shall mean Seagull Energy Corporation, a Texas corporation.
"Senior Debt" shall mean Total Debt, other than Subordinated Indebtedness.
"Senior Leverage Ratio" shall mean the ratio of (a) Senior Debt to (b) EBITDAX
of the Company and its Restricted Subsidiaries on a consolidated basis for the
last four rolling fiscal quarters.
"SPC" shall have the meaning specified in Section 13.5(i).
'Stated Maturity Date" shall mean the date occurring 364 days after the Term
Commitment Termination Date.
"Subordinated Indebtedness" shall mean all unsecured Indebtedness of the Company
which is subordinated in right of payment to the payment in full of all
Obligations.
"Subsidiary" shall mean, with respect to any Person (the "parent"), (a) any
corporation of which at least a majority of the outstanding shares of stock
having by the terms thereof ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by the parent or one or more of the
Subsidiaries of the parent or by the parent and one or more of the Subsidiaries
of the parent, and (b) any partnership, limited partnership, joint venture or
other form of entity, the majority of the legal or beneficial ownership of which
is at the time directly or indirectly owned or controlled by the parent or one
or more of the Subsidiaries of the parent or by the parent and one or more of
the Subsidiaries of the parent.
"Tangible Net Worth" shall mean with respect to any Person the sum of the
redemption price of preferred stock, par value of common stock, capital in
excess of par value of common stock (additional paid-in capital) and retained
earnings, less treasury stock, goodwill, deferred development costs, franchises,
licenses, patents, trademarks and copyrights and all other assets which are
properly classified as intangible assets in accordance with GAAP and any
Redemption Obligations.
"Term Commitment" shall mean, as to any Bank, such Bank's obligation to make
Term Loans pursuant to Section 2.1(b) of this Agreement in an aggregate
principal amount equal to the lesser of (i) the aggregate Revolving Loans
outstanding to all Banks as of the Revolving Commitment Termination Date or (ii)
the Revolving Commitments in effect as of the Revolving Commitment Termination
Date.
"Term Commitment Termination Date" shall mean the earlier of
(a) the Business Day after the Revolving Commitment Termination Date; and
(b) the date on which the Commitments otherwise are terminated in full and
reduced to zero pursuant to the terms of Section 11.1.
Upon the occurrence of any event described in clause (b), the Term Commitments
shall terminate automatically and without any further action.
"Term Loans" shall mean the loans provided for in Section 2.1(b) hereof.
"Total Debt" shall mean all Indebtedness of the Company and its Restricted
Subsidiaries on a consolidated basis, but excluding (i) Indebtedness of the
Company or any Restricted Subsidiary of the types described in Section 10.1,
part (i), clauses (c) through (g), (j), (k) and (l), (ii) fifty percent (50%) of
the amount of (A) obligations in respect of letters of credit or similar
instruments not supporting indebtedness for borrowed money and (B) obligations
in connection with bank guarantees, bonds, surety or similar obligations
required or requested by Governmental Authorities in connection with the usual
and customary operation of and the obtaining of oil and gas properties, and
(iii) Indebtedness of the Company or any Restricted Subsidiary of the types
described in Section 10.1, part (i), clause (h), up to an aggregate amount of
$10,000,000.
"Total Leverage Ratio" shall mean the ratio of (a) Total Debt to (b) EBITDAX of
the Company and its Restricted Subsidiaries on a consolidated basis for the last
four rolling fiscal quarters.
"Type" shall have the meaning assigned to such term in Section 1.3 hereof.
"Unfunded Liabilities" shall mean, with respect to any Plan, at any time, the
amount (if any) by which (a) the present value of all benefits under such Plan
exceeds (b) the fair market value of all Plan assets allocable to such benefits,
all determined as of the then most recent actuarial valuation report for such
Plan, but only to the extent that such excess represents a potential liability
of any ERISA Affiliate to the PBGC or a Plan under Title IV of ERISA.
"United States" or "U.S." shall mean the United States of America, its fifty
states and the District of Columbia.
"Unrestricted Subsidiary" shall mean each Subsidiary of the Company which is
(i) designated as an Unrestricted Subsidiary on Exhibit A attached hereto or
(ii) designated as an Unrestricted Subsidiary by the Company at any time after
the Effective Date and either (A) such Subsidiary has a Tangible Net Worth of
less than $25,000,000 or (B) with the consent of the Administrative Agent and
the Majority Banks. An Unrestricted Subsidiary shall remain such until
designated as a Restricted Subsidiary in accordance with the terms and
provisions of this Agreement.
1.2 Accounting Terms and Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all determinations with
respect to accounting matters hereunder shall be made, and all financial
statements and certificates and reports as to financial matters required to be
delivered hereunder shall be prepared, in accordance with GAAP. To enable the
ready determination of compliance with the provisions hereof, the Company will
not change from December 31 in each year the date on which its fiscal year ends,
nor from March 31, June 30 and September 30 the dates on which the first three
fiscal quarters in each fiscal year end.
1.3 Types of Loans. Loans hereunder are distinguished by "Type". The "Type" of a
Loan refers to the determination whether such Loan is a Eurodollar Loan, a
Competitive Loan or an Alternate Base Rate Loan.
1.4 Miscellaneous. The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. Any reference to
Sections shall refer to Sections of this Agreement.
Section 2. Commitments; Competitive Bid Facility.
2.1 Committed Loans. From time to time on or after the date hereof on the terms
and subject to the conditions of this Agreement, each Bank shall make Committed
Loans described in this Section 2.1.
(a) Revolving Loans. From time to time on or after the date hereof and prior to
the Revolving Commitment Termination Date, each Bank shall make Revolving Loans
under this Section to the Company in an aggregate principal amount at any one
time outstanding up to but not exceeding such Bank's Commitment Percentage of
the amount by which the Facility Amount exceeds the aggregate unpaid principal
balance of all Competitive Loans from time to time outstanding. Subject to the
conditions herein, any such Revolving Loan repaid prior to the Revolving
Commitment Termination Date may be reborrowed pursuant to the terms of this
Agreement.
(b) Term Loans. On the Revolving Commitment Termination Date (unless such date
shall occur as a result of clause (c) of the definition thereof), each Bank will
make one Term Loan to the Company equal to such Bank's Commitment Percentage of
the Term Commitment. No amounts paid or prepaid with respect to the Term Loan
may be reborrowed. Eurodollar Loans and Competitive Loans for which the Interest
Period shall not have terminated as of the Revolving Commitment Termination Date
shall be continued as Eurodollar Loans or Competitive Loans, as the case may be,
for the applicable Interest Period and Alternate Base Rate Loans shall be
continued as Alternate Base Rate Loans after the Revolving Commitment
Termination Date, unless the Company shall have elected otherwise by delivery of
a Request for Extension of Credit. Any principal repayments received on the
Revolving Commitment Termination Date for Revolving Loans not converted into
Term Loans shall be applied first to Alternate Base Rate Loans and, after
Alternate Base Rate Loans have been paid in full, to either Eurodollar Loans and
Competitive Loans, unless the Company shall have otherwise instructed the
Administrative Agent in writing. Upon a Bank making such Term Loan, its Term
Commitment shall terminate and it shall have no further Commitment to make
Loans.
2.2 Extension of Revolving Commitment Termination Date and Revolving
Commitments.
(a) Subject to the other provisions of this Agreement, the Revolving Commitments
shall be effective for an initial period from the date hereof to the Original
Revolving Commitment Termination Date; provided that the Revolving Commitment
Termination Date, and concomitantly the Revolving Commitments, may be extended
for successive 364 day periods expiring on the date which is 364 days from the
then scheduled Revolving Commitment Termination Date. If Company shall request
in a Certificate of Extension delivered to the Administrative Agent not more
than 60 days and not less than 45 days prior to the Revolving Commitment
Termination Date that the Revolving Commitment Termination Date be extended for
364 days from the then scheduled Revolving Credit Termination Date, then the
Administrative Agent shall promptly notify each Bank of such request and each
Bank shall notify the Administrative Agent, no later than 30 days prior to the
Revolving Credit Termination Date, whether such Bank, in the exercise of its
sole discretion, will extend the Revolving Commitment Termination Date for such
364 day period. Any Bank which shall not timely notify the Administrative Agent
whether it will extend the Revolving Commitment Termination Date shall be deemed
to not have agreed to extend the Revolving Commitment Termination Date. No Bank
shall have any obligation whatsoever to agree to extend the Revolving Commitment
Termination Date. Any agreement to extend the Revolving Commitment Termination
Date by any Bank shall be irrevocable, except as provided in clause (c) of this
Section.
(b) If all Banks notify the Administrative Agent pursuant to clause (a) of this
Section of their agreement to extend the Revolving Commitment Termination Date,
then the Administrative Agent shall so notify each Bank and Company, and such
extension shall be effective without other or further action by any party hereto
for such additional 364 day period.
(c) If Banks constituting at least the Majority Banks approve the extension of
the then scheduled Revolving Commitment Termination Date (such Banks agreeing to
extend the Revolving Commitment Termination Date herein called the "Accepting
Banks") and if one or more Banks shall notify, or be deemed to notify, the
Administrative Agent pursuant to clause (a) of this Section that they will not
extend the then scheduled Revolving Commitment Termination Date (such Banks
herein called the "Declining Banks"), then (A) the Administrative Agent shall
promptly so notify Company and the Accepting Banks, (B) the Accepting Banks
shall, upon Company's election to extend the then scheduled Revolving Commitment
Termination Date in accordance with clause (i) or (ii) below, extend the then
scheduled Revolving Commitment Termination Date and (C) Company shall, pursuant
to a notice delivered to the Administrative Agent, the Accepting Banks and the
Declining Banks, no later than the tenth (10th) day following the date by which
each Bank is required, pursuant to clause (a) of this Section, to approve or
disapprove the requested extension of the Revolving Commitment Termination Date,
either:
(i) elect to extend the Revolving Commitment Termination Date with respect to
the Accepting Banks and direct the Declining Banks to terminate their Revolving
Commitments, which termination shall become effective on the date which would
have been the Revolving Commitment Termination Date except for the operation of
this Section. On such date, (x) Company shall deliver a notice of the
effectiveness of the termination of the Revolving Commitments of such Declining
Banks to the Declining Banks with a copy to the Administrative Agent and (y)
Company shall request a Term Loan from such Declining Banks (other than
Declining Banks that are replaced by Replacement Banks pursuant to paragraph
(ii) below) pursuant to the terms of Section 2.1(b) (and each such Declining
Bank shall make such Term Loan), and (z) upon the payment in full in immediately
available funds of all Obligations of Company owing to such Declining Banks in
connection with such Term Loans on the Stated Maturity Date in effect at the
time each such Declining Bank made its election to be a Declining Bank (i.e.,
364 days after the date of such Term Loan), including any amounts required
pursuant to Section 6, the Declining Banks shall each cease to be Banks
hereunder for all purposes, other than for purposes of Sections 6 and 13, and
shall cease to have any obligations or any Commitment hereunder, other than to
the Agents pursuant to Section 12, and the Administrative Agent shall promptly
notify the Accepting Banks and Company of the new Revolving Commitment
Termination Date applicable to such Accepting Banks; or
(ii) elect to extend the Revolving Commitment Termination Date with respect to
the Accepting Banks and, prior to or no later than the then scheduled Revolving
Commitment Termination Date, (A) to replace one or more of the Declining Banks
with another lender or lenders reasonably acceptable to the Administrative Agent
(such lenders herein called the "Replacement Banks") and (B) Company shall pay
in full in immediately available funds all Obligations of Company owing to any
Declining Bank that is not being replaced pursuant to this paragraph (other than
Obligations being purchased by the Replacement Banks); provided that (x) the
Replacement Bank or Replacement Banks shall purchase, and the Declining Bank or
Declining Banks shall sell, the Declining Bank's or Declining Banks' rights and
obligations hereunder without recourse or expense to, or warranty by, such
Declining Bank or Declining Banks being replaced for a purchase price equal to
the aggregate outstanding principal amount of the Obligations payable to such
Declining Bank or Declining Banks plus any accrued but unpaid interest on such
Obligations and accrued but unpaid fees or other amounts owing in respect of
such Declining Bank's or Declining Banks' Loans and Commitments hereunder, and
(y) upon the payment of such amounts referred to in clause (x) and the execution
of an Assignment and Acceptance agreement by the Replacement Bank or Replacement
Banks and the Declining Bank or Declining Banks (which each such Declining Bank
agrees to execute promptly), the Replacement Bank or Replacement Banks shall
each constitute a Bank hereunder and the Declining Bank or Declining Banks being
so replaced shall no longer constitute a Bank (other than for purposes of
Sections 6 and 13), and shall no longer have any obligations hereunder, other
than to the Agents pursuant to Section 12; or
(iii) elect to revoke and cancel the extension request in such Certificate of
Extension by giving notice of such revocation and cancellation to the
Administrative Agent (which shall promptly notify the Banks thereof) no later
than the tenth (10th) day following the date by which each Bank is required,
pursuant to clause (a) of this Section, to approve or disapprove the requested
extension of the Revolving Commitment Termination Date, and concomitantly the
total Revolving Commitments.
If Company fails to timely provide the election notice referred to in this
clause (c), Company shall be deemed to have revoked and canceled the extension
request in the Certificate of Extension and to have elected not to extend the
Revolving Commitment Termination Date.
2.3 Reductions and Changes of Commitments.
(a) Mandatory.
(i) On the Stated Maturity Date, all Commitments shall be terminated in their
entirety unless terminated at an earlier date pursuant to Section 11.1.
(ii) Upon the consummation of any offering of debt securities pursuant to a
registered offering or an exempt offering under Rule 144A ("Public Debt
Transaction") of the Company or any of its Subsidiaries, (i) the Revolving
Commitment or the Term Commitment, as applicable, automatically and permanently
shall be reduced by, and (ii) the Commitment of each Bank automatically and
permanently shall be reduced on a pro-rata basis by, an amount equal to Net Cash
Proceeds in the aggregate for such Public Debt Transaction, and the Company
shall make mandatory prepayments on the Loans on or within ten (10) days after
receipt of such Net Cash Proceeds to the extent necessary so that after giving
effect to such mandatory prepayments the sum of all Loans (including any Loan to
be made but not yet made pursuant to a Request for Extension of Credit)
outstanding at any time would not exceed the total Commitments.
(b) Optional. The Company shall have the right to terminate or reduce the unused
portion of the Commitments at any time or from time to time, provided that: (i)
the Company shall give notice of each such termination or reduction to
Administrative Agent as provided in Section 5.5 hereof and (ii) each such
partial reduction shall be permanent and in an aggregate amount equal to an
integral multiple of $1,000,000 which equals or exceeds $5,000,000.
(c) No Reinstatement. Any reduction in or termination of the Commitments may not
be reinstated without the approval of Administrative Agent and any Bank whose
Commitment (or the applicable part thereof) is to be so reinstated.
2.4 Fees.
(a) The Company shall pay to Administrative Agent for the account of each Bank a
facility fee accruing from the Effective Date, computed for each day at a rate
per annum equal to the Facility Fee Percentage times such Bank's pro rata share
(based on its respective Commitment) of the Facility Amount on such day. Such
facility fees shall be payable on the Quarterly Dates and on the earlier of the
date the Commitments are terminated in their entirety or the Stated Maturity
Date.
(b) The Company agrees to pay to Administrative Agent for the account of each
Bank the fees provided for in the separate letter agreement executed by and
between Administrative Agent and the Company.
2.5 Affiliates; Lending Offices.
(a) Any Bank may, if it so elects, fulfill any obligation to make a Eurodollar
Loan or Competitive Loan by causing a branch, foreign or otherwise, or Affiliate
of such Bank to make such Loan and may transfer and carry such Loan at, to or
for the account of any branch office or Affiliate of such Bank; provided that,
in such event for the purposes of this Agreement such Loan shall be deemed to
have been made by such Bank and the obligation of the Company to repay such Loan
shall nevertheless be to such Bank and shall be deemed to be held by such Bank
and, to the extent of such Loan, to have been made for the account of such
branch or Affiliate.
(b) Notwithstanding any provision of this Agreement to the contrary, each Bank
shall be entitled to fund and maintain its funding of all or any part of its
Loans hereunder in any manner it sees fit, it being understood, however, that
for the purposes of this Agreement all determinations hereunder shall be made as
if such Bank had actually funded and maintained each Eurodollar Loan during each
Interest Period through the purchase of deposits having a maturity corresponding
to such Interest Period and bearing an interest rate equal to the Eurodollar
Rate for such Interest Period.
2.6 Several Obligations. The failure of any Bank to make any Loan to be made by
it on the date specified therefor shall not relieve any other Bank of its
obligation to make its Loan on such date, but neither Administrative Agent nor
any Bank shall be responsible for the failure of any other Bank to make a Loan
to be made by such other Bank.
2.7 Repayment of Loans; Evidence of Debt.
(a) Each Bank shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of Company to such Bank resulting from each
Loan made by such Bank, including the amounts of principal and interest payable
and paid to such Bank from time to time hereunder.
(b) Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder and, if applicable, the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from Company to each Bank hereunder and
(iii) the amount of any sum received by Administrative Agent hereunder for the
account of the Banks and each Bank's share thereof.
(c) The entries made in the accounts maintained pursuant to paragraph (a) or (b)
of this Section shall be prima facie evidence of the existence and amounts of
the obligations recorded therein; provided that the failure of any Bank or
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of any Obligor to repay the Loans or other
Obligations in accordance with the terms of this Agreement or the other Loan
Documents.
(d) Any Bank may request that Loans made by it be evidenced by a promissory
note. In such event, Company shall prepare, execute and deliver to such Bank
promissory notes payable to the order of such Bank (or, if requested by such
Bank, to such Bank and its registered assigns and in a form approved by
Administrative Agent). Thereafter, the Loans evidenced by such promissory notes
and interest thereon may (including after assignment pursuant to Section 13.5)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein.
2.8 Use of Proceeds. The proceeds of the Loans shall be used for general
corporate purposes.
2.9 Competitive Bid Procedure.
(a) In order to request Competitive Bids, the Company shall hand deliver, telex
or telecopy to Auction Administrative Agent a duly completed request
substantially in the form of Exhibit F, with the blanks appropriately completed
(a "Competitive Bid Request"), to be received by Auction Administrative Agent
not later than noon, New York, New York time, five (5) Business Days before the
date specified for a proposed Competitive Loan. No Alternate Base Rate Loan
shall be requested in, or, except pursuant to Section 6, made pursuant to, a
Competitive Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit F may be rejected at Auction
Administrative Agent's sole discretion, and Auction Administrative Agent shall
promptly notify the Company of such rejection by telecopier. Each Competitive
Bid Request shall in each case refer to this Agreement and specify (x) the date
of such Competitive Loans (which shall be a Business Day) and the aggregate
principal amount thereof (which shall not be less than $25,000,000 or greater
than the unused portion of the Facility Amount on such date and shall be an
integral multiple of $5,000,000) and (y) the Interest Period with respect
thereto (which may not end after the termination of the then scheduled Stated
Maturity Date). Promptly after its receipt of a Competitive Bid Request that is
not rejected as aforesaid, Auction Administrative Agent shall invite by
telecopier (in substantially the form set forth in Exhibit G hereto) the Banks
to bid, on the terms and conditions of this Agreement, to make Competitive Loans
pursuant to such Competitive Bid Request. Notwithstanding the foregoing, Auction
Administrative Agent shall have no obligation to invite any Bank to make a
Competitive Bid pursuant to this Section until such Bank has delivered a
properly completed Competitive Bid Administrative Questionnaire to Auction
Administrative Agent.
(b) Each Bank may, in its sole discretion, make one or more Competitive Bids to
the Company responsive to each Competitive Bid Request. Each Competitive Bid by
a Bank must be received by Auction Administrative Agent via telecopier, in the
form of Exhibit H hereto, not later than noon, New York, New York time, four (4)
Business Days before the date specified for a proposed Competitive Loan.
Competitive Bids that do not conform substantially to the format of Exhibit H
may be rejected by Auction Administrative Agent after conferring with, and upon
the instruction of, the Company, and Auction Administrative Agent shall notify
the Bank of such rejection as soon as practicable. Each Competitive Bid shall
refer to this Agreement and (x) specify the principal amount (which shall be in
a minimum principal amount of $5,000,000 and in an integral multiple of
$1,000,000 and which may equal the entire aggregate principal amount of the
Competitive Loan requested by the Company) of the Competitive Loan that the Bank
is willing to make to the Company, (y) specify the Competitive Bid Rate at which
the Bank is prepared to make the Competitive Loan and (z) confirm the Interest
Period with respect thereto specified by the Company in its Competitive Bid
Request. A Competitive Bid submitted by a Bank pursuant to this paragraph (b)
shall be irrevocable.
(c Auction Administrative Agent shall, by 3:00 p.m., New York, New York time,
four (4) Business Days before the date specified for a proposed Competitive
Loan, notify the Company by telecopier of all the Competitive Bids made, the
Competitive Bid Rate and the maximum principal amount of each Competitive Loan
in respect of which a Competitive Bid was made and the identity of the Bank that
made each bid. Auction Administrative Agent shall send a copy of all Competitive
Bids to the Company for its records as soon as practicable after completion of
the bidding process set forth in this Section 2.9.
(d The Company may in its sole and absolute discretion, subject only to the
provisions of this Section 2.9(d), accept or reject any Competitive Bid referred
to in Section 2.9(c); provided, however, that the aggregate amount of the
Competitive Bids so accepted by the Company may not exceed the principal amount
of the Competitive Loan requested by the Company. The Company shall notify
Auction Administrative Agent by telecopier whether and to what extent it has
decided to accept or reject any or all of the bids referred to in Section
2.9(c), not later than noon, New York, New York time, three (3) Business Days
before the date specified for a proposed Competitive Loan; provided, however,
that (w) the failure by the Company to give such notice shall be deemed to be a
rejection of all the bids referred to in Section 2.9(c) and (x) no bid shall be
accepted for a Competitive Loan unless such Competitive Loan is in a minimum
principal amount of $5,000,000 and an integral multiple of $1,000,000.
Notwithstanding the foregoing, if the Company accepts more than one bid made in
response to a Competitive Bid Request and the available principal amount of
Competitive Loans to be allocated among the Banks is not sufficient to enable
Competitive Loans to be allocated to each Bank in a minimum principal amount of
$5,000,000 and in integral multiples of $1,000,000, then the Company shall
select the Banks to be allocated such Competitive Loans and shall round
allocations up or down to the next higher or lower multiple of $1,000,000 as it
shall deem appropriate. In addition, the Company shall be permitted under the
foregoing procedures to accept a bid or bids in a principal amount of less than
$5,000,000 (i) in order to enable the Company to accept bids equal to (but not
in excess of) the principal amount of the Competitive Loan requested by the
Company or (ii) in order to enable the Company to accept all remaining bids, or
all remaining bids at a particular Competitive Bid Rate. A notice given by
Company pursuant to this paragraph (d) shall be irrevocable.
(e Auction Administrative Agent shall promptly notify each bidding Bank whether
or not its Competitive Bid has been accepted (and if so, in what amount and at
what Competitive Bid Rate) by telex or telecopier sent by Auction Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its bid has been accepted. After completing the notifications referred to
in the immediately preceding sentence, Auction Administrative Agent shall (i)
notify Administrative Agent of each Competitive Bid that has been accepted, the
amount thereof and the Competitive Bid Rate therefor and (ii) notify each Bank
of the aggregate principal amount of all Competitive Bids accepted.
(f No Competitive Loan shall be made within five (5) Business Days of the date
of any other Competitive Loan, unless the Company and Auction Administrative
Agent shall mutually agree otherwise.
(g If Administrative Agent shall at any time have a Commitment hereunder and
shall elect to submit a Competitive Bid in its capacity as a Bank, it shall
submit such bid directly to the Company one quarter of an hour earlier than the
latest time at which the other Banks are required to submit their bids to
Auction Administrative Agent pursuant to paragraph (b) above.
(h All notices required by this Section 2.9 shall be made in accordance with
Section 13.2 and the Competitive Bid Administrative Questionnaire most recently
placed on file by each Bank with Auction Administrative Agent.
Section 3. Borrowings, Prepayments and Selection of Interest Rates.
3.1 Borrowings. The Company shall give Administrative Agent notice of each
borrowing to be made hereunder as provided in Sections 2.9 and 5.5 hereof. Not
later than 3:00 p.m. New York, New York time on the date specified for each such
borrowing hereunder, each Bank shall make available the amount of the Loan, if
any, to be made by it on such date to Administrative Agent, at its Principal
Office, in immediately available funds, for the account of the Company. The
amount so received by Administrative Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Company by depositing the
same, in immediately available funds, in an account designated in writing by the
Company.
3.2 Prepayments.
(a Optional Prepayments. Subject to the provisions of Sections 4, 5 and 6, the
Company shall have the right to prepay, on any Business Day, in whole or in
part, without the payment of any penalty or fee, Loans at any time or from time
to time, provided that, the Company shall give Administrative Agent notice of
each such prepayment as provided in Section 5.5 hereof. Neither Eurodollar Loans
nor Competitive Loans may be otherwise prepaid unless prepayment is accompanied
by payment of all compensation required by Section 6.
(b Mandatory Prepayments. Subject to Section 2.3(a)(ii), the Company shall from
time to time on demand by Administrative Agent prepay the Loans in such amounts
as shall be necessary so that at all times the aggregate outstanding principal
amount of all Loans shall not be in excess of the aggregate amount of the
Commitments, as reduced from time to time pursuant to Section 2.3 hereof.
3.3 Selection of Interest Rates. Subject to the terms and provisions of this
Agreement, the Company shall have the right either to convert any Loan (in whole
or in part) into a Loan of another Type (provided that no such conversion of
Eurodollar Loans or Competitive Loans shall be permitted other than on the last
day of an Interest Period applicable thereto) or to continue such Loan (in whole
or in part) as a Loan of the same Type. In the event the Company fails to so
give such notice prior to the end of the applicable Interest Period with respect
to any Eurodollar Loan or Competitive Loan, such Loan shall become an Alternate
Base Rate Loan on the last day of such Interest Period. Notwithstanding any
other provision of this Agreement, if a Default shall have occurred and be
continuing on the last day of an Interest Period applicable to a Eurodollar Loan
or Competitive Loan, such Loan shall automatically be converted to an Alternate
Base Rate Loan.
Section 4. Payments of Principal and Interest.
4.1 Repayment of Loans. The Company hereby unconditionally promises to pay to
Administrative Agent for the account of each Bank (a) each Loan in full at the
end of the Interest Period applicable to such Loan unless such Loan is continued
or converted in accordance with the terms hereof, and (b) the then unpaid
principal amount of all outstanding Loans on the then scheduled Stated Maturity
Date.
4.2 Interest.
(a Subject to Section 13.6 hereof, the Company will pay to Administrative Agent
for the account of each Bank interest on the unpaid principal amount of each
Loan made by such Bank for the period commencing on the date of such Loan to but
excluding the date such Loan shall be paid in full, at the lesser of (I) the
following rates per annum:
(i0 if such Loan is an Alternate Base Rate Loan, the Alternate Base Rate plus
the Applicable Margin,
(ii0 if such Loan is a Eurodollar Loan, the applicable Eurodollar Rate plus the
Applicable Margin, and
(iii0 if such Loan is a Competitive Loan, the applicable fixed rate offered by
the applicable Bank and accepted by the Company in accordance with Section 2.9
hereof,
or (II) the Highest Lawful Rate.
(b Notwithstanding any of the foregoing but subject to Section 13.6 hereof, the
Company will pay to Administrative Agent for the account of each Bank interest
at the applicable Post-Default Rate on any principal of any Loan made by such
Bank and on any other amount payable by the Company hereunder to or for the
account of such Bank (but, if such amount is interest, only to the extent
legally allowed), which shall not be paid in full when due (whether at stated
maturity, by acceleration or otherwise), for the period commencing on the due
date thereof until the same is paid in full.
(c Accrued interest on each Alternate Base Rate Loan shall be payable on each
Quarterly Date. Accrued interest on each Eurodollar Loan or Competitive Bid Loan
shall be payable on the last day of each Interest Period for such Loan (and, if
such Interest Period exceeds three months' duration, on the last day of each
three month period, commencing on the first three month anniversary of such
Interest Period). Notwithstanding the foregoing, (i) accrued interest payable at
the Post-Default Rate shall be due and payable from time to time on demand of
Administrative Agent or the Majority Banks (through Administrative Agent) and
(ii) accrued interest on any amount prepaid or converted pursuant to Section 6
hereof shall be paid on the amount so prepaid or converted.
Section 5. Payments; Pro Rata Treatment; Computations, Etc.
5.1 Payments.
(a Except to the extent otherwise provided herein, all payments of principal,
interest and other amounts to be made by the Company or any other Obligor
hereunder shall be made in Dollars, in immediately available funds, to
Administrative Agent at the Principal Office (or in the case of a successor
Administrative Agent, at the principal office of such successor Administrative
Agent in the United States), not later than noon, New York, New York time on the
date on which such payment shall become due (each such payment made after such
time on such due date to be deemed to have been made on the next succeeding
Business Day).
(b The Company or such other Obligor shall, at the time of making each payment
hereunder, specify to Administrative Agent the Loans or other amounts payable by
the Company or such Obligor hereunder or thereunder to which such payment is to
be applied. Each payment received by Administrative Agent hereunder or any other
Loan Document for the account of a Bank shall be paid promptly to such Bank, in
immediately available funds for the account of such Bank's Applicable Lending
Office.
(c If the due date of any payment hereunder or any other Loan Document falls on
a day which is not a Business Day, the due date for such payment (subject to the
definition of Interest Period) shall be extended to the next succeeding Business
Day and interest shall be payable for any principal so extended for the period
of such extension.
5.2 Pro Rata Treatment. Except to the extent otherwise provided herein: (a) each
borrowing from the Banks under Section 2.1 hereof shall be made ratably from the
Banks on the basis of their respective Commitments and each payment of
commitment or facility fees shall be made for the account of the Banks, and each
termination or reduction of the Commitments of the Banks under Section 2.3
hereof shall be applied, pro rata, according to the Banks' respective
Commitments; and (b) each payment by the Company of principal of or interest on
Loans of a particular Type shall be made to Administrative Agent for the account
of the Banks pro rata in accordance with the respective unpaid principal amounts
of such Loans held by the Banks.
5.3 Computations. Interest on Competitive Loans and interest based on the
Eurodollar Base Rate or the Federal Funds Rate will be computed on the basis of
a year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which such interest is
payable, unless the effect of so computing shall be to cause the rate of
interest to exceed the Highest Lawful Rate, in which case interest shall be
calculated on the basis of the actual number of days elapsed in a year composed
of 365 or 366 days, as the case may be. All other interest and fees shall be
computed on the basis of a year of 365 (or 366) days and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable.
5.4 Minimum and Maximum Amounts. Except for prepayments made pursuant to Section
3.2(b) hereof, and subject to the provisions of Section 2.9 hereof with respect
to Competitive Loans, each borrowing and repayment of principal of Loans, each
termination or reduction of Commitments, each optional prepayment and each
conversion of Type shall be in an aggregate principal amount at least equal to
(a) in the case of Eurodollar Loans and Competitive Loans, $5,000,000, and
(b) in the case of Alternate Base Rate Loans, $1,000,000 (borrowings or
prepayments of Loans of different Types or, in the case of Eurodollar Loans and
Competitive Loans, having different Interest Periods at the same time hereunder
to be deemed separate borrowings and prepayments for purposes of the foregoing,
one for each Type or Interest Period). Upon any mandatory prepayment that would
reduce Eurodollar Loans or Competitive Loans, respectively, having the same
Interest Period to less than $5,000,000 such Loans shall automatically be
converted into Alternate Base Rate Loans on the last day of the applicable
Interest Period. Notwithstanding anything to the contrary contained in this
Agreement, there shall not be, at any one time, more than eight (8) Interest
Periods in effect with respect to Eurodollar Loans or Competitive Loans, in the
aggregate.
5.5 Certain Actions, Notices, Etc. Notices to Administrative Agent of any
termination or reduction of Commitments, of borrowings and prepayments,
conversions and continuations of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by Administrative
Agent not later than noon, New York, New York time on the number of Business
Days prior to the date of the relevant termination, reduction, borrowing and/or
prepayment, conversion or continuance specified below:
================================================ =======================================
Notice Number of Business Days Prior
------------------------------------------------ ---------------------------------------
Termination or Reduction of Commitments 2
------------------------------------------------ ---------------------------------------
Borrowing or prepayment of or conversion into same day
Alternate Base Rate Loans
------------------------------------------------ ---------------------------------------
Borrowing or prepayment of or conversion into 3
or continuance of Eurodollar Loans
================================================ =======================================
Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing or
prepayment shall specify the amount and Type of the Loans to be borrowed or
prepaid (subject to Sections 3.2(a) and 5.4 hereof), the date of borrowing or
prepayment (which shall be a Business Day) and, in the case of Eurodollar Loans,
the duration of the Interest Period therefor (subject to the definition of
"Interest Period"). Each such notice of conversion of a Loan into a Loan of
another Type shall identify such Loan (or portion thereof) being converted and
specify the Type of Loan into which such Loan is being converted (subject to
Section 5.4 hereof) and the date for conversion (which shall be a Business Day)
and, unless such Loan is being converted into an Alternate Base Rate Loan, the
duration (subject to the definition of "Interest Period") of the Interest Period
therefor which is to commence as of the last day of the then current Interest
Period therefor (or the date of conversion, if such Loan is being converted from
an Alternate Base Rate Loan). Each such notice of continuation of a Loan (or
portion thereof) as the same Type of Loan shall identify such Loan (or portion
thereof) being continued (subject to Section 5.4 hereof) and the duration
(subject to the definition of "Interest Period") of the Interest Period therefor
which is to commence as of the last day of the then current Interest Period
therefor. Administrative Agent shall promptly notify the affected Banks of the
contents of each such notice. Notice of any prepayment having been given, the
principal amount specified in such notice, together with interest thereon to the
date of prepayment, shall be due and payable on such prepayment date. Section
2.9 hereof shall control the time periods applicable to Competitive Loans.
5.6 Non-Receipt of Funds by Administrative Agent. Unless Administrative Agent
shall have been notified by a Bank or the Company (the "Payor") prior to the
date on which such Bank is to make payment to Administrative Agent of the
proceeds of a Loan to be made by it hereunder or the Company is to make a
payment to Administrative Agent for the account of one or more of the Banks, as
the case may be (such payment being herein called the "Required Payment"), which
notice shall be effective upon receipt, that the Payor does not intend to make
the Required Payment to Administrative Agent, Administrative Agent may assume
that the Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount thereof available to
the intended recipient on such date and, if the Payor has not in fact made the
Required Payment to Administrative Agent on or before such date, the recipient
of such payment shall, on demand, pay to Administrative Agent the amount made
available to it together with interest thereon in respect of the period
commencing on the date such amount was so made available by Administrative Agent
until the date Administrative Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate for such period.
5.7 Sharing of Payments, Etc. If a Bank shall obtain payment of any principal of
or interest on any Loan made by it under this Agreement, or on any other
obligation then due to such Bank hereunder, through the exercise of any right of
set-off, banker's lien, counterclaim or similar right, or otherwise, it shall
promptly purchase from the other Banks participations in the Loans made, or
other obligations held, by the other Banks in such amounts, and make such other
adjustments from time to time as shall be equitable to the end that all the
Banks shall share the benefit of such payment (net of any expenses which may be
incurred by such Bank in obtaining or preserving such benefit) pro rata in
accordance with the unpaid principal and interest on the Obligations then due to
each of them (provided, however, that the foregoing shall not apply to payments
of Competitive Loans made prior to the termination of the Commitments following
the occurrence of an Event of Default). To such end all the Banks shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. The
Company agrees, to the fullest extent it may effectively do so under applicable
law, that any Bank so purchasing a participation in the Loans made, or other
obligations held, by other Banks may exercise all rights of set-off, bankers'
lien, counterclaim or similar rights with respect to such participation as fully
as if such Bank were a direct holder of Loans and other obligations in the
amount of such participation. Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to exercise, and
retain the benefits of exercising, any such right with respect to any other
Indebtedness or obligation of any Obligor.
Section 6. Yield Protection and Illegality.
6.1 Additional Costs.
(a Subject to Section 13.6, the Company shall pay to Administrative Agent, on
demand for the account of each Bank from time to time such amounts as such Bank
may determine to be necessary to compensate it for any costs incurred by such
Bank which such Bank determines are attributable to its making or maintaining of
any Eurodollar Loan or any Competitive Loan hereunder or its obligation to make
any such Loan hereunder, or any reduction in any amount receivable by such Bank
hereunder in respect of any of such Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), in each case resulting from any Regulatory Change which:
(i0 subjects such Bank (or makes it apparent that such Bank is subject) to any
tax (including without limitation any United States interest equalization tax),
levy, impost, duty, charge or fee (collectively, "Taxes"), or any deduction or
withholding for any Taxes on or from the payment due under any Eurodollar Loan
or any Competitive Loan or other amounts due hereunder, other than income and
franchise taxes of each jurisdiction (or any subdivision thereof) in which such
Bank has an office or its Applicable Lending Office; or
(ii0 changes the basis of taxation of any amounts payable to such Bank under
this Agreement in respect of any of such Loans (other than changes which affect
taxes measured by or imposed on the overall net income or franchise taxes of
such Bank or of its Applicable Lending Office for any of such Loans by each
jurisdiction (or any subdivision thereof) in which such Bank has an office or
such Applicable Lending Office); or
(iii0 imposes or modifies or increases or deems applicable any reserve, special
deposit or similar requirements (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System)
relating to any extensions of credit or other assets of, or any deposits with or
other liabilities of, such Bank or loans made by such Bank, or against any other
funds, obligations or other property owned or held by such Bank (including any
of such Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.1 hereof); provided that such Bank actually incurs such
additional costs.
Each Bank (if so requested by the Company through Administrative Agent) will
designate a different available Applicable Lending Office for the Eurodollar
Loans or the Competitive Loans of such Bank or take such other action as the
Company may request if such designation or action will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole opinion of
such Bank exercised in good faith, be disadvantageous to such Bank (provided
that such Bank shall have no obligation so to designate an Applicable Lending
Office for Eurodollar Loans located in the United States of America). Each Bank
will furnish the Company with a statement setting forth the basis and amount of
each request by such Bank for compensation under this Section 6.1(a); subject to
Section 6.8, such certificate shall be conclusive, absent manifest error, and
may be prepared using any reasonable averaging and attribution methods.
(b Without limiting the effect of the foregoing provisions of this Section 6.1,
in the event that, by reason of any Regulatory Change, any Bank either (i)
incurs Additional Costs based on or measured by the excess above a specified
level of the amount of a category of deposits or other liabilities of such Bank
which includes deposits by reference to which the interest rate on Eurodollar
Loans is determined as provided in this Agreement or a category of extensions of
credit or other assets of such Bank which includes Eurodollar Loans or
Competitive Loans or (ii) becomes subject to restrictions on the amount of such
a category of liabilities or assets which it may hold, then, if such Bank so
elects by notice to the Company (with a copy to Administrative Agent), the
obligation of such Bank to make Eurodollar Loans or Competitive Loans, as the
case may be, hereunder shall be suspended until the date such Regulatory Change
ceases to be in effect (in which case the provisions of Section 6.4 hereof shall
be applicable).
(c Good faith determinations and allocations by any Bank for purposes of this
Section .1 of the effect of any Regulatory Change on its costs of maintaining
its obligations to make Loans or of making or maintaining Loans or on amounts
receivable by it in respect of Loans, and of the additional amounts required to
compensate such Bank in respect of any Additional Costs, shall be conclusive,
absent manifest error.
(d) The Company's obligation to pay Additional Costs and compensation with
regard to each Eurodollar Loan and each Competitive Loan shall survive
termination of this Agreement.
6.2 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, with respect to any Eurodollar Loans:
(a Administrative Agent determines in good faith (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits referred
to in the definition of "Eurodollar Base Rate" in Section 1.1 hereof are not
being provided by the Reference Banks in the relevant amounts or for the
relevant maturities for purposes of determining the rate of interest for such
Loans for Interest Periods therefor as provided in this Agreement; or
(b the Majority Banks determine in good faith (which determination shall be
conclusive) and notify Administrative Agent that the relevant rates of interest
referred to in the definition of "Eurodollar Base Rate" in Section 1.1 hereof
upon the basis of which the rates of interest for such Loans are to be
determined do not accurately reflect the cost to such Banks of making or
maintaining such Loans for Interest Periods therefor; or
(c Administrative Agent determines in good faith (which determination shall be
conclusive) that by reason of circumstances affecting the interbank Dollar
market generally, deposits in United States dollars in the relevant interbank
Dollar market are not being offered for the applicable Interest Period and in an
amount equal to the amount of the Eurodollar Loan requested by the Company;
then Administrative Agent shall promptly notify the Company and each Bank
thereof, and, so long as such condition remains in effect, the Banks shall be
under no obligation to make Eurodollar Loans (but shall maintain until the end
of the Interest Period then in effect the Eurodollar Loans then outstanding).
6.3 Illegality. Notwithstanding any other provision of this Agreement to the
contrary, if (x) by reason of the adoption of any applicable Legal Requirement
or any change in any applicable Legal Requirement or in the interpretation or
administration thereof by any Governmental Authority or compliance by any Bank
with any request or directive (whether or not having the force of law) of any
central bank or other Governmental Authority or (y) circumstances affecting the
relevant interbank Dollar market or the position of a Bank therein shall at any
time make it unlawful or impracticable in the sole discretion of a Bank
exercised in good faith for such Bank or its Applicable Lending Office to (a)
honor its obligation to make Eurodollar Loans or Competitive Loans hereunder, or
(b) maintain Eurodollar Loans or Competitive Loans hereunder, then such Bank
shall promptly notify the Company thereof through Administrative Agent and such
Bank's obligation to make or maintain Eurodollar Loans or Competitive Loans, as
the case may be, hereunder shall be suspended until such time as such Bank may
again make and maintain Eurodollar Loans or Competitive Loans, as the case may
be (in which case the provisions of Sections 6.4 and 6.8 hereof shall be
applicable). Before giving such notice pursuant to this Section 6.3, such Bank
will designate a different available Applicable Lending Office for the
Eurodollar Loans or the Competitive Loans, as the case may be, of such Bank or
take such other action as the Company may request if such designation or action
will avoid the need to suspend such Bank's obligation to make Eurodollar Loans
or Competitive Loans, as the case may be, hereunder and will not, in the sole
opinion of such Bank exercised in good faith, be disadvantageous to such Bank
(provided, that such Bank shall have no obligation so to designate an Applicable
Lending Office for Eurodollar Loans located in the United States of America).
6.4 Substitute Alternate Base Rate Loans. If the obligation of any Bank to make
or maintain Eurodollar Loans or Competitive Loans, as the case may be, shall be
suspended pursuant to Section 6.1, 6.2 or 6.3 hereof, all Loans which would
otherwise be made by such Bank as Eurodollar Loans or Competitive Loans, as the
case may be, shall be made instead as Alternate Base Rate Loans (and, if an
event referred to in Section 6.1(b) or 6.3 hereof has occurred and such Bank so
requests by notice to the Company with a copy to Administrative Agent, each
Eurodollar Loan or each Competitive Loan, as the case may be, of such Bank then
outstanding shall be automatically converted into an Alternate Base Rate Loan on
the date specified by such Bank in such notice) and, to the extent that
Eurodollar Loans or Competitive Loans, as the case may be, are so made as (or
converted into) Alternate Base Rate Loans, all payments of principal which would
otherwise be applied to such Eurodollar Loans or such Competitive Loans, as the
case may be, shall be applied instead to such Alternate Base Rate Loans.
6.5 Compensation. Subject to Section 13.6 hereof, the Company shall pay to
Administrative Agent for the account of each Bank, within four (4) Business Days
after demand therefor by such Bank through Administrative Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Bank) to
compensate it for any loss, cost or expense actually incurred by it (exclusive
of any lost profits or opportunity costs) as a result of:
(a any payment, prepayment or conversion of a Eurodollar Loan or a Competitive
Loan made by such Bank on a date other than the last day of an Interest Period
for such Loan; or
(b any failure by the Company to borrow a Eurodollar Loan or a Competitive Loan
to be made by such Bank on the date for such borrowing specified in the relevant
notice of borrowing under Section 5.5 or Section 2.9 hereof;
such compensation to include, without limitation, any loss or expense actually
incurred (exclusive of any lost profits or opportunity costs) by reason of the
liquidation or reemployment of deposits or other funds acquired by the
applicable Bank to fund or maintain its share of any Loan. Subject to
Section 6.8, each determination of the amount of such compensation by a Bank
shall be conclusive and binding, absent manifest error, and may be computed
using any reasonable averaging and attribution method.
6.6 [Intentionally omitted].
6.7 Capital Adequacy. If any Bank shall have determined that a Regulatory Change
resulting in the adoption after the date hereof or effectiveness after the date
hereof (whether or not previously announced) of any applicable law, rule,
regulation or treaty regarding capital adequacy, or any change therein after the
date hereof, or any change in the interpretation or administration thereof after
the date hereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive after the date hereof regarding capital
adequacy (whether or not having the force of law) of any such Governmental
Authority has or would have the effect of reducing the rate of return on such
Bank's capital as a consequence of such Bank's obligations hereunder and under
the Loans made by it to a level below that which such Bank could have achieved
but for such adoption, change or compliance (taking into consideration such
Bank's policies with respect to capital adequacy) by an amount deemed by such
Bank to be material, then from time to time, upon satisfaction of the conditions
precedent set forth in this Section 6.7, upon demand by such Bank (with a copy
to Administrative Agent), the Company (subject to Section 13.6 hereof) shall pay
to such Bank such additional amount or amounts as will compensate such Bank for
such reduction. A certificate as to such amounts, submitted to the Company and
Administrative Agent by such Bank, setting forth the basis for such Bank's
determination of such amounts, shall constitute a demand therefor and shall be
conclusive and binding for all purposes, absent manifest error. The Company
shall pay the amount shown as due on any such certificate within four (4)
Business Days after delivery of such certificate. Subject to Section 6.8, in
preparing such certificate, a Bank may employ such assumptions and allocations
of costs and expenses as it shall in good xxxxx xxxx reasonable and may use any
reasonable averaging and attribution method.
6.8 Limitation on Additional Charges; Substitute Banks; Non-Discrimination.
Anything in this Section 6 notwithstanding:
(a) the Company shall not be required to pay to any Bank reimbursement with
regard to any costs or expenses, unless such Bank notifies the Company of such
costs or expenses within 90 days after the date paid or incurred;
(b) none of the Banks shall be permitted to pass through to the Company charges
and costs under this Section 6 on a discriminatory basis (i.e., which are not
also passed through by such Bank to other customers of such Bank similarly
situated where such customer is subject to documents providing for such pass
through); and
(c) if any Bank elects to pass through to the Company any material charge or
cost under this Section 6 or elects to terminate the availability of Eurodollar
Loans for any material period of time, the Company may, within 60 days after the
date of such event and so long as no Default shall have occurred and be
continuing, elect to terminate such Bank as a party to this Agreement; provided
that, concurrently with such termination the Company shall (i) if Administrative
Agent and each of the other Banks shall consent, pay that Bank all principal,
interest and fees and other amounts owed to such Bank through such date of
termination or (ii) have arranged for another financial institution approved by
Administrative Agent (such approval not to be unreasonably withheld) as of such
date, to become a substitute Bank for all purposes under this Agreement in the
manner provided in Section 13.5; provided further that, prior to substitution
for any Bank, the Company shall have given written notice to Administrative
Agent of such intention and the Banks shall have the option, but no obligation,
for a period of 60 days after receipt of such notice, to increase their
Commitments in order to replace the affected Bank in lieu of such substitution.
Section 7. Conditions Precedent.
7.1 Initial Loans. The obligation of each Bank to make its initial Loans on or
after the date hereof is subject to the following conditions precedent, each of
which shall have been fulfilled or waived to the satisfaction of the
Administrative Agent:
(a Corporate Action and Status. Administrative Agent shall have received from
the appropriate Governmental Authorities certified copies of the Organizational
Documents (other than bylaws) of the Company and the Guarantor, and evidence
satisfactory to Administrative Agent of all corporate action taken by the
Company and the Guarantor authorizing the execution, delivery and performance of
the Loan Documents and all other documents related to this Agreement to which it
is a party (including, without limitation, a certificate of the secretary of
each such party setting forth the resolutions of its Board of Directors
authorizing the transactions contemplated thereby and attaching a copy of its
bylaws), together with such certificates as may be appropriate to demonstrate
the qualification and good standing of and payment of taxes by the Company and
the Guarantor in Texas and Louisiana, as applicable.
(b Incumbency. The Company, the Guarantor and each other Relevant Party shall
have delivered to Administrative Agent a certificate in respect of the name and
signature of each of the officers (i) who is authorized to sign on its behalf
the applicable Loan Documents related to any Loan and (ii) who will, until
replaced by another officer or officers duly authorized for that purpose, act as
its representative for the purposes of signing documents and giving notices and
other communications in connection with any Loan. Administrative Agent and each
Bank may conclusively rely on such certificates until they receive notice in
writing from the Company, the Guarantor or the appropriate Relevant Party to the
contrary.
(c [Intentionally omitted].
(d Loan Documents. The Company and each other Relevant Party shall have duly
executed and delivered the other Loan Documents to which it is a party (in such
number of copies as Administrative Agent shall have requested) and each such
Loan Document shall be in form satisfactory to the Administrative Agent. Each
such Loan Document shall be in substantially the form furnished to the Banks
prior to their execution of this Agreement, together with such changes therein
as the Administrative Agent may approve.
(e Fees and Expenses. The Company shall have paid to Administrative Agent for
the account of each Bank all accrued and unpaid fees in the amounts previously
agreed upon in writing among the Company and Administrative Agent; and shall
have in addition paid to each Agent all amounts payable under the letter
agreements referred to in Section 2.4(b) hereof and under Section 9.7 hereof on
or before the date of this Agreement.
(f Opinions of Counsel. Administrative Agent shall have received an opinion of
Xxxxxx & Xxxxxx L.L.P., counsel to the Company and the Guarantor, in form and
substance reasonably satisfactory to the Agents.
(g Execution by Banks and Agents. Administrative Agent shall have received
counterparts of this Agreement executed and delivered by or on behalf of each of
the Banks and the Agents or Administrative Agent shall have received evidence
satisfactory to it of the execution and delivery by each of the Banks and Agents
of a counterpart hereof.
(h Consents. Administrative Agent shall have received evidence satisfactory to
it that, except as disclosed in the Disclosure Statement, all material consents
of each Governmental Authority and of each other Person, if any, reasonably
required in connection with (a) the Loans, and (b) the execution, delivery and
performance of this Agreement and the other Loan Documents have been
satisfactorily obtained.
(i Margin Regulations. After giving effect to such Loan, the Company and Banks
shall be in compliance with the Margin Regulations.
(j Consummation of Offer to Purchase. The offer to purchase (the "Offer to
Purchase") shall have been consummated (including the payment for all such notes
tendered thereunder) as contemplated by and pursuant to that certain Offer to
Purchase and Consent Solicitation Statement of Company which offers to purchase
for cash all of the Company's outstanding 10.375% Senior Subordinated Notes due
2005 (CUSIP No. 000000XX0, originally issued by United Meridian Corporation) and
9.75% Senior Subordinated Notes due 2006 (CUSIP No. 00000XXX0, originally issued
by Xxxxxx & Xxxxx, Inc.) (the "Offer Agreement"), and Administrative Agent shall
have received (i) satisfactory evidence of the consummation (at least with
respect to the 10.375% Senior Subordinated Notes due 2005) of such Offer to
Purchase and (ii) a certificate from a Responsible Officer of the Company
certifying that such Offer to Purchase has been consummated (at least with
respect to the 10.375% Senior Subordinated Notes due 2005).
(k Financial Reports; Filings. Administrative Agent shall have received copies
of all financial statements, reports, notices and proxy statements either (A)
requested by the Administrative Agent or any Bank or (B) sent by the Company to
its stockholders.
(l Other Documents. Administrative Agent shall have received such other
documents consistent with the terms of this Agreement and relating to the
transactions contemplated hereby as Administrative Agent may reasonably request.
All provisions and payments required by this Section 7.1 are subject to the
provisions of Section 13.6.
7.2 Initial and Subsequent Loans. The obligation of each Bank to make any Loan
(including, without limitation, its initial Loan) to be made by it hereunder
(excluding conversions of Loans to Alternate Base Rate Loans or Term Loans made
pursuant to Section 2.1(b), in each case as to which no conditions precedent
exist) is subject to the additional conditions precedent that (i)Administrative
Agent shall have received a Request for Extension of Credit and such other
certifications as Administrative Agent may reasonably require, (ii) in the case
of Competitive Loans, the Company shall have complied with the provisions of
Section 2.9 hereof and (iii) as of the date of such Loan, and after giving
effect thereto:
(a no Default shall have occurred and be continuing;
(b except for facts timely disclosed to Administrative Agent from time to time
in writing, which facts (i) are not materially more adverse to the Company and
its Subsidiaries or any other Obligor, (ii) do not materially decrease the
ability of the Banks to collect the Obligations as and when due and payable and
(iii) do not materially increase the liability of any Agent or any of the Banks,
in each case compared to those facts existing on the date hereof and the
material details of which have been set forth in the Financial Statements
delivered to Administrative Agent prior to the date hereof or in the Disclosure
Statement, and except for the representations set forth in the Loan Documents
which, by their terms, are expressly (or by means of similar phrasing) made as
of the Effective Date or as of the date hereof, as the case may be, only, the
representations and warranties made in each Loan Document shall be true and
correct in all material respects on and as of the date of the making of such
Loan, with the same force and effect as if made on and as of such date;
(c) the making of such Loan shall not violate any Legal Requirement applicable
to any Bank; and
(d) no event or condition shall have occurred since December 31, 1998 which
reasonably could be expected to result in a Material Adverse Effect.
Each Request for Extension of Credit by the Company hereunder shall include a
representation and warranty by the Company to the effect set forth in
Subsections 7.2(a) and (b) (both as of the date of such notice and, unless the
Company otherwise notifies Administrative Agent prior to the date of such
borrowing, as of the date of such borrowing).
Section 8. Representations and Warranties. To induce the Banks to enter into
this Agreement and to make the Loans, the Company represents and warrants (such
representations and warranties to survive any investigation and the making of
the Loans) to the Banks and the Agents as follows:
8.1 Corporate Existence. The Company, the Guarantor and each Subsidiary of the
Company are duly organized, legally existing and in good standing under the laws
of the respective jurisdictions in which they are formed, and are duly qualified
in all jurisdictions wherein the property owned or the business transacted by
them makes such qualification necessary and the failure to so qualify could
reasonably be expected to result in a Material Adverse Effect.
8.2 Corporate Power and Authorization. Each of the Company, the Guarantor and
each Subsidiary of the Company is duly authorized and empowered to execute,
deliver, and perform this Agreement and the other Loan Documents to which it is
a party; and all corporate action on the Company's part and on the part of the
Guarantor and each Subsidiary of the Company for the due execution, delivery,
and performance of this Agreement and the other Loan Documents to which each of
the Company, the Guarantor and each such Subsidiary is a party has been duly and
effectively taken.
8.3 Binding Obligations. This Agreement and the other Loan Documents constitute
legal, valid and binding obligations of the Company and its Subsidiaries and the
Guarantor, to the extent each is a party thereto, enforceable against the
Company and its Subsidiaries and the Guarantor, to the extent each is a party
thereto, in accordance with their respective terms, except as may be limited by
any bankruptcy, insolvency, moratorium or other similar laws or judicial
decisions affecting creditors' rights generally and general principles of equity
whether considered at law or in equity.
8.4 No Legal Bar or Resultant Lien. The Company's and each of its Subsidiaries'
and the Guarantor's creation, issuance, execution, delivery and performance of
this Agreement and the other Loan Documents, to the extent they are parties
thereto, do not and will not violate any provisions of the Organizational
Documents of the Company, the Guarantor or any Subsidiary of the Company or any
Legal Requirement to which the Company, the Guarantor or any Subsidiary of the
Company is subject or by which its property may be presently bound or
encumbered, or result in the creation or imposition of any Lien upon any
properties of the Company, the Guarantor or any Subsidiary of the Company, other
than those permitted by this Agreement.
8.5 No Consent. The Company's and each of its Subsidiaries' and the Guarantor's
execution, delivery, and performance of this Agreement and the other Loan
Documents to which they are parties do not and will not require the consent or
approval of any Person other than such consents and/or approvals obtained by the
Company contemporaneously with or prior to the execution of this Agreement,
including, without limitation, any Governmental Authorities, other than those
consents the failure to obtain which could not be reasonably expected to have a
Material Adverse Effect.
8.6 Financial Condition.
(a The audited consolidated annual financial statements of Seagull and its
Subsidiaries for the year ended December 31, 1998, which have been delivered to
the Banks, have been prepared in accordance with GAAP, and present fairly, in
all material respects, the financial condition and results of the operations of
Seagull and its Subsidiaries for the period or periods stated. The audited
consolidated annual financial statements of Old Ocean Energy and its
Subsidiaries for the year ended December 31, 1998, which have been delivered to
the Banks, have been prepared in accordance with GAAP, and present fairly, in
all material respects, the financial condition and results of the operations of
Old Ocean Energy and its Subsidiaries for the period or periods stated. No
Material Adverse Effect has occurred since December 31, 1998, except as
disclosed to the Banks in the Disclosure Statement.
(b The unaudited pro forma consolidated annual financial statements of the
Company and its Subsidiaries for the year ended December 31, 1998, which have
been delivered to the Banks, have been prepared in accordance with GAAP. No
material adverse change, either in any case or in the aggregate, has occurred
since December 31, 1998 in the assets, liabilities, financial condition,
business, operations, affairs or circumstances of the Company and its
Subsidiaries taken as a whole, except as disclosed to the Banks in the
Disclosure Statement.
8.7 Investments and Guaranties. As of the Effective Date, no Subsidiary of the
Company had made Investments in or advances to, and neither the Company nor any
Subsidiary of any of them had made Guarantees of, the obligations of any Person,
except as (a) disclosed to the Banks in the Disclosure Statement or (b) not
prohibited by applicable provisions of Section 10.
8.8 Liabilities and Litigation. Neither the Company nor any Subsidiary of the
Company has any material (individually or in the aggregate) liabilities, direct
or contingent, except as (a) disclosed or referred to in the Financial
Statements, (b) disclosed to the Banks in the Disclosure Statement, (c)
disclosed in a notice to Administrative Agent pursuant to Section 9.10 with
respect to such as could reasonably be expected to have a Material Adverse
Effect or (d) not prohibited by applicable provisions of Section 10. Except as
(a) described in the Financial Statements, (b) otherwise disclosed to the Banks
in the Disclosure Statement, (c) disclosed in a notice to Administrative Agent
pursuant to Section 9.10 with respect to such as could reasonably be expected to
have a Material Adverse Effect or (d) not prohibited by applicable provisions of
Section 10, no litigation, legal, administrative or arbitral proceeding,
investigation, or other action of any nature exists or (to the knowledge of the
Company) is threatened against or affecting the Company or any Subsidiary of the
Company which could reasonably be expected to result in any judgment which could
reasonably be expected to have a Material Adverse Effect, or which in any manner
challenges or may challenge or draw into question the validity of this Agreement
or any other Loan Document, or enjoins or threatens to enjoin or otherwise
restrain any of the transactions contemplated by any of them.
8.9 Taxes and Governmental Charges. The Company and its Subsidiaries have filed,
or obtained extensions with respect to the filing of, all material tax returns
and reports required to be filed and have paid all material taxes, assessments,
fees and other governmental charges levied upon any of them or upon any of their
respective properties or income which are due and payable, including interest
and penalties, or have provided adequate reserves for the payment thereof.
8.10 Title to Properties. The Company and its Subsidiaries and the Guarantor
have good and defensible title to their respective properties (including,
without limitation, all fee and leasehold interests), free and clear of all
Liens except (a) those referred to in the Financial Statements, (b) as disclosed
to the Banks in the Disclosure Statement or (c) as permitted by Section 10.2.
8.11 Defaults. Neither the Company nor any Subsidiary of the Company is in
default, which default could reasonably be expected to have a Material Adverse
Effect, under any indenture, mortgage, deed of trust, agreement or other
instrument to which the Company or any Subsidiary of the Company is a party or
by which the Company or any Subsidiary of the Company or the property of the
Company or any Subsidiary of the Company is bound, except as (a) disclosed to
the Banks in the Disclosure Statement, (b) disclosed in a notice to
Administrative Agent pursuant to Section 9.10 with respect to such as could
reasonably be expected to have a Material Adverse Effect or (c) specifically
permitted by applicable provisions of Section 10. No Default under this
Agreement or any other Loan Document has occurred and is continuing.
8.12 Location of Businesses and Offices. Except to the extent that
Administrative Agent has been furnished written notice to the contrary or of
additional locations, pursuant to Section 9.10, the Company s principal place of
business and chief executive offices are located at the address stated on the
signature page hereof and the principal places of business and chief executive
offices of the Guarantor and each other Subsidiary are described on Exhibit C
hereto.
8.13 Compliance with Law. Neither the Company nor any Subsidiary of the Company
(except as (a) disclosed to the Banks in the Disclosure Statement, (b) disclosed
in a notice to Administrative Agent pursuant to Section 9.10 with respect to
such as could reasonably be expected to have a Material Adverse Effect or (c)
not prohibited by applicable provisions of Section 10):
(a) is in violation of any Legal Requirement; or
(b) has failed to obtain any license, permit, franchise or other governmental
authorization necessary to the ownership of any of their respective properties
or the conduct of their respective business;
which violation or failure could reasonably be expected to have a Material
Adverse Effect.
8.14 Margin Stock. None of the proceeds of the Loans will be used for the
purpose of, and neither the Company, the Guarantor nor any Subsidiary of the
Company is engaged in the business of extending credit for the purpose of (a)
purchasing or carrying any "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System (12 C.F.R. Part 221) or (b)
reducing or retiring any indebtedness which was originally incurred to purchase
or carry margin stock, if such purpose under either (a) or (b) above would
constitute this transaction a "purpose credit" within the meaning of said
Regulation U, or for any other purpose which would constitute this transaction a
"purpose credit". Neither the Company, the Guarantor nor any Subsidiary of the
Company is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying margin
stocks. Neither the Company, the Guarantor nor any Subsidiary of the Company nor
any Person acting on behalf of the Company, the Guarantor or any Subsidiary of
the Company has taken or will take any action which might cause any of the Loan
Documents, including this Agreement, to violate Regulation U or any other
regulation of the Board of Governors of the Federal Reserve System, or to
violate any similar provision of the Securities Exchange Act of 1934 or any rule
or regulation under any such provision thereof.
8.15 Subsidiaries. The Company has no Subsidiaries as of the date of this
Agreement except those shown in Exhibit C hereto.
8.16 ERISA. With respect to each Plan, the Company and each ERISA Affiliate have
fulfilled their obligations, including obligations under the minimum funding
standards of ERISA and the Code, and are in compliance in all material respects
with the provisions of ERISA and the Code. The Company has no knowledge of any
event which could result in a liability of the Company or any ERISA Affiliate to
the PBGC or a Plan (other than to make contributions in the ordinary course).
Since the effective date of Title IV of ERISA, there have not been any nor are
there now existing any events or conditions that would cause the Lien provided
under Section 4068 of ERISA to attach to any property of the Company or any
ERISA Affiliate. There are no Unfunded Liabilities with respect to any Plan. No
"prohibited transaction" has occurred with respect to any Plan.
8.17 Investment Company Act. Neither the Company nor any of its Subsidiaries is
an investment company within the meaning of the Investment Company Act of 1940,
as amended, or, directly or indirectly, controlled by or acting on behalf of any
Person which is an investment company, within the meaning of said Act.
8.18 Public Utility Holding Company Act. Neither the Company nor any of its
Subsidiaries (i) is subject to regulation under the Public Utility Holding
Company Act of 1935, as amended (the "PUHC Act"), except as to Section 9(a)(2)
thereof (15 U.S.C.A. Section 79(i)(a)(2))or(ii)is in violation of any of the
provisions, rules, regulations or orders of or under the PUHC Act. Further, none
of the transactions contemplated under this Agreement, including without
limitation, the making of the Loans, shall cause or constitute a violation of
any of the provisions, rules, regulations or orders of or under the PUHC Act and
the PUHC Act does not in any manner impair the legality, validity or
enforceability of this Agreement.
8.19 Environmental Matters. Except as disclosed in the Disclosure Statement, (i)
the Company and its Subsidiaries have obtained and maintained in effect all
Environmental Permits (or has initiated the necessary steps to transfer the
Environmental Permits into its name), the failure to obtain which could
reasonably be expected to have a Material Adverse Effect, (ii) the Company and
its Subsidiaries and their properties, assets, business and operations have been
and are in compliance with all applicable Requirements of Environmental Law and
Environmental Permits failure to comply with which could reasonably be expected
to have a Material Adverse Effect, (iii) the Company and its Subsidiaries and
their properties, assets, business and operations are not subject to any (A)
Environmental Claims or (B) Environmental Liabilities, in either case direct or
contingent, and whether known or unknown, arising from or based upon any act,
omission, event, condition or circumstance occurring or existing on or prior to
the date hereof which could reasonably be expected to have a Material Adverse
Effect, and (iv) no Responsible Officer of the Company or any of its
Subsidiaries has received any notice of any violation or alleged violation of
any Requirements of Environmental Law or Environmental Permit or any
Environmental Claim in connection with its assets, properties, business or
operations which could reasonably be expected to have a Material Adverse Effect.
The liability (including without limitation any Environmental Liability and any
other damage to persons or property), if any, of the Company and its
Subsidiaries and with respect to their properties, assets, business and
operations which is reasonably expected to arise in connection with Requirements
of Environmental Laws currently in effect and other environmental matters
presently known by a Responsible Officer of the Company will not have a Material
Adverse Effect. No Responsible Officer of the Company knows of any event or
condition with respect to Environmental Matters with respect to any of its
properties or the properties of any of its Subsidiaries which could reasonably
be expected to have a Material Adverse Effect. For purposes of this Section
8.19, "Environmental Matters" shall mean matters relating to pollution or
protection of the environment, including, without limitation, emissions,
discharges, releases or threatened releases of Hazardous Substances into the
environment (including, without limitation, ambient air, surface water or ground
water, or land surface or subsurface), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Substances.
8.20 Claims and Liabilities. Except as disclosed to the Banks in writing,
neither the Company or any of its Subsidiaries nor the Guarantor has accrued any
liabilities under gas purchase contracts for gas not taken, but for which it is
liable to pay if not made up and which, if not paid, would have a Material
Adverse Effect. Except as disclosed to the Banks in writing, no claims exist
against the Company or its Subsidiaries or the Guarantor for gas imbalances
which claims if adversely determined would have a Material Adverse Effect. No
purchaser of product supplied by the Company or any of its Subsidiaries or the
Guarantor has any claim against the Company or any of its Subsidiaries for
product paid for, but for which delivery was not taken as and when paid for,
which claim if adversely determined would have a Material Adverse Effect.
8.21 Solvency. Neither the Company, the Guarantor nor the Company and its
Subsidiaries, on a consolidated basis, is "insolvent", as such term is used and
defined in (i) the Bankruptcy Code and (ii) the Texas Uniform Fraudulent
Transfer Act, Tex. Bus. & Com. Code Xxx. Section 24.001 et seq.
8.22 Year 2000. Any reprogramming required to permit the proper functioning, in
and following the year 2000, of (i) the computer systems of the Company and its
Subsidiaries and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the systems interface of
the Company and its Subsidiaries) and the testing of all such systems and
equipment, as so reprogrammed, has been completed in all material respects. The
cost to the Company and its Subsidiaries of such reprogramming and testing and
of the reasonably foreseeable consequences of year 2000 to the Company and its
Subsidiaries (including, without limitation, reprogramming errors and the
failure of others' systems or equipment) will not result in a Default or a
Material Adverse Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management information
systems of the Company and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient to permit the Company to conduct its business without Material
Adverse Effect.
Section 9. Affirmative Covenants. A deviation from the provisions of this
Section 9 will not constitute a Default under this Agreement if such deviation
is consented to in writing by the Majority Banks. Without the prior written
consent of the Majority Banks, the Company agrees with the Banks and the Agents
that, so long as any of the Commitments is in effect and until payment in full
of all Obligations:
9.1 Financial Statements and Reports. The Company will promptly furnish to any
Bank from time to time upon request such information regarding the business and
affairs and financial condition of the Company and its Subsidiaries and the
Guarantor as such Bank may reasonably request, and will furnish to the Agents
and each of the Banks:
(a) Annual Reports - promptly after becoming available and in any event within
100 days after the close of each fiscal year of the Company:
(i) the audited consolidated balance sheet of the Company and its Subsidiaries
as of the end of such year;
(ii) the audited consolidated statement of earnings of the Company and its
Subsidiaries for such year;
(iii) the audited consolidated statement of cash flows of the Company and its
Subsidiaries for such year;
setting forth in each case in comparative form the corresponding figures for the
preceding fiscal year, and, in the case of the audited Financial Statements,
audited and accompanied by the related opinion of KPMG Peat Marwick or other
independent certified public accountants of recognized national standing
acceptable to the Majority Banks, which opinion shall state that such audited
balance sheets and statements have been prepared in accordance with GAAP
consistently followed throughout the period indicated and fairly present, in all
material respects, the consolidated financial condition and results of
operations of the applicable Persons as at the end of, and for, such fiscal
year; and
(b) Quarterly Reports - as soon as available and in any event within 50 days
after the end of each of the first three quarterly periods in each fiscal year
of the Company:
(i) the unaudited consolidated balance sheet of the Company and its Subsidiaries
as of the end of such quarter;
(ii) the unaudited consolidated statement of earnings of the Company and its
Subsidiaries for such quarter and for the period from the beginning of the
fiscal year to the close of such quarter;
(iii) the unaudited consolidated statement of cash flows of the Company and its
Subsidiaries for such quarter and for the period from the beginning of the
fiscal year to the close of such quarter;
all of items (i) through (iii) above prepared on substantially the same
accounting basis as the annual reports described in Subsection 9.1(a), subject
to normal changes resulting from year-end adjustments; and
(c) [Intentionally omitted]; and
(d) SEC and Other Reports - promptly upon their becoming publicly available, one
copy of each financial statement, report, notice or definitive proxy statement
sent by the Company or any Subsidiary to shareholders generally, and of each
regular or periodic report and any registration statement, prospectus or written
communication (other than transmittal letters) in respect thereof filed by the
Company or any of its Subsidiaries with, or received by the Company or any of
its Subsidiaries in connection therewith from, any securities exchange or the
Securities and Exchange Commission or any successor agency.
All of the balance sheets and other financial statements referred to in this
Section 9.1 will be in such detail as any Bank may reasonably request and will
conform to GAAP applied on a basis consistent with those of the Financial
Statements as of December 31, 1998. In addition, if GAAP shall change with
respect to any matter relative to determination of compliance with this
Agreement, the Company will also provide financial information necessary for the
Banks to determine compliance with this Agreement.
9.2 Officers' Certificates.
(a) Concurrently with the furnishing of the annual financial statements pursuant
to Subsection 9.1(a), commencing with the annual financial statements required
to be delivered in 2000, the Company will furnish or cause to be furnished to
Administrative Agent certificates of compliance, as follows:
(i) a certificate signed by the principal financial officer of the Company in
the form of Exhibit D; and
(ii) a certificate from the independent public accountants stating that their
audit has not disclosed the existence of any condition which constitutes a
Default, or if their audit has disclosed the existence of any such condition,
specifying the nature and period of existence.
(b) Concurrently with the furnishing of the quarterly financial statements
pursuant to Subsection 9.1(b), the Company will furnish to Administrative Agent
a principal financial officer's certificate in the form of Exhibit D.
9.3 Taxes and Other Liens. The Company will and will cause each Subsidiary of
the Company to pay and discharge promptly all taxes, assessments and
governmental charges or levies imposed upon the Company or such Subsidiary, or
upon the income or any property of the Company or such Subsidiary, as well as
all claims of any kind (including claims for labor, materials, supplies, rent
and payment of proceeds attributable to Hydrocarbon production) which, if
unpaid, might result in or become a Lien upon any or all of the property of the
Company or such Subsidiary; provided, however, that neither the Company nor such
Subsidiary will be required to pay any such tax, assessment, charge, levy or
claims if the amount, applicability or validity thereof will currently be
contested in good faith by appropriate proceedings diligently conducted and if
the Company or such Subsidiary will have set up reserves therefor adequate under
GAAP.
9.4 Maintenance. Except as referred to in Sections 8.1 and 8.13 and except as
permitted under Section 10.4 the Company will and will cause each Subsidiary of
the Company to: (i) maintain its corporate existence; (ii) maintain its rights
and franchises, except for any mergers or consolidations otherwise permitted by
this Agreement and except to the extent failure to so maintain the same would
not have a Material Adverse Effect; (iii) observe and comply (to the extent that
any failure would have a Material Adverse Effect) with all valid Legal
Requirements (including without limitation Requirements of Environmental Law);
and (iv) maintain (except to the extent failure to so maintain the same would
not have a Material Adverse Effect) its properties (and any properties leased by
or consigned to it or held under title retention or conditional sales contracts)
consistent with the standards of a reasonably prudent operator at all times and
make all repairs, replacements, additions, betterments and improvements to its
properties consistent with the standards of a reasonably prudent operator.
9.5 Further Assurances. The Company will, and will cause each Subsidiary of the
Company to, cure promptly any defects in the execution and delivery of the Loan
Documents, including this Agreement. The Company at its expense will promptly
execute and deliver to Administrative Agent upon request all such other and
further documents, agreements and instruments (or cause any of its Subsidiaries
to take such action) in compliance with or accomplishment of the covenants and
agreements of the Company or any of its Subsidiaries in the Loan Documents,
including this Agreement, or to correct any omissions in the Loan Documents, or
to make any recordings, to file any notices, or obtain any consents, all as may
be necessary or appropriate in connection therewith.
9.6 Performance of Obligations. The Company will pay the Loans according to the
reading, tenor and effect of this Agreement; and the Company will do and perform
every act and discharge all of the obligations provided to be performed and
discharged by the Company under this Agreement and the other Loan Documents at
the time or times and in the manner specified, and cause each of its
Subsidiaries to take such action with respect to their obligations to be
performed and discharged under the Loan Documents to which they respectively are
parties.
9.7 Reimbursement of Expenses. Whether or not any Loan is ever made, the Company
agrees to pay or reimburse Administrative Agent for paying the reasonable fees
and expenses of Xxxxx, Xxxxx & Xxxxx, special counsel to the Agents, together
with the reasonable fees and expenses of local counsel engaged by the Agents, in
connection with the negotiation of the terms and structure of the Obligations,
the preparation, execution and delivery of this Agreement and the other Loan
Documents and the making of the Loans hereunder, as well as any modification,
supplement or waiver of any of the terms of this Agreement and the other Loan
Documents. The Company will promptly upon request and in any event within 30
days from the date of receipt by the Company of a copy of a xxxx for such
amounts, reimburse any Bank or any Agent for all amounts reasonably expended,
advanced or incurred by such Bank or such Agent to satisfy any obligation of the
Company under this Agreement or any other Loan Document, to protect the
properties or business of the Company or any Subsidiary of the Company, to
collect the Obligations, or to enforce the rights of such Bank or such Agent
under this Agreement or any other Loan Document, which amounts will include
without limitation all court costs, attorneys' fees (but not including allocated
costs of in-house counsel), any engineering fees and expenses, fees of auditors,
accountants and appraisers, investigation expenses, all transfer, stamp,
documentary or similar taxes, assessments or charges levied by any Governmental
Authority in respect of any of the Loan Documents or any other document referred
to therein, all costs, expenses, taxes, assessments and other charges incurred
in connection with any filing, registration, recording or perfection of any Lien
contemplated by any of the Loan Documents or any document referred to therein,
fees and expenses incurred in connection with such Bank's participation as a
member of a creditors' committee in a case commenced under the Bankruptcy Code
or other similar law of the United States or any state thereof, fees and
expenses incurred in connection with lifting the automatic stay prescribed in
Section 362 Title 11 of the United States Code, and fees and expenses incurred
in connection with any action pursuant to Section 1129 Title 11 of the United
States Code and all other customary out-of-pocket expenses incurred by such Bank
or such Agent in connection with such matters, together with interest after the
expiration of the 30-day period stated above in this Section if no Event of
Default has occurred and is continuing, or from the date of the request to the
Company if an Event of Default has occurred and is continuing, at either (i) the
Post-Default Rate on each such amount until the date of reimbursement to such
Bank or such Agent, or (ii) if no Event of Default will have occurred and be
continuing, the Alternate Base Rate plus the highest Applicable Margin for
Alternate Base Rate Loans (not to exceed the Highest Lawful Rate) on each such
amount until the date of the Company's receipt of written demand or request by
such Bank or such Agent for the reimbursement of same, and thereafter at the
applicable Post-Default Rate until the date of reimbursement to such Bank or
such Agent. The obligations of the Company under this Section are compensatory
in nature, shall be deemed liquidated as to amount upon receipt by the Company
of a copy of any invoice therefor, and will survive the non-assumption of this
Agreement in a case commenced under the Bankruptcy Code or other similar law of
the United States or any state thereof, and will remain binding on the Company
and any trustee, receiver, or liquidator of the Company appointed in any such
case.
9.8 Insurance. The Company and its Subsidiaries will maintain, with financially
sound and reputable insurers, insurance with respect to their respective
properties and business against such liabilities, casualties, risks and
contingencies and in such types and amounts as is customary in the case of
corporations engaged in the same or similar businesses and similarly situated.
Upon the request of Administrative Agent acting at the instruction of the
Majority Banks, the Company will furnish or cause to be furnished to
Administrative Agent from time to time a summary of the insurance coverage of
the Company and its Subsidiaries in form and substance satisfactory to the
Majority Banks in their reasonable judgment, and if requested will furnish
Administrative Agent copies of the applicable policies. In the case of any fire,
accident or other casualty causing loss or damage to any properties of the
Company or any of its Subsidiaries, the proceeds of such policies will be used
(i) to repair or replace the damaged property, (ii) to prepay the Obligations,
or (iii) so long as no Default has occurred and is continuing, for general
corporate purposes, at the election of the Company.
9.9 Accounts and Records. The Company will keep and will cause each Subsidiary
of the Company to keep books of record and account which fairly reflect all
dealings or transactions in relation to their respective businesses and
activities, in accordance with GAAP, which books of record and account will be
maintained, to the extent necessary to enable compliance with all provisions of
this Agreement, separately for each such Subsidiary, the Company and any
division of the Company.
9.10 Notice of Certain Events. The Company will promptly notify Administrative
Agent (and Administrative Agent will then notify all of the Banks and other
Agents) if a Responsible Officer of the Company learns of the occurrence of, or
if the Company causes or intends to cause, as the case may be:
(i) any event which constitutes a Default, together with a detailed statement by
a Responsible Officer of the Company of the steps being taken to cure the effect
of such Default; or
(ii) the receipt of any notice from, or the taking of any other action by, the
holder of any promissory note, debenture or other evidence of indebtedness of
the Company or any Subsidiary of the Company or of any security (as defined in
the Securities Act of 1933, as amended) of the Company or any Subsidiary of the
Company with respect to a claimed default, together with a detailed statement by
a Responsible Officer of the Company specifying the notice given or other action
taken by such holder and the nature of the claimed default and what action the
Company or such Subsidiary is taking or proposes to take with respect thereto;
or
(iii) any legal, judicial or regulatory proceedings affecting the Company or any
Subsidiary of the Company or any of the properties of the Company or any
Subsidiary of the Company in which the amount involved is materially adverse to
the Company and its Subsidiaries taken as a whole, and is not covered by
insurance or which, if adversely determined, would have a Material Adverse
Effect; or
(iv) any dispute between the Company or any Subsidiary of the Company and any
Governmental Authority or any other Person which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect; or
(v) the occurrence of a default or event of default by the Company or any
Subsidiary of the Company under any other agreement to which it is a party,
which default or event of default could reasonably be expected to have a
Material Adverse Effect; or
(vi) any change in the accuracy of the representations and warranties of the
Company or any Subsidiary contained in this Agreement or any other Loan
Document; or
(vii) any material violation or alleged material violation of any Requirements
of Environmental Law or Environmental Permit or any Environmental Claim or any
Environmental Liability; or
(viii) any tariff and rate cases and other material reports filed by the Company
or any of its Subsidiaries with any Governmental Authority and any notice to the
Company or any of its Subsidiaries from any Governmental Authority concerning
noncompliance with any applicable Legal Requirement; or
(ix) within 10 days after the date on which a Responsible Officer of the Company
has actual knowledge thereof, the receipt of any notice by the Company or any of
its Subsidiaries of any claim of nonpayment of, or any attempt to collect or
enforce, accounts payable of the Company or any of its Subsidiaries exceeding,
in the case of any one account payable at one time outstanding, $5,000,000 and
in the case of all accounts payable in the aggregate at any one time
outstanding, $10,000,000; or
(x) any requirement for the payment of all or any portion of any Indebtedness of
the Company or any of its Subsidiaries prior to the stated maturity thereof
(whether by acceleration or otherwise) or as the result of any failure to
maintain or the reaching of any threshold amount provided in any promissory
note, bond, debenture, or other evidence of Indebtedness or under any credit
agreement, loan agreement, indenture or similar agreement executed in connection
with any of the foregoing; or
(xi) any notice from the Securities and Exchange Commission with respect to any
Application (as defined in Section 8.18 hereof).
9.11 ERISA Information and Compliance. The Company will promptly furnish to
Administrative Agent (i) immediately upon receipt, a copy of any notice of
complete or partial withdrawal liability under Title IV of ERISA and any notice
from the PBGC under Title IV of ERISA of an intent to terminate or appoint a
trustee to administer any Plan, (ii) if requested by Administrative Agent,
acting on the instruction of the Majority Banks, promptly after the filing
thereof with the United States Secretary of Labor or the PBGC or the Internal
Revenue Service, copies of each annual and other report with respect to each
Plan or any trust created thereunder, (iii) immediately upon becoming aware of
the occurrence of any "reportable event", as such term is defined in Section
4043 of ERISA, for which the disclosure requirements of Regulation
Section 2615.3 promulgated by the PBGC have not been waived, or of any
"prohibited transaction", as such term is defined in Section 4975 of the Code,
in connection with any Plan or any trust created thereunder, a written notice
signed by the President or the principal financial officer of the Company or the
applicable ERISA Affiliate specifying the nature thereof, what action the
Company or the applicable ERISA Affiliate is taking or proposes to take with
respect thereto, and, when known, any action taken by the PBGC, the Internal
Revenue Service or the Department of Labor with respect thereto, (iv) promptly
after the filing or receiving thereof by the Company or any ERISA Affiliate of
any notice of the institution of any proceedings or other actions which may
result in the termination of any Plan, and (v) each request for waiver of the
funding standards or extension of the amortization periods required by Sections
303 and 304 of ERISA or Section 412 of the Code promptly after the request is
submitted by the Company or any ERISA Affiliate to the Secretary of the
Treasury, the Department of Labor or the Internal Revenue Service, as the case
may be. To the extent required under applicable statutory funding requirements,
the Company will fund, or will cause each ERISA Affiliate to fund, all current
service pension liabilities as they are incurred under the provisions of all
Plans from time to time in effect, and comply with all applicable provisions of
ERISA, except to the extent that any such failure to comply could not reasonably
be expected to have a Material Adverse Effect. The Company covenants that it
shall and shall cause each ERISA Affiliate to (1) make contributions to each
Plan in a timely manner and in an amount sufficient to comply with the
contribution obligations under such Plan and the minimum funding standards
requirements of ERISA; (2) prepare and file in a timely manner all notices and
reports required under the terms of ERISA including but not limited to annual
reports; and (3) pay in a timely manner all required PBGC premiums, in each
case, to the extent failure to do so would have a Material Adverse Effect.
Section 10. Negative Covenants. A deviation from the provisions of this
Section 10 will not constitute a Default under this Agreement if such deviation
is consented to in writing by the Majority Banks. The Company agrees with the
Banks and the Agents that, so long as any of the Commitments is in effect and
until payment in full of all Obligations:
10.1 Debts, Guaranties and Other Obligations.
(i) Of Restricted Subsidiaries. The Company will not permit any of its
Restricted Subsidiaries to incur, create, assume or in any manner become or be
liable in respect of any Indebtedness (including obligations for the payment of
rentals); and the Company will not permit any of its Restricted Subsidiaries to
Guarantee or otherwise in any way become or be responsible for obligations of
any other Person, whether by agreement to purchase the Indebtedness of any other
Person or agreement for the furnishing of funds to any other Person through the
purchase or lease of goods, supplies or services (or by way of stock purchase,
capital contribution, advance or loan) for the purpose of paying or discharging
the Indebtedness of any other Person, or otherwise, except that the foregoing
restrictions will not apply to:
(a) Indebtedness pursuant to the Loan Documents;
(b) Indebtedness of any Restricted Subsidiary existing on the date of this
Agreement which is described in the Disclosure Statement, and (A) with respect
to any such Indebtedness which constitutes Senior Debt, any extensions, renewals
or replacements of such Indebtedness upon terms no more onerous to such
Restricted Subsidiary than the terms of this Agreement or the terms of the
instruments evidencing such Senior Debt as of the effective date of this
Agreement, and (B) with respect to any such Indebtedness which constitutes
Subordinated Indebtedness, any extensions, renewals or replacements of such
Indebtedness which (I) remains Subordinated Indebtedness and (II) does not
require principal repayment of such Subordinated Indebtedness prior to the then
scheduled Stated Maturity Date;
(c) endorsements of negotiable or similar instruments for collection or deposit
in the ordinary course of business;
(d) trade payables, lease acquisition and lease maintenance obligations,
extensions of credit from suppliers or contractors, liabilities incurred in
exploration, development and operation of any Restricted Subsidiary's oil and
gas properties or similar obligations from time to time incurred in the ordinary
course of business, other than for borrowed money, which are paid within 90 days
after the invoice date (inclusive of applicable grace periods) or (i) are being
contested in good faith, if such reserve as required by GAAP has been made
therefor or (ii) trade accounts payable of any Restricted Subsidiaries (with
respect to which no legal proceeding to enforce collection has been commenced
or, to the knowledge of any Responsible Officer of the Company, threatened) not
exceeding, in the aggregate at any time outstanding, $50,000,000;
(e) taxes, assessments or other government charges which are not yet due or are
being contested in good faith by appropriate action promptly initiated and
diligently conducted, if such reserve as will be required by GAAP will have been
made therefor;
(f) intercompany Indebtedness owed to the Company by any Restricted Subsidiary
and intercompany Indebtedness owed to any Restricted Subsidiary by any other
Restricted Subsidiary;
(g) any Guarantee existing on the date of this Agreement of payment or
performance by any Person under any agreement so long as the obligation
guaranteed does not constitute Indebtedness for borrowed money;
(h) obligations of any Restricted Subsidiary under oil or gas purchase contracts
for oil or gas not taken, as to which such Restricted Subsidiary is liable to
pay if not made up;
(i) obligations of any Restricted Subsidiary under any contract for sale for
future delivery of oil or gas (whether or not the subject oil or gas is to be
delivered) or other similar agreement;
(j) obligations of any Restricted Subsidiary under any hedging contract, forward
contract, swap agreement, futures contract or other similar agreement;
(k) obligations of any Restricted Subsidiary under any interest rate or currency
swap agreement, or any contract implementing any interest rate or currency cap,
collar or floor, or any similar interest rate or currency hedging contract;
(l) obligations in connection with gas imbalances arising in the ordinary course
of business;
(m) Guarantees of obligations of Havre by Guarantor in an amount not exceeding
$20,000,000 in the aggregate in connection with Indebtedness of Havre;
(n) liabilities under capital leases and lease agreements which do not cover oil
and gas properties to the extent (i) the incurrence and existence of such
liabilities will still enable each Restricted Subsidiary to comply with all
requirements of this Agreement and (ii) not exceeding, in the aggregate at any
time outstanding, $35,000,000;
(o) until such time as the Guaranty Agreement is no longer in effect, any
Guarantee by Guarantor of the payment or performance of the Company with respect
to Indebtedness of Company permitted by Section 10.1(iii);
(p) obligations in connection with bank guarantees, bonds, surety or similar
obligations required or requested by Governmental Authorities in connection with
the usual and customary operation of and the obtaining of oil and gas
properties; and
(q) in addition to Indebtedness permitted by clauses (a) through (p) above,
Indebtedness of any Restricted Subsidiary in an aggregate principal amount not
exceeding $10,000,000 at any time outstanding.
(ii) Of Unrestricted Subsidiaries. The Company will not permit any of its
Unrestricted Subsidiaries to (a) incur, create, assume or in any manner become
or be liable in respect of any Indebtedness (including obligations for the
payment of rentals), or (b) Guarantee or otherwise in any way become or be
responsible for obligations of any other Person, whether by agreement to
purchase the Indebtedness of any other Person or agreement for the furnishing of
funds to any other Person through the purchase or lease of goods, supplies or
services (or by way of stock purchase, capital contribution, advance or loan)
for the purpose of paying or discharging the Indebtedness of any other Person,
or otherwise, except that the foregoing restrictions will not apply to any
Indebtedness not exceeding $200,000,000 in the aggregate for all Unrestricted
Subsidiaries.
(iii) Of the Company. The Company may incur Indebtedness for borrowed money only
if such Indebtedness is at prevailing market rates of interest and contains
covenants, conditions and events of default not materially more onerous to the
Company than the covenants, conditions and event of default set forth in one or
more of the various indentures and other debt instruments of the Company in
existence on the Effective Date.
10.2 Liens. The Company will not and will not permit any of its Restricted
Subsidiaries to create, incur, assume or permit to exist any Lien on any of its
or their properties (now owned or hereafter acquired), except:
(a) Liens securing (i) the Loans or other obligations under the Loan Documents,
and (ii) the obligations under any debt facility permitted pursuant to
Section 10.1(iii) of this Agreement which by its terms requires that such debt
facility be secured on a ratable basis with other Senior Debt upon the
incurrence of Liens generally, provided that such Liens (A) are for the equal
and ratable benefit of the Agents and the Banks under each of this Agreement and
such debt facilities and (B) cover the same collateral,
(b) Liens for taxes, assessments or other governmental charges or levies not yet
due or which are being contested in good faith by appropriate action promptly
initiated and diligently conducted, if such reserve as will be required by GAAP
will have been made therefor;
(c) Liens of landlords, vendors, contractors, subcontractors, carriers,
warehousemen, mechanics, laborers or materialmen or other like Liens arising by
law or contract in the ordinary course of business for sums not yet due or being
contested in good faith by appropriate action promptly initiated and diligently
conducted, if such reserve as will be required by GAAP will have been made
therefor;
(d) Liens existing on property owned by the Company or any of its Restricted
Subsidiaries on the date of this Agreement which have been disclosed to the
Banks in the Disclosure Statement, together with any renewals, extensions,
amendments, refinancings, rearrangements, modifications, restatements or
supplements, but not increases, thereof from time to time;
(e) pledges or deposits made in the ordinary course of business in connection
with worker's compensation, unemployment insurance, social security and other
like laws;
(f) inchoate liens arising under ERISA to secure the contingent liability of the
Company permitted by Section 9.11;
(g) Liens in the ordinary course of business, not to exceed in the aggregate
$25,000,000 as to the Company and its Restricted Subsidiaries at any time in
effect, regarding (i) the performance of bids, tenders, contracts (other than
for the repayment of borrowed money or the deferred purchase price of property
or services) or leases, (ii) statutory obligations, (iii) surety appeal bonds or
(iv) Liens to secure progress or partial payments made to the Company or any of
its Restricted Subsidiaries and other Liens of like nature;
(h) covenants, restrictions, easements, servitudes, permits, conditions,
exceptions, reservations, minor rights, minor encumbrances, minor irregularities
in title or conventional rights of reassignment prior to abandonment which do
not materially interfere with the occupation, use and enjoyment by the Company
or any Restricted Subsidiary of its respective assets in the normal course of
business as presently conducted, or materially impair the value thereof for the
purpose of such business;
(i) Liens of operators under joint operating agreements or similar contractual
arrangements with respect to the relevant entity's proportionate share of the
expense of exploration, development and operation of oil, gas and mineral
leasehold or fee interests owned jointly with others, to the extent that same
relate to sums not yet due or which are being contested in good faith by
appropriate action promptly initiated and diligently conducted, if such reserve
as will be required by GAAP will have been made therefor;
(j) Liens created pursuant to the creation of trusts or other arrangements
funded solely with cash, cash equivalents or other marketable investments or
securities of the type customarily subject to such arrangements in customary
financial practice with respect to long-term or medium-term indebtedness for
borrowed money, the sole purpose of which is to make provision for the
retirement or defeasance, without prepayment, of Indebtedness permitted under
Section 10.1;
(k) [Intentionally omitted];
(l) Liens securing purchase money Indebtedness or Capital Lease Obligations
incurred in compliance with Section 10.1 of this Agreement;
(m) Liens on the capital stock or other equity interest of any Unrestricted
Subsidiary securing obligations of such Unrestricted Subsidiary;
(n) any Lien existing on any real or personal property of any Person at the time
it becomes a Restricted Subsidiary, or existing prior to the time of acquisition
upon any real or personal property acquired by the Company or any of its
Restricted Subsidiaries;
(o) legal or equitable encumbrances deemed to exist by reason of the existence
of any litigation or other legal proceeding or arising out of a judgment or
award with respect to which an appeal is being prosecuted in good faith by
appropriate action promptly initiated and diligently conducted, if such reserve
as will be required by GAAP will have been made therefor;
(p) any Liens securing Indebtedness neither assumed nor guaranteed by the
Company or any of its Restricted Subsidiaries nor on which it customarily pays
interest, existing upon real estate or rights in or relating to real estate
acquired by the Company or any of its Restricted Subsidiaries for substation,
metering station, pump station, storage, gathering line, transmission line,
transportation line, distribution line or right-of-way purposes, and any Liens
reserved in leases for rent and full compliance with the terms of the leases in
the case of leasehold estates, to the extent that any such Lien referred to in
this clause arises in the normal course of business as presently conducted and
does not materially impair the use of the property covered by such Lien for the
purposes for which such property is held by the Company or its applicable
Restricted Subsidiary;
(q) rights reserved to or vested in any municipality or governmental, statutory
or public authority by the terms of any right, power, franchise, grant, license
or permit, or by any provision of law, to terminate such right, power,
franchise, grant, license or permit or to purchase, condemn, expropriate or
recapture or to designate a purchaser of any of the property of the Company or
any of its Restricted Subsidiaries;
(r) rights reserved to or vested in any municipality or governmental, statutory
or public authority to control or regulate any property of the Company or any of
its Restricted Subsidiaries, or to use such property in a manner which does not
materially impair the use of such property for the purposes for which it is held
by the Company or its applicable Restricted Subsidiary;
(s) any obligations or duties affecting the property of the Company or any of
its Restricted Subsidiaries to any municipality, governmental, statutory or
public authority with respect to any franchise, grant, license or permit;
(t) rights of a common owner of any interest in real estate, rights-of-way or
easements held by the Company or any of its Restricted Subsidiaries and such
common owner as tenants in common or through other common ownership;
(u) as to assets located in Canada, reservations, limitations, provisos and
conditions in any original grant from the Crown or freehold lessor of any of the
properties of the Company or its Subsidiaries;
(v) other Liens securing Indebtedness not exceeding, in the aggregate,
$10,000,000 at any one time outstanding;
(w) Liens covering cash collateral accounts relating to obligations pursuant to
Letters of Credit issued in connection with the Revolving Credit Agreement;
(x) Liens securing Indebtedness of the Company or any Restricted Subsidiary of
the types described in Section 10.1(i)(p) covering the oil and gas properties to
which such Indebtedness relates, provided that the aggregate amount of all such
Indebtedness so secured under this Section 10.2(x) shall not exceed $50,000,000
in the aggregate at any one time outstanding; and
(y) Liens (i) granted to or existing in favor of third parties on margin
accounts of the Company or any of its Restricted Subsidiaries relating to
exchange traded contracts for the delivery of natural gas pursuant to which the
Company or any such Restricted Subsidiary intends to take actual delivery of
such natural gas within forty (40) days from the then current date in the
ordinary course of business and not for speculative purposes, and (ii) on margin
accounts of the Company or any of its Restricted Subsidiaries relating to
exchange traded contracts for the delivery of natural gas, provided, however,
the aggregate balance of the margin accounts subject to the Liens permitted by
this clause (ii) shall not exceed from time to time $10,000,000.
10.3 Dividend Payment Restrictions. The Company will not declare or make any
Dividend Payment if any Default or Event of Default has occurred and is
continuing or would result therefrom.
10.4 Mergers and Sales of Assets. The Company will not (a) merge or consolidate
with, or sell, assign, lease or otherwise dispose of, whether in one transaction
or in a series of transactions, more than (i) ten percent (10%) in the aggregate
of the Company's and its Restricted Subsidiaries' consolidated total assets
(whether now owned or hereafter acquired) to any Person or Persons during any
twelve month period occurring after the date hereof or (ii) twenty-five percent
(25%) in the aggregate of the Company's and its Restricted Subsidiaries'
consolidated total assets as of the date hereof to any Person or Persons prior
to the Stated Maturity Date, or permit any Restricted Subsidiary to do so (other
than to the Company or another Restricted Subsidiary or the issuance by any
Restricted Subsidiary of any stock to the Company or another Restricted
Subsidiary), or (b) sell, assign, lease or otherwise dispose of, whether in one
transaction or in a series of transactions, any other properties if receiving
therefor consideration other than cash or other consideration readily
convertible to cash or which is less than the fair market value of the relevant
properties, or permit any Restricted Subsidiary to do so; provided that the
Company or any Restricted Subsidiary may merge or consolidate with any other
Person and any Restricted Subsidiary may transfer properties to any other
Restricted Subsidiary or to the Company so long as, in each case, (i)
immediately thereafter and giving effect thereto, no event will occur and be
continuing which constitutes a Default, (ii) in the case of any such merger or
consolidation to which the Company is a party, the Company is the surviving
Person, (iii) in the case of any such merger or consolidation to which any
Restricted Subsidiary is a party (but not the Company), after giving effect to
all transactions closing concurrently relating to such merger or consolidation,
the surviving Person is a Restricted Subsidiary and (iv) the surviving Person
ratifies each applicable Loan Document and provided further that any Restricted
Subsidiary may merge or consolidate with any other Restricted Subsidiary so long
as, in each case (i) immediately thereafter and giving effect thereto, no event
will occur and be continuing which constitutes a Default and (ii) the surviving
Person ratifies each applicable Loan Document.
10.5 Proceeds of Loans. The Company will not permit the proceeds of the Loans to
be used for any purpose other than those permitted by this Agreement.
10.6 ERISA Compliance. The Company will not at any time permit any Plan
maintained by it or any Restricted Subsidiary to:
(a) engage in any "prohibited transaction" as such term is defined in Section
4975 of the Code;
(b) incur any "accumulated funding deficiency" as such term is defined in
Section 302 of ERISA; or
(c) terminate or be terminated in a manner which could result in the imposition
of a Lien on the property of the Company or any Restricted Subsidiary pursuant
to Section 4068 of ERISA,
in each case, to the extent that permitting the Plan to do so would have a
Material Adverse Effect.
10.7 Total Leverage Ratio. The Company will not permit its Total Leverage Ratio
to be (i) at any time through March 31, 2001, more than 4.25 to 1.00, (ii) at
any time from April 1, 2001 through March 31, 2002, more than 4.00 to 1.00,
(iii) at any time on or after April 1, 2002, more than 3.75 to 1.00.
10.8 Senior Leverage Ratio. The Company will not permit its Senior Leverage
Ratio to be at any time more than 3.00 to 1.00.
10.9 Minimum Net Worth. The Company will not permit its Consolidated Net Worth
as of the end of any fiscal quarter to be less than (i)$770,000,000 plus
(ii) an amount equal to 50% of the sum of the Company's and its Restricted
Subsidiaries' consolidated net income for each calendar quarter, beginning with
the calendar quarter ending March 31, 1999, during which such consolidated net
income is greater than $0 plus (iii) an amount equal to 50% of the net cash
proceeds received by the Company and its Restricted Subsidiaries from the
issuance of any common stock, preferred stock or other equity for each calendar
quarter, beginning with the calendar quarter ending March 31, 1999.
10.10 Nature of Business. The Company will not engage in, and will not permit
any Restricted Subsidiary to engage in, businesses other than oil and gas
exploration and production, gas processing, transmission, distribution,
marketing and storage and gas and liquids pipeline operations and activities
related or ancillary thereto; provided, that if the Company acquires one or more
Restricted Subsidiaries in transactions otherwise permitted by the terms hereof,
any such Restricted Subsidiary may be engaged in businesses other than those
listed in this Section so long as the assets of such Restricted Subsidiaries
which are used in the conduct of such other businesses do not constitute more
than five percent (5%) of the consolidated total assets of the Company
(inclusive of the assets of the Restricted Subsidiary so acquired).
10.11 Covenants in Other Agreements. The Company will not and will not permit
any of its Restricted Subsidiaries to become a party to or to agree that it or
any of its property is bound by any agreement, indenture, mortgage, deed of
trust or any other instrument directly or indirectly (i) restricting any loans,
advances or any other Investments to or in the Company by any of its Restricted
Subsidiaries, (ii) restricting the ability of any Restricted Subsidiary to make
tax payments or management fee payments to the Company, or (iii) restricting the
ability or capacity of any Restricted Subsidiary to make Dividend Payments to
the Company, except for (a) instruments in existence on the date hereof and (b)
instruments entered into after the date hereof containing restrictions not
materially more restrictive than the restrictions permitted under clause (a)
above.
Section 11. Defaults.
11.1 Events of Default. If one or more of the following events (herein called
"Events of Default") shall occur and be continuing:
(a) Payments - (i) the Company or any other Relevant Party fails to make any
payment or prepayment of any installment of principal on the Loans payable under
this Agreement or the other Loan Documents when due or (ii) the Company or any
other Relevant Party fails to make any payment or prepayment of interest with
respect to the Loans or any other fee, amount or Obligation under this Agreement
or the other Loan Documents and such failure to pay continues unremedied for a
period of five (5) Business Days; or
(b) Representations and Warranties - any representation or warranty made by the
Company or any other Relevant Party in this Agreement or in any other Loan
Document or in any instrument executed in connection herewith or therewith
proves to have been incorrect in any material respect as of the date thereof; or
any representation, statement (including Financial Statements), certificate or
data furnished or made by the Company or any other Relevant Party (or any
officer of the Company or any other Relevant Party) under or in connection with
this Agreement or any other Loan Document, including without limitation in the
Disclosure Statement, proves to have been untrue in any material respect, as of
the date as of which the facts therein set forth were stated or certified; or
(c) Affirmative Covenants - (i) default shall be made in the due observance or
performance of any of the covenants or agreements contained in Sections 9.10 (or
in Section 9.6 to the extent such default is considered an Event of Default
under the other Subsections of this Section 11.1) or (ii) default is made in the
due observance or performance of any of the other covenants or agreements
contained in Section 9 of this Agreement or any other affirmative covenant of
the Company or any other Relevant Party contained in this Agreement or any other
Loan Document and such default continues unremedied for a period of 30 days
after (x) notice thereof is given by Administrative Agent to the Company or (y)
such default otherwise becomes known to the Company, whichever is earlier; or
(d) Negative Covenants - default is made in the due observance or performance by
the Company of any of the covenants or agreements contained in Section 10 of
this Agreement or of any other negative covenant of the Company or any other
Relevant Party contained in this Agreement or any other Loan Document; or
(e) Other Obligations - default is made in the due observance or performance by
the Company or any of its Restricted Subsidiaries (as principal or guarantor or
other surety) of any of the covenants or agreements contained in any bond,
debenture, note or other evidence of Indebtedness in excess of $25,000,000
(singly or aggregating several such bonds, debentures, notes or other evidence
of Indebtedness) which default gives the holder the right to accelerate the
maturity of such Indebtedness, other than the Loan Documents, or under any
credit agreement, loan agreement, indenture, promissory note or similar
agreement or instrument executed in connection with any of the foregoing, to
which it (respectively) is a party and such default is unwaived or continues
unremedied beyond the expiration of any applicable grace period which may be
expressly allowed under such instrument or agreement; or
(f) Involuntary Bankruptcy or Receivership Proceedings - a receiver,
conservator, liquidator or trustee of the Company, the Guarantor, any Restricted
Subsidiary or of any of their property is appointed by the order or decree of
any court or agency or supervisory authority having jurisdiction, and such
decree or order remains in effect for more than 60 days; or the Company, the
Guarantor or any Restricted Subsidiary is adjudicated bankrupt or insolvent; or
any of its property is sequestered by court order and such order remains in
effect for more than 60 days; or a petition is filed against the Company, the
Guarantor or any Restricted Subsidiary under any state or federal bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution,
liquidation or receivership law of any jurisdiction, whether now or hereafter in
effect, and is not dismissed within 60 days after such filing; or
(g) Voluntary Petitions or Consents - the Company, the Guarantor or any
Restricted Subsidiary commences a voluntary case or other proceeding seeking
liquidation, reorganization, arrangement, insolvency, readjustment of debt,
dissolution, liquidation or other relief with respect to itself or its debt or
other liabilities under any bankruptcy, insolvency or other similar law nor or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or consents to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or fails generally to, or cannot, pay its debts generally
as they become due or takes any corporate action to authorize or effect any of
the foregoing; or
(h) Assignments for Benefit of Creditors or Admissions of Insolvency - the
Company, the Guarantor or any Restricted Subsidiary makes an assignment for the
benefit of its creditors, or admits in writing its inability to pay its debts
generally as they become due, or consents to the appointment of a receiver,
trustee, or liquidator of the Company, the Guarantor, any Restricted Subsidiary
or of all or any part of their property; or
(i) Undischarged Judgments - judgments (individually or in the aggregate) for
the payment of money in excess of $10,000,000 in excess of insurance coverage
are rendered by any court or other governmental body against the Company or any
of its Restricted Subsidiaries or the Guarantor and the Company or such
Restricted Subsidiary or the Guarantor does not discharge the same or provide
for its discharge in accordance with its terms, or procure a stay of execution
thereof within 60 days from the date of entry thereof, and within said period of
60 days from the date of entry thereof or such longer period during which
execution of such judgment will have been stayed, the Company, such Restricted
Subsidiary or the Guarantor fails to appeal therefrom and cause the execution
thereof to be stayed during such appeal while providing such reserves therefor
as may be required under GAAP; or
(j) Subsidiary Defaults - the Guarantor or any Restricted Subsidiary of the
Company takes, suffers, or permits to exist any of the events or conditions
referred to in Subsections 11.1(f), (g) or (h); or
(k) Change in Control - there should occur any Change of Control.
THEREUPON: Administrative Agent may (and, if directed by the Majority Banks,
shall) (a) declare the Commitments terminated (whereupon the Commitments shall
be terminated) and/or (b) declare the principal amount then outstanding of and
the accrued interest on the Loans and all fees and all other Obligations to be
forthwith due and payable, whereupon such amounts shall be and become
immediately due and payable, without notice (including without limitation notice
of acceleration and notice of intent to accelerate), presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by the Company; provided that in the case of the occurrence of an Event
of Default with respect to the Company referred to in clause (f) or (g) of this
Section 11.1 or in clause (j) of this Section 11.1 to the extent it refers to
clauses (f) or (g), the Commitments shall be automatically terminated and the
principal amount then outstanding of and the accrued interest on the Loans and
all fees and all other Obligations payable hereunder shall be and become
automatically and immediately due and payable, without notice (including but not
limited to notice of intent to accelerate and notice of acceleration) and
without presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Company and/or (d) exercise any and all
other rights available to it under the Loan Documents, at law or in equity.
11.2 [Intentionally omitted].
11.3 [Intentionally omitted].
11.4 Right of Setoff. Upon (i) the occurrence and during the continuance of any
Event of Default referred to in clauses (f), (g) or (h) of Section 11.1, or in
clause (j) of Section 11.1 to the extent it refers to clauses (f), (g) or (h),
or upon (ii) the occurrence and continuance of any other Event of Default and
upon the making of the notice specified in Section 11.1 to authorize
Administrative Agent to declare the Loans due and payable pursuant to the
provisions of this Agreement, or if (iii) the Company or any of its Subsidiaries
becomes insolvent, however evidenced, the Banks are hereby authorized at any
time and from time to time, without notice to the Company or any of its
Subsidiaries (any such notice being expressly waived by the Company and its
Subsidiaries), to setoff and apply any and all deposits (general or special,
time or demand, provisional or final, whether or not such setoff results in any
loss of interest or other penalty, and including without limitation all
certificates of deposit) at any time held, and any other funds or property at
any time held, and other Indebtedness at any time owing by any Bank to or for
the credit or the account of the Company against any and all of the Obligations
irrespective of whether or not such Bank will have made any demand under this
Agreement and although such obligations may be unmatured. Should the right of
any Bank to realize funds in any manner set forth hereinabove be challenged and
any application of such funds be reversed, whether by court order or otherwise,
the Banks shall make restitution or refund to the Company pro rata in accordance
with their Commitments. The Banks agree promptly to notify the Company and
Administrative Agent after any such setoff and application, provided that the
failure to give such notice will not affect the validity of such setoff and
application. The rights of the Agents and the Banks under this Section are in
addition to other rights and remedies (including without limitation other rights
of setoff) which the Agents or the Banks may have.
Section 12. Agents.
12.1 Appointment, Powers and Immunities. Each Bank hereby irrevocably appoints
and authorizes each Agent to act as its agent hereunder and under the other Loan
Documents with such powers as are specifically delegated to such Agent by the
terms hereof and thereof, together with such other powers as are reasonably
incidental thereto. Each Agent (which term as used in this Section 12 shall
include reference to its Affiliates and its own and their Affiliates' officers,
directors, employees and agents) shall not (a) have any duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, or shall by reason of this Agreement or any other Loan
Document be a trustee or fiduciary for any Bank; (b) be responsible to any Bank
for any recitals, statements, representations or warranties contained in this
Agreement or any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this Agreement
or any other Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or any other document referred to or provided for herein or therein or
any property covered thereby or for any failure by any Relevant Party or any
other Person to perform any of its obligations hereunder or thereunder; (c) be
required to initiate or conduct any litigation or collection proceedings
hereunder or any other Loan Document except to the extent such Agent is so
requested by the Majority Banks, or (d) be responsible for any action taken or
omitted to be taken by it hereunder or any other Loan Document or any other
document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, INCLUDING, WITHOUT LIMITATION, PURSUANT TO
THEIR OWN NEGLIGENCE, except for its own gross negligence or willful misconduct.
Each Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. In any foreclosure proceeding concerning
any collateral for the Loans, each holder of a Loan if bidding for its own
account or for its own account and the accounts of other Banks is prohibited
from including in the amount of its bid an amount to be applied as a credit
against Obligations owing to such Bank or the Obligations owing to the other
Banks; instead, such holder must bid in cash only; provided that this provision
is for the sole benefit of the Agents and the Banks and shall not inure to the
benefit of the Company or any of its Subsidiaries. However, in any such
foreclosure proceeding, Administrative Agent may (but shall not be obligated to)
submit a bid for all Banks (including itself) in the form of a credit against
the Obligations of all of the Banks, and Administrative Agent or its designee
may (but shall not be obligated to) accept title to such collateral for and on
behalf of all Banks.
12.2 Reliance by Agents. Each Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel (which may be counsel for the
Company), independent accountants and other experts selected by such Agent. As
to any matters not expressly provided for by this Agreement or any other Loan
Document, each Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and thereunder in accordance with instructions
of the Majority Banks (or, where unanimous consent is required by the terms
hereof or of the other Loan Documents, all of the Banks), and any action taken
or failure to act pursuant thereto shall be binding on all of the Banks.
Pursuant to instructions of the Majority Banks (except as otherwise provided in
Section 13.4 hereof), Administrative Agent shall have the authority to execute
releases of security documents on behalf of the Banks without the joinder of any
Bank. The Company and any third-party may conclusively rely upon any such
release delivered by Administrative Agent without investigation as to whether
such release has been approved by the Majority Banks.
12.3 Defaults. Administrative Agent shall not be deemed to have knowledge of the
occurrence of a Default (other than the non-payment of principal of or interest
on Loans) unless it has received notice from a Bank or the Company specifying
such Default and stating that such notice is a "Notice of Default". In the event
that Administrative Agent receives such a notice of the occurrence of a Default,
Administrative Agent shall give prompt notice thereof to the Banks (and shall
give each Bank prompt notice of each such non-payment). Administrative Agent
shall (subject to Section 12.7 hereof) take such action with respect to such
Default as shall be directed by the Majority Banks and within its rights under
the Loan Documents and at law or in equity, provided that, unless and until
Administrative Agent shall have received such directions, Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, permitted hereby with respect to such Default as it shall deem
advisable in the best interests of the Banks and within its rights under the
Loan Documents, at law or in equity.
12.4 Rights as a Bank. With respect to its Commitments and the Loans made, CSFB,
Chase and Bank of America, respectively, each in its capacity as a Bank
hereunder, shall have the same rights and powers hereunder as any other Bank and
may exercise the same as though it were not acting as an Agent and the term
"Bank" or "Banks" shall, unless the context otherwise indicates, include CSFB,
Chase and Bank of America, respectively, each in its individual capacity.
Administrative Agent may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust,
letter of credit, agency or other business with the Company (and any of its
Affiliates) as if it were not acting as Administrative Agent, and Administrative
Agent may accept fees and other consideration from the Company and its
Affiliates (in addition to the fees heretofore agreed to between the Company and
Administrative Agent) for services in connection with this Agreement or
otherwise without having to account for the same to the Banks.
12.5 Indemnification. The Banks agree to indemnify each Agent (to the extent not
reimbursed under Section 9.7 or Section 13.3 hereof, but without limiting the
obligations of the Company under said Sections 9.7 and 13.3), ratably in
accordance with their respective Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever (INCLUDING, BUT NOT
LIMITED TO, THE CONSEQUENCES OF THE NEGLIGENCE OF SUCH AGENT) which may be
imposed on, incurred by or asserted against such Agent in any way relating to or
arising out of this Agreement or any other Loan Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and
expenses which the Company is obligated to pay under Sections 9.7 and 13.3
hereof but excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of their
respective agency duties hereunder) or the enforcement of any of the terms
hereof or 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 party to be indemnified. The obligations
of the Banks under this Section 12.5 shall survive the termination of this
Agreement and the repayment of the Obligations.
12.6 Non-Reliance on Agents and Other Banks. Each Bank agrees that it has
received current financial information with respect to the Company and its
Subsidiaries and that it has, independently and without reliance on any Agent or
any other Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Company and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon any Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under this Agreement
or any of the other Loan Documents. Each Agent shall not be required to keep
itself informed as to the performance or observance by any Relevant Party of
this Agreement or any of the other Loan Documents or any other document referred
to or provided for herein or therein or to inspect the properties or books of
the Company or any Relevant Party. Except for notices, reports and other
documents and information expressly required to be furnished to the Banks by
Administrative Agent hereunder, under the other Loan Documents, the Agents shall
not have any duty or responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or business of the
Company or any other Relevant Party (or any of their Affiliates) which may come
into the possession of such Agent.
12.7 Failure to Act. Except for action expressly required of Administrative
Agent hereunder and under the other Loan Documents, Administrative Agent shall
in all cases be fully justified in failing or refusing to act hereunder and
thereunder unless it shall receive further assurances to its satisfaction by the
Banks of their indemnification obligations under Section 12.5 hereof against any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
12.8 Resignation or Removal of Administrative Agent. Subject to the appointment
and acceptance of a successor Administrative Agent as provided below,
Administrative Agent may resign at any time by giving notice thereof to the
Banks and the Company, and Administrative Agent may be removed at any time with
or without cause by the Majority Banks. Upon any such resignation or removal,
the Majority Banks shall have the right to appoint a successor Administrative
Agent (subject to the consent of the Company, which consent shall not be
unreasonably withheld), provided deposits with a successor Administrative Agent
shall be insured by the Federal Deposit Insurance Corporation or its successor.
If no successor Administrative Agent shall have been so appointed by the
Majority Banks and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Majority
Banks' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent (subject to the consent of the Company, which consent shall
not be unreasonably withheld). Any successor Administrative Agent shall be a
bank which has an office in the United States and a combined capital and surplus
of at least $1,000,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. A successor Administrative Agent shall promptly
specify by notice to the Company and the Banks its Principal Office referred to
in Sections 3.1 and 5.1. After any retiring Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of this Section 12
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as an Administrative Agent.
Section 13. Miscellaneous.
13.1 Waiver. No waiver of any Default shall be a waiver of any other Default. No
failure on the part of any Agent or any Bank to exercise and no delay in
exercising, and no course of dealing with respect to, any right, power or
privilege under any Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege thereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided in the Loan Documents are
cumulative and not exclusive of any remedies provided by law or in equity.
13.2 Notices. All notices and other communications provided for herein
(including, without limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made by telex, telegraph, telecopy
(confirmed by mail), cable, mail or other writing and telexed, telecopied,
telegraphed, cabled, mailed or delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof;
or, as to any party, at such other address as shall be designated by such party
in a notice to the Company and Administrative Agent given in accordance with
this Section 13.2. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly received when transmitted by
telex or telecopier during regular business hours, delivered to the telegraph or
cable office or personally delivered or, in the case of a mailed notice, three
(3) days after deposit in the United States mails, postage prepaid, certified
mail with return receipt requested (or upon actual receipt, if earlier), in each
case given or addressed as aforesaid.
13.3 Indemnification. The Company shall indemnify the Agents, the Banks, and
each Affiliate thereof and their respective directors, officers, employees and
agents from, and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become subject
(REGARDLESS OF WHETHER CAUSED IN WHOLE OR IN PART BY THE SIMPLE (BUT NOT GROSS)
NEGLIGENCE OF THE PERSON INDEMNIFIED), insofar as such losses, liabilities,
claims or damages arise out of or result from any (i) actual or proposed use by
the Company of the proceeds of any extension of credit by any Bank hereunder,
(ii) breach by the Company of this Agreement or any other Loan Document,
(iii) violation by the Company or any of its Subsidiaries of any Legal
Requirement, including but not limited to those relating to Hazardous
Substances, (iv) Liens or security interests previously or hereafter granted on
any real or personal property, to the extent resulting from any Hazardous
Substance located in, on or under any such property, (v) ownership by the Banks
or the Agents of any real or personal property following foreclosure, to the
extent such losses, liabilities, claims or damages arise out of or result from
any Hazardous Substance located in, on or under such property, including,
without limitation, losses, liabilities, claims or damages which are imposed
upon Persons under laws relating to or regulating Hazardous Substances solely by
virtue of ownership, (vi) Bank's or Agent's being deemed an operator of any such
real or personal property by a court or other regulatory or administrative
agency or tribunal in circumstances in which neither any of the Agents nor any
of the Banks is generally operating or generally exercising control over such
property, to the extent such losses, liabilities, claims or damages arise out of
or result from any Hazardous Substance located in, on or under such property,
(vii) investigation, litigation or other proceeding (including any threatened
investigation or proceeding) relating to any of the foregoing, and the Company
shall reimburse each Agent, each Bank, and each Affiliate thereof and their
respective directors, officers, employees and agents, upon demand, for any
expenses (including legal fees) incurred in connection with any such
investigation or proceeding or (viii) taxes (excluding income taxes and
franchise taxes) payable or ruled payable by any Governmental Authority in
respect of any Loan Document, together with interest and penalties, if any;
provided, however, that the Company shall not have any obligations pursuant to
this Section 13.3 with respect to any losses, liabilities, claims, damages or
expenses (a) arising from or relating solely to events, conditions or
circumstances which, as to clauses (iv), (v) or (vi) above, first came into
existence or which first occurred after the date on which the Company or any of
its Subsidiaries conveyed to an unrelated third party all of the Company's or
the applicable Subsidiary's rights, titles and interests to the applicable real
or personal property (whether by deed, deed-in-lieu, foreclosure or otherwise)
other than a conveyance made in violation of any Loan Document, (b) incurred by
the Person seeking indemnification by reason of the gross negligence or willful
misconduct of such Person, or (c) asserted by one or more indemnified parties or
stockholders thereof against one or more indemnified parties. If the Company
ever disputes a good faith claim for indemnification under this Section 13.3 on
the basis of the proviso set forth in the preceding sentence, the full amount of
indemnification provided for shall nonetheless be paid, subject to later
adjustment or reimbursement at such time (if any) as a court of competent
jurisdiction enters a final judgment as to the applicability of any such
exceptions or an agreement is reached with respect thereto.
13.4 Amendments, Etc. No amendment or waiver of any provision of this Agreement
or any other Loan Document, nor any consent to any departure by the Company or
any Obligor therefrom, shall in any event be effective unless the same shall be
agreed or consented to by the Majority Banks and the Company, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment, waiver or consent
shall, unless in writing and signed by each Bank affected thereby, do any of the
following: (a) increase the Commitment of such Bank (it being understood that
the waiver of any reduction in the Commitments or any mandatory repayment other
than (x) the repayment of all Loans on the Stated Maturity Date and (y) the
mandatory reductions of the Commitments provided for in Section 2.3(a) and (z)
the mandatory prepayments required by the terms of Section 3.2(b), shall not be
deemed to be an increase in any Commitment) or subject the Banks to any
additional obligation; (b) reduce the principal of, or interest on, any Loan or
fee hereunder; (c) postpone any scheduled date fixed for any payment or
mandatory prepayment of principal of, or interest on, any Loan, fee or other sum
to be paid hereunder; (d) change the percentage of any of the Commitments or of
the aggregate unpaid principal amount of any of the Loans, or the number of
Banks, which shall be required for the Banks or any of them to take any action
under this Agreement; (e) change any provision contained in Sections 9.7 or 13.3
hereof or this Section 13.4 or Section 6.7 hereof, or (f) release all or
substantially all of any security for the obligations of the Company under this
Agreement or all or substantially all of the personal liability of any obligor
created under any of the Loan Documents. Anything in this Section 13.4 to the
contrary, no amendment, waiver or consent shall be made with respect to Section
12 without the consent of Administrative Agent.
13.5 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company, the Agents and the Banks and their respective successors and assigns.
The Company may not assign or transfer any of its rights or obligations
hereunder without the prior written consent of all of the Banks. Each Bank may
sell participations to any Person in all or part of any Loan, or all or part of
its Commitments, in which event, without limiting the foregoing, the provisions
of Section 6 shall inure to the benefit of each purchaser of a participation and
the pro rata treatment of payments, as described in Section 5.2, shall be
determined as if such Bank had not sold such participation. In the event any
Bank shall sell any participation, such Bank shall retain the sole right and
responsibility to enforce the obligations of the Company relating to the Loans,
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement or any other Loan Document other
than amendments, modifications or waivers with respect to (i) any fees payable
hereunder to the Banks and (ii) the amount of principal or the rate of interest
payable on, or the dates fixed for the scheduled repayment of principal of, the
Loans.
(b) Each Bank may assign to one or more Banks or any other Person all or a
portion of its interests, rights and obligations under this Agreement, provided,
however, that (i) other than in the case of an assignment to another Bank that
is, at the time of such assignment, a party hereto or an Affiliate of such Bank,
the Company must give its prior written consent, which consent will not be
unreasonably withheld, (ii) the aggregate amount of the Commitment and/or Loans
of the assigning Bank subject to each such assignment (determined as of the date
the Assignment and Acceptance (as defined below) with respect to such assignment
is delivered to Administrative Agent) shall in no event be less than $10,000,000
(or $5,000,000 in the case of an assignment to an Affiliate of a Bank or between
Banks) unless either (A) if Bank's Commitment is less than $10,000,000 or
$5,000,000, as applicable, such amount is equal to all of such Bank's Commitment
under this Agreement or (B) each of the Company and the Administrative Agent
otherwise consents, (iii) notwithstanding any other term or provision of this
Agreement, unless the Company shall have otherwise consented in writing (such
consent not to be unreasonably withheld), each such assignment shall be pro rata
with respect to the Loans and the Commitment of the assignor, and (iv) the
parties to each such assignment shall execute and deliver to Administrative
Agent, for its acceptance and recording in the Register (as defined below), an
Assignment and Acceptance in the form of Exhibit E hereto (each an "Assignment
and Acceptance") with blanks appropriately completed, together with any note or
notes subject to such assignment and a processing and recordation fee of $2,500
paid by the assignee (for which the Company shall have no liability). Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder
and (B) the Bank thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement.
(c) 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 the representation and
warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, such Bank assignor 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 any of the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any of the other Loan Documents or any other instrument or document furnished
pursuant thereto; (ii) such Bank assignor makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Company and its Subsidiaries or the performance or observance by the Company and
its Subsidiaries of any of its obligations under this Agreement or any of the
other Loan Documents or any other 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
Sections 8.6 and 9.1 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 upon any Agent, such Bank assignor 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; (v) such assignee appoints and
authorizes each Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to such Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all obligations that by the terms of this Agreement
and the other Loan Documents are required to be performed by it as a Bank.
(d) Administrative Agent shall maintain at its office a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Banks and the Commitments of, and principal amount of the
Loans owing to, each Bank from time to time (the "Register"). The entries in the
Register shall be conclusive, in the absence of manifest error, and the Company,
the Agents and the Banks may treat each Person the name of which is recorded in
the Register as a Bank hereunder for all purposes of this Agreement and the
other Loan Documents. The Register shall be available for inspection by the
Company or any Bank at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning
Bank and the assignee thereunder together with any note or notes subject to such
assignment, the written consent to such assignment executed by the Company and
the fee payable in respect thereto, Administrative Agent shall, if such
Assignment and Acceptance has been completed with blanks appropriately filled,
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Company. If
applicable, within five (5) Business Days after receipt of notice, the Company,
at its own expense, shall execute and deliver to Administrative Agent in
exchange for the surrendered notes new notes to the order of such assignee in an
amount equal to the Commitments and/or Loans assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Bank has retained Commitments
and/or Loans hereunder, new notes to the order of the assigning Bank in an
amount equal to the Commitment and/or Loans retained by it hereunder. Such new
notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
the respective note. Thereafter, such surrendered notes, if any, shall be marked
renewed and substituted and the originals delivered to the Company (with copies,
certified by the Company as true, correct and complete, to be retained by
Administrative Agent).
(f) Any Bank may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 13.5, disclose to the
assignee or participant or proposed assignee or participant, any information
relating to the Company furnished to such Bank by or on behalf of the Company;
provided, however, that, prior to any such disclosure, the Company shall have
consented thereto, which consent shall not be unreasonably withheld, and each
such assignee or participant, or proposed assignee or participant, shall execute
an agreement whereby such assignee or participant shall agree to preserve the
confidentiality of any Confidential Information (defined in Section 3.14) on
terms substantially the same as those provided in Section 13.14.
(g) The Company will have the right to consent to any material intercreditor
arrangements in connection with an assignment by any Bank of any interest, right
or obligation under this Agreement which is not pro rata with respect to the
Loans and the Commitment of the assignor and the Company may deny its consent to
any such arrangements which, in the reasonable judgement of the Company, would
adversely affect the Company in a material respect.
(h) The provisions of this Section shall not apply to the assignment and pledge
of a Bank's rights hereunder or under any note to any Federal Reserve Bank for
collateral purposes pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank; provided that such assignment and pledge shall not relieve such Bank of
any of its obligations hereunder.
(i) Notwithstanding anything to the contrary contained herein, any Bank (a
"Granting Bank") may grant to a special purpose funding vehicle (a "SPC"),
identified as such in writing from time to time by the Granting Bank to the
Administrative Agent and the Company, the option to provide to the Company all
or any part of any Loan that such Granting Bank would otherwise be obligated to
make to the Company pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Loan, and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part
of such Loan, the Granting Bank shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Loan were
made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Bank). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section, any SPC may (i) with notice to, but without
the prior written consent of, the Company and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Loan to the Granting Bank or to any financial institutions
(consented to by the Company and Administrative Agent), providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Loan and (ii) provided that the recipient conforms with the
requirements of Section 13.14, disclose on a confidential basis any Confidential
Information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC. This section may not be amended without the written consent of the SPC.
13.6 Limitation of Interest. The Company, the Agents and the Banks intend to
strictly comply with all applicable laws, including applicable usury laws.
Accordingly, the provisions of this Section 13.6 shall govern and control over
every other provision of this Agreement or any other Loan Document which
conflicts or is inconsistent with this Section, even if such provision declares
that it controls. As used in this Section, the term "interest" includes the
aggregate of all charges, fees, benefits or other compensation which constitute
interest under applicable law, provided that, to the maximum extent permitted by
applicable law, (a) any non-principal payment shall be characterized as an
expense or as compensation for something other than the use, forbearance or
detention of money and not as interest, and (b) all interest at any time
contracted for, reserved, charged or received shall be amortized, prorated,
allocated and spread, in equal parts during the full term of the Obligations. In
no event shall the Company or any other Person be obligated to pay, or any Bank
have any right or privilege to contract for, charge, reserve, receive or retain,
(a) any interest in excess of the maximum amount of nonusurious interest
permitted under the laws of the State of Texas or the applicable laws (if any)
of the United States or of any other applicable state, or (b) total interest in
excess of the amount which such Bank could lawfully have contracted for,
reserved, received, retained or charged had the interest been calculated for the
full term of the Obligations at the Highest Lawful Rate. On each day, if any,
that the interest rate (the "Stated Rate") called for under this Agreement or
any other Loan Document exceeds the Highest Lawful Rate, the rate at which
interest shall accrue shall automatically be fixed by operation of this sentence
at the Highest Lawful Rate for that day, and shall remain fixed at the Highest
Lawful Rate for each day thereafter until the total amount of interest accrued
equals the total amount of interest which would have accrued if there were no
such ceiling rate as is imposed by this sentence. Thereafter, interest shall
accrue at the Stated Rate unless and until the Stated Rate again exceeds the
Highest Lawful Rate when the provisions of the immediately preceding sentence
shall again automatically operate to limit the interest accrual rate. The daily
interest rates to be used in calculating interest at the Highest Lawful Rate
shall be determined by dividing the applicable Highest Lawful Rate per annum by
the number of days in the calendar year for which such calculation is being
made. None of the terms and provisions contained in this Agreement or in any
other Loan Document which directly or indirectly relate to interest shall ever
be construed without reference to this Section 13.6, or be construed to create a
contract to pay for the use, forbearance or detention of money at an interest
rate in excess of the Highest Lawful Rate. If the term of any Obligation is
shortened by reason of acceleration of maturity as a result of any Default or by
any other cause, or by reason of any required or permitted prepayment, and if
for that (or any other) reason any Bank at any time, including but not limited
to, the stated maturity, is owed or receives (and/or has received) interest in
excess of interest calculated at the Highest Lawful Rate, then and in any such
event all of any such excess interest shall be canceled automatically as of the
date of such acceleration, prepayment or other event which produces the excess,
and, if such excess interest has been paid to such Bank, it shall be credited
pro tanto against the then-outstanding principal balance of the Company's
obligations to such Bank, effective as of the date or dates when the event
occurs which causes it to be excess interest, until such excess is exhausted or
all of such principal has been fully paid and satisfied, whichever occurs first,
and any remaining balance of such excess shall be promptly refunded to its
payor. Chapter 346 of the Texas Finance Code (which regulates certain revolving
credit accounts (formerly Tex. Rev. Civ. Stat. Xxx. Art. 0000, Xx. 15)) shall
not apply to this Agreement or to any Loan, nor shall this Agreement or any Loan
be governed by or be subject to the provisions of such Chapter 346 in any manner
whatsoever.
13.7 Survival. The obligations of the Company under Sections 6, 9.7 and 13.3
hereof and the obligations of the Banks under Sections 13.6 and 13.14 hereof
shall survive the repayment of the Loans and the termination of the Commitments.
13.8 Captions. Captions and section headings appearing herein are included
solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
13.9 Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same agreement and any
of the parties hereto may execute this Agreement by signing any such
counterpart.
13.10 GOVERNING LAW; FORUM SELECTION; CONSENT TO JURISDICTION. THIS AGREEMENT
AND (EXCEPT AS THEREIN PROVIDED) THE OTHER LOAN DOCUMENTS ARE PERFORMABLE IN
XXXXXX COUNTY, TEXAS, WHICH SHALL BE A PROPER PLACE OF VENUE FOR SUIT ON OR IN
RESPECT THEREOF. THE COMPANY IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING IN
RESPECT OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE BROUGHT IN THE
DISTRICT COURTS OF XXXXXX COUNTY, TEXAS OR THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION (COLLECTIVELY, THE "SPECIFIED
COURTS"). THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF TEXAS. THE COMPANY
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT BROUGHT IN ANY
SPECIFIED COURT, AND HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIMS THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE COMPANY FURTHER (1) AGREES TO DESIGNATE AND MAINTAIN AN
AGENT FOR SERVICE OF PROCESS IN THE CITY OF HOUSTON, TEXAS, IN CONNECTION WITH
ANY SUCH SUIT, ACTION OR PROCEEDING AND TO DELIVER TO ADMINISTRATIVE AGENT
EVIDENCE THEREOF AND (2) IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE SPECIFIED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, TO THE COMPANY AT ITS ADDRESS AS PROVIDED IN THIS AGREEMENT OR AS
OTHERWISE PROVIDED BY TEXAS LAW. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
AGENT OR ANY BANK TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
COMPANY IN ANY JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED BY
APPLICABLE LAW. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. THIS AGREEMENT AND
(EXCEPT AS THEREIN PROVIDED) THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE APPLICABLE LAWS (OTHER THAN THE CONFLICT OF
LAWS RULES) OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA FROM TIME TO
TIME IN EFFECT.
13.11 WAIVER OF JURY TRIAL; PUNITIVE DAMAGES. THE COMPANY, EACH AGENT AND EACH
BANK HEREBY (I) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN
DOCUMENTS OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY OR ASSOCIATED
THEREWITH, BEFORE OR AFTER MATURITY; (II) IRREVOCABLY WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
SUCH LITIGATION ANY EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (III)
CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR
ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS; AND (IV) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED
IN THIS SECTION.
13.12 Severability. Whenever possible, each provision of the Loan Documents
shall be interpreted in such manner as to be effective and valid under
applicable law. If any provision of any Loan Document shall be invalid, illegal
or unenforceable in any respect under any applicable law, the validity, legality
and enforceability of the remaining provisions of such Loan Document shall not
be affected or impaired thereby.
13.13 [Intentionally omitted].
13.14 Confidential Information. Each Agent and each Bank separately agrees that:
(a) As used herein, the term "Confidential Information" means written
information about the Company or any of its Subsidiaries or the transactions
contemplated herein furnished by the Company to the Agents and/or the Banks
which is specifically designated as confidential by the Company; Confidential
Information, however, shall not include information which (i) was publicly known
or available, or otherwise available on a non-confidential basis to any Bank, at
the time of disclosure from a source other than the Company, (ii) subsequently
becomes publicly known through no act or omission by such Bank, (iii) otherwise
becomes available on a non-confidential basis to any Bank other than through
disclosure by the Company or (iv) has been in the possession of any Bank for a
period of more than two years from the date on which such information originally
was furnished to such Bank by the Company, unless the Company shall have
requested the Agents and the Banks in writing, at least 30 days prior to the end
of such two-year period, to maintain the confidentiality of such information for
another two (2) year period (or for successive two (2) year periods); provided
that the Company shall not unreasonably withhold its consent to a request made
after the initial two (2) year period to eliminate information from
"Confidential Information".
(b) Each Agent and each Bank agrees that it will take normal and reasonable
precautions to maintain the confidentiality of any Confidential Information
furnished to such Person; provided, however, that such Person may disclose
Confidential Information (i) upon the Company's consent; (ii) to its auditors;
(iii) when required by any Legal Requirement; (iv) as may be required or
appropriate in any report, statement or testimony submitted to any Governmental
Authority having or claiming to have jurisdiction over it; (v) to such Person's
and its Subsidiaries' or Affiliates' officers, directors, employees, agents,
representatives and professional consultants in connection with this Agreement
or administration of the Loans; (vi) as may be required or appropriate, should
such Bank elect to assign or grant participations in any of the Obligations in
connection with (1) the enforcement of the Obligations by any such Person under
any of the Loan Documents or related agreements, or (2) any potential transfer
pursuant to this Agreement of any Obligation owned by any Bank (provided any
potential transferee has been approved by the Company if required by this
Agreement, which approval shall not be unreasonably withheld, and has agreed in
writing to be bound by substantially the same provisions regarding Confidential
Information contained in this Section); (vii) as may be required or appropriate
in response to any summons or subpoena or in connection with any litigation or
administrative proceeding; (viii) to any other Bank; (ix) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under the other Loan Documents; or (x) to correct any false or misleading
information which may become public concerning such Person's relationship to the
Company.
13.15 Tax Forms. With respect to each Bank which is organized under the laws of
a jurisdiction outside the United States, on the day of the initial borrowing
hereunder and from time to time thereafter if requested by the Company or
Administrative Agent, such Bank shall provide Administrative Agent and the
Company with the forms prescribed by the Internal Revenue Service of the United
States certifying as to such Bank's status for purposes of determining exemption
from United States withholding taxes with respect to all payments to be made to
such Bank hereunder or other Loan Documents or indicating that all payments to
be made to such Bank hereunder are subject to such tax at a rate reduced by an
applicable tax treaty. Unless the Company and Administrative Agent shall have
received such forms or such documents indicating that payments hereunder are not
subject to United States withholding tax or are subject to such tax at a rate
reduced by an applicable tax treaty, the Company or Administrative Agent shall
withhold taxes from such payments at the applicable statutory rate in the case
of payments to or for any Bank organized under the laws of a jurisdiction
outside the United States.
13.16 Entire Agreement. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
[SIGNATURE PAGE TO 364-DAY CREDIT AGREEMENT]
S - 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
OCEAN ENERGY, INC., a Texas corporation
By:
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President, Finance, Treasury
and Corporate Development
Address for Notices:
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Phone:(000) 000-0000
Fax: (000) 000-0000
CREDIT SUISSE FIRST BOSTON, as a Bank and as
Administrative Agent and Auction Administrative
Agent
By:
Name:
Title:
By:
Name:
Title:
Address for Notices:
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
Phone:(000) 000-0000
Fax: (000) 000-0000
with further notice to:
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: R. Xxxxx Xxxxx
Phone:(000)000-0000
Fax: (000)000-0000
BANK OF AMERICA, N.A., as a Bank and as Syndication
Agent
By:
Name:
Title:
Address for Notices:
000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention:Mr. Xxxx Xxxxxxx
Phone:(000) 000-0000
Fax: (000) 000-0000
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as a
Bank and as Documentation Agent
By:
Name:
Title:
Address for Notices:
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxx
Phone:(000) 000-0000
Fax: (000) 000-0000
with a copy to:
Chase Bank of Texas, National Association
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Manager, Energy Division
Exhibit A - 1
Exhibit A
Unrestricted Subsidiaries
1. Seagull UK Ltd.
2. SGO Isle of Man Ltd.
3. Seagull Energy International, Inc.
4. Seagull Egypt Company
5. Seagull Ireland Ltd.
6. GNR International (Argentina), Inc.
7. Seagull (Malaysia) Ltd.
8. Texneft Inc.
9. GNR International (Turkey), Inc.
10. Havre Pipeline Company, LLC
11. Lion GPL, S.A.
12. Ocean Yemen Corporation
13. Thousand Oaks Dev. Corp. J.V.
14. UMC Angola Corporation
15. Ocean Bangladesh Corporation
16. Ocean Pakistan Corporation
Exhibit B - 3
Exhibit B
Form of Request for Extension of Credit
[OCEAN ENERGY, INC. LETTERHEAD]
REQUEST FOR EXTENSION OF CREDIT
________________, _____
Credit Suisse First Boston, as Administrative Agent
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxx Xxxxxxxxx
Gentlemen:
The undersigned hereby certifies that he is the of OCEAN ENERGY, INC., a Texas
corporation (the "Company"), and that as such he is authorized to execute this
Request for Extension of Credit (the "Request") on behalf of the Company
pursuant to the 364-Day Credit Agreement (as it may be amended, supplemented or
restated from time to time, the "Agreement") dated as of November 9, 1999, by
and among the Company, CREDIT SUISSE FIRST BOSTON, as Administrative Agent for
the Banks ("Administrative Agent"), CREDIT SUISSE FIRST BOSTON, as Auction
Administrative Agent for the Banks, BANK OF AMERICA, N.A., as Syndication Agent
for the Banks, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Documentation
Agent for the Banks, and the Banks therein named. The Loan being requested
hereby is to be in the amount set forth in (b) below and is requested to be made
on ________________, _______, which is a Business Day. The Loan is to be (check
one) [___] a Eurodollar Loan [___] an Alternate Base Rate Loan. If the Loan is
to be a Eurodollar Loan, the Interest Period is to be (check one) [__] 1, [__]
2, [__] 3 or [__] 6 months. On behalf of the Company, the undersigned further
certifies, represents and warrants that to his knowledge, after due inquiry
(each capitalized term used herein having the same meaning given to it in the
Agreement unless otherwise specified herein):
(a) As of the date hereof:
(1) The Facility Amount [COMPLETE WITH THE AGGREGATE COMMITMENTS) is:
$__________
(2) Aggregate outstanding amount of Loans is: $__________
(3) Amount currently available under the Agreement (the amount in (a)(1) above
minus the amount in (a)(2) above) is: $__________
(b) If and only if the amount shown in Line (a)(3) above is positive, the
Company hereby requests under this Request a Loan in the amount of $__________
(which is no more than the positive amount set forth in Line (a)(3) above).
(c) Except for the facts heretofore disclosed to the Administrative Agent in
writing, which facts (I) are not materially more adverse to the Company and its
Subsidiaries or any other Obligor, (II) do not materially decrease the ability
of the Banks to collect the Obligations as and when due and payable and (III) do
not materially increase the liability of any Agent or any of the Banks, in each
case compared to those facts existing on the date hereof and the material
details of which have been set forth in the Financial Statements delivered to
the Administrative Agent prior to the date hereof or in the Disclosure
Statement, and except for the representations set forth in the Loan Documents
which, by their terms, are expressly (or by means of similar phrasing) made as
of the date of the Agreement, only, the representations and warranties made in
each Loan Document are true and correct in all material respects on and as of
the time of delivery hereof, with the same force and effect as if made on and as
of the time of delivery hereof.
(d) The interest rate and Interest Period selected above comply with all
applicable provisions of the Agreement.
(e) No Default has occurred and is continuing.
(f) No event or condition shall have occurred since December 31, 1998, which is
reasonably expected to result in a Material Adverse Effect.
[Items (c), (d) and (f) above may be omitted at the discretion of the Company if
appropriate in the case of the conversion of Competitive Loan or a Eurodollar
Loan to an Alternate Base Rate Loan. In the event of the occurrence and
continuation of a Default, Item (e) may be replaced with a statement regarding
the existence of such Default.]
Thank you for your attention to this matter.
Very truly yours,
OCEAN ENERGY, INC., a Texas corporation
By:
Name:
Title:
Exhibit C - 3
Exhibit C
Subsidiaries (with Addresses)
1. Seagull Energy E&P Inc.
2. Seagull UK Ltd.
3. SGO Isle of Man Ltd.
4. Seagull Energy International, Inc.
5. Seagull Egypt Company
6. Seagull Ireland Ltd.
7. Seagull International Holdings Ltd.
8. Seagull East Zeit Petroleum Ltd.
9. Global Natural Resources Inc.
10. Global Natural Resources Corporation of Nevada
11. Seagull (Cote D'Ivoire) Ltd.
12. Seagull (Cote D'Ivoire) CI-12 Ltd.
13. Seagull (Cote D'Ivoire) CI-104 Ltd
14. Seagull (Egypt) Ltd.
15. Seagull (Egypt) Darag, Ltd.
16. Seagull (Egypt) East Beni Suef, Ltd.
17. GNR International (Argentina), Inc.
18. Seagull (Malaysia) Ltd.
19. Texneft Inc.
20. GNR Eastern
21. GNR International (Turkey), Inc.
22. Thousand Oaks Development Corporation
23. Seagull Pipeline & Marketing Company
24. Seagull Marketing Services, Inc.
25. Seagull Power Services Inc.
26. Seagull Products Pipeline Corporation
27. Seagull Field Services Company
28. Seagull Pipeline Company
29. Seagull WAG Petroleum Ltd.
30. Ocean Energy, Inc. (a Louisiana corporation)
31. UMC Pipeline Corporation
32. Ocean International Ltd.
33. Ocean Energy Cote d'lvoire Corporation
34. Ocean (C1-01) Corporation
35. Ocean (C1-02) Corporation
36. Ocean (C1-12) Corporation
37. Ocean (C1-105) Corporation
38. UMC Angola Corporation
39. Ocean Bangladesh Corporation
40. Ocean Pakistan Corporation
41. Ocean Ghana Corporation
42. Ocean Energy Qatar Corporation (a Cayman Islands corporation)
43. Ocean Exploration, Inc. (100% of the capital stock is owned by
OEI-Louisiana).
44. Ocean Energy Resources, Inc.,1670 Xxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000.
45. Ocean Equatorial Guinea Corporation
46. Big Sky Gas Marketing Corporation
47. UMC Colorado LLC (a Colorado limited liability company),
000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
48. Ocean Yemen Corporation, Xxxxxx House, Xxxxxx Town, Grand Cayman,
BWI c/o Xxxxxx Xxxx, Xxxxxx & Xxxxxx.
49. Havre Pipeline Company, LLC, 000 00xx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
50. Xxxx XXX, XX, XX 000, Xxxxxxx 00, Xxxxxxxx of Cote d'Ivoire
51. Buckeye Geostratic
52. Equitable 79 II
53. Kingfisher Partners, Ltd.
54. Kingfisher Partners, Ltd. 1979 - I
55. MWJ 78-2. Ltd. Drilling Program
56. Xxxxxxxxx Oil, Ltd., 1978 - A
57. Petroleum Discovery Partners, Ltd. - I
58. Petroleum Discovery Partners, Ltd. - IV
59. Xxxxxx Oil & Gas Lease
60. Xxxxx Drilling Program 1975
61. Xxxxx Drilling Program 1976 -1
62. Xxxxx Drilling Program 1976 - 2
63. Xxxxx Drilling Program 1977 - 1
64. Xxxxx Drilling Program 1977 - 2
65. Xxxxx 1978 Private Drilling Program 1978 - 1
66. Xxxxx Drilling Program 1978 - 2
67. Xxxxx Drilling Program 1979 - 1
68. Xxxxx 1979 Private Drilling - 2
69. Seneca Exploration Ltd.
70. Xxxxx Petroleum 1978 - A Ltd.
71. Xxxxxxxxx 1978 - A Oil & Gas Program
72. Xxxxxxxxx 1978 - B Oil & Gas Program
73. Xxxxxx X. X'Xxxxx, Xx. - Anadarko Gas Program: 1974 A
74. Xxxxxx X. X'Xxxxx, Xx. - Anadarko Gas Program: 1974 B
75. 1969 Oil & Gas Program (Xxxxx Resources)
76. 1970 Oil & Gas Program
77. 1971 Oil & Gas Program
78. Wil-Mc 1975 Fund Ltd.
79. Foxco Energy Limited Partnership 1986
80. JMI 1983
81. Taurus 1991
82. Taurus 1993
83. Taurus 1994
84. Taurus 1996
85. Dominion 1987
86. Dominion (CDN)
87. Fidelity 00/00 (Xxxxxxx Xxxx, XxXxxxxx Xxxxx)
88. Fidelity 1989
89. Fidelity 1989 (CDN)
90. Fidelity 1991
91. Fidelity 1991 (CDN)
92. Fidelity 1993
93. Fidelity 1993 (CDN)
94. Fidelity 1994
95. Fidelity 1994 (CDN)
96. Fidelity 1996
In each case (unless otherwise noted), the address for notice is:
c/o Ocean Energy, Inc.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Exhibit D - 4
Exhibit D
Form of
Compliance Certificate
The undersigned, the ___________________ of OCEAN ENERGY, INC., a Texas
corporation (the "Company"), hereby certifies that he is authorized to execute
this certificate on behalf of the Company, pursuant to the 364-Day Credit
Agreement (the "Credit Agreement"), dated as of November 9, 1999, by and among
the Company, CREDIT SUISSE FIRST BOSTON, as Administrative Agent for the Banks
("Administrative Agent"), CREDIT SUISSE FIRST BOSTON, as Auction Administrative
Agent for the Banks, BANK OF AMERICA, N.A., as Syndication Agent for the Banks,
and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Documentation Agent for the
Banks, and the Banks therein named, as amended; and that a review of the Company
and its Subsidiaries has been made under his supervision with a view to
determining whether the Company and its Subsidiaries have fulfilled all of their
respective obligations under the Credit Agreement and the other Loan Documents;
and on behalf of the Company further certifies, represents and warrants that to
his knowledge, after due inquiry (each capitalized term used herein having the
same meaning given to it in the Credit Agreement unless otherwise specified):
As of , ______:
(a) The Company and its Subsidiaries have fulfilled their respective obligations
under the Credit Agreement and the other Loan Documents as each applies after
giving effect to any amendments, consents and/or waivers that may be in effect
from time to time.
(b) Except for the facts heretofore disclosed to the Administrative Agent under
the Credit Agreement in writing, which facts (I) are not materially more adverse
to the Company and its Subsidiaries or any other Obligor, (II) do not materially
decrease the ability of the Banks to collect the Obligations as and when due and
payable and (III) do not materially increase the liability of the Agents or any
of the Banks, in each case compared to those facts existing on the date hereof
and the material details of which have been set forth in the Financial
Statements delivered to the Administrative Agent under the Credit Agreement
prior to the date hereof or in the Disclosure Statements provided for in the
Credit Agreement, and except for the representations set forth in the Loan
Documents which, by their terms, are expressly (or by means of similar phrasing)
made as of the date of the Credit Agreement, only, the representations and
warranties made in each Loan Document are true and correct in all material
respects on and as of the time of delivery hereof, with the same force and
effect as if made on and as of the time of delivery hereof.
(c) The Financial Statements delivered to the Administrative Agent under the
Credit Agreement concurrently with this Compliance Certificate have been
prepared in accordance with GAAP consistently followed throughout the period
indicated and fairly present, in all material respects, the consolidated
financial condition and results of operations of the applicable Persons as at
the end of, and for, the period indicated (subject, in the case of quarterly
Financial Statements, to normal changes resulting from year-end adjustments).
(d) No Default has occurred and is continuing. In this regard the compliance
with the provisions of Sections 10.7, 10.8 and 10.9 of the Credit Agreement is
as follows:
(i) Section 10.7 of the Credit Agreement - Total Leverage Ratio
Total Debt (1) $_________
EBITDAX (2) $_________
Total Leverage Ratio (1)/(2) _________
Note: Must be no greater than amount specified in Section 10.7.
(ii) Section 10.8 of the Credit Agreement - Senior Leverage Ratio
Total Debt $__________
Less: Subordinated Indebtedness $__________
Senior Debt (1) $__________
EBITDAX (2) $__________
Senior Leverage Ratio (1)/(2) __________
Note: Must be no greater than 3.00 to 1.00.
(iii) Section 10.9 of the Credit Agreement - Minimum Consolidated Net Worth
Preferred stock (if any), par value of common stock, capital in excess of par
value of common stock and retained earnings of Company and its Subsidiaries
(1) $__________
Less treasury stock (if any), goodwill, cost in excess of fair value of net
assets acquired and all other assets that are properly classified
as intangible assets of Company and its Subsidiaries (2) $__________
Plus any expenses associated with the Merger occurring prior to December 31,
1999 and not in excess of $30,000,000 in the aggregate, and the amount of
noncash write downs of long-lived assets in compliance with GAAP or SEC
guidelines (3) $__________
Plus or minus, as appropriate, any extraordinary or non-recurring net gains or
losses together with any related provision for taxes on such gain or loss,
realized in connection with any extraordinary or nonrecurring gains or losses
(4) $__________
Plus or minus, as appropriate, foreign currency translation adjustments
applicable to Company and its Subsidiaries (5) $__________
Consolidated Net Worth [(1) - (2) + (3) +/- (4) +/- (5)] $__________
Consolidated Net Worth Requirement Initial Amount (i) $770,000,000
Plus 50% of the sum of Company's and its Restricted Subsidiaries consolidated
net income for each fiscal quarter beginning with the calendar quarter ending
Xxxxx 00, 0000 (xx) $__________
Plus 50% of the net cash proceeds received by the Company and its Restricted
Subsidiaries from the issuance of any common stock, preferred stock or other
equity for each fiscal quarter beginning with the calendar quarter ending March
31, 1999. (iii) $__________
Total CNW Requirement [(i) + (ii) + (iii)] $__________
Note: Consolidated Net Worth must be equal to or greater than
the Total CNW Requirement
(f) There has occurred no Material Adverse Effect since the date of the most
recent Financial Statements delivered to the Banks.
(g) The following Letters of Credit are issued and currently outstanding:
Issuer:
Beneficiary:
L/C No.:
Amount:
Date of Issue:
Expiration:
DATED as of ____________________, ____.
OCEAN ENERGY, INC.
By:
Name:
Title:
Exhibit E - 6
Exhibit E
Form of
Assignment and Acceptance
Dated: _______________, _____
Reference is made to the 364-Day Credit Agreement dated as of November 9, 1999
(as restated, amended, modified, supplemented and in effect from time to time,
the "Credit Agreement"), among OCEAN ENERGY, INC., a Texas corporation (the
"Company"), CREDIT SUISSE FIRST BOSTON, as Administrative Agent for the Banks
("Administrative Agent"), CREDIT SUISSE FIRST BOSTON, as Auction Administrative
Agent for the Banks, BANK OF AMERICA, N.A., as Syndication Agent for the Banks,
and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Documentation Agent for the
Banks, and the Banks therein named. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Credit
Agreement. This Assignment and Acceptance, between the Assignor (as defined and
set forth on Schedule I hereto and made a part hereof) and the Assignee (as
defined and set forth on Schedule I hereto and made a part hereof) is dated as
of the Effective Date (as set forth on Schedule I hereto and made a part
hereof).
1. The Assignor hereby irrevocably sells and assigns to the Assignee without
recourse to the Assignor, and the Assignee hereby irrevocably purchases and
assumes from the Assignor without recourse to the Assignor, as of the Effective
Date, an undivided interest (the "Assigned Interest") in and to all the
Assignor's rights and obligations under the Credit Agreement respecting those,
and only those, credit facilities contained in the Credit Agreement as are set
forth on Schedule 1 (collectively, the "Assigned Facilities," individually, an
"Assigned Facilities"), in a principal amount for each Assigned Facility as set
forth on Schedule I.
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto, other than that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Company or its Subsidiaries or the performance or observance by the
Company or its Subsidiaries of any of its respective obligations under the
Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto; and (iii) if applicable, attaches the note(s) held
by it evidencing the Assigned Facility or Facilities, as the case may be, and
requests that the Administrative Agent exchange such note(s) for a new note or
notes payable to the Assignor (if the Assignor has retained any interest in the
Assigned Facility or Facilities) and a new note or notes payable to the Assignee
in the respective amounts which reflect the assignment being made hereby (and
after giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (i) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance and that it is a permitted assignee
under Section 13.5 of the Credit Agreement; (ii)confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
referred to in Section 8.6, or if later, the most recent financial statements
delivered pursuant to Section 9.1 thereof, and such other documents and
information as it has deemed appropriate to make its own credit analysis; (iii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement and
the Loan Documents; (iv) appoints and authorizes the each Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to such Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (v) agrees that it will be
bound by the provisions of the Credit Agreement and will perform in accordance
with its terms all the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Bank; (vi) if the Assignee is organized
under the laws of a jurisdiction outside the United States, attaches the forms
prescribed by the Internal Revenue Service of the United States certifying as to
the Assignee's exemption from United States withholding taxes with respect to
all payments to be made to the Assignee under the Credit Agreement or such other
documents as are necessary to indicate that all such payments are subject to
such tax at a rate reduced by an applicable tax treaty, and (vii) has supplied
the information requested on the administrative questionnaire attached hereto as
Exhibit A.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and the Company and
recording by the Administrative Agent pursuant to Section 13.5(e) of the Credit
Agreement, effective as of the Effective Date (which Effective Date shall,
unless otherwise agreed to by the Administrative Agent, be at least five
Business Days after the execution of this Assignment and Acceptance).
5. Upon such acceptance and recording, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee, whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and Assignee shall make
all appropriate adjustments in payments for periods prior to the Effective Date
by the Administrative Agent or with respect to the making of this assignment
directly between themselves.
6. From and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Bank thereunder, and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective duly authorized officers on
Schedule I hereto.
Schedule I to Assignment and Acceptance
Legal Name of Assignor:
Legal Name of Assignee:
Effective Date of Assignment: , ______
||
Percentage Assigned of Each
Facility (to at least 8
decimals) (Shown as a
percentage of aggregate
Assigned Principal original principal amount
Facilities Amount Assigned of all Banks
------------------- ------------------------- ----------------------------
------------------- ------------------------- ----------------------------
Committed Loans: $_______________ __________%
------------------- -------------------------- ---------------------------
------------------- -------------------------- ---------------------------
Competitive Loans:$_______________
------------------- -------------------------- ---------------------------
||
Accepted:
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent as Assignor
By: By:
Name: Name:
Title: Title:
OCEAN ENERGY, INC.
as Assignee
By: By:
Name: Name:
Title: Title:
EXHIBIT A
Administrative Questionnaire
Primary Contact
Bank Name:
Address:
Primary Contact:
Title:
Department:
Telephone Number:
Telecopier Number:
Alternate Contact
Alternate Contact:
Title:
Department:
Telephone Number:
Telecopier Number:
Exhibit F - 2
Exhibit F
Form of
Competitive Bid Request
_______________, _____
Credit Suisse First Boston,
as Auction Administrative Agent
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxx Xxxxxxxxx
Dear Sirs:
Reference is made to the 364-Day Credit Agreement dated as of November 9, 1999,
as modified and amended (the "Credit Agreement"), among the undersigned, the
Banks named therein, CREDIT SUISSE FIRST BOSTON, as Administrative Agent for the
Banks ("Administrative Agent"), CREDIT SUISSE FIRST BOSTON, as Auction
Administrative Agent for the Banks, BANK OF AMERICA, N.A., as Syndication Agent
for the Banks, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Documentation
Agent for the Banks. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby gives you notice pursuant to Section 2.9 of the Credit
Agreement that it requests a Competitive Loan under the Credit Agreement, and in
that connection sets forth below the terms on which such Competitive Loan is
requested to be made:
(A) Borrowing Date of Competitive Loan
(which is a Business Day)
(B) Principal Amount of Competitive Loan1
(C) Interest Period and the last day thereof 2
By each of the delivery of this Request for Competitive Bids and the acceptance
of any or all of the Loans offered by the Banks in response to this Competitive
Bid Request, the undersigned represents and warrants that the applicable
conditions to lending specified in the Credit Agreement have been satisfied with
respect to the Competitive Loan requested hereby.
Very truly yours,
OCEAN ENERGY, INC.
By:
Name:
Title:
Exhibit G - 2
Exhibit G
Form of
Notice to Banks of Competitive Bid Request
[Name of Bank]
[Address of Bank]
Attention: _______________, _____
Dear Sirs:
Reference is made to the 364-Day Credit Agreement dated as of November 9, 1999,
as modified and amended (the "Credit Agreement"), among OCEAN ENERGY, INC. (the
"Company"), the Banks named therein, CREDIT SUISSE FIRST BOSTON, as
Administrative Agent for the Banks ("Administrative Agent"), CREDIT SUISSE FIRST
BOSTON, as Auction Administrative Agent for the Banks, BANK OF AMERICA, N.A., as
Syndication Agent for the Banks, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Documentation Agent for the Banks. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.
The Company delivered a Request for Competitive Bid by [Date] /Time].1 Your
Competitive Bid must comply with Section 2.9 of the Credit Agreement and the
terms set forth below on which the Notice of Competitive Loan was made:
(A) Date of Competitive Loan
(B) Principal Amount of Competitive Loan
(C) Interest Period and the last day thereof
Very truly yours,
CREDIT SUISSE FIRST BOSTON, as Auction
Administrative Agent
By:
Name:
Title:
Exhibit H - 3
Exhibit H
Form of
Competitive Bid
Credit Suisse First Boston,
as Auction Administrative Agent
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxx Xxxxxxxxx _________, ______
Dear Sirs:
The undersigned, [Name of Bank], referred to in the 364-Day Credit Agreement
dated as of November 9, 1999, as modified and amended (the "Credit Agreement"),
among OCEAN ENERGY, INC. (the "Company"), the Banks named therein, CREDIT SUISSE
FIRST BOSTON, as Administrative Agent for the Banks ("Administrative Agent"),
CREDIT SUISSE FIRST BOSTON, as Auction Administrative Agent for the Banks, BANK
OF AMERICA, N.A., as Syndication Agent for the Banks, and CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, as Documentation Agent for the Banks. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section 2.9 of the
Credit Agreement, in response to the Request for Competitive Bids (the
"Competitive Bid Request") made by the Company on _______________, _____, and in
that connection sets forth below the terms on which such Competitive Bid is
made:
(A) Principal Amount 1
(B) Competitive Bid Rate 2
(C) Interest Period and the last day thereof 3
The undersigned hereby confirms that it is prepared to extend credit to the
Company upon acceptance by the Company of this bid in accordance with Section
2.9 of the Credit Agreement.
Very truly yours,
[NAME OF BANK]
By:
Name:
Title:
Exhibit I - 1
Exhibit I
Form of
Competitive Bid Administrative Questionnaire
Primary Contact
Competitive Auctions
Bank Name:
Address:
Primary Contact:
Title:
Department:
Telephone Number:
Telecopier Number:
Alternate Contact
Competitive Auctions
Alternate Contact:
Title:
Department:
Telephone Number:
Telecopier Number:
Exhibit J - 3
Exhibit J
[Form of]
Certificate of Extension
,
Credit Suisse First Boston,
as Administrative Agent
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:Xx. Xxxxx Xxxxxxxxx
Re: Extension of Revolving Commitment Termination Date - 364 Day Credit
Agreement
Dear Sirs:
Reference is made to the 364-Day Credit Agreement dated as of November 9, 1999,
as modified and amended (the "Credit Agreement"), among the undersigned, the
Banks named therein, CREDIT SUISSE FIRST BOSTON, as Administrative Agent for the
Banks ("Administrative Agent"), CREDIT SUISSE FIRST BOSTON, as Auction
Administrative Agent for the Banks, BANK OF AMERICA, N.A., as Syndication Agent
for the Banks, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Documentation
Agent for the Banks. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to the terms of Section 2.2 of the Credit Agreement, Company hereby
requests an extension of the Revolving Commitment Termination Date under the
Credit Agreement for a period of 364 days from the current Revolving Commitment
Termination Date.
To induce Banks to make such an extension of the current Revolving Commitment
Termination Date, Company hereby represents, warrants, acknowledges, and agrees
to and with each Agent and each Bank that:
(a) The Responsible Officer of Company signing this instrument is a duly
elected, qualified and acting officer of Company, holding the office indicated
below such officer's signature hereto and having all necessary authority to act
for Company in making and delivering this Certificate of Extension.
(b) Except for the facts heretofore disclosed to the Administrative Agent under
the Credit Agreement in writing, which facts (I) are not materially more adverse
to the Company and its Subsidiaries or any other Obligor, (II) do not materially
decrease the ability of the Banks to collect the Obligations as and when due and
payable and (III) do not materially increase the liability of the Agents or any
of the Banks, in each case compared to those facts existing on the date hereof
and the material details of which have been set forth in the Financial
Statements delivered to the Administrative Agent under the Credit Agreement
prior to the date hereof or in the Disclosure Statements provided for in the
Credit Agreement, and except for the representations set forth in the Loan
Documents which, by their terms, are expressly (or by means of similar phrasing)
made as of the date of the Credit Agreement, only, the representations and
warranties made in each Loan Document are true and correct in all material
respects on and as of the time of delivery hereof, with the same force and
effect as if made on and as of the time of delivery hereof.
(c) There does not exist on the date hereof any condition or event which
constitutes a Default which has not been waived in writing as provided in
Section 13.1 of the Credit Agreement.
(d) Except to the extent waived in writing as provided in Section 13.1 of the
Credit Agreement, Company has performed and complied with all agreements and
conditions in the Credit Agreement required to be performed or complied with by
Company on or prior to the date hereof.
(e) The Loan Documents have not been modified, amended or supplemented by any
unwritten representations or promises, by any course of dealing, or by any other
means not provided for in Section 13.4 of the Credit Agreement. The Credit
Agreement and the other Loan Documents are hereby ratified, approved, and
confirmed in all respects.
Company agrees that if, prior to the time of the extension of the current
Revolving Commitment Termination Date requested hereby, any matter certified to
herein by it will not be true and correct at such time as if then made, it will
immediately so notify Administrative Agent. Except to the extent, if any, that,
prior to the time of the extension of the current Revolving Commitment
Termination Date requested hereby, Administrative Agent shall have received
written notice from Company to the contrary, each matter certified herein shall
be deemed once again to be certified as true and correct as of the date of such
extension as if then made.
The Responsible Officer of Company signing this instrument hereby certifies
that, to the best of his knowledge, the above representations, warranties,
acknowledgments and agreements of Company are true, correct and complete.
OCEAN ENERGY, INC.
By:
Name:
Title:
Exhibit K - 1
Exhibit K
[Form of]
GUARANTY AGREEMENT
Exhibit X - 0
Xxxxxxx X
XXXXXXXXXX XXXXXXXXX
I. Indebtedness of any Restricted Subsidiary existing on the date of this
Agreement per Section 10.1(i)(b):
Guarantee of "95 Indenture" as defined in the Agreement
Guarantee of "96 Indenture" as defined in the Agreement
Guarantee of "97 Indenture" as defined in the Agreement
Guarantee of "98 Senior Subordinated Indenture" as defined in the Agreement
Guarantee of Ocean Energy, Inc. $125,000,000 13 1/2% Senior Notes issued
December 1, 1994 due 2004
Guarantee of Ocean Energy, Inc. $125,000,000 7 5/8% Senior Notes issued July 8,
1998 due 2005
Guarantee of Ocean Energy, Inc. $125,000,000 8 1/4% Senior Notes issued July 8,
1998 due 2018
Guarantee of Seagull Energy Corporation $100,000,000 7 7/8% Senior Notes issued
July 1993 due August 1, 2003
Guarantee of Seagull Energy Corporation $150,000,000 8 5/8% Senior Subordinated
Notes issued July 1993 due August 1, 2005
Guarantee of Seagull Energy Corporation $150,000,000 7 1/2% Senior Notes issued
September 30, 1997 due September 15, 2027
Guarantee of obligations of Havre (as defined in the Agreement) in an amount not
exceeding $20,000,000 in the aggregate in connection with Indebtedness of Havre
Exhibit M - 1
Exhibit M
Commitments
--------------------------------- ---------------------------------------
Name of Bank Commitment
--------------------------------- ---------------------------------------
--------------------------------- ---------------------------------------
Credit Suisse First Boston $100,000,000
--------------------------------- ---------------------------------------
--------------------------------- ---------------------------------------
Chase Bank of Texas, National Association $50,000,000
--------------------------------- ---------------------------------------
--------------------------------- ---------------------------------------
Bank of America, N.A. $50,000,000
--------------------------------- ---------------------------------------
--------------------------------- ---------------------------------------
Total: $200,000,000
--------------------------------- ---------------------------------------
1/ Not less than $25,000,000 or greater than the unused Total Commitment and in
integral multiples of $5,000,000.
2/ Which, subject to the Credit Agreement, shall have a duration of not less
than seven calendar days nor more than 180 calendar days, and which shall end
not later than the Termination Date.
1/ The Competitive Bid must be received by the Auction Administrative Agent not
later than noon, New York, New York time, four Business Days before the date of
the proposed Competitive Loan. 1/ Not less than $25,000,000 or greater than the
available Total Commitment and in integral multiples of $5,000,000. Multiple
bids will be accepted by the Auction Administrative Agent. 2/ Expressed as a
percentage 3/ The Interest Period must be the Interest Period specified in the
Competitive Bid Request.
