AMONG
SEAGULL ENERGY CORPORATION,
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Individually, and as Documentation Agent,
NATIONSBANK OF TEXAS, N.A.,
Individually, and as Syndication Agent,
AND
THE OTHER BANKS SIGNATORY HERETO
December 24, 1997
-----------------
CHASE SECURITIES INC.,
as Arranger
TABLE OF CONTENTS
Section 1. Definitions and Accounting Matters........................ 1
1.1 Certain Defined Terms..................................... 1
1.2 Accounting Terms and Determinations.......................17
1.3 Types of Loans............................................17
1.4 Miscellaneous.............................................17
Section 2. Commitments; Competitive Bid Facility.....................17
2.1 Committed Loans...........................................17
2.2 Letters of Credit.........................................17
2.3 Reductions and Changes of Commitments.....................20
2.4 Fees......................................................21
2.5 Affiliates; Lending Offices...............................21
2.6 Several Obligations.......................................21
2.7 Repayment of Loans; Evidence of Debt......................21
2.8 Use of Proceeds...........................................22
2.9 Competitive Bid Procedure.................................22
Section 3. Borrowings, Prepayments and Selection of Interest Rates...24
3.1 Borrowings................................................24
3.2 Prepayments...............................................24
3.3 Selection of Interest Rates...............................25
Section 4. Payments of Principal and Interest........................25
4.1 Repayment of Loans and Reimbursement Obligations..........25
4.2 Interest..................................................25
Section 5. Payments; Pro Rata Treatment; Computations, Etc...........26
5.1 Payments..................................................26
5.2 Pro Rata Treatment........................................27
5.3 Computations..............................................27
5.4 Minimum and Maximum Amounts...............................27
5.5 Certain Actions, Notices, Etc.............................27
5.6 Non-Receipt of Funds by Administrative Agent..............28
5.7 Sharing of Payments, Etc..................................29
Section 6. Yield Protection and Illegality...........................30
6.1 Additional Costs..........................................30
6.2 Limitation on Types of Loans..............................31
(1)
6.3 Illegality................................................32
6.4 Substitute Alternate Base Rate Loans......................32
6.5 Compensation..............................................33
6.6 Additional Costs in Respect of Letters of Credit..........33
6.7 Capital Adequacy..........................................34
6.8 Limitation on Additional Charges; Substitute Banks;
Non-Discrimination.......................................34
Section 7. Conditions Precedent......................................35
7.1 Initial Loans.............................................35
7.2 Initial and Subsequent Loans..............................36
Section 8. Representations and Warranties............................37
8.1 Corporate Existence.......................................37
8.2 Corporate Power and Authorization.........................37
8.3 Binding Obligations.......................................37
8.4 No Legal Bar or Resultant Lien............................38
8.5 No Consent................................................38
8.6 Financial Condition.......................................38
8.7 Investments and Guaranties................................38
8.8 Liabilities and Litigation................................38
8.9 Taxes and Governmental Charges............................39
8.10 Title to Properties.......................................39
8.11 Defaults..................................................39
8.12 Location of Businesses and Offices........................39
8.13 Compliance with Law.......................................39
8.14 Margin Stock..............................................40
8.15 Subsidiaries..............................................40
8.16 ERISA.....................................................40
8.17 Investment Company Act....................................40
8.18 Public Utility Holding Company Act........................40
8.19 Environmental Matters.....................................41
8.20 Claims and Liabilities....................................42
8.21 Solvency..................................................42
Section 9. Affirmative Covenants.....................................42
9.1 Financial Statements and Reports..........................42
9.2 Officers' Certificates....................................44
9.3 Taxes and Other Liens.....................................44
9.4 Maintenance...............................................44
9.5 Further Assurances........................................45
9.6 Performance of Obligations................................45
9.7 Reimbursement of Expenses.................................45
(2)
9.8 Insurance.................................................46
9.9 Accounts and Records......................................46
9.10 Notice of Certain Events..................................47
9.11 ERISA Information and Compliance..........................48
Section 10. Negative Covenants........................................49
10.1 Debts, Guaranties and Other Obligations...................49
10.2 Liens.....................................................51
10.3 Guarantees................................................54
10.4 Dividend Payment Restrictions.............................54
10.5 Mergers and Sales of Assets...............................54
10.6 Proceeds of Loans.........................................55
10.7 ERISA Compliance..........................................55
10.8 Amendment of Certain Documents............................55
10.9 Total Debt/Capitalization Ratio...........................55
10.10 EBITDAX/Interest Ratio....................................55
10.11 Nature of Business........................................55
10.12 Covenants in Other Agreements.............................56
Section 11. Defaults..................................................56
11.1 Events of Default.........................................56
11.2 Collateral Account........................................59
11.3 Preservation of Security for Unmatured Reimbursement
Obligations..............................................59
11.4 Right of Setoff...........................................59
Section 12. Agents....................................................60
12.1 Appointment, Powers and Immunities........................60
12.2 Reliance by Agents........................................61
12.3 Defaults..................................................61
12.4 Rights as a Bank..........................................61
12.5 Indemnification...........................................62
12.6 Non-Reliance on Agents and Other Banks....................62
12.7 Failure to Act............................................63
12.8 Resignation or Removal of Administrative Agent............63
Section 13. Miscellaneous.............................................63
13.1 Waiver....................................................63
13.2 Notices...................................................64
13.3 Indemnification...........................................64
13.4 Amendments, Etc...........................................65
13.5 Successors and Assigns....................................65
13.6 Limitation of Interest....................................68
(3)
13.7 Survival..................................................69
13.8 Captions..................................................69
13.9 Counterparts..............................................69
13.10 Governing Law.............................................69
13.11 Severability..............................................70
13.12 Chapter 15 Not Applicable.................................70
13.13 Confidential Information..................................70
13.14 Tax Forms.................................................71
13.15 Amendment and Restatement.................................72
EXHIBITS:
Exhibit A Unrestricted Subsidiaries
Exhibit B Form of Request for Extension of Credit
Exhibit C Existing Competitive Loans
Exhibit D Subsidiaries (with Addresses)
Exhibit E Form of Compliance Certificate
Exhibit F Assignment and Acceptance
Exhibit G Form of Competitive Bid Request
Exhibit H Form of Notice to Banks of Competitive Bid Request
Exhibit I Form of Competitive Bid
Exhibit J Form of Competitive Bid Administrative Questionnaire
Exhibit K Continuing Letters of Credit
(4)
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 24, 1997
(the "Effective Date"), is by and among SEAGULL ENERGY CORPORATION (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"); XXXXXX GUARANTY TRUST COMPANY OF NEW YORK ("Xxxxxx"), as Documentation
Agent for the Banks (in such capacity, the "Documentation Agent"); NATIONSBANK
OF TEXAS, N.A. ("NationsBank"), as Syndication Agent for the Banks (in such
capacity, the "Syndication Agent"); and THE CHASE MANHATTAN BANK, as
Administrative Agent for the Banks (in such capacity, together with its
successors in such capacity, "Administrative 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):
"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 Documentation Agent and
the Syndication Agent, together with any successors in any such capacities.
"Agreement" shall mean this Amended and Restated Credit Agreement, as the
same may be amended, modified, restated or supplemented from time to time.
"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.
"APC" shall mean Alaska Pipeline Company, an Alaska corporation, a
Subsidiary of the Company.
"APC Long Term Financing Documents" shall mean that certain Inducement
Agreement and that certain Note Agreement (together with the Notes, as defined
therein), each dated as of May 14, 1992, by and among the Company, Aid
Association for Lutherans, The Equitable Life Assurance Society of the United
States, Equitable Variable Life Insurance Company, Provident Life and Accident
Insurance Company and Teachers Insurance & Annuity Association of America, any
documentation executed in connection with any renewal, extension or
rearrangement of the Indebtedness that is the subject of the foregoing
documents, the Gas Sales Contract, the Intercompany Mortgage, as defined in the
above-mentioned Note Agreement, and any documents executed in replacement of any
of the foregoing documents, if any, and only if Administrative Agent has
received notice thereof pursuant to Section 10.8.
"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
(2)
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, (i) zero percent (0%) with
respect to any Alternate Base Rate Loan and (ii) with respect to any 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:
Eurodollar Loan
Rating Applicable Margin
BBB/Baa2 and higher 0.20
BBB-/Baa3 0.275
BB+/Ba1 0.40
BB/Ba2 and lower 0.45
"Applications" shall mean all applications and agreements for Letters of
Credit, or similar instruments or agreements, now or hereafter executed by any
Person in connection with any Letter of Credit now or hereafter issued or to be
issued.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, as amended,
and any successor statute.
"Beluga Financing Documents" shall mean that certain Inducement Agreement
and that certain Note Agreement (together with the Notes, as defined therein),
each dated June 17, 1985, and amended as of June 15, 1990, by and among the
Company, The Equitable Life Assurance Society of the United States, and the
Travelers Insurance Company, any documentation executed in connection with any
renewal, extension or rearrangement of the Indebtedness that is the subject of
the foregoing documents, the Gas Sales Contract, the Intercompany Mortgage, as
defined in the above-mentioned Note Agreement, and any documents executed in
replacement of any of the foregoing documents, if and only if Administrative
Agent has received notice thereof pursuant to Section 10.8.
"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.
(3)
"Capital Expenditures" shall mean expenditures in respect of fixed or
capital assets (calculated in accordance with GAAP) excluding expenditures for
the restoration, repair or replacement of any fixed or capital asset which was
destroyed or damaged, in whole or in part, to the extent financed by the
proceeds of an insurance policy. Expenditures in respect of replacements and
maintenance consistent with the business practices of the Company and its
Subsidiaries in respect of plant facilities, machinery, fixtures and other like
capital assets utilized in the ordinary course of business are not Capital
Expenditures to the extent such expenditures are not capitalized in preparing a
balance sheet of the Company in accordance with GAAP.
"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.
"Capitalization" shall mean an amount equal to the sum of (a) Total Debt
plus (b) the shareholder's equity of the Company and its Subsidiaries on a
consolidated basis.
"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.
(4)
"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, the obligation, if any, of such
Bank to make Committed Loans and incur Letter of Credit Liabilities 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 the signature pages
hereof under the caption "Commitment" (as the same may be reduced from time to
time pursuant to Section 2.3).
"Committed Loans" shall mean the 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 J 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 the Existing Competitive Loans and loans
provided for in Section 2.9 hereof.
"Cover" for Letter of Credit Liabilities shall be effected by paying to
Administrative Agent immediately available funds, to be held by Administrative
Agent in a collateral account maintained by Administrative Agent at its
Principal Office and collaterally assigned as security for the financial
accommodations extended pursuant to this Agreement using documentation
satisfactory to Administrative Agent, in an amount equal to any required
prepayment. Such amount shall be retained by Administrative Agent in such
collateral account until such time as (x) in the case of Cover being provided
(5)
pursuant to Section 2.2(a), the applicable Letter of Credit shall have expired
and Reimbursement Obligations, if any, with respect thereto shall have been
fully satisfied or (y) in the case of Cover being provided pursuant to Section
3.2(b)(1), the outstanding principal amount of all Revolving Credit Obligations
is not greater than the aggregate amount of the Commitments.
"Current Maturities" shall mean, on any day on which Current Maturities are
calculated, the sum of (a) scheduled principal payments on Funded Indebtedness
which are payable within one (1) year after such day plus (b) the principal
component of payments required to be made with respect to Capital Lease
Obligations within one (1) year of said date plus (c), to the extent not
included above, all items which in accordance with GAAP would be classified as
current maturities of long term debt.
"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 dated December
31, 1992 delivered to Administrative Agent by the Company.
"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.
"EBITDAX/Interest Ratio" shall mean the ratio of (a) EBITDAX of the Company
and its Restricted Subsidiaries on a consolidated basis to (b) operating lease
rentals and cash interest expense on all Indebtedness of the Company and its
Restricted Subsidiaries on a consolidated basis for any rolling four calendar
quarter period ending on the last day of every calendar quarter during the
period with respect to which the EBITDAX/Interest Ratio is to be calculated.
"ENSTAR Alaska" shall collectively mean (i) the gas distribution system in
south-central Alaska known as ENSTAR Natural Gas Company, a division of the
Company, and (ii) APC.
(6)
"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 the Company 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 (rounded upwards, if
necessary, to the nearest 1/16th of 1%) equal to the average of the offered
quotations appearing on Telerate Page 3750 (or if such Telerate Page shall not
be available, any successor or similar service as may be selected by
Administrative Agent and the Company) as of 11:00 a.m., Houston, Texas time (or
(7)
as soon thereafter as practicable) on the day two Business Days prior to the
first day of such Interest Period for Dollar deposits having a term comparable
to such Interest Period and in an amount comparable to the principal amount of
the Eurodollar Loan to which such Interest Period relates or (B) the Highest
Lawful Rate. If none of such Telerate Page 3750 nor any successor or similar
service is available, then the "Eurodollar Base Rate" shall mean, with respect
to any Interest Period for any applicable Eurodollar Loan, the lesser of (A) the
rate per annum (rounded upwards, if necessary, to the nearest 1/16th of 1%)
determined by Administrative Agent to be the average of the rates quoted by the
Reference Banks at approximately 11:00 a.m., Houston, Texas time (or as soon
thereafter as practicable) on the day two Business Days prior to the first day
of such Interest Period for the offering by such Reference Banks to leading
banks in the London interbank market of Dollar deposits having a term comparable
to such Interest Period and in an amount comparable to the principal amount of
the Eurodollar Loan to which such Interest Period relates or (B) the Highest
Lawful Rate. If any Reference Bank does not furnish a timely quotation,
Administrative Agent shall determine the relevant interest rate on the basis of
the quotation or quotations furnished by the remaining Reference Bank or Banks;
if none of such quotations is available on a timely basis, the provisions of
Section 6.2 shall apply. 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 hereof.
"Existing Competitive Loans" shall mean the Competitive Loans described on
Exhibit C hereto.
"Facility Amount" shall mean the aggregate amount of the Commitments (which
amount shall initially be $500,000,000), 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:
Facility Fee
Rating Percentage
BBB/Baa2 and higher 0.125
(8)
BBB-/Baa3 0.150
BB+/Ba1 0.20
BB/Ba2 and lower 0.30
"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.
"Funded Indebtedness" shall mean all Indebtedness which by its terms
matures more than one (1) year from the date as of which any calculation of
Funded Indebtedness is made, and any Indebtedness maturing within one (1) year
from such date which is renewable at the option of the obligor to a date beyond
one (1) year from such date (if any Indebtedness provides for amortization, only
the amount of the principal payment required to be made within one (1) year from
the date as of "Funded Indebtedness").
"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.
"Gas Sale Contract" shall mean that certain Gas Sale Contract dated January
1, 1984, between APC, as Seller, and ENSTAR Natural Gas Company, as Purchaser,
as amended on June 17, 1985, and from time to time thereafter, if and only if
Administrative Agent has received notice thereof pursuant to Section 10.8.
"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.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
any such Person directly or indirectly guaranteeing any Indebtedness of any
(9)
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.
"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: (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; and (vii) indebtedness of others of the type
described in clause (i), (ii), (iii) or (iv) above Guaranteed by such Person.
"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
(10)
(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 3.3 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 Alternate Base Rate Loan, the period commencing on
the date such Loan is made and ending on the next succeeding Quarterly Date.
(c) With respect to any Existing Competitive Loan, the applicable interest
period specified on Exhibit C hereto, and 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) no Interest Period applicable to any
Eurodollar Loan or any Competitive Loan may commence before and end after the
date of any scheduled reduction in the Commitments if, after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans or Competitive
Loans which have Interest Periods which end after such reduction date shall be
greater than the aggregate principal amount of the Commitments scheduled to be
in effect after such reduction date; (ii) each Interest Period which would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, in the case of an Interest Period for Eurodollar
Loans, if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); (iii) no Interest Period
applicable to any Eurodollar Loan or any Competitive Loan shall extend beyond
the end of the scheduled Revolving Credit Availability Period, and (iv) 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.
"Issuer" shall mean each Bank issuing a Letter of Credit hereunder.
"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.
(11)
"Letter of Credit" shall mean (i) any letter of credit issued by an Issuer
in the manner and subject to the terms and provisions of Section 2.2 hereof and
(ii) each letter of credit outstanding on the Effective Date listed on Exhibit K
hereto which letters of credit will be deemed to be issued and outstanding under
this Agreement as of the Effective Date.
"Letter of Credit Fee" shall mean a per annum rate equal to the Applicable
Margin for Eurodollar Loans in effect from time to time.
"Letter of Credit Liabilities" shall mean, at any time and in respect of
any Letter of Credit, the sum of (i) the amount available for drawings under
such Letter of Credit plus (ii) the aggregate unpaid amount of all Reimbursement
Obligations at the time due and payable in respect of previous drawings made
under such Letter of Credit.
"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, all Applications, 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 and the Letter
of Credit Liabilities. "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.
"Mesa Contract" shall mean that certain Purchase and Sale Agreement dated
February 6, 1991 executed by and among Mesa Limited Partnership, a Delaware
limited partnership, Mesa Operating Limited Partnership, a Delaware limited
partnership, and Mesa Midcontinent Limited Partnership, a Delaware limited
partnership, as Sellers, and the Company, as Buyer, as amended by that certain
First Amendment to Purchase and Sale Agreement dated February 22, 1991 and as
further amended by that certain Second Amendment to Purchase and Sale Agreement
dated March 8, 1991.
(12)
"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) the aggregate amount of the Letter of Credit Liabilities
hereunder plus (iii) all other liabilities, obligations and indebtedness of the
Company or any Subsidiary of the Company under any Loan Document.
"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 as of the date of the Loan Document referring to such
Organizational Document.
"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,
any Reimbursement Obligation 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 (or, in the case of the Existing Competitive Loans, the
applicable fixed rate specified on Exhibit C hereto), 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.
(13)
"Principal Office" shall mean the principal office of Administrative Agent,
presently located at 1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Agent Services.
"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 debt rating for the Company publicly
announced by Standard & Poor's Ratings Group or Xxxxx'x Investors Service, Inc.
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.
"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
the redemption obligations will arise prior to the stated maturity of the
Obligations.
"Reference Banks" shall mean Chase 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.
"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 Xxxxx" 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.
"Reimbursement Obligations" shall mean, as at any date, the obligations of
the Company then outstanding in respect of Letters of Credit under this
Agreement, to reimburse Administrative Agent for the account of the applicable
Issuer for the amount paid by the applicable Issuer in respect of any drawing
under such Letter of Credit.
"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.
"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.
(14)
"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 Credit Availability Period" shall mean the period from and
including the date hereof to but not including December 31, 2002 or the date the
Commitments are terminated pursuant to Section 11.1, whichever is first to
occur.
(15)
"Revolving Credit Obligations" shall mean, as at any date of determination
thereof, the sum of the following (determined without duplication): (i) the
aggregate principal amount of Loans outstanding hereunder plus (ii) the
aggregate amount of the Letter of Credit Liabilities hereunder.
"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 less any
Redemption Obligations.
"Total Debt" shall mean the sum, without duplication, of (i) Funded
Indebtedness of the Company and its Subsidiaries on a consolidated basis plus
(ii) Current Maturities of the Company and its Subsidiaries on a consolidated
basis plus (iii) borrowed money Indebtedness of the Company and its Subsidiaries
on a consolidated basis that is not Funded Indebtedness.
"Total Debt/Capitalization Ratio" shall mean the ratio of (a) Total Debt to
(b) Capitalization.
"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) an entity undertaking oil and gas operations with all or substantially
all of its business activities occurring outside the United States and (ii) (A)
designated as an Unrestricted Subsidiary on Exhibit A attached hereto or (B)
(16)
designated as an Unrestricted Subsidiary by the Company at any time after the
Effective Date and either (I) such Subsidiary has a Tangible Net Worth of less
than $25,000,000 or (II) 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.
2.1 Section 2. Commitments; Competitive Bid Facility.
2.2 Committed Loans. From time to time on or after the date hereof and
during the Revolving Credit Availability Period, each Bank shall make Committed
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 and Letter of Credit Liabilities from
time to time outstanding. Subject to the conditions herein, any such Committed
Loan repaid prior to the end of the Revolving Credit Availability Period may be
reborrowed pursuant to the terms of this Agreement; provided, that any and all
such Committed Loans shall be due and payable in full at the end of the
Revolving Credit Availability Period.
Letters of Credit. of Credit
(a) Letters of Credit. Subject to the terms and conditions hereof, and on
the condition that aggregate Letter of Credit Liabilities shall never exceed
$100,000,000, the Company shall have the right, in addition to Committed Loans
provided for in Section 2.1 hereof, to utilize the Commitments from time to time
from and after the Effective Date through the expiration of the Revolving Credit
Availability Period by obtaining the issuance of letters of credit for the
account of the Company and on behalf of the Company by the applicable Issuer if
the Company shall so request in the notice referred to in Section 2.2(b)(i).
(17)
Upon the date of the issuance of a Letter of Credit, the applicable Issuer shall
be deemed, without further action by any party hereto, to have sold to each
Bank, and each Bank shall be deemed, without further action by any party hereto,
to have purchased from the applicable Issuer, a participation, to the extent of
such Bank's Commitment Percentage, in such Letter of Credit and the related
Letter of Credit Liabilities. Any Letter of Credit having an expiry date after
the end of the Revolving Credit Availability Period shall have been fully
Covered or shall be backed by a letter of credit in form and substance, and
issued by an issuer, acceptable to Administrative Agent in its reasonably
exercised discretion. Subject to the terms and conditions hereof, upon the
request of the Company, if Chase is the designated Issuer, Chase shall issue the
applicable Letter of Credit and if any other Bank is the designated Issuer, such
Bank may, but shall not be obligated to, issue such Letter of Credit.
(b) Additional Provisions. The following additional provisions shall apply
to each Letter of Credit:
(i) The Company shall give Administrative Agent at least three (3)
Business Days' prior notice (effective upon receipt) specifying the
proposed Issuer and the date such Letter of Credit is to be issued and
describing the proposed terms of such Letter of Credit and the nature of
the transaction proposed to be supported thereby, and shall furnish such
additional information regarding such transaction as Administrative Agent
or the applicable Issuer may reasonably request. Upon receipt of such
notice Administrative Agent shall promptly notify each Bank of the contents
thereof and of such Bank's Commitment Percentage of the amount of such
proposed Letter of Credit.
(ii) No Letter of Credit may be issued if after giving effect thereto
the Revolving Credit Obligations would exceed the Facility Amount. On each
day during the period commencing with the issuance of any Letter of Credit
and until such Letter of Credit shall have expired or been terminated, the
Commitment of each Bank shall be deemed to be utilized for all purposes
hereof in an amount equal to such Bank's Commitment Percentage of the
amount then available for drawings under such Letter of Credit.
(iii) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment thereunder, the applicable Issuer shall promptly notify
the Company and each Bank as to the amount to be paid as a result of such
demand and the payment date. If at any time the applicable Issuer shall
have made a payment to a beneficiary of a Letter of Credit in respect of a
drawing under such Letter of Credit, each Bank will pay to the applicable
Issuer immediately upon demand by the applicable Issuer at any time during
the period commencing after such payment until reimbursement thereof in
full by the Company, an amount equal to such Bank's Commitment Percentage
of such payment, together with interest on such amount for each day from
the date of demand for such payment (or, if such demand is made after 11:00
a.m. Houston, Texas time on such date, from the next succeeding Business
Day) to the date of payment by such Bank of such amount at a rate of
interest per annum equal to the Federal Funds Rate for such period.
(18)
(iv) The Company shall be irrevocably and unconditionally obligated
forthwith to reimburse the applicable Issuer for any amount paid by the
applicable Issuer upon any drawing under any Letter of Credit, without
presentment, demand, protest or other formalities of any kind. Such
reimbursement may, subject to satisfaction of any other applicable
conditions set forth in this Agreement be made by borrowing of Loans. In
the event any such reimbursement is not made by borrowing of Loans, the
Company shall make such reimbursement in immediately available funds within
five (5) days after demand therefor by the applicable Issuer. The
applicable Issuer will pay to each Bank such Bank's Commitment Percentage
of all amounts received from the Company for application in payment, in
whole or in part, of the Reimbursement Obligation in respect of any Letter
of Credit, but only to the extent such Bank has made payment to the
applicable Issuer in respect of such Letter of Credit pursuant to clause
(iii) above.
(v) The Company will pay to Administrative Agent at the Principal
Office for the account of each Bank a fee on such Bank's Commitment
Percentage of the daily average amount available for drawings under each
Letter of Credit, in each case for the period from and including the date
of issuance of such Letter of Credit to and including the date of
expiration or termination thereof at a rate per annum equal to the Letter
of Credit Fee in effect from time to time, such fee to be paid in arrears
on the Quarterly Dates and on the date of the expiration or termination
thereof. Administrative Agent will pay to each Bank, promptly after
receiving any payment in respect of letter of credit fees referred to in
the preceding sentence of this clause (v), an amount equal to such Bank's
Commitment Percentage of such fees. The Company shall pay to the applicable
Issuer an administration and issuance fee in an amount equal to 1/8 of 1%
per annum of the daily average amount available for drawings under such
Letter of Credit, in each case for the period from and including the date
of issuance of such Letter of Credit to and including the date of
expiration or termination thereof, such fee to be paid in arrears on the
Quarterly Dates and on the date of the expiration or termination thereof.
Such administration and issuance fee shall be retained by the applicable
Issuer.
(vi) The issuance by the applicable Issuer of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 7
hereof, be subject to the conditions precedent that such Letter of Credit
shall be in such form and contain such terms as shall be reasonably
satisfactory to the applicable Issuer and that the Company shall have
executed and delivered such other instruments and agreements relating to
such Letter of Credit as the applicable Issuer shall have reasonably
requested and are not inconsistent with the terms of this Agreement
including an Application therefor. In the event of a conflict between the
terms of this Agreement and the terms of any Application, the terms of this
Agreement shall control. Without limiting the generality of the foregoing
sentence, in the event any such Application shall include requirements for
Cover, it is agreed that there shall be no requirements for the Company to
provide Cover except as expressly required in this Agreement.
(c) Indemnification. The Company hereby indemnifies and holds harmless the
Agents, the applicable Issuer and each Bank from and against any and all claims
and damages, losses, liabilities, costs or expenses which such Bank, the
applicable Issuer or Agent may incur (or which may be claimed against such Bank,
the applicable Issuer or any Agent by any Person whatsoever) in connection with
(19)
the execution and delivery or transfer of or payment or failure to pay under any
Letter of Credit, including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which such Agent, the applicable Issuer or such
Bank, as the case may be, may incur (WHETHER INCURRED AS A RESULT OF ITS OWN
NEGLIGENCE OR OTHERWISE) by reason of or in connection with the failure of any
other Bank (whether as a result of its own negligence or otherwise) to fulfill
or comply with its obligations to such Agent, the applicable Issuer or such
Bank, as the case may be, hereunder (but nothing herein contained shall affect
any rights the Company may have against such defaulting Bank); provided that,
the Company shall not be required to indemnify any Bank, the applicable Issuer
or such Agent for any claims, damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, caused by (i) the willful misconduct or
gross negligence of the party seeking indemnification, or (ii) by such Bank's,
the applicable Issuer's or the applicable Agent's, as the case may be, failure
to pay under any Letter of Credit after the presentation to it of a request
required to be paid under applicable law. Nothing in this Section 2.2(c) is
intended to limit the obligations of the Company under any other provision of
this Agreement.
(d) Co-issuance or Separate Issuance of Letters of Credit. The Company may,
at its option, request that any requested Letter of Credit which exceeds
$1,000,000 be issued severally, but not jointly, by any two or more of the Banks
or issued through separate Letters of Credit issued by any two or more of the
Banks, respectively, each in an amount equal to a portion of the amount of the
applicable Letter of Credit requested by the Company. In either such event, the
Banks issuing such Letters of Credit shall each constitute an "Issuer" and the
Letters of Credit so issued shall each constitute a "Letter of Credit" for all
purposes hereunder and under the Loan Documents. Notwithstanding the foregoing,
no Bank other than Chase shall have any obligation to issue any Letter of
Credit, but may do so at its option.
2.3 Reductions and Changes of Commitments.ommitments
(a) Mandatory. On December 31, 2002, all Commitments shall be terminated in
their entirety unless terminated at an earlier date pursuant to Section 11.1.
(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 at least equal
to $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.
(20)
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 last day of the
Revolving Credit Availability Period.
(b) The Company agrees to pay to Administrative Agent fees as provided in
the separate letter agreements executed by and between Administrative Agent and
the Company.
2.5 Affiliates; Lending Xxxxxxx.xx 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 the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
(21)
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 Company to repay the Loans in
accordance with the terms of this Agreement.
(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. Procedure
(a) In order to request Competitive Bids, the Company shall hand deliver,
telex or telecopy to Administrative Agent a duly completed request substantially
in the form of Exhibit G, with the blanks appropriately completed (a
"Competitive Bid Request"), to be received by Administrative Agent not later
than 11:00 a.m., Houston, Texas time, five 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 G may be rejected at Administrative Agent's sole
discretion, and 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 Revolving Credit Availability Period). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, Administrative Agent
shall invite by telecopier (in substantially the form set forth in Exhibit H
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, Administrative Agent shall have no obligation to invite any Bank to
make a Competitive Bid pursuant to this Section 2.9(a) until such Bank has
delivered a properly completed Competitive Bid Administrative Questionnaire to
Administrative Agent.
(22
(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 Administrative Agent via telecopier, in the
form of Exhibit I hereto, not later than 11:00 a.m., Houston, Texas time, four
Business Days before the date specified for a proposed Competitive Loan.
Competitive Bids that do not conform substantially to the format of Exhibit I
may be rejected by Administrative Agent after conferring with, and upon the
instruction of, the Company, and 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) Administrative Agent shall, by 2:00 p.m. four 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. 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 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 11:00 a.m., Houston, Texas time, three 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
(23)
all remaining bids at a particular Competitive Bid Rate. A notice given by
Company pursuant to this paragraph (d) shall be irrevocable.
(e) 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 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, 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 Business Days of the date
of any other Competitive Loan, unless the Company and 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
Administrative Agent pursuant to paragraph (b) above.
(h) All notices required by this Section 2.9 shall be made in accordance
with Section 3.2 and the Competitive Bid Administrative Questionnaire most
recently placed on file by each Bank with 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 2:00 p.m. Houston, Texas 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 by the Company
maintained with Administrative Agent at the Principal Office.
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. Eurodollar Loans and
Competitive Loans may be prepaid on the last day of an Interest Period
(24)
applicable thereto. 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 and Cover. The Company shall from time to time on
demand by Administrative Agent prepay the Loans (or provide Cover for Letter of
Credit Liabilities) in such amounts as shall be necessary so that at all times
the aggregate outstanding principal amount of all Revolving Credit Obligations
shall not be in excess of the sum of (i) the aggregate amount of the
Commitments, as reduced from time to time pursuant to Section 2.3 hereof plus
(ii) any Cover provided under this Section 3.2(b).
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.
Section 4. Payments of Principal and Interest.
4.1 Repayment of Loans and Reimbursement Obligations. The Company hereby
unconditionally promises to pay to Administrative Agent for the account of each
Bank (a) (i) each Loan in full at the end of the Interest Period applicable to
such Loan unless such Loan is continued in accordance with the terms hereof, and
(ii) the then unpaid principal amount of all outstanding Loans on the date of
the expiration of the Revolving Credit Availability Period, and (b) the amount
of each Reimbursement Obligation promptly upon its occurrence. The amount of any
Reimbursement Obligation may, if the applicable conditions precedent specified
in Section 7 hereof have been satisfied, be paid with the proceeds of Loans.
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:
(i) if such Loan is an Alternate Base Rate Loan, the Alternate Base
Rate plus the Applicable Margin,
(ii) if such Loan is a Eurodollar Loan, the applicable Eurodollar Rate
plus the Applicable Margin, and
(25)
(iii) 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, in the case of Existing Competitive Loans, the
applicable fixed rate specified on Exhibit C hereto),
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, on any Reimbursement Obligation 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 Loan shall be payable on the last day of each
Interest Period for such Loan (and, if such Interest Period exceeds three
months' duration, quarterly, commencing on the first quarterly anniversary of
the first day of such Interest Period), except that (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, Reimbursement Obligations and other amounts to be made by
the Company 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 11:00 a.m. Houston, Texas 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 shall, at the time of making each payment hereunder,
specify to Administrative Agent the Loans or other amounts payable by the
Company 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
(26)
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; (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; and (c) the Banks (other than the applicable
Issuer) shall purchase from the applicable Issuer participations in the Letters
of Credit to the extent of their respective Commitment Percentages.
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 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 11:00 a.m. Houston, Texas time on the number of Business
(27)
Days prior to the date of the relevant termination, reduction, borrowing and/or
repayment, conversion or continuance specified below:
Number of Business
Notice Days Prior
Termination or
Reduction of Commitments 2
Borrowing or prepayment
of or conversion into or
continuance of Alternate Base
Rate Loans same day
Borrowing or
prepayment of or conversion
into or continuance of
Eurodollar Loans 3
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, unless such Loan
is 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. 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 payment of any amount by
(28)
such Bank to reimburse the applicable Issuer for a drawing under any Letter of
Credit) 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 (or,
if such recipient is the beneficiary of a Letter of Credit, the Company and, if
the Company fails to pay the amount thereof to Administrative Agent forthwith
upon demand, the Banks ratably in proportion to their respective Commitment
Percentages) 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
Reimbursement Obligation or 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 Reimbursement Obligations 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
Reimbursement Obligations 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 Reimbursement Obligations or 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 the Company.
(29)
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:
(i) 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
(ii) 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
(iii) 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) and 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
(30)
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 6.1 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
(31)
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
Section 6.4 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.
(32)
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. No costs shall be payable under
this Section solely by reason of the conversion of loans designated as
"Eurodollar Loans" under that certain Credit Agreement referred to in Section
13.15 hereof into the Existing Competitive Loans.
6.6 Additional Costs in Respect of Letters of Credit. If as a result of any
Regulatory Change there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit or similar requirement against or with respect to or
measured by reference to Letters of Credit issued or to be issued hereunder or
participations in such Letters of Credit, and the result shall be to increase
the cost to any Bank of issuing or maintaining any Letter of Credit or any
participation therein, or reduce any amount receivable by any Bank hereunder in
respect of any Letter of Credit or any participation therein (which increase in
cost, or reduction in amount receivable, shall be the result of such Bank's
reasonable allocation of the aggregate of such increases or reductions resulting
from such event), then such Bank shall notify the Company through Administrative
Agent, and upon demand therefor by such Bank through Administrative Agent, the
Company (subject to Section 13.6 hereof) shall pay to such Bank, from time to
time as specified by such Bank, such additional amounts as shall be sufficient
to compensate such Bank for such increased costs or reductions in amount. Before
making such demand pursuant to this Section 6.6, such Bank will designate a
different available Applicable Lending Office for the Letter of Credit 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. A statement as to such increased costs or
reductions in amount incurred by such Bank, submitted by such Bank to the
Company, shall be conclusive as to the amount thereof, absent manifest error.
(33)
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, under the Loans made by it and under the Letters of Credit 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)
(34)
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 or any applicable Issuer to
make its initial Loans after the date hereof or issue or participate in a Letter
of Credit after the date hereof (if such Letter of Credit is issued prior to the
funding of the initial Loans after the date hereof) hereunder is subject to the
following conditions precedent, each of which shall have been fulfilled or
waived to the satisfaction of the Majority Banks:
(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 evidence
satisfactory to Administrative Agent of all corporate action taken by the
Company 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 in each
state in which such qualification is necessary.
(b) Incumbency. The Company and each 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 or the issuance of any Letter of Credit 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 or the
issuance of any Letter of Credit. Administrative Agent and each Bank may
conclusively rely on such certificates until they receive notice in writing from
the Company 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 Agents. 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
Agents may approve.
(35)
(e) Fees and Expenses. The Company shall have paid to Administrative Agent
for the account of each Bank all accrued and unpaid commitment fees and other
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 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 (1) an
opinion of Xxxxxx & Xxxxxx L.L.P., counsel to the Company, in form and substance
reasonably satisfactory to the Agents, and (2) such opinions of counsel to the
Company and other Relevant Parties as the Agents shall reasonably request with
respect to the Company and the Loan Documents.
(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 the Letters of
Credit and (b) the execution, delivery and performance of this Agreement and the
other Loan Documents have been satisfactorily obtained.
(i) 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 or any
applicable Issuer to make any Loan (including, without limitation, its initial
Loan) to be made by it hereunder or to issue or participate in any Letter of
Credit 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 or such issuance, 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, (ii) do not materially decrease the ability of the Banks
to collect the Obligations as and when due and payable and (iii) do not
(36)
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 or such issuance, with the same force and effect as if made on and as of
such date;
(c) the making of such Loan or the issuance of such Letter of Credit shall
not violate any Legal Requirement applicable to any Bank.
Each Request for Extension of Credit by the Company hereunder or request
for issuance of a Letter of Credit 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 or issuance, as of the
date of such borrowing or issuance).
Section 8. Representations and Warranties. To induce the Banks to enter
into this Agreement and to make the Loans and issue or participate in the
Letters of Credit, the Company represents and warrants (such representations and
warranties to survive any investigation and the making of the Loans and the
issuance of the Letters of Credit) to the Banks and the Agents as follows:
8.1 Corporate Existence. The Company and each Subsidiary of the Company are
corporations duly incorporated and organized, legally existing and in good
standing under the laws of the respective jurisdictions in which they are
incorporated, and are duly qualified as foreign corporations 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 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 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 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, to the extent each is a party thereto, enforceable against the
Company and its Subsidiaries, 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.
(37)
8.4 No Legal Bar or Resultant Lien. The Company's and each of its
Subsidiaries' 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 or any Subsidiary of the Company or any Legal Requirement to which
the Company 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 or any Subsidiary of the Company,
other than those permitted by this Agreement.
8.5 No Consent. Except as set forth in the Disclosure Statement, the
Company's and each of its Subsidiaries' 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. The audited consolidated annual financial
statements of the Company and its Subsidiaries for the year ended December 31,
1996 and the unaudited consolidated interim financial statements of the Company
and its Subsidiaries for the quarter and three-month period ended September 30,
1997, which have been delivered to the Banks, have been prepared in accordance
with GAAP, and present fairly the financial condition and results of the
operations of the Company and its Subsidiaries for the period or periods stated
(subject only to normal year-end audit adjustments with respect to the unaudited
interim statements). No material adverse change, either in any case or in the
aggregate, has occurred since September 30, 1997 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 the Company 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
(38)
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 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 each Subsidiary are described on Exhibit D 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
(39)
(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 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 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 nor any
Subsidiary of the Company nor any Person acting on behalf of the Company 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 D 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 other than those specifically described in the certificate delivered
in accordance with Section 7.1(i). 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
(40)
Company Act of 1935, as amended (the "PUHC Act"), except as to Section 9(a)(2)
thereof (15 U.S.C.A. 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 and the issuance of the Letters of Credit,
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. The
Company has duly filed with the Securities and Exchange Commission good faith
applications (each an "Application") under Section 2(a)(8) of the PUHC Act (15
U.S.C.A. 79(b)(a)(8)) for a declaration of non-subsidiary status pursuant to
such Section 2(a)(8) with respect to each Person (each a "Specified
Shareholder") which owns, controls or holds with power to vote, directly or
indirectly, a sufficient quantity of the voting securities of the Company to be
construed as a "holding company", as such term is defined in the PUHC Act, in
respect of the Company. All of the information contained in such Applications,
as amended, was true as of the most recent filing date with respect thereto
(provided that the Company may, unless it has actual current knowledge to the
contrary, rely solely upon written information furnished by any Specified
Shareholder with respect to background information about the Specified
Shareholder and the nature of the ownership by such Specified Shareholder or its
Affiliates of the voting securities of the Company), and the Company knows of no
reason why each such Application, if acted upon by the Securities and Exchange
Commission, would not be approved. True and correct copies of each such
Application and any amendments thereto, as filed, have been furnished to
Administrative Agent. The Company has not received any written notice from the
Securities and Exchange Commission with respect to any such Application other
than as disclosed in writing to Administrative Agent.
8.19 Environmental Matters. Except as disclosed in the Disclosure
Statement, (i) the Company and it 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
(41)
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 nor any of its Subsidiaries 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 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 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 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. 24.001 et seq.
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 Loans hereunder, the termination or expiry of all Letters of Credit and
payment in full of Letter of Credit Liabilities, all interest thereon and all
other amounts payable by the Company hereunder:
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 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;
(42)
(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 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.
(43)
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, 1996. 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 1998, 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 E; 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 E.
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 10.5 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
(44)
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 or any
Letter of Credit is ever issued, 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 and the issuance of Letters of Credit 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 or revenue 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
(45)
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 362 Title 11 of the United States Code, and fees and expenses
incurred in connection with any action pursuant to 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. Subject to the terms of
Section 3 hereof, 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 or (ii) to prepay the Obligations, 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.
(46)
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
(47)
(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,
$1,000,000 and in the case of all accounts payable in the aggregate at any one
time outstanding, $3,000,000; 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
(48)
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 Loans hereunder, the termination or expiry of all
Letters of Credit and payment in full of Letter of Credit Liabilities, all
interest thereon and all amounts payable by the Company hereunder:
10.1 Debts, Guaranties and Other Obligations. (i) The Company will not
permit any of its Restricted Subsidiaries (other than APC) 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 (other than APC) 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) liabilities, direct or contingent, of any Restricted Subsidiary
existing on the date of this Agreement which are reflected in the
Financial Statements or the Disclosure Statement and all renewals,
extensions, refinancings and rearrangements, but not increases,
thereof;
(b) endorsements of negotiable or similar instruments for collection or
deposit in the ordinary course of business;
(c) 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
(49)
Company, threatened) not exceeding, in the aggregate at any time
outstanding, $25,000,000;
(d) 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;
(e) intercompany Indebtedness owed to the Company by any Restricted
Subsidiary and intercompany Indebtedness owed to any Restricted
Subsidiary by any other Restricted Subsidiary which is fully
subordinated to the Obligations;
(f) any Guarantee by any Restricted Subsidiary of payment or performance
by any Restricted Subsidiary under any agreement so long as the
obligation guaranteed does not constitute Indebtedness for borrowed
money; (g) any Guarantee by any Restricted Subsidiary permitted by
Section 10.3;
(h) obligations of any Restricted Subsidiary under gas purchase contracts
for 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), hedging contract, forward contract, swap
agreement, futures contract or other similar agreement;
(j) obligations of any Restricted Subsidiary under any interest rate swap
agreement, or any contract implementing any interest rate cap, collar
or floor, or any similar interest hedging contract;
(k) obligations in connection with gas imbalances arising in the ordinary
course of business;
(l) Indebtedness not exceeding $1,000,000 in the aggregate borrowed from
the Amarillo Economic Development Commission and related Guarantees
and related obligations of any Restricted Subsidiary;
(m) liabilities under leases and lease agreements which do not cover oil
and gas properties to the extent the incurrence and existence of such
liabilities will still enable each Restricted Subsidiary to comply
with all requirements of this Agreement; and
(50)
(n) in addition to Indebtedness permitted by clauses (a) through (m)
above, Indebtedness of any Restricted Subsidiary in an aggregate
principal amount not exceeding $10,000,000 at any time outstanding.
(ii) 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.
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 the Loans or other Indebtedness under the Loan
Documents;
(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 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;
(51)
(g) Liens in the ordinary course of business, not to exceed in the
aggregate $10,000,000 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) Liens on the assets or properties of ENSTAR Alaska;
(l) the Vendor Financing Arrangements (as defined in the Mesa Contract);
(m) purchase money Liens securing an aggregate amount of Indebtedness
which shall not exceed $25,000,000 at any one time outstanding;
(n) any Lien existing on any real or personal property of any corporation
or partnership at the time it becomes a Restricted Subsidiary or of
any other 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;
(52)
(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) any Liens arising from the matters described in Schedule 3.19 of the
Mesa Contract;
(53)
(v) 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;
(w) other Liens securing Indebtedness not exceeding, in the aggregate,
$10,000,000 at any one time outstanding; and
(x) 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 Guarantees. The Company will not and will not permit any of its
Restricted Subsidiaries to enter into any Guarantees of the payment or
performance by any Unrestricted Subsidiary under any agreement in an aggregate
amount for all such Guarantees relating to such Unrestricted Subsidiaries in
excess of $50,000,000.
10.4 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.
10.5 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 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, 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,
(54)
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.
10.6 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.
10.7 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.
10.8 Amendment of Certain Documents. The Company will not amend, modify or
obtain or grant a waiver of (except for waivers only of cross-defaults created
by a Default under this Agreement), or allow APC to enter into any amendment or
modification or obtain or grant any waiver of (except for waivers only of
cross-defaults created by a Default under this Agreement), any provision of
those documents relating to or constituting the Beluga Financing Documents or
the APC Long Term Financing Documents, without prior written notification to
Administrative Agent.
10.9 Total Debt/Capitalization Ratio. The Company will not permit its Total
Debt/Capitalization Ratio to be, at any time, more than 60%.
10.10 EBITDAX/Interest Ratio. The Company will not permit the
EBITDAX/Interest Ratio to be, at any time, less than 3.75:1.00 for any rolling
four calendar quarter period ending on the last day of any calendar quarter.
10.11 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
(55)
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).
10.12 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;
(iii)restricting the capitalization structure of any Restricted Subsidiary;
or
(iv) restricting the ability or capacity of any Restricted Subsidiary to
make Dividend Payments;
Notwithstanding the foregoing, either of ENSTAR Alaska or APC may become a party
to, or xxxxx x Xxxx in any of its property by way of, or agree that it will be
bound by, any indenture, mortgage, deed of trust or other instrument containing
provisions of the types described above in this Section 10.12 so long as the
terms and provisions thereof are not materially more restrictive than the terms
or provisions which are legally binding on ENSTAR Alaska or APC on the Effective
Date.
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 or any
Reimbursement Obligation 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, any
Reimbursement Obligation or any other fee or amount 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
(56)
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 - (i) default shall be made in the observance or
performance of any of the covenants or agreements contained in Section 10.8 and
such default continues unremedied for a period of five (5) Business 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 (ii)
default is made in the due observance or performance by the Company of any of
the other 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 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 or of any of its 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 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 under any state or
federal bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or receivership law of any jurisdiction, whether
(57)
now or hereafter in effect, and is not dismissed within 60 days after such
filing; or
(g) Voluntary Petitions or Consents - the Company 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 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 or of
all or any part of its property; or
(i) Undischarged Judgments - judgments (individually or in the aggregate)
for the payment of money in excess of $10,000,000 is rendered by any court or
other governmental body against the Company or any of its Subsidiaries and the
Company or such Subsidiary 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 or such Subsidiary 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 - any 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) terminate any Letter of Credit providing for such
termination by sending a notice of termination as provided therein and/or (c)
declare the principal amount then outstanding of and the accrued interest on the
Loans and Reimbursement Obligations and all fees and all other amounts payable
hereunder 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
(58)
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
Reimbursement Obligations and all fees and all other amounts 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 Collateral Account. The Company hereby agrees, in addition to the
provisions of Section 11.1 hereof, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by Administrative
Agent or the Majority Banks (through Administrative Agent), pay to
Administrative Agent an amount in immediately available funds equal to the then
aggregate amount available for drawings under all Letters of Credit issued for
the account of the Company, which funds shall be held by Administrative Agent as
Cover.
11.3 Preservation of Security for Unmatured Reimbursement Obligations. In
the event that, following (i) the occurrence of an Event of Default and the
exercise of any rights available to Administrative Agent under the Loan
Documents, and (ii) payment in full of the principal amount then outstanding of
and the accrued interest on the Loans and Reimbursement Obligations and fees and
all other amounts payable hereunder and under any Letters of Credit shall remain
outstanding and undrawn upon, Administrative Agent shall be entitled to hold
(and the Company hereby grants and conveys to Administrative Agent a security
interest in and to) all cash or other property ("Proceeds of Remedies") realized
or arising out of the exercise by Administrative Agent of any rights available
to it under the Loan Documents, at law or in equity, including, without
limitation, the proceeds of any foreclosure, as collateral for the payment of
any amounts due or to become due under or in respect of such Letters of Credit.
Such Proceeds of Remedies shall be held for the ratable benefit of the
applicable Issuers. The rights, titles, benefits, privileges, duties and
obligations of Administrative Agent with respect thereto shall be governed by
the terms and provisions of this Agreement. Administrative Agent may, but shall
have no obligation to, invest any such Proceeds of Remedies in such manner as
Administrative Agent, in the exercise of its sole discretion, deems appropriate.
Such Proceeds of Remedies shall be applied to Reimbursement Obligations arising
in respect of any such Letters of Credit and/or the payment of any Issuer's
obligations under any such Letter of Credit when such Letter of Credit is drawn
upon. The Company hereby agrees to execute and deliver to the Agents and the
Banks such security agreements, pledges or other documents as any of the Agents
or any of the Banks may, from time to time, require to perfect the pledge, lien
and security interest in and to any such Proceeds of Remedies provided for in
this Section 11.3.
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
(59)
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
Letters of Credit and 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, the Letters of Credit, 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, the Letters of Credit
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, the
Letters of Credit or any other Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, the
Letters of Credit, 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 under the Letters of Credit 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 under the Letters or Credit 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. Without in any way
(60)
limiting any of the foregoing, each Bank acknowledges that neither any Agent nor
any Issuer shall have any greater responsibility in the operation of the Letters
of Credit than is specified in the Uniform Customs and Practice for Documentary
Credits (1993 Revision, International Chamber of Commerce Publication No. 500).
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, 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, the Letters of
Credit, 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.
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 or Reimbursement Obligations) 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
and Letter of Credit Liabilities, Xxxxx, Xxxxxx and NationsBank, respectively,
(61)
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 Xxxxx, Xxxxxx and NationsBank, 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 2.2(c), Section 9.7 or Section 13.3 hereof,
but without limiting the obligations of the Company under said Sections 2.2(c),
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
AGENT) which may be imposed on, incurred by or asserted against such Agent in
any way relating to or arising out of this Agreement, the Letters of Credit 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 2.2(c), 9.8 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 that it
has, independently and without reliance on any Agent or any other Bank and based
on such documents and information as it has deemed appropriate, made its own
credit analysis of the Company and decision to enter into this Agreement and
that it will, independently and without reliance upon any Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking 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, the Letters of Credit 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 Letters of Credit or the other Loan Documents, the Agents
shall not have any duty or responsibility to provide any Bank with any credit or
(62)
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, under the Letters of Credit 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, 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. 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 $250,000,000. 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.
(63)
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, 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 (whether a Loan or a
Letter 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
(64)
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 or (b)
incurred by the Person seeking indemnification by reason of the gross negligence
or willful misconduct of such Person. 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.
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 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 at the end of the Revolving Credit
Availability Period 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, Reimbursement Obligation or fee hereunder; (c) postpone
any scheduled date fixed for any payment or mandatory prepayment of principal
of, or interest on, any Loan, Reimbursement Obligation, 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 and Letter of Credit
Liabilities, 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 2.2(c), 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 Letter of
Credit, 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
(65)
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 or Letters of Credit, including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement 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
or Letters of Credit 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), (iii) no assignment shall have the effect
of reducing the pro rata share of the Loans or Letters of Credit and the
Commitments held by the assignor and its Affiliates below $10,000,000, (iv)
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, the Letters of Credit and the Commitment of the assignor, and (v) 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 F 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.
Notwithstanding anything contained in this Agreement to the contrary, any Bank
may at any time assign all or any portion of its rights under this Agreement and
the notes issued to it as collateral to a Federal Reserve Bank; provided, that
no such assignment shall release the assigning Bank from any of its obligations
hereunder.
(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,
(66)
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 or the performance or observance by the Company 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 Section 8.6 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 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 or Letters of Credit 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
(67)
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 13.13) on
terms substantially the same as those provided in Section 13.13.
(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, the Letters of Credit 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.
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 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
(68)
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.
13.7 Survival. The obligations of the Company under Sections 2.2(c), 6, 9.7
and 13.3 hereof and the obligations of the Banks under Section 13.6 hereof shall
survive the repayment of the Loans and Reimbursement Obligations and the
termination of the Commitments and the Letters of Credit.
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. 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
(69)
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
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 aforementioned 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 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.
13.12 Chapter 15 Not Applicable. Chapter 15, Subtitle 3, Title 79, Revised
Civil Statutes of Texas, 1925, as amended, shall not apply to this Agreement or
to any Loan or Letter of Credit, nor shall this Agreement or any Loan or Letter
of Credit be governed by or be subject to the provisions of such Chapter 15 in
any manner whatsoever.
13.13 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 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
(70)
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 and Letters of Credit; (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 to 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.
13.14 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 documents satisfactory to the Bank and
Administrative Agent 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.
(71)
13.15 Amendment and Restatement. This Agreement amends and restates in its
entirety that certain Credit Agreement dated as of June 17, 1997 executed by and
among the Company, the Banks and Administrative Agent, as amended.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
(72)
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.
SEAGULL ENERGY CORPORATION, a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President - Finance and Treasurer
Addresses for Notices:
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
X-0
THE CHASE MANHATTAN BANK, as a Bank and as
Administrative Agent
By:
Name:
Title:
Commitment:
Address for Notices:
$50,000,000
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Texas Commerce Bank National Association
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Manager, Energy Division
S-2
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as a
Bank and as Documentation Agent
By: /s/Xxxx Xxxxxxxxx
Commitment: Name: Xxxx Xxxxxxxxx
Title: Vice President
$50,000,000
Address for Notices:
00 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xx. Xxxx Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with further notice to:
Xxxxxx X. Xxxxxxx
000 Xxxxxxxxxx Xxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
S-3
NATIONSBANK OF TEXAS, N.A., as a Bank and as
Syndication Agent
By: /s/ Xxxxx X. Xxxxxx
Commitment: Name: Xxxxx X. Xxxxxx
Title: Vice President
$50,000,000
Address for Notices:
000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-4
BANKBOSTON, N.A., as a Bank
By: /s/ Xxxxxxxx Xxxxx
Commitment: Name: Xxxxxxxx Xxxxx
Title: Vice President
$30,000,000
Address for Notices:
000 Xxxxxxx Xxxxxx
Energy & Utilities 01-08-04
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-5
ABN AMRO BANK N.V., HOUSTON AGENCY, as a Bank
By: /s/X. Xxxxxxxx
Commitment: Name: Xxxxxx Xxxxxxxx
Title: Group Vice President
$11,250,000
By: /s/Xxxxxxxxx Xxxxxxx
Name: Xxxxxxxxx Xxxxxxx
Title: Credit Officer
Address for Notices:
Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-6
THE BANK OF NEW YORK, as a Bank
By: /s/Xxx X. Xxxxxxx
Commitment: Name: Xxx X. Xxxxxxx
Title: Senior Vice President
$20,000,000
Address for Notices:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx XxXxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-7
BANQUE PARIBAS HOUSTON AGENCY, as a Bank
By: /s/Xxxxxx Xxxxxxxxxx
Commitment: Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
$20,000,000
By: /s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
Address for Notices:
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-8
CREDIT LYONNAIS NEW YORK BRANCH, as a Bank
By: /s/ Pascal Poupeller
Commitment: Name: Pascal Poupeller
Title: Executive Vice President
$20,000,000
Address for Notices:
0000 Xxxxxxxxx, Xxxxx #0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-9
THE FUJI BANK, LIMITED HOUSTON AGENCY, as
a Bank
By: /s/ Yoshaki Imoue
Commitment: Name: Yoshaki Imoue
Title: Vice President and Manager
$11,250,000
Address for Notices:
Xxx Xxxxxxx Xxxxxx
Xxxxx 0000
0000 XxXxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-10
THE FIRST NATIONAL BANK OF CHICAGO, as a Bank
By: /s/ Xxxxx X. Xxxxxxx
Commitment: Name: Xxxxx X. Xxxxxxx
Title: Vice President
$30,000,000
Address for Notices:
One First National Plaza
10th Floor, Mail Suite 0634
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
with a copy to:
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-11
SOCIETE GENERALE, SOUTHWEST AGENCY, as
a Bank
By: /s/ Xxxx X. Xxxxxxx
Commitment: Name: Xxxx X. Xxxxxxx
Title: First Vice President
$30,000,000
Address for Notices:
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-12
THE BANK OF TOKYO-MITSUBISHI, LTD., as
a Bank
By: /s/ Xxxxxxx X. Xxxxx
Commitment: Name: Xxxxxxx X. Xxxxx
Title: Vice President
$11,250,000
Address for Notices:
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 000000-0000
Attention: Xx. Xxxx X. XxXxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
X-00
XXXX XX XXXXXXXX, as a Bank
By: /s/ Xxxxx Chintat
Commitment: Name: Xxxxx Chintat
Title: Vice President
$11,250,000
Address for Notices:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Ms. Xxxxx Chintat
Phone: (000) 000-0000
Fax: (000) 000-0000
S-14
CREDIT AGRICOLE INDOSUEZ, as a Bank
By: /s/ W. Xxxxx Xxxxxx
Commitment: Name: W. Xxxxx Xxxxxx
Title: First Vice President
$11,250,000
By: /s/ Xxxxx Eouhl, FVP
Name: Xxxxx Eouhl, FVP
Title: Head of Corporate Banking - Chicago
Address for Notices:
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-15
CHRISTIANIA BANK OG KREDITKASSE, as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
Commitment: Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
$11,250,000
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: First Vice President
Address for Notices:
00 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-16
DEN NORSKE BANK AS, as a Bank
By: /s/ Xxxxx X. Xxxxxx
Commitment: Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
$11,250,000
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
Address for Notices:
000 Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-17
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION, as a Bank
By: /s/ Xxxx Xxxxxxxxx
Commitment: Name: Xxxx Xxxxxxxxx
Title: Vice President
$20,000,000
Address for Notices:
0000 Xxxxxxxxx Xxxxxx
3rd Floor/MAC 5002-031
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
X-00
XXX XXXX XX XXXX XXXXXX, as a Bank
By: /s/ FCH Xxxxx
Commitment: Name: FCH Xxxxx
Title: Senior Manager Loan Operations
$30,000,000
Address for Notices:
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-19
CIBC INC., as a Bank
By: /s/ Xxxxxxxxxx X. Xxxxxxx
Commitment: Name: Xxxxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
$30,000,000
Address for Notices:
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Loan Operations
with a copy to:
Canadian Imperial Bank of Commerce
Two Houston Center
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Mr. Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
X-00
XXXXXX XXXX N.A., as a Bank
By: /s/ Xxxxx X. Xxxxxx
Commitment: Name: Xxxxx X. Xxxxxx
Title: Vice President
$11,250,000
Address for Notices:
Mellon Bank N.A.
One Mellon Bank Center
Room 151-4425
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Manager, Energy Services Group
Phone: (000) 000-0000
Fax: (000) 000-0000
X-00
XXXX XX XXXXXXXX, as a Bank
By: /s/ Xxxxxxx X. Xxxxxx
Commitment: Name: Xxxxxxx X. Xxxxxx
Title: Director
$30,000,000
Address for Notices:
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
S-22
Exhibit A
Unrestricted Subsidiaries
1. Seagull UK Ltd.
2. SGO Isle of Man Ltd.
3. Seagull Energy International, Inc.
4. SGO Southeast Asia, Inc.
5. Seagull Ireland Ltd.
6. Seagull International Holdings Ltd.
7. Seagull East Zeit Petroleum Ltd.
8. Seagull South Hurghada Petroleum Ltd.
9. Seagull (Cote D'Ivoire) Ltd.
10. Seagull (Cote D'Ivoire) CI-12 Ltd.
11. Seagull (Cote D'Ivoire) CI-104 Ltd.
12. Seagull (Egypt) Ltd.
13. Seagull (Egypt) Darag, Ltd.
14. Seagull (Egypt) East Beni Suef, Ltd.
15. GNR International (Argentina), Inc.
16. Seagull (Malaysia) Ltd.
17. Texneft Inc.
18. GNR International (Turkey), Inc.
19. Seagull WAG Petroleum Ltd.
Exhibit A-1
Exhibit B
Form of Request for Extension of Credit
[SEAGULL ENERGY CORPORATION LETTERHEAD]
REQUEST FOR EXTENSION OF CREDIT
________________, 199____
The Chase Manhattan Bank,
as Administrative Agent
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agent Services
Gentlemen:
The undersigned hereby certifies that he is the __________________ of
SEAGULL ENERGY CORPORATION, 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 Amended and Restated Credit
Agreement (as it may be amended, supplemented or restated from time to time, the
"Agreement") dated as of December 24, 1997, by and among the Company, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Documentation Agent for the Banks,
NATIONSBANK OF TEXAS, N.A., as Syndication Agent for the Banks, and THE CHASE
MANHATTAN BANK, as Administrative Agent for the Banks ("Administrative Agent"),
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 ________________,
199___, 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 Revolving Credit Obligations is:
$----------
Exhibit B-1
(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, (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.
Thank you for your attention to this matter.
Very truly yours,
SEAGULL ENERGY CORPORATION,
a Texas corporation
By: _
Name:
Title:
Exhibit B-2
Exhibit C
Existing Competitive Loans
Interest
Institution Issue Date Maturity Rate Amount
NONE
Exhibit C-1
Exhibit D
Subsidiaries (with Addresses)
1. Seagull Energy E&P Inc.
2. Seagull Midcon Inc.
3. Seagull Mid-South Inc.
4. Seagull Energy Canada Holding Company
5. Seagull UK Ltd.
6. SGO Isle of Man Ltd.
7. Seagull Energy International, Inc.
8. SGO Southeast Asia, Inc.
9. Seagull Ireland Ltd.
10. Seagull International Holdings Ltd.
11. Seagull East Zeit Petroleum Ltd.
12. Seagull South Hurghada Petroleum Ltd.
13. Global Natural Resources Inc.
14. Global Natural Resources Corporation of Nevada
15. Seagull (Cote D'Ivoire) Ltd.
16. Seagull (Cote D'Ivoire) CI-12 Ltd.
17. Seagull (Cote D'Ivoire) CI-104 Ltd
18. Seagull (Egypt) Ltd.
19. Seagull (Egypt) Darag, Ltd.
20. Seagull (Egypt) East Beni Suef, Ltd.
21. GNR International (Argentina), Inc.
22. Seagull (Malaysia) Ltd.
23. Texneft Inc.
24. GNR Eastern
25. GNR International (Turkey), Inc.
26. Thousand Oaks Development Corporation
27. Seagull Pipeline & Marketing Company
28. Seagull Marketing Services, Inc.
29. Seagull Power Services Inc.
30. Seagull Products Pipeline Corporation
31. Seagull Field Services Company
32. Seagull Pipeline Company
33. Alaska Pipeline Company
34. Seagull WAG Petroleum Ltd.
In each case, the address for notice is: c/o Seagull Energy Corporation
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Exhibit D-1
Exhibit E
Form of
Compliance Certificate
The undersigned, the ___________________ of SEAGULL ENERGY CORPORATION, a
Texas corporation (the "Company"), hereby certifies that he is authorized to
execute this certificate on behalf of the Company, pursuant to the Amended and
Restated Credit Agreement (the "Credit Agreement") dated as of December 24,
1997, by and among the Company, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent for the Banks, NATIONSBANK OF TEXAS, N.A., as Syndication
Agent for the Banks, and THE CHASE MANHATTAN BANK, as Administrative Agent for
the Banks ("Administrative Agent"), 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 ___________________, 199___:
(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, (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 the consolidated financial condition and results of
Exhibit E-1
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 10.9 and 10.10 of the Credit
Agreement is as follows:
(i) Section 10.9 of the Credit Agreement - Total Debt/Capitalization Ratio]
Revolving Credit Obligations (including Competitive Loans)] $__________
Other Current Maturities and borrowed money Indebtedness $__________
Total Debt (1) $__________
Total Shareholders Equity $__________
Total Capitalization (2) $__________
Total Debt/Capitalization Ratio (1) (2) ______%
Note: Must be no greater than 60%
(ii) Section 10.10 of the Credit Agreement - EBITDAX/Interest Ratio (For the
rolling four calendar quarter period ended _________________, 199____)
Earnings Applicable to Common Stock1 $__________
Interest Expense (including capitalized interest) $__________
Income Tax Expense $__________
Material Gains/Losses $__________
Depreciation, Depletion & Amortization $__________
Exploration Expenses $__________
Operating Lease Rentals $__________
1 Excludes Cumulative Effect of Changes in Accounting Methods
Exhibit E-2
EBITDAX (the sum of the foregoing) (1) $__________
Operating Lease Rentals (a) $__________
Cash Interest Expense (b) $__________
Total [(a) plus (b)] (2) $__________
EBITDAX/Interest (1)/(2) __________
Note: Must be no less than 3.75:1.
(e) There has occurred no material adverse change, either in any case or in
the aggregate, in the assets, liabilities, financial condition, business,
operations, affairs or circumstances of the Company and its Subsidiaries taken
as a whole since the date of the most recent Financial Statements delivered to
the Banks.
DATED as of ____________________, 199___.
SEAGULL ENERGY CORPORATION
By:
Name:
Title:
Exhibit E-3
Exhibit F
Form of
Assignment and Acceptance
Dated: _______________.199____
Reference is made to the Amended and Restated Credit Agreement dated as of
December 24, 1997 (as restated, amended, modified, supplemented and in effect
from time to time, the "Credit Agreement"), among SEAGULL ENERGY CORPORATION, a
Texas corporation (the "Company"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent for the Banks, NATIONSBANK OF TEXAS, N.A., as Syndication
Agent for the Banks, and THE CHASE MANHATTAN BANK, as Administrative Agent for
the Banks ("Administrative Agent"), 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
Exhibit F-1
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; (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.
Exhibit F-2
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.
Exhibit F-3
Schedule I to Assignment and Acceptance
Legal Name of Assignor: ____________________________________
Legal Name of Assignee: ____________________________________
Effective Date of Assignment:_______________________, 199___
Percentage Assigned of Each
Facility (to at least 8
Principal decimals) (Shown as a
Amount (or, percentage of aggregate
with respect original principal amount
to Letters [or, with respect to Letters
Assigned of Credit, face Credit, fact amount]
Facilities amount) Assigned of all Banks
Committed Loans: $_______________ __________%
Letter of Credit $_______________ __________%
participation
interests:
Competitive Loans: $_______________
Accepted:
THE CHASE MANHATTAN BANK, ____________________________
as Administrative Agent as Assignor
By:______________________ By:_________________________
Name: Name:
Title: Title:
Exhibit F-4
SEAGULL ENERGY CORPORATION ____________________________
as Assignee
By:______________________ By:_________________________
Name: Name:
Title: Title:
Exhibit F-5
Exhibit G
Form of
Competitive Bid Request
The Chase Manhattan Bank,
as Administrative Agent
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agent Services
Dear Sirs:
Reference is made to the Amended and Restated Credit Agreement dated as of
December 24, 1997, as modified and amended (the "Credit Agreement"), among the
undersigned, the Banks named therein, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent for the Banks, NATIONSBANK OF TEXAS, N.A., as Syndication
Agent for the Banks, and THE CHASE MANHATTAN BANK, as Administrative Agent for
the Banks ("Administrative Agent"). 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 Loan 1 ____________________
(C) Interest Period and the last day thereof 2 ____________________
Exhibit G-1
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,
SEAGULL ENERGY CORPORATION
By:_______________________
Name:
Title:
Exhibit G-2
Exhibit H
Form of
Notice to Banks of Competitive Bid Request
[Name of Bank]
[Address of Bank]
Attention:________________ _______________, 199___
Dear Sirs:
Reference is made to the Amended and Restated Credit Agreement dated as of
December 24, 1997, as modified and amended (the "Credit Agreement"), among
Seagull Energy Corporation (the "Company"), the Banks named therein, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Documentation Agent for the Banks,
NATIONSBANK OF TEXAS, N.A., as Syndication Agent for the Banks, and THE CHASE
MANHATTAN BANK, as Administrative Agent for the Banks ("Administrative Agent").
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,
THE CHASE MANHATTAN BANK
By:__________________________
Name:
Title:
Exhibit H-1
Exhibit I
Form of
Competitive Bid
The Chase Manhattan Bank,
as Administrative Agent
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agent Services __________, 199___
Dear Sirs:
The undersigned, [Name of Bank], referred to in the Amended and Restated
Credit Agreement dated as of December 24, 1997, as modified and amended (the
"Credit Agreement"), among Seagull Energy Corporation (the "Company"), the Banks
named therein, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Documentation Agent
for the Banks, NATIONSBANK OF TEXAS, N.A., as Syndication Agent for the Banks,
and THE CHASE MANHATTAN BANK, as Administrative Agent for the Banks
("Administrative Agent"). 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 _______________, 19___,
and in that connection sets forth below the terms on which such Competitive Bid
is made:
(A) Principal Amount1 _____________________________
(B) Competitive Bid Rate2 _____________________________
(C) Interest Period and the last day thereof3 _____________________________
Exhibit I-1
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-2
Exhibit J
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-1
Exhibit K
Continuing Letters of Credit
1. Issuer: The Chase Manhattan Bank
Beneficiary: Insurance Company of North America
L/C No.: P259686
Amount: $300,000
Date of Issue: 03/08/91
Expiration: 01/30/99
2. Issuer: The Chase Manhattan Bank
Beneficiary: American Home Assurance Co.
L/C No.: P753483
Amount: $998,000
Date of Issue: 01/30/95
Expiration: 01/30/98
3. Issuer: The Chase Manhattan Bank
Beneficiary: American Home Assurance Co.
L/C No.: P770604
Amount: $662,000
Date of Issue: 12/01/95
Expiration: 12/01/99
4. Issuer: NationsBank of Texas, N.A.
Beneficiary: UMC Petroleum
L/C No.: NBLC2 (150039)
Amount: $50,000
Date of Issue: 06/26/95
Expiration: 01/01/98
5. Issuer: NationsBank of Texas, N.A.
Beneficiary: Michigan Dept. of Natural Resources
L/C No.: NBLC3 (413425)
Amount: $50,000
Date of Issue: 09/03/93
Expiration: 11/01/98
Exhibit K-1
6. Issuer: NationsBank of Texas, N.A.
Beneficiary: Hambros Channel Island Trust
L/C No.: NBLC4 (913560)
Amount: $16,645,954.91
Date of Issue: 08/08/96
Expiration: 08/11/98
1/ Excludes Cumulative Effect of Changes in Accounting Methods
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 Agent not later than
11:00 a.m., Houston, Texas time, four Business Days before the date of the
proposed Competitive Loan.
1/ Not less than $10,000,000 or greater than the available Total Commitment
and in integral multiples of $1,000,000. Multiple bids will be accepted by
the Auction Agent.
2/ Expressed as a percentage
3/ The Interest Period must be the Interest Period specified in the
Competitive Bid Request.
Exhibit K-2
