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EXHIBIT 10.1
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THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
among
COHO RESOURCES, INC.,
COHO LOUISIANA PRODUCTION COMPANY, and
COHO EXPLORATION, INC.
as the Borrowers
COHO ENERGY, INC.
as a Guarantor
certain Lenders named herein
BANQUE PARIBAS, HOUSTON AGENCY
as the Administrative Agent and as a Co-Agent
and
BANK ONE, TEXAS, N.A., and
MEESPIERSON N.V.
as Co-Agents
August 8, 1996
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; CERTAIN TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.02. Accounting and other Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE II ADVANCES AND LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.01. Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(a) Revolving Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(b) Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(c) Bridge Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.02. Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.03. Repayment of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(a) Revolver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(b) Bridge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.04. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.05. Access to Availability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(a) Borrowing Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(b) Procedure for Issuing Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.06. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.07. Conversions and Continuations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.08. Commitment Fee; Reduction or Termination of Commitments. . . . . . . . . . . . . . . . . . . 30
SECTION 2.09. Additional Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.10. Borrowing Base. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(a) Initial Amount; Waiver of Redetermination . . . . . . . . . . . . . . . . . . . . . 31
(b) Semiannual Redeterminations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(c) Interim Redetermination by Lenders. . . . . . . . . . . . . . . . . . . . . . . . . 32
(d) Interim Redeterminations at the Request of Borrowers . . . . . . . . . . . . . . . 33
(e) Redetermination as a Result of a Sale of Collateral . . . . . . . . . . . . . . . . 33
(f) Bridge Redetermination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(g) Standards for Redetermination . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE III PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.01. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.02. Repayments and Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(a) Optional Repayments and Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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(b) Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.03. Pro Rata Treatment; Distribution of Payments . . . . . . . . . . . . . . . . . . . . . . . . 36
(a) Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(b) Distribution of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.04. Non-Receipt of Funds by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.05. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.06. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(a) Payment by Borrowers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(b) Withholding Tax Exemption Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE IV YIELD PROTECTION AND ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.01. Increased Costs and Reduced Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.02. Basis for Determining Interest Rate Inadequate or Unfair . . . . . . . . . . . . . . . . . . 40
SECTION 4.03. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.04. Treatment of Affected Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.05. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE V CONDITIONS OF LENDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.01. Conditions to the Effectiveness of this Agreement . . . . . . . . . . . . . . . . . . . . . . 42
(a) Amendment Fees; Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(b) Representations and Warranties; No Event of Default . . . . . . . . . . . . . . . . . . . . 42
(c) Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(d) Delivery of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.02. Conditions Precedent to the Advances and Issuances of Letters of Credit . . . . . . . 44
(a) Payment of Fees, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(b) Representations and Warranties; No Event of Default . . . . . . . . . . . . . . . . . . . . 44
(c) Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(d) Advance Request Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(e) Proceedings; Receipt of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(f) Bridge Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE VI REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.01. Representations and Warranties of Each Company . . . . . . . . . . . . . . . . . . . . . . . 45
(a) Organization, Good Standing, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(b) Authorization, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(c) Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(d) Enforceability of Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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(e) Subsidiaries; Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(f) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(g) Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(h) Compliance with Law, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
(i) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
(j) Taxes, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
(k) Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(l) Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(m) Credit Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(n) Nature of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(o) Adverse Agreements, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(p) Holding Company and Investment Company Acts . . . . . . . . . . . . . . . . . . . . . . . . 48
(q) Permits, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(r) Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(s) Environmental Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(t) Principal Place of Business; Location of Collateral . . . . . . . . . . . . . . . . . . . . 50
(u) Corporate Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(v) Security Interests and Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VII COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(a) Stockholders' Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(b) Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(c) Current Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(d) Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(e) Compliance with Laws, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(f) Preservation of Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(g) Maintenance of Properties, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(h) Obtaining of Permits, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(i) Keeping of Records and Books of Account . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(j) Inspection Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(k) Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(l) Environmental Reports and Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
(m) Further Assurances; Post Closing Matters; Letters in Lieu . . . . . . . . . . . . . . . . . 57
(n) Unrestricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(a) Liens, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(b) Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
(c) Merger, Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
(d) Sale of Assets, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
(e) Change in Nature of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
(f) Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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(g) Restricted Payments and Restricted Investments . . . . . . . . . . . . . . . . . . . . . . 64
(h) Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
(i) Hedging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE VIII EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.02. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(a) Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(b) Termination of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(c) Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(d) Foreclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(e) Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 8.03. Performance by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE IX THE ADMINISTRATIVE AGENT AND THE CO-AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 9.01. Appointment, Powers and Immunities of Co-Agents . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 9.02. Rights of Co-Agents as a Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 9.03. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.04. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.05. Independent Credit Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.06. Several Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.07. Successor Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.01. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.02. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.03. No Waiver; Remedies, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.04. Fees, Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.05. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
(a) Environmental Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
(b) General Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
(c) Provisions Applicable to All Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.06. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.07. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.08. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
(a) Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
(b) Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
(c) Assignments by Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
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(d) Deliveries of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.10. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.12. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.13. Maximum Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.14. Non-Application of Chapter 15 of Texas Credit Code . . . . . . . . . . . . . . . . . . . . . 79
SECTION 10.15. Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 10.16. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 10.17. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 10.18. Joint and Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 10.19. ENTIRE AGREEMENT; AMENDMENT AND RESTATEMENT . . . . . . . . . . . . . . . . 80
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EXHIBITS
Exhibit A - Note
Exhibit B - Advance Request Form
Exhibit C - Solvency Certificate
SCHEDULES
6.01(e) - Subsidiaries
6.01(f) - Litigation
6.01(m) - Credit Agreements
6.01(s) - Environmental Matters
6.01(t) - Locations of Business and Collateral
7.02(a) - Liens
7.02(f) - Affiliate Transactions
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDED AND RESTATED CREDIT AGREEMENT (the "Agreement")
dated as of August 8, 1996 by and among COHO RESOURCES, INC., a Nevada
corporation ("CRI"), COHO LOUISIANA PRODUCTION COMPANY, a Delaware corporation
(the "Production Company"), and COHO EXPLORATION, INC., a Delaware corporation
("Exploration") (CRI, the Production Company and Exploration are sometimes
collectively referred to as the "Borrowers" and individually as a "Borrower"),
COHO ENERGY, INC., a Texas corporation ("Holdings") (the Borrowers and Holdings
are sometimes referred to herein together as the "Companies" or individually as
a "Company"), each of the banks or other lending institutions which is or which
may from time to time become a signatory hereto or any successor or assignee
thereof (collectively, the "Lenders"), BANQUE PARIBAS, a bank organized under
the laws of the Republic of France acting through its Houston Agency
("Paribas"), BANK ONE, TEXAS, N.A., a national banking association ("Bank
One"), and MEESPIERSON N.V., a company organized under the laws of the Kingdom
of the Netherlands ("MeesPierson"), as Co-Agents for the Lenders (the
"Co-Agents"), and Paribas in its capacity as Administrative Agent for the
Lenders (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
R E C I T A L S:
A. CRI and Canada Trust Bank N.V. formerly known as The Canada
Trust Company B.V. (herein, "Canada Trust") entered into that certain Revolving
Credit Agreement dated as of August 16, 1990 (such agreement, as the same has
been amended, hereinafter referred to as the "Canada Trust Credit Agreement").
To evidence the indebtedness of CRI to Canada Trust under the Canada Trust
Credit Agreement, CRI executed and delivered to Canada Trust that certain
Promissory Note dated August 16, 1990, payable to the order of Canada Trust in
the original principal amount of $75,000,000.00 (the "Canada Trust Note").
B. Canada Trust has assigned to the Administrative Agent for the
benefit of the Lenders, Canada Trust's right, title and interest in and to,
among other things, the Canada Trust Credit Agreement, the Canada Trust Note,
the security agreements, mortgages and other collateral documents securing
payment thereof (all such documentation referred to collectively herein as the
"Canada Trust Loan Documents") pursuant to that certain Assignment of Note,
Loan Documents and Liens dated as of August 27, 1992, executed by Canada Trust
for the benefit of the Administrative Agent and the Lenders (such assignment
hereinafter referred to as the "Assignment").
C. CRI has entered into that certain Credit Agreement dated as of
August 27, 1992 (such agreement, as the same has been modified, herein the
"Original Credit Agreement") with the Administrative Agent, Canada Trust and
the other Lenders named therein, to amend and restate the Canada Trust Credit
Agreement in its entirety.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 1
9
D. Canada Trust has assigned all its interest in the Original
Credit Agreement pursuant to the following:
(i) that certain Assignment Agreement dated June 10, 1993
among Canada Trust, Paribas and the Administrative
Agent;
(ii) that certain Assignment Agreement dated October 22,
1993 among Canada Trust, MeesPierson and the
Administrative Agent;
(iii) that certain Assignment Agreement dated November 5,
1993 among Canada Trust, Bank of Scotland and the
Administrative Agent;
(iv) that certain Assignment Agreement dated November 5,
1993 among Canada Trust, Xxxxx Fargo Bank, N.A. and
the Administrative Agent; and
(v) that certain Assignment Agreement dated November 5,
1993 among Canada Trust, Christiania Bank og
Kreditkasse and the Administrative Agent.
E. The Original Credit Agreement has been amended and restated in
its entirety by that certain Amended and Restated Credit Agreement dated as of
February 8, 1994, by and among CRI, Holdings, Paribas, as Agent, and the
Lenders parties thereto (as amended by that certain First Amendment to Amended
and Restated Credit Agreement dated as of June 24, 1994, the "First Amended
Credit Agreement").
F. The First Amended Credit Agreement has been amended and
restated in its entirety by that certain Second Amended and Restated Credit
Agreement dated as of December 2, 1994, by and among CRI, Holdings, Paribas, as
Agent, and the Lenders parties thereto (as amended by that certain First
Amendment to Second Amended and Restated Credit Agreement dated as of June 30,
1995, that certain Second Amendment to Second Amended and Restated Credit
Agreement dated as of August 4, 1995, that certain Third Amendment to Second
Amended and Restated Credit Agreement dated as of November 1, 1995, and that
certain Fourth Amendment to Second Amended and Restated Credit Agreement dated
as of March 29, 1996, the "Second Amended Credit Agreement").
G. CRI has requested that the Administrative Agent and the
Lenders amend the Second Amended Credit Agreement (i) to add the Production
Company and Exploration as Borrowers, (ii) to create an acquisition bridge
facility, (iii) to extend the Revolving Termination Date to January 1, 2000 and
the Revolver Maturity Date to June 30, 2003, and (iv) to modify certain other
provisions of the Second Amended Credit Agreement. The Lenders and the
Administrative Agent are willing to make such amendments to the Second Amended
Credit Agreement upon and subject to the terms and conditions of the Second
Amended Credit Agreement as amended and restated hereby.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 2
10
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN TERMS
SECTION 1.01. Definitions. As used in this Agreement, the
following terms shall have the respective meanings indicated below, such
meanings to be applicable equally to both the singular and plural forms of such
terms:
"Additional Security Agreement" means the Security Agreement dated
February 8, 1994, between CRI and the Administrative Agent for the benefit of
Lenders, as the same may be amended or otherwise modified from time to time.
"Adjusted Eurodollar Rate" means, for any Eurodollar Advance for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the Interbank Offered Rate for such Eurodollar Advance for such Interest Period
divided by 1 minus the Reserve Requirement for such Eurodollar Advance for such
Interest Period.
"Administrative Agent" has the meaning specified in the preamble
hereto.
"Advance" means a Revolving Advance or a Bridge Advance.
"Advance Request Form" means a certificate, in substantially the form
of Exhibit B hereto, properly completed and signed by a Borrower requesting an
Advance or the issuance of a Letter of Credit.
"Affiliate" means, as to any Person, (a) any other Person that
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person or (b) when used
with respect to all covenants, representations, warranties and other provisions
relating to ERISA and ERISA related matters, the term "Affiliate" shall only
mean, as to any Person, any trade or business (whether or not incorporated)
which is a member of a group of which such Person is a member and which is
under common control within the meaning of the regulations promulgated under
Section 414 of the Internal Revenue Code. The term "control" means the
possession, directly or indirectly, of the power to direct or cause direction
of the management and policies of a Person, whether through the ownership of
voting securities, by contract, or otherwise; provided, however, in no event
shall the Administrative Agent, any Co-Agent or any Lender be deemed an
Affiliate of Holdings or any of its Subsidiaries.
"Agreement" means this Third Amended and Restated Credit Agreement as
the same may be amended or otherwise modified.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 3
11
"Applicable Lending Office" means for each Lender and each Type of
Advance, the Lending Office of such Lender (or of an Affiliate of such Lender)
designated for such Type of Advance below its name on the signature pages
hereof or such other office of such Lender (or of an Affiliate of such Lender)
as such Lender may from time to time specify to the Borrowers and the
Administrative Agent as the office from which its Advances of such Type are to
be made and maintained.
"Applicable Margin" for Revolving Advances means (a) with respect to
Prime Rate Advances, zero percent (0.00%) and (b) with respect to Eurodollar
Advances, one and one-half of one percent (1.50%); provided however, that the
Applicable Margin for Eurodollar Advances shall be adjusted based upon the
ratio of the Consolidated Indebtedness of Holdings and its Restricted
Subsidiaries to the EBITDA of Holdings and its Restricted Subsidiaries
(measured on a rolling four-quarters basis) as follows:
--------------------------------------------------------------------------------
Consolidated Indebtedness/EBITDA Applicable Margin for
Eurodollar Advances
--------------------------------------------------------------------------------
Less than 2.0 1.000%
--------------------------------------------------------------------------------
Greater/Equal to 2.0 X Less than2.5 1.125%
--------------------------------------------------------------------------------
Greater/Equal to 2.5 X Less than 3.0 1.250%
--------------------------------------------------------------------------------
Greater/Equal to 3.0 X Less than 3.5 1.375%
--------------------------------------------------------------------------------
Greater/Equal to 3.5X 1.500%
--------------------------------------------------------------------------------
Changes in the Applicable Margin for Eurodollar Advances shall be based upon
such ratio of Consolidated Indebtedness to EBITDA of Holdings as disclosed in
the certified quarterly or annual audited consolidated financial statements of
Holdings delivered to the Administrative Agent pursuant to Section 7.01(d) and
calculated in the officer's certificate delivered concurrently therewith
pursuant to Section 7.01(d)(iv) and shall become effective on delivery of such
financial statements and certificate to the Administrative Agent. "Applicable
Margin" for Bridge Advances means (a) with respect to Prime Rate Advances, one
percent (1.00%) and (b) with respect to Eurodollar Advances, two and three-
quarters of one percent (2.75%).
"Applicable Rate" means: (a) during the period that an Advance is a
Prime Rate Advance, the Prime Rate plus the Applicable Margin, and (b) during
the period that an Advance is a Eurodollar Advance, the Adjusted Eurodollar
Rate plus the Applicable Margin.
"Assignment" has the meaning specified in the Recitals hereto.
"Authorizing Resolution" means that certain Coho Energy, Inc.
Statement of Resolution Establishing Series of Shares filed in accordance with
the terms of the ING Acquisition Agreement.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 4
12
"Availability" means, at the date of determination, the difference
between (a) the Borrowing Base as of such date, and (b) the Outstanding Credit
as of such date less the aggregate principal amount of any Bridge Advances then
outstanding.
"Borrower" and "Borrowers" have the meanings specified in the preamble
hereto.
"Borrowing Base" means the Dollar amount determined in accordance with
Section 2.10 which shall never exceed the aggregate amount of the Commitments.
"Borrowing Date" means the date on which an Advance is made or Letter
of Credit is issued hereunder.
"Bridge Advance" means an advance of funds by the Lenders or any of
them to a Borrower pursuant to Section 2.01(c) of this Agreement.
"Bridge Borrowing Base" has the meaning specified in the definition of
Bridge Sublimit.
"Bridge Sublimit" means the lesser of (i) Twenty Million and No/100
Dollars ($20,000,000.00) or (ii) the sum of (A) 65% of the NPV - Proven
Reserves of the Borrowers as of the last Redetermination Date plus, without
duplication, (B) 65% of the NPV 10 of the Proven Producing Reserves being
acquired with the proceeds of any Bridge Advance being made at the time, less
(C) the then-existing Borrowing Base (the remainder obtained upon subtracting
(C) from the sum of (A) plus (B) is hereinafter referred to as the "Bridge
Borrowing Base").
"Bridge Maturity Date" means December 31, 1997; provided, however,
that the Lenders in their sole discretion may extend the Bridge Maturity Date
for additional one-year periods by notice to the Borrowers.
"Business Day" means (a) any day on which commercial banks are not
authorized or required to close in Houston, Texas and New York, New York and
(b) with respect to all borrowings, payments, Conversions, Continuations,
Interest Periods, and notices in connection with Eurodollar Advances, any day
which is a Business Day described in clause (a) above and which is also a day
on which dealings in Dollar deposits are carried out in the London interbank
market.
"Canada Trust" has the meaning specified in the Recitals hereto.
"Canada Trust Credit Agreement " has the meaning specified in the
Recitals hereto.
"Canada Trust Loan Documents" has the meaning specified in the
Recitals hereto.
"Canada Trust Note" has the meaning specified in the Recitals hereto.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 5
13
"Capitalized Lease Obligations" means obligations for the payment of
rent for any real or personal property under leases or agreements to lease that
in accordance with GAAP have been or should be capitalized on the books of the
lessee and, for purposes hereof, the amount of any such obligation shall be the
capitalized amount thereof determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) evidencing equity interests in
an issuing entity.
"Change of Control" means the occurrence of the following: any Person
or two or more Persons acting as a group (as defined in Section 13d-3 of the
Securities Exchange Act of 1934) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of thirty percent (30%) or more of
the outstanding shares of voting stock of Holdings.
"Coho Canada" means Coho Resources Limited, an Alberta, Canada
corporation and Subsidiary of Holdings.
"Coho Canada Negative Pledge" means the Negative Pledge Agreement
dated as of February 8, 0000, xxxxxxx Xxxx Xxxxxx and the Administrative Agent
for the benefit of Lenders as the same may be amended or otherwise modified
from time to time.
"Coho Shell" means Coho Shell Company, a Delaware corporation.
"Co-Agents" means Bank One, MeesPierson and Paribas in their
capacities as Co-Agents for the Lenders.
"Collateral" means all of the property (tangible and intangible)
purported to be subject to the Liens of the Security Documents.
"Commitment" means the obligation of each Lender to make Advances
hereunder in an aggregate principal amount at any one time outstanding up to
but not exceeding the amount set forth opposite the name of such Lender on the
signature pages hereto under the heading "Commitment," as such amount may be
reduced pursuant to Section 2.08, and "Commitments" means all such commitments
of all of the Lenders, the aggregate of which on the Renewal Date equals
$250,000,000. The Commitments include the Bridge Sublimit.
"Company" and "Companies" have the meanings specified in the preamble
hereto.
"Consolidated Current Assets", as of any date of determination, means
all assets of Holdings and its Restricted Subsidiaries which would properly be
characterized as current assets on a balance sheet prepared in accordance with
GAAP as of such date, plus the Availability as of such date.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 6
14
"Consolidated Current Liabilities" means, as of any date of
determination, all liabilities of Holdings and its Restricted Subsidiaries
which would properly be characterized as current liabilities on a balance sheet
prepared in accordance with GAAP as of such date.
"Consolidated Current Ratio" means as of the date of determination,
the ratio of Consolidated Current Assets to Consolidated Current Liabilities as
of such date.
"Consolidated Indebtedness" means, for any Person, all Indebtedness of
such Person and its Restricted Subsidiaries determined on a consolidated basis
in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, all interest on
Indebtedness of Holdings and its Restricted Subsidiaries paid or accrued during
such period, including the interest portion of payments under Capital Lease
Obligations.
"Consolidated Net Income" means, for any period and for any Person,
the consolidated net income of such Person and its Restricted Subsidiaries for
such period determined in accordance with GAAP.
"Contaminant" means those substances which are regulated by or form
the basis of liability under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls ("PCBs"), Hazardous Materials,
pollutants, chemicals or any other material or substance which now or in the
future constitutes or is deemed by a Governmental Authority to constitute a
health, safety, or environmental hazard to any Person or property.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.07 of a Eurodollar Advance as a Eurodollar
Advance from one Interest Period to the next Interest Period.
"Contribution and Reimbursement Agreement" means that certain
Contribution and Reimbursement Agreement dated as of December 2, 1994, among
the Credit Parties, as amended and restated pursuant to that certain Amended
and Restated Contribution and Reimbursement Agreement dated as of the Renewal
Date among the Credit Parties, as the same may be amended or otherwise modified
from time to time.
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to Section 2.07 or Article IV of one Type of Advance into another Type
of Advance.
"CRI Pledge Agreement" means the Pledge Agreement dated as of December
2, 1994, pursuant to which CRI pledged to the Administrative Agent, for the
benefit of the Lenders, the Capital Stock of ING owned by CRI as collateral for
the Obligations, as the same may be amended or otherwise modified from time to
time.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 7
15
"Credit Parties" means, collectively, the Companies, Coho Canada, ING
and the ING Subsidiaries.
"Daily Production of Crude Oil" means an amount equal to the
Borrowers' actual average daily production of crude oil for the thirty (30) day
period ending on the applicable date of determination.
"Daily Production of Natural Gas" means an amount equal to the
Borrowers' actual average daily production of natural gas for the thirty (30)
day period ending on the applicable date of determination.
"Deed of Trust" means that certain Deed of Trust, Mortgage,
Assignment, Security Agreement and Financing Statement dated December 11, 1990,
made by CRI for the benefit of Canada Trust encumbering the various real and
personal properties described therein located in Texas, as assigned to the
Administrative Agent for the benefit of the Lenders pursuant to the Assignment,
as amended pursuant to that certain First Renewal, Extension and Modification
of Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement dated August 27, 1992, that certain Second Modification of Deed of
Trust, Mortgage, Assignment, Security Agreement and Financing Statement dated
January 6, 1993, Third Renewal, Extension and Modification of Deed of Trust,
Mortgage, Assignment, Security Agreement and Financing Statement dated June 24,
1994, the Fourth Modification of Texas Deed of Trust and as the same may
hereafter be amended or otherwise modified.
"Default Rate" means the lesser of (i) the Maximum Rate or (ii) the
sum of the Prime Rate in effect from day to day plus four percent (4%).
"Dollars" and "$" means lawful money of the United States of America.
"EBITDA" means, for any period, without duplication, the sum of the
following for Holdings and its Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP: (a) Consolidated Net Income, plus
(b) Consolidated Interest Expense, plus (c) income, franchise and other taxes
to the extent deducted in determining Consolidated Net Income, plus (d)
depreciation and amortization expense and other non-cash items to the extent
deducted in determining Consolidated Net Income, minus (e) non-cash income to
the extent included in determining Consolidated Net Income.
"Employee Plan" means an employee benefit plan (other than a
Multiemployer Plan) covered by Title IV of ERISA and maintained for employees
of Holdings or any of its Affiliates.
"Engineering Report" means a report, in form and substance reasonably
satisfactory to the Lenders, certified by, in the case of an Annual Engineering
Report described in Section 2.10(b), an Independent Engineer and by the chief
financial officer of CRI and, in the case of a Semi-Annual Engineering Report
described in Section 2.10(b), by the chief financial officer of CRI or the
chief financial officer of CRI and an Independent Engineer, as the case may be,
addressed to
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 8
16
the Administrative Agent for the benefit of the Lenders setting forth, with
respect to the Petroleum and Natural Gas Rights of the Borrowers (or to be
acquired by the Borrowers, as applicable) which are or are to be Collateral,
(a) the location, quantity and type of the estimated Proven Reserves applicable
to such Petroleum and Natural Gas Rights, (b) a projection of the rate of
production of such Proven Reserves, (c) an estimation of the net operating
revenues to be derived from the production and sale of Hydrocarbons from such
Proven Reserves and (d) such other information as is customarily obtained from
and provided in such reports or is otherwise reasonably requested to be
contained in such reports by the Required Lenders.
"Environmental Claim" means any notice of violation, claim, demand,
order, directive or cause of action by any Governmental Authority or any Person
for personal injury (including, without limitation, sickness, disease or
death), tangible or intangible property damage, damage to the environment,
nuisance, pollution, contamination or other adverse effects on the environment,
or for fines, penalties or restrictions, resulting from or based upon (a) the
existence, or the continuation of the existence, of a Release (including,
without limitation, sudden or non-sudden, accidental or nonaccidental Releases)
or exposure to any Contaminant, odor or audible noise, (b) the transportation,
storage, treatment or disposal of Contaminants in connection with the operation
of facilities or (c) the violation or alleged violation of any Environmental
Law.
"Environmental Law" means any and all applicable past, present and
future laws, regulations, enforceable requirements, binding determinations,
orders, decrees, judgments, injunctions, permits, approvals, authorizations,
licenses, variances, permissions, notices or binding agreements issued,
promulgated or entered by any Governmental Authority, relating to the
environment, health, safety preservation or reclamation of natural resources,
historic structures and places, or to a Release or threatened Release, or any
noxious noise or odor, including, without limitation, those relating to
manufacturing, processing, registering, introducing into commerce, labeling,
distributing, using, generating, treating, storing, disposing, transporting or
handling of any regulated material.
"Environmental Permit" means any permit, authorization, approval or
other consent required to be obtained under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and, unless the context otherwise requires, the
rules and regulations promulgated thereunder from time to time.
"Eurodollar Advances" means Advances that bear interest at rates based
on the rates referred to in the definition of "Adjusted Eurodollar Rate" in
this Section 1.01.
"Event of Default" means any of the events set forth in Section 8.01
hereof.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 9
17
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided however, that (a) if the
day for which such rate is to be determined is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day and
(b) if such rate is not so published on such next succeeding Business Day, the
Federal Funds Rate for any day shall be the average rate charged to the
Reference Lenders on such day on such transactions as determined by the
Administrative Agent.
"Financial Statements" means the audited consolidated financial
statements of Holdings as of December 31, 1995 and the related statement of
earnings, cash flow and shareholders' equity for the year ending December 31,
1995, together with the notes thereto.
"First Amended Credit Agreement" has the meaning specified in the
Recitals hereto.
"First Amendment to Holdings Pledge Agreement" means the First
Amendment to Pledge Agreement dated as of December 2, 1994, pursuant to which
Holdings pledged to the Administrative Agent, for the benefit of the Lenders,
the Capital Stock of ING owned by Holdings as collateral for the Obligations,
as the same may be amended or otherwise modified from time to time.
"GAAP" means generally accepted accounting principles, applied on a
consistent basis, as set forth in opinions of the Accounting Principles Board
of the American Institute of Certified Public Accountants and/or in statements
of the Financial Accounting Standards Board and/or their respective successors
and which are applicable in the circumstances as of the date in question.
Accounting principles are applied on a "consistent basis" when the accounting
principles observed in a current period are comparable in all material respects
to those accounting principles applied in a preceding period.
"Governmental Authority" means the United States or any state or
political subdivision thereof or any foreign nation or political subdivision
thereof, any entity, body or authority exercising executive, legislative,
judicial, regulatory or administrative functions of, or pertaining to,
government in the United States (or any state or political subdivision thereof)
or any foreign nation or any political subdivision thereof, including, without
limitation, any central bank or other governmental or quasi-governmental
authority exercising control over banks or other financial institutions, and
any corporation or other entity or authority owned or controlled (through stock
or capital ownership or otherwise) by any of the foregoing.
"Guarantors" means Holdings, ING, Coho Fairbanks Gathering Company and
Coho Louisiana Gathering Company.
"Hazardous Materials" means all materials subject to any Environmental
Law, including, without limitation, materials listed in 49 C.F.R. Section
172.101, materials defined as hazardous pursuant to Section 101(14) of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, explosive or regulated radioactive materials or substances,
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 10
18
pollutants, contaminants, hazardous or toxic wastes or substances, petroleum or
petroleum distillates or asbestos or material containing asbestos.
"Hedging Arrangements" means any hedging accounts or hedging contracts
relating to the trading of crude oil or natural gas that are established or
maintained by any Credit Party to limit or reduce the market risk of holding
crude oil or natural gas in either the cash or futures market.
"Holdings" has the meaning specified in the preamble hereto.
"Holdings Guaranty" means the Guaranty Agreement dated as of February
8, 1994, executed and delivered by Holdings for the benefit of the
Administrative Agent and the Lenders, as the same may be amended or otherwise
modified from time to time.
"Holdings Pledge Agreement" means the Pledge Agreement dated as of
February 8, 1994, between Holdings and the Administrative Agent, as amended by
the First Amendment to Holdings Pledge Agreement and as the same may be further
amended or otherwise modified from time to time.
"Hydrocarbons" means crude oil, natural gas, natural gas liquids,
other liquid or gaseous hydrocarbons and sulphur.
"Indebtedness" means, with respect to any Person, (a) all indebtedness
or other obligations of such Person for borrowed money or for the deferred
purchase price of property or services except trade accounts payable incurred
in the ordinary course of business which are not past due by more than one
hundred twenty (120) days unless they are being contested in good faith by
appropriate proceedings, (b) Capitalized Lease Obligations of such Person, (c)
all obligations of such Person under direct or indirect guaranties in respect
of, and contingent or other obligations of such Person to purchase or otherwise
acquire or to otherwise assure a creditor against loss in respect of,
indebtedness or other obligations of any other Person for borrowed money or for
the deferred purchase price of property or services or Capitalized Lease
Obligations of any other Person, (d) all indebtedness or other obligations of
any other Person for borrowed money or for the deferred purchase price of
property or services secured by (or for which the holder of such indebtedness
has an existing right, contingent or otherwise, to be secured by) any lien,
security interest or other charge or encumbrance upon or in property owned by
such Person, (e) all obligations of such Person in respect of letters of credit
and bankers' acceptances, (f) liabilities (other than premiums to the Pension
Benefit Guaranty Corporation under Title IV of ERISA) incurred under Title IV
of ERISA with respect to any plan (other than a Multiemployer Plan) covered by
Title IV of ERISA and maintained for employees of such Person or any of its
Affiliates and (g) withdrawal liability incurred under ERISA by such Person or
any of its Affiliates to any Multiemployer Plan.
"Independent Engineer" means Xxxxx Xxxxx Company or another
independent engineering firm selected by the Borrowers and reasonably
satisfactory to the Lenders; provided however, that, if the Borrowers shall not
have selected an independent engineering firm satisfactory to the
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 11
19
Lenders within thirty (30) days of receiving notice from the Administrative
Agent requesting a different engineering firm, the Administrative Agent shall
furnish to the Borrowers a list of three alternative engineering firms and
"Independent Engineer" shall mean the engineering firm selected by the
Borrowers from such list.
"ING" means Interstate Natural Gas Company, a Delaware corporation.
"ING Acquisition" means the acquisition of ING by Holdings and CRI
pursuant to the ING Acquisition Agreement.
"ING Acquisition Agreement" means that certain Acquisition Agreement
dated as of November 11, 1994, by and among The Xxxxxx Xxxxxxx Leveraged Equity
Fund II, L.P., Xxxxx Oil Company Ltd., ING, Holdings and CRI.
"ING Pledge Agreement" means the Pledge Agreement dated as of December
2, 1994, pursuant to which ING pledged to the Administrative Agent, for the
benefit of the Lenders, the Capital Stock of the ING Subsidiaries directly
owned by ING as collateral for the Obligations, as the same may be amended or
otherwise modified from time to time.
"ING Subsidiaries" means the Production Company, Coho Fairbanks
Gathering Company, Coho Louisiana Gathering Company and Exploration.
"Initial Engineering Report" means the engineering report prepared by
The Scotia Group, dated June 1992.
"Initial Environmental Report" means the Phase 1 environmental report
delivered to the Administrative Agent in accordance with Section 5.01(e)(xvii)
of the Original Credit Agreement.
"Interbank Offered Rate" means, with respect to each Interest Period,
the rate of interest per annum determined by the Administrative Agent to be the
average (rounded upward, if necessary, to the nearest 1/100 of 1%) of the rates
per annum at which deposits in immediately available freely transferable funds
in Dollars are offered to each of the Reference Lenders (at approximately 11:00
a.m., London, England time, two Business Days prior to the first day of such
Interest Period) in the London interbank market for delivery on the first day
of such Interest Period, such deposits being for a period of time equal or
comparable to such Interest Period and in an amount equal or comparable to each
Reference Lender's share of the principal amount of the Eurodollar Advance to
which such Interest Period relates. Each determination by the Administrative
Agent of the Interbank Offered Rate shall be conclusive in the absence of
manifest error.
"Intercompany Borrower" means, if and only if approved in writing by
the Administrative Agent and Required Lenders and only to the extent so
approved, any one or more of Holdings and, except for Coho Shell, one or more
Restricted Subsidiaries of Holdings.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 12
20
"Interest Coverage Ratio" means, as of any date of determination, the
ratio of EBITDA to Consolidated Interest Expense for the four fiscal quarters
of Holdings and its Restricted Subsidiaries then most recently ended.
"Interest Period" means with respect to any Eurodollar Advances, each
period commencing on the date such Advances are made (including, as applicable,
the date such advances were made under the Second Restated Credit Agreement) or
Converted from Advances of another Type or, in the case of each subsequent,
successive Interest Period applicable to a Eurodollar Advance, the last day of
the next preceding Interest Period with respect to such Advance, and ending on
the numerically corresponding day in the first, second or third calendar month
thereafter, as a Borrower may select as provided in Section 2.05 or 2.07
hereof, except that each such Interest Period which commences on the last
Business Day of a calendar month (or 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. Notwithstanding the foregoing: (a) 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 if such succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day; (b) any Interest
Period which would otherwise extend beyond the Maturity Date shall end on the
Maturity Date; (c) no more than four (4) Interest Periods for Eurodollar
Advances shall be in effect at the same time; (d) no Interest Period for any
Eurodollar Advances shall have a duration of less than one (1) month and, if
the Interest Period for any Eurodollar Advances would otherwise be a shorter
period, such Advances shall not be available hereunder, and (e) no Interest
Period may extend beyond a principal repayment date unless, after giving effect
thereto, the aggregate principal amount of the Eurodollar Advances having
Interest Periods that end after such principal repayment date shall be equal to
or less than the maximum principal amount of Advances permitted to be
outstanding hereunder after such principal repayment date.
"Interest Rate Hedging Arrangements" means interest rate swaps,
interest rate caps, interest rate collars or other similar mechanisms enabling
a Person to fix or limit its interest expense.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Investment" has the meaning specified in the definition of Restricted
Investments.
"Lender" has the meaning specified in the preamble hereto.
"Letters in Lieu of Transfer Orders" means each letter in lieu of
transfer and division orders, in form and substance satisfactory to the
Administrative Agent directing each purchaser of Hydrocarbons attributable to
the Petroleum and Natural Gas Rights pledged as Collateral to make payment
directly to the Administrative Agent.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 13
21
"Letter of Credit" means a standby or commercial letter of credit
issued by the Administrative Agent for the account of a Borrower pursuant to
Section 2.01 (b) or, prior to the Renewal Date, pursuant to Section 2.01(b) of
the Original Credit Agreement, Section 2.01(b) of the First Amended Credit
Agreement or Section 2.01(b) of the Second Amended Credit Agreement.
"Letter of Credit Liabilities" means, at any time, all fixed and
contingent liabilities of the Administrative Agent under outstanding Letters of
Credit.
"Lien" means any lien, mortgage, security interest, tax lien,
financing statement, pledge, charge, hypothecation, assignment, preference,
priority, or other encumbrance of any kind or nature whatsoever (including,
without limitation, any conditional sale or title retention agreement), whether
arising by contract, operation of law, or otherwise.
"Loan Documents" means this Agreement, the Notes, the Security
Documents and the other Canada Trust Loan Documents (to the extent not amended
and restated pursuant to the Original Credit Agreement, the First Amended
Credit Agreement, the Second Amended Credit Agreement or this Agreement), the
"Loan Documents" as defined in the Original Credit Agreement (to the extent not
amended and restated pursuant to the First Amended Credit Agreement, the Second
Amended Credit Agreement, or this Agreement), the "Loan Documents" as defined
in the First Amended Credit Agreement (to the extent not amended and restated
pursuant to the Second Amended Credit Agreement or this Agreement), the "Loan
Documents" as defined in the Second Amended Credit Agreement (to the extent not
amended and restated pursuant to this Agreement), the Letters of Credit, all
applications, agreements and other documents pursuant to which any Letter of
Credit is issued and all other agreements, instruments and other documentation
which may from time to time be executed by any Credit Party or any third Person
in favor of the Administrative Agent or any Lender in connection with this
Agreement as any of such documentation may be amended or otherwise modified
from time to time.
"Louisiana Oil and Gas Mortgage" means the mortgage dated as of
December 2, 1994, pursuant to which the Production Company, Coho Louisiana
Gathering Company and Coho Fairbanks Gathering Company granted to the
Administrative Agent, for the benefit of the Lenders, a first priority lien on
the ING Subject Interests (as such term is defined in the ING Acquisition
Agreement) located in Louisiana and certain other assets as collateral for the
Obligations, as the same may be amended or otherwise modified from time to
time.
"Majority Lenders" means at any time while no Advances or Letters of
Credit are outstanding Lenders holding at least fifty-one percent (51%) of the
aggregate amount of the Commitments and, at any time while Advances or Letters
of Credit are outstanding, Lenders holding at least fifty-one percent (51%) of
the outstanding aggregate principal amount of the Advances and Letter of Credit
Liabilities.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 14
22
"Material Adverse Change" means any change that is material and
adverse in or to (i) the operations, business or condition (financial or
otherwise) of (a) any Borrower and its Subsidiaries taken as a whole, (b) the
Borrowers and their Subsidiaries taken as a whole or (c) Holdings and its
Subsidiaries taken as a whole or (ii) the ability of any Credit Party to
perform its obligations under any Related Transactions Document to which it is
a party.
"Maturity Date" means, for Revolving Advances, the Revolver Maturity
Date, and for Bridge Advances, the Bridge Maturity Date.
"Maximum Rate" means the maximum rate of nonusurious interest
permitted from day to day by applicable law, including to the extent that Texas
law may ever be applied to the Loan Documents despite the parties election of
New York law to govern the Loan Documents, as to Article 5069-1.04, Vernon's
Texas Civil Statutes (and as the same may be incorporated by reference in other
Texas statutes), but otherwise without limitation, that rate based upon the
"indicated rate ceiling" and calculated after taking into account any and all
relevant fees, payments, and other charges charged, paid or contracted for in
connection with the Loan Documents which are deemed to be interest under
applicable law.
"Mid Louisiana Pledge Agreement" means the Pledge Agreement dated as
of December 2, 1994, pursuant to which the Production Company pledged the
Capital Stock of Exploration to the Administrative Agent, for the benefit of
the Lenders, as collateral for the Obligations, as amended by that certain
First Amendment to Pledge Agreement dated as of the Renewal Date, and as the
same may be amended or otherwise modified from time to time.
"Mississippi Oil and Gas Deed of Trust" means the Deed of Trust dated
as of December 2, 1994, pursuant to which the Production Company, Coho
Louisiana Gathering Company and Coho Fairbanks Gathering Company granted to the
Administrative Agent, for the benefit of the Lenders, a first priority lien on
the ING Subject Interests (as such term is defined in the ING Acquisition
Agreement) located in Mississippi and certain other assets as collateral for
the Obligations, as the same may be amended or otherwise modified from time to
time.
"Modification Agreement" means that certain Modification Agreement
dated of even date herewith among the Companies, the other Guarantors, Coho
Canada and the Administrative Agent.
"Monthly Payment Date" means the last Business Day of each calendar
month.
"Mortgage" means the Deed of Trust, Mortgage, Assignment, Security
Agreement and Financing Statement dated as of August 13, 1990 (effective August
16, 1990), made by CRI for the benefit of Canada Trust encumbering the various
real and personal property described therein located in Mississippi, assigned
to the Administrative Agent for the benefit of the Lenders pursuant to the
Assignment, as amended pursuant to that certain Amendment and Ratification of
Deeds of Trust, Mortgages, Assignments, Security Agreements and Financing
Statements dated June 11, 1992, as supplemented pursuant to that certain First
Supplemental Deed of Trust,
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 15
23
Mortgage, Assignment, Security Agreement and Financing Statement dated June 9,
1992, as amended by the Third Renewal, Extension and Modification of Deed of
Trust, Mortgage, Assignment, Security Agreement and Financing Statement dated
as of August 27, 1992, as amended by the Fourth Renewal, Extension and
Modification of Deed of Trust, Mortgage, Assignment, Security Agreement and
Financing Statement dated as of June 24, 1994, as amended by the Fifth
Modification of Mississippi Mortgage, and as the same may hereafter be amended
or otherwise be modified from time to time.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA.
"New Mortgage Documents" has the meaning set forth in Section 5.01 (d)
(iv).
"Note" means a promissory note executed by the Borrowers in the form
of Exhibit A payable to the order of a Lender in the amount of its Commitment
and all extensions, renewals and other modifications thereof and all
substitutions therefor.
"NPV 10 - Proven Producing Reserves" means the net present value of
the future net income of Proven Producing Reserves to be acquired by a Borrower
with the proceeds of a Bridge Advance discounted at ten percent (10%) per annum
based upon a pricing strip agreed to by the Co-Agents in accordance with their
customary internal standards and practices for valuing oil and gas properties
in connection with reserve-based oil and gas loan transactions and as risked by
the Co-Agents.
"NPV - Proven Reserves" means the net present value of the future net
income of the Proven Reserves of the Borrowers discounted at a rate and based
upon a pricing strip agreed to by the Co-Agents in accordance with their
customary internal standards and practices for valuing oil and gas properties
in connection with reserve-based oil and gas loan transactions and as risked by
the Co-Agents.
"Obligations" means collectively, (a) the obligation of any Credit
Party to pay, as and when due and payable (by scheduled maturity or otherwise),
all amounts from time to time owing by it to the Administrative Agent, any
Co-Agent, or any Lender, in respect of any Loan Document, whether for
principal, interest, fees or otherwise, (b) the obligation of any Credit Party
to perform or observe all of its other obligations from time to time existing
under any Loan Document and (c) all obligations, indebtedness and liabilities
of any Credit Party to any Lender arising in connection with any Hedging
Arrangements or any Interest Rate Hedging Arrangements.
"Original Closing Date" means August 27, 1992.
"Original Credit Agreement" has the meaning specified in the Recitals
hereto.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 16
24
"Original Security Agreement" means that certain Amended and Restated
General Security Agreement and Pledge of Collateral Mortgage Note dated August
27, 1992 between CRI and the Administrative Agent, as modified pursuant to that
certain Act of Partial Release of Act of Collateral Mortgage and Security
Agreement dated June 15, 1993 and pursuant to that certain Partial Release of
Amended and Restated General Security Agreement and Pledge of Collateral
Mortgage Note dated August 17, 1993 and as the same may hereafter be amended or
otherwise modified from time to time.
"Other Taxes" has the meaning specified in Section 3.06(a).
"Outstanding Credit" means, at the date of determination, the sum of
the following: (a) the sum of the aggregate outstanding principal amount of
Advances as of such date, plus (b) the outstanding Letter of Credit Liabilities
as of such date, plus (c) all fixed and contingent liabilities outstanding as
of such date in respect of the letters of credit issued pursuant to the
provisions set forth in subsection 7.02(b)(xi) and, prior to the Renewal Date,
pursuant to the provisions set forth in subsection 7.02(b)(xi) of the First
Amended Credit Agreement and Subsection 7.02(b)(xi) of the Second Amended
Credit Agreement, and prior to February 8, 1994, pursuant to the provisions of
subsection 7.02(b)(ix) of the Original Credit Agreement.
"Paribas" has the meaning specified in the Recitals hereto.
"Permitted Coho Shell Advance" means an advance made by a Borrower to
Coho Shell if (A) no Potential Default or Event of Default exists or would
result therefrom, (B) the amount of such advance does not exceed the
Availability existing immediately prior to the time such advance is made, (C)
such advance is used by Coho Shell to acquire Petroleum and Natural Gas Rights,
(D) such advance is otherwise made on terms and conditions and is evidenced and
governed by loan and security documents which are reasonably acceptable to the
Administrative Agent and Lenders, (E) such advance, along with the collateral
securing the repayment thereof and all documentation executed in connection
therewith, is pledged to the Administrative Agent for the benefit of the
Lenders to secure repayment of the Obligations pursuant to the terms of the
Additional Security Agreement, and (F) the applicable Borrower shall have
provided evidence to the Administrative Agent and the Lenders, in form and
substance reasonably acceptable to the Administrative Agent and the Lenders,
that after giving effect to such advance (1) the present fair saleable value of
such Borrower's assets is in excess of the total amount of such Borrower's
liabilities, contingent or otherwise, (2) such Borrower is paying its debts as
they become due, (3) such Borrower does not believe that it will incur debts or
liabilities beyond its ability to pay such debts and liabilities as they
mature, and (4) such Borrower has sufficient capital to carry on its business
as it has been operated and as it is intended to be operated.
"Permitted Intercompany Advance" means an advance made by a Borrower
to an Intercompany Borrower if (A) no Potential Default or Event of Default
exists or would result therefrom, (B) the amount of such advance does not
exceed the Availability existing immediately prior to the time such advance is
made, (C) such advance is used by the applicable Intercompany Borrower to
acquire Petroleum and Natural Gas Rights, (D) such advance is otherwise made on
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 17
25
terms and conditions and is evidenced and governed by loan and security
documents which are reasonably acceptable to the Administrative Agent and
Lenders, (E) such advance, along with the collateral securing the repayment
thereof and all documentation executed in connection therewith, is pledged to
the Administrative Agent for the benefit of the Lenders to secure repayment of
the Obligations pursuant to the terms of the Additional Security Agreement, and
(F) the applicable Borrower shall have provided evidence to Administrative
Agent and the Lenders, in form and substance reasonably acceptable to the
Administrative Agent and the Lenders, that after giving effect to such advance
(1) the present fair saleable value of such Borrower's assets is in excess of
the total amount of such Borrower's liabilities, contingent or otherwise, (2)
such Borrower is paying its debts as they become due, (3) such Borrower does
not believe that it will incur debts or liabilities beyond its ability to pay
such debts and liabilities as they mature, and (4) such Borrower has sufficient
capital to carry on its business as it has been operated and as it is intended
to be operated.
"Person" means an individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, joint venture or
governmental authority or other regulatory body.
"Petroleum and Natural Gas Right" means a Working Interest, a mineral
interest, a mineral servitude or a Royalty Interest relating to lands
(including, without limitation, submerged lands), whether pursuant to a
petroleum and/or natural gas lease or sublease, royalty agreement, farmout
agreement, joint participation agreement, conveyance, pooling agreement, unit
agreement or other instrument.
"Plan" means an Employee Plan or Multiemployer Plan.
"Potential Default" means any condition or event which, after notice
or lapse of time or both, would constitute an Event of Default.
"Prime Rate" means the variable rate of interest established from time
to time by Citibank, N.A. or any successor in interest to such bank (at its
head office) (or such other bank as may be designated by the Administrative
Agent as provided below), as its prime rate of interest, which rate of interest
may or may not be the lowest or best rate charged by such bank; provided,
however, that, in lieu of Citibank, N.A. or any successor bank to Citibank,
N.A. for purposes of establishing the Prime Rate, the Administrative Agent
may, at any time and from time to time upon five (5) Business Days' prior
written notice to Borrowers and the Lenders, designate (a) The Bank of New
York, New York, New York (at its head office) or (b) any other bank as may be
reasonably acceptable to Borrowers and the Lenders, as the reference bank for
purposes of establishing the Prime Rate. Each change in the Prime Rate shall
become effective without prior notice to Borrowers automatically as of the
opening of business on the date of such change in the Prime Rate.
"Prime Rate Advances" means Advances that bear interest at rates based
upon the Prime Rate.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 18
26
"Principal Office" means the principal office of the Administrative
Agent located at Houston, Texas.
"Production Company" means Coho Louisiana Production Company, a
Delaware corporation.
"Production Report" means, with respect to any calendar quarter, a
report prepared by the Borrowers and certified by the President or any Vice
President of CRI setting forth the quantity of Hydrocarbons produced from the
Proven Reserves covered by the Security Documents during such quarter.
"Proven Non-Producing Reserves" means Proven Reserves other than
Proven Producing Reserves.
"Proven Producing Reserves" means Proven Reserves which are presently
being produced from completion intervals cased for production in existing
xxxxx.
"Proven Reserves" means, at any time, those quantities of Hydrocarbons
which, upon analysis of geological and engineering information and economic
conditions in respect of Petroleum and Natural Gas Rights of the Borrowers,
demonstrate with reasonable certainty to be economically recoverable in the
future from known oil and gas reservoirs under then-existing economic and
then-current operating conditions, and then existing prices and costs, and
which have demonstrated the ability to produce by the availability of actual
production information or conclusive formation testing.
"Pro Rata" means, as to any Lender, its ratable share expressed as a
percentage obtained by multiplying by one hundred (100) the ratio obtained by
either (a) dividing the applicable Commitment of the Lender in question by the
total Commitments of all Lenders (whether or not such Commitments have
terminated and if such Commitments have terminated, then the Commitments shall
be deemed equal to the amount thereof immediately prior to such termination for
the purposes of calculating "Pro Rata") or (b) dividing the aggregate principal
amount of the Advances and/or the Letter of Credit Liabilities outstanding
which were made or participated in by the Lender in question by the aggregate
principal amount of all the Advances and/or Letter of Credit Liabilities
outstanding.
"Quarterly Payment Date" means the last Business Day of January,
April, July and October of each year.
"Redetermination Date" means five (5) days after the Borrowers shall
have been given notice that the Borrowing Base has been redetermined pursuant
to Section 2.10 .
"Reference Lenders" means Paribas and such other Lender or Lenders (if
any) as the Administrative Agent may, in addition to Paribas, designate as
Reference Lenders from time to time in its discretion upon notice to the
Borrowers and Lenders.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 19
27
"Registration Rights Agreement" means that certain Registration Rights
and Shareholder Agreement among Holdings, The Xxxxxx Xxxxxxx Leveraged Equity
Fund II, LP, and Xxxxx Oil Company Ltd. executed pursuant to the terms of the
ING Acquisition Agreement.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Regulatory Change" means, with respect to any Lender, any change
after the date hereof in United States federal, state, or foreign laws, rules,
treaties, directives, guidelines, regulations or policies (including without
limitation, any policy with respect to preexisting laws, rules, treaties,
regulations, guidelines or directives) or the adoption or making after such
date of any interpretations, directives, or requests applying to a class of
banks including such Lender (or its Applicable Lending Office) of or under any
United States federal or state, or any foreign, laws, rules, treaties,
directives, guidelines, regulations or policies (whether or not having the
force of law) by any Governmental Authority charged with the interpretation or
administration thereof, including, without limitation, any change in (a) any
law, rule, regulation, policy, guideline or directive contemplated by the
report dated July 1988 entitled "International Convergence of Capital
Measurement and Capital Standards" issued by the Basle Committee on Banking
Regulations and Supervisory Practices and (b) Japanese Ministry of Finance Act
No. 901, dated April 1, 1982, as amended or otherwise modified from time to
time, including the amendment dated December 22, 1988 but excluding reserve
requirements under Regulation D.
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching, emanation or
migration in, into or onto the environment (including, without limitation,
ambient air, surface water, ground water, land surface, subsurface strata or
work place) of any Contaminant, at, in, by or related to the facilities of any
Person, including, without limitation, the movement of any Contaminant or other
substance through or in the air, soil, surface water or groundwater, except
that for purposes of this definition only, "Contaminant" shall not include
petroleum or petroleum distillates unless (a) the event constituting a
"Release" for purposes of this definition requires notification pursuant to the
Federal Clean Water Act, as amended from time to time, or notification and/or
filing under Mississippi law or other applicable law or (b) the cost of
Remedial Action with respect to such event would exceed One Hundred Thousand
Dollars ($100,000.00).
"Remedial Action" means all actions required or voluntarily undertaken
to (a) clean up, remove, treat, or in any other way address any Contaminant in
the environment or work place, (b) prevent a Release or threat of Release, or
minimize any further Release, so it does not migrate or endanger or threaten to
endanger public health or welfare of the environment or work place, or (c)
perform pre-remedial studies and investigations and post-remedial monitoring
and care.
"Renewal Date" means August 8, 1996.
"Reportable Event" means any of the events set forth in Section 4043
of ERISA.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 20
28
"Required Lenders" means at any time while no Advances or Letters of
Credit are outstanding Lenders holding at least sixty-six and two thirds
percent (66 2/3%) of the aggregate amount of the Commitments and, at any time
while Advances or Letters of Credit are outstanding, Lenders holding at least
sixty-six and two thirds percent (66 2/3%) of the outstanding aggregate
principal amount of the Advances and Letter of Credit Liabilities.
"Reserve Requirement" means, for any Eurodollar Advance for any
Interest Period therefor, the average maximum rate at which reserves (including
any marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency Liabilities" as such term is used in Regulation D.
Without limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (a) any category of liabilities which
includes deposits by reference to which the Adjusted Eurodollar Rate is to be
determined or (b) any category of extensions of credit or other assets which
include Eurodollar Advances.
"Restricted Investments" means all investments, made in cash or by
delivery of property, by Holdings and its Restricted Subsidiaries (a) in any
Person, whether by acquisition of stock, indebtedness or other obligation or
security, or by loan, advance or capital contribution, or otherwise, or (b) in
any property (items (a) and (b) herein called "Investments"), except the
following:
(i) Investments by Holdings in property to be used in the
ordinary course of its business;
(ii) Investments by any Subsidiary of Holdings in property
to be used in the ordinary course of business of such Subsidiary;
(iii) Investments by Holdings in current assets arising
from the sale of goods and services in the ordinary course of its business;
(iv) Investments by any Subsidiary of Holdings in current
assets arising from the sale of goods and services in the ordinary course of
business of such Subsidiary;
(v) Investments in direct obligations of the United
States of America, or any agency thereof, or obligations guaranteed by the
United States of America or any agency thereof;
(vi) Investments in certificates of deposit maturing one
year or less from the date of acquisition thereof issued by a Lender or any
other bank or trust company organized under the laws of the United States of
America or any state thereof having capital, surplus and undivided profits
aggregating at least Five Hundred Million Dollars ($500,000,000.00);
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 21
29
(vii) Investments in commercial paper if at the time of
acquisition such paper is rated in one of the two highest rating categories of
Standard and Poor's Corporation or Xxxxx'x Investors Service;
(viii) Investments consisting of operating deposit accounts
with commercial banks;
(ix) Investments in the ordinary course of business
relating to the acquisition of Petroleum and Natural Gas Rights and the
exploration and development thereof;
(x) Investments made in connection with Hedging
Arrangements or Interest Rate Hedging Arrangements;
(xi) Investments made by Holdings in any of its
Subsidiaries with the proceeds of the sale of its equity securities;
(xii) Permitted Coho Shell Advances and Permitted
Intercompany Advances, if any; and
(xiii) Investments in ING and the ING Subsidiaries arising
as a direct result of the ING Acquisition.
"Restricted Payments" means, with respect to any Person (a) cash
dividends or distributions or any other dividends or distributions on, or in
respect of, any class of Capital Stock or other equity interests of such
Person, except for distributions made solely in shares of stock or other equity
interests of the same class, (b) any and all funds, cash or other payments made
in respect of the retirement, redemption, repurchase or other acquisition of
such stock or equity interests, unless such stock or equity interests shall be
redeemed or acquired through the exchange of such stock or equity interests
with stock or equity interests of the same class, and (c) any loan or advance
by such Person to, or other investment by such Person in, the holder of any
such stock or equity interests (other than Permitted Coho Shell Advances and
Permitted Intercompany Advances); provided, however, that dividends or other
distributions by any Borrower or any of Holdings' other Restricted Subsidiaries
to its shareholders shall not be considered Restricted Payments if (i) no
Potential Default or Event of Default exists or would result therefrom, (ii)
such dividends or other distributions made in any fiscal year do not exceed an
amount equal to, and are made for the purpose of paying, Holdings'
administrative expenses and taxes incurred and attributable to the operations
of the Borrowers and other Subsidiaries of Holdings for such fiscal year, (iii)
the amount of such expenses and taxes are determined pursuant to agreements in
form and substance reasonably acceptable to the Administrative Agent and
Lenders, and (iv) the amount of such dividends and distributions made for the
purpose of paying such administrative expenses do not exceed Three Million
Dollars ($3,000,000.00) in any fiscal year.
"Restricted Subsidiary" means Borrowers, Coho Shell and any other
Subsidiary of Holdings or a Borrower, as applicable, that is not an
Unrestricted Subsidiary.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 22
30
"Revolver Maturity Date" means 11:00 A.M. Houston, Texas time on June
30, 2003.
"Revolving Advance" means an advance of funds by the Lenders or any of
them to a Borrower pursuant to Section 2.01(a) of this Agreement or, prior to
the Renewal Date, pursuant to Article II of the Second Amended Credit
Agreement.
"Revolving Termination Date" means 11:00 a.m. Houston, Texas time on
January 1, 2000 or such earlier date and time on which the Commitments
terminate as provided in this Agreement; provided, however, that the Lenders in
their sole discretion may extend the Revolving Termination Date for additional
one-year periods by notice to the Borrowers.
"Royalty Interest" means a right to a portion of the production of
Hydrocarbons from lands or a portion of the proceeds from the production of
Hydrocarbons from lands, free and clear of operating or other costs, or a right
to a share of profits from the production of Hydrocarbons from lands, provided
that a Royalty Interest shall not include a Working Interest.
"Second Amended Credit Agreement" has the meaning specified in the
Recitals hereto.
"Security Documents" means the Mortgage, the Deed of Trust, the
Original Security Agreement, the Additional Security Agreement, the Guaranty,
the Holdings Pledge Agreement, the CRI Pledge Agreement, the ING Pledge
Agreement, the Mid Louisiana Pledge Agreement, the Louisiana Oil and Gas
Mortgage, the Mississippi Oil and Gas Deed of Trust, the Negative Pledge
Agreement dated February 8, 1994, executed by Coho Canada for the benefit of
the Administrative Agent and the Lenders, Uniform Commercial Code Financing
Statements and such other mortgages, deeds of trust, security agreements,
financing statement and other documentation executed and delivered by any
Credit Party or any other Person for the benefit of the Administrative Agent
and the Lenders that grant or perfect Liens on property to secure the
Obligations or any part thereof, as any of the same may be amended or otherwise
modified from time to time.
"Second Modification - Brookhaven Deed of Trust" means that certain
Second Renewal, Extension and Modification of Deed of Trust, Mortgage,
Assignment of Production, Security Agreement and Financing Statement dated as
of the Renewal Date by and between CRI and the Administrative Agent.
"Second Modification to Louisiana Oil and Gas Mortgage" means that
certain Second Renewal, Extension and Modification of Mortgage, Assignment of
Production, Security Agreement and Financing Statement dated as of the Renewal
Date between CRI and the Administrative Agent.
"Second Modification to Mississippi Oil and Gas Deed of Trust" means
that certain Second Renewal, Extension and Modification of Deed of Trust,
Mortgage, Assignment of Production, Security Agreement and Financing Statement
dated as of the Renewal Date by and between CRI and the Administrative Agent.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 23
31
"Seventh Modification of Mississippi Mortgage" means that certain
Seventh Renewal, Extension and Modification of Deed of Trust, Mortgage,
Assignment, Security Agreement and Financing Statement dated as of the Renewal
Date, by and among CRI, Exploration and the Administrative Agent.
"Sixth Modification of Texas Deed of Trust" means that certain Sixth
Renewal, Extension and Modification of Deed of Trust, Mortgage, Assignment,
Security Agreement and Financing Statement dated as of the Renewal Date, by and
between CRI and the Administrative Agent.
"Stockholders' Equity" means, with respect to any Person, the
aggregate of the following accounts (or their equivalents) set forth on a
consolidated balance sheet of such Person and its Restricted Subsidiaries
prepared in accordance with GAAP, provided that there shall be no adjustments
for any write down of any property, plant and equipment and there shall be
excluded therefrom any loans or advances by such Person to any of its
shareholders: (a) the par or stated value of all outstanding Capital Stock
after deducting treasury stock), (b) capital surplus and (c) retained earnings.
"Subsidiary" means, as to any Person, any corporation of which more
than 50% of the outstanding Capital Stock having (in the absence of
contingencies) ordinary voting power to elect directors (or Persons performing
similar functions) of such corporation is, at the time of determination, owned
directly, or indirectly through one or more intermediaries, by such Person.
"Subsidiary Guaranties" means the Guaranty Agreements dated as of
December 2, 1994, executed by ING and each of the ING Subsidiaries in favor of
the Administrative Agent and the Lenders, pursuant to which ING and each ING
Subsidiary unconditionally guaranteed the payment and performance of the
Obligations to the extent as set forth therein, as the same may be amended or
otherwise modified from time to time.
"Supermajority Lenders" means at any time while no Advances or Letters
of Credit are outstanding, Lenders holding at least seventy-five percent (75%)
of the aggregate amount of the Commitments and, at any time while Advances or
Letters of Credit are outstanding, Lenders holding at least seventy-five
percent (75%) of the outstanding aggregate principal amount of the Advances and
Letter of Credit Liabilities; provided, however, that a group of Lenders which
excludes more than one Lender shall never be deemed to constitute Supermajority
Lenders.
"Taxes" has the meaning specified in Section 3.06.
"Termination Event" means (a) a Reportable Event described in Section
4043 of ERISA (other than a Reportable Event not subject to the provision for
30-day notice to the Pension Benefit Guaranty Corporation under the regulations
promulgated under such Section) with respect to any Employee Plan, (b) the
withdrawal of Holdings or any of its Affiliates from an Employee Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, if as a result Holdings or such Affiliate would be liable
to the Pension Benefit Guaranty Corporation under ERISA Section 4063(b) for
more than Five Hundred Thousand
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 24
32
Dollars ($500,000.00), (c) the filing of a notice of intent to terminate an
Employee Plan (other than in a "standard termination" under Section 4041 of
ERISA) or the treatment of an Employee Plan amendment as a termination under
section 4041 of ERISA, but only if the actuarial present value of the benefit
liabilities under the Employee Plan exceeds the current value of assets
allocable to those benefit liabilities in that Employee Plan by more than Five
Hundred Thousand Dollars ($500,000.00), (d) the institution of proceedings by
the Pension Benefit Guaranty Corporation to terminate an Employee Plan, or (e)
any other event or condition which constitutes grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer,
any Employee Plan.
"Type" means any type of Advance determined with respect to the
interest option applicable thereto, i.e. a Prime Rate Advance or a Eurodollar
Advance.
"Unrestricted Subsidiary" means (i) any Subsidiary of Holdings (other
than Coho Shell or any Credit Party) that Holdings has designated in writing to
the Administrative Agent and the Lenders as an Unrestricted Subsidiary and each
Subsidiary of such designated Subsidiary (other than Coho Shell or any Credit
Party), and (ii) the following Subsidiaries of Coho Canada: 253741 Alberta
Ltd., an Alberta, Canada corporation and 249183 Alberta Ltd., an Alberta,
Canada corporation. Once a Subsidiary has been designated as an Unrestricted
Subsidiary it may not become a Restricted Subsidiary without the consent of all
the Lenders.
"Working Interest" means an interest embodying the right to operate a
well or xxxxx and the right to share in production of Hydrocarbons from such
well or xxxxx or a right to a share of the revenues from the sale of such
Hydrocarbons.
SECTION 1.02. Accounting and other Terms. Unless otherwise expressly
stated herein, all accounting terms used in this Agreement which are not
otherwise defined herein shall be construed in accordance with GAAP. All terms
used in this Agreement which are defined in Article 9 of the Uniform Commercial
Code (the "UCC") in effect in the State of Texas on the date hereof and which
are not otherwise defined herein shall have the same meanings herein as set
forth therein. The words "hereof", "herein", and "hereunder" and words of
similar import referring to this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement. Unless otherwise
specified, all Article and Section references pertain to this Agreement.
ARTICLE II
ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. Commitments.
(a) Revolving Advances. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make one or more Revolving
Advances to the Borrowers from time to time from the Renewal Date to and
including the Revolving Termination Date in an aggregate
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 25
33
principal amount at any time outstanding up to but not exceeding the amount of
such Lender's Commitment as then in effect less such Lender's Pro Rata portion
of the aggregate principal amount of any outstanding Bridge Advances; provided,
however, that the Outstanding Credit less the outstanding principal balance of
any Bridge Advances shall not at any time exceed the Borrowing Base. Subject
to the foregoing limitations, and the other terms and provisions of this
Agreement, Borrowers may borrow, repay, and reborrow hereunder the amount of
the Commitments by means of Prime Rate Advances and Eurodollar Advances until
the Revolving Termination Date and, until the Maturity Date, Borrowers may
Convert Revolving Advances of one Type into Revolving Advances of another Type.
Revolving Advances of each Type made by each Lender shall be made and
maintained at such Lender's Applicable Lending Office for Advances of such
Type.
(b) Letters of Credit.
(i) Issuance. Subject to the terms and conditions of this
Agreement, the Administrative Agent agrees to issue one or more Letters of
Credit for the account of any Borrower from time to time from the Renewal Date
hereof to but excluding the Revolving Termination Date; provided, however, that
(A) the outstanding Letter of Credit Liabilities shall not at any time exceed
Fifteen Million Dollars ($15,000,000.00) and (B) the Outstanding Credit less
the outstanding principal balance of any Bridge Advances shall not at any time
exceed the Borrowing Base. Each Letter of Credit shall be issued in the
minimum face amount of One Hundred Thousand Dollars ($100,000.00), shall not
have an expiration date beyond the Revolving Termination Date, shall be payable
in Dollars, must support a transaction that is entered into in the ordinary
course of business by a Borrower or any Subsidiary of a Borrower, must
otherwise be satisfactory in form and substance to the Administrative Agent and
shall be issued pursuant to such documents and instruments (including without
limitation, letter of credit applications and agreements) as the Administrative
Agent may require. At the time of issuance of each Letter of Credit, the
Administrative Agent shall be deemed, without further action by any party
hereto, to have sold to each other Lender, and each other Lender shall be
deemed without further action by any party hereto, to have purchased from the
Administrative Agent, a participation to the extent of such Lender's Pro Rata
portion (calculated on the basis of the Commitments) of such Letter of Credit
and the related Letter of Credit Liabilities.
(ii) Reimbursement of Letter of Credit Drawings. Upon
receipt by the Administrative Agent of a request for any drawing under a Letter
of Credit, the Administrative Agent shall promptly notify the Borrower which is
the account party on the Letter of Credit and each Lender as to the payment
date for such drawing and amount to be paid as a result of the drawing. Each
Lender shall make available to the Administrative Agent its Pro Rata portion
(calculated on the basis of the Commitments) of the amount to be paid as result
of the drawing on the Letter of Credit, at the Principal Office, in immediately
available funds, not later than 11:00 A.M. (Houston, Texas time) on the payment
date. Each payment made by the Administrative Agent pursuant to a drawing
under a Letter of Credit shall be deemed an Advance under each Lender's Note in
an amount equal to such Lender's Pro Rata portion of such payment (calculated
on the basis of the Commitments). Each such Advance shall be a Prime Rate
Advance.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 26
34
(iii) Letter of Credit Fees. The Borrowers jointly and
severally agree to pay the Administrative Agent for the benefit of each Lender
a letter of credit fee on such Lender's Pro Rata portion (calculated on the
basis of the Commitments) of the average daily amount available for drawing
under the Letters of Credit, such letter of credit fee to be paid in arrears on
each Quarterly Payment Date and on the Revolving Termination Date and to be
calculated at a rate of one percent (1%) per annum. After receiving any
payment of any letter of credit fees under this clause (iii), the
Administrative Agent will promptly pay to each Lender the letter of credit fees
then due such Lender. With respect to each Letter of Credit, the Borrowers
will also jointly and severally pay to the Administrative Agent for its account
only and on the date of the issuance of the Letter of Credit an issuance fee
equal to one fourth of one percent (0.25%) of the maximum amount available to
be drawn under the Letter of Credit.
(c) Bridge Advances. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make one or more Bridge Advances to
Borrowers from time to time from the Renewal Date to and including the Bridge
Maturity Date in an aggregate principal amount at any time outstanding up to
but not exceeding the amount of such Lender's Pro Rata portion of the Bridge
Sublimit as then in effect. Subject to the foregoing limitations, and the
other terms and provisions of this Agreement, Borrowers may borrow, repay, and
reborrow hereunder the amount of the Bridge Sublimit by means of Prime Rate
Advances and Eurodollar Advances until the Bridge Maturity Date and, until the
Bridge Maturity Date, Borrowers may Convert Bridge Advances of one Type into
Bridge Advances of another Type. Bridge Advances of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Advances of such Type.
SECTION 2.02. Notes. The obligation of the Borrowers to repay each
Lender for Advances made by such Lender and interest thereon shall be evidenced
by a Note executed by the Borrowers, payable to the order of such Lender, in
the principal amount of such Lender's Commitment as originally in effect. The
Lenders and the Borrowers acknowledge and agree that the Lenders are willing to
make advances to any Borrower only if the other Borrowers are liable for
payment thereof and, accordingly, and in order to avoid the necessity of the
issuance of a separate note for each Borrower the payment of which would be
guaranteed by each of the other Borrowers, each of the Borrowers desires to be
a co-borrower of, and jointly and severally liable for, payment of the
Advances. None of the Borrowers is a co-borrower with respect to an advance or
is executing a Note as a co-maker thereof as a condition to or otherwise in
connection with any Advance to such Borrower other than an Advance the proceeds
of which are used by such Borrower.
SECTION 2.03. Repayment of Advances.
(a) Revolver. Beginning on the Revolving Termination Date and
continuing on each Quarterly Payment Date thereafter, the Borrowers shall
jointly and severally repay the unpaid principal amount of the Revolving
Advances in fourteen equal quarterly installments beginning March 31, 2000
sufficient to fully amortize the Revolving Advances which were outstanding on
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 27
35
the Revolving Termination Date by the Maturity Date. All outstanding Revolving
Advances shall be due and payable in full on the Revolver Maturity Date.
(b) Bridge. Subject to any mandatory prepayments required under
Section 3.02(b), all outstanding Bridge Advances shall be due and payable on
the Bridge Maturity Date.
SECTION 2.04. Interest. The unpaid principal amount of the Advances
shall bear interest prior to maturity at a varying rate per annum equal from
day to day to the lesser of (a) the Maximum Rate, or (b) the Applicable Rate,
each such change in the rate of interest charged on the Advances to become
effective, without notice to Borrowers, on the effective date of each change in
the Applicable Rate or the Maximum Rate, as the case may be; provided, however,
that if at any time the rate of interest specified in clause (b) preceding
shall exceed the Maximum Rate, thereby causing the interest on the Advances to
be limited to the Maximum Rate, then any subsequent reduction in the Applicable
Rate shall not reduce the rate of interest on the Advances below the Maximum
Rate until the aggregate amount of interest accrued on the Advances equals the
aggregate amount of interest which would have accrued on the Advances if the
interest rate specified in clause (b) preceding had at all times been in
effect. Accrued and unpaid interest on the Advances shall be due and payable
as follows:
(i) in the case of Prime Rate Advances, on each
Monthly Payment Date and on the Maturity Date applicable to such
Advances;
(ii) in the case of each Eurodollar Advance, on
the last day of the Interest Period with respect thereto, but no less
often than quarterly;
(iii) upon the payment or prepayment of any Advance
or the Conversion of any Advance to an Advance of another Type (but
only on the principal amount so paid, prepaid, or Converted); and
(iv) on the Maturity Date applicable to such
Advances.
All past due principal and interest shall bear interest at the Default
Rate.
SECTION 2.05. Access to Availability.
(a) Borrowing Procedure. Each Borrower requesting an Advance
shall give the Administrative Agent notice by means of an Advance Request Form
of each requested Advance (other than an Advance pursuant to subsection
2.01(b)(ii)), at least two (2) Business Days before the requested date of each
Prime Rate Advance and at least three (3) Business Days before the requested
date of each Eurodollar Advance, specifying: (i) the requested date of such
Advance (which shall be a Business Day), (ii) the amount of such Advance, (iii)
the Type of the Advance, (iv) in the case of a Eurodollar Advance, the duration
of the Interest Period for such Advance, and (v) whether the Advance is to be a
Revolving Advance or a Bridge Advance. The Administrative Agent at its option
may accept telephonic requests for Advances, provided that such acceptance
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 28
36
shall not constitute a waiver of the Administrative Agent's right to delivery
of an Advance Request Form in connection with subsequent Advances. Any
telephonic request for an Advance by a Borrower shall be promptly confirmed by
submission of a properly completed Advance Request Form to the Administrative
Agent. Each Advance (other than an Advance pursuant to subsection 2.01(b)(ii))
shall be in a minimum principal amount of One Million Dollars ($1,000,000.00).
The aggregate principal amount of Eurodollar Advances having the same Interest
Period shall be at least equal to One Million Dollars ($1,000,000.00). The
Administrative Agent shall promptly notify each Lender of each such notice of
borrowing. Not later than 11:00 A.M. Houston, Texas time on the date specified
for each Advance hereunder, each Lender will make available to the
Administrative Agent at the Principal Office in immediately available funds,
for the account of the applicable Borrower, its Pro Rata share (determined
based on the Commitments) of each Advance. After the Administrative Agent's
receipt of such funds and subject to the other terms and conditions of this
Agreement, the Administrative Agent will make such Advances available to the
applicable Borrower by depositing the same, in immediately available funds, in
an account of such Borrower designated by such Borrower. All notices under
this subsection (a) given by any Borrower shall be irrevocable and shall be
given not later than 10:00 A.M. Houston, Texas, time on the day which is not
less than the number of Business Days specified above for such notice.
(b) Procedure for Issuing Letters of Credit. Each Letter of
Credit shall be issued on at least five (5) Business Days prior notice from the
requesting Borrower to the Administrative Agent by means of an Advance Request
Form describing the proposed terms of such Letter of Credit and the
transactions proposed to be supported thereby. The Administrative Agent at its
option may accept telephonic requests for Letters of Credit, provided that such
acceptance shall not constitute a waiver of the Administrative Agent's right to
require delivery of an Advance Request Form in connection with subsequent
Letters of Credit. Any telephonic request for a Letter of Credit by a Borrower
shall be promptly confirmed by submission of a properly completed Advance
Request Form to the Administrative Agent. The Administrative Agent shall
promptly notify each Lender of each request for a Letter of Credit. Upon
fulfillment of the applicable conditions precedent in Article V, the
Administrative Agent shall make the Letter of Credit available to such
Borrower. The Administrative Agent shall provide copies of all issued Letters
of Credit to Lenders after issuance thereof. All notices given by a Borrower
under this subsection (b) shall be irrevocable and shall be given not later
than 10:00 A.M. Houston, Texas time on the day which is not less than the
number of Business Days specified above for such notice.
SECTION 2.06. Use of Proceeds. Upon the effectiveness of this
Agreement, the principal amount then outstanding under the Second Amended
Credit Agreement is and shall be deemed to be a "Revolving Advance" outstanding
hereunder, each Lender to have its Pro Rata share thereof (based on the
Commitments) and such Revolving Advance to be of the Type or Types selected by
CRI pursuant to the Second Amended Credit Agreement. The proceeds of all other
Revolving Advances shall be used by Borrowers (i) to finance the acquisition of
Petroleum and Natural Gas Rights, (ii) for the exploration for, drilling and
development of Petroleum and Natural Gas Rights, (iii) to make Permitted Coho
Shell Advances and Permitted Intercompany Advances, and (iv) for
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 29
37
other general corporate purposes. The proceeds of Bridge Advances shall be
used by the Borrowers solely to finance the acquisition of Petroleum and
Natural Gas Rights.
SECTION 2.07. Conversions and Continuations. The Borrowers shall
have the right from time to time to Convert all or part of an Advance of one
Type into an Advance of another Type or to Continue Advances of one Type as
Advances of the same Type by giving the Administrative Agent written notice at
least two (2) Business Days before Conversion into a Prime Rate Advance and at
least three (3) Business Days before Conversion into or Continuation of a
Eurodollar Advance, specifying: (a) the Conversion or Continuation date, (b)
the amount of the Advance to be Converted or Continued, (c) in the case of
Conversions, the Type of Advance to be Converted into, and (d) in the case of a
Continuation of or Conversion into a Eurodollar Advance, the duration of the
Interest Period applicable thereto; provided, however, that (i) Eurodollar
Advances may only be Converted on the last day of the Interest Period, and (ii)
except for Conversions into Prime Rate Advances, no Conversions shall be made
while an Event of Default or Potential Default has occurred and is continuing.
The Administrative Agent shall promptly notify each Lender of each such notice.
All notices given by any Borrower under this Section 2.07 shall be irrevocable
and shall be given not later than 11:00 A.M., Houston, Texas time on the day
which is not less than the number of Business Days specified above for such
notice. If any Borrower shall fail to give the Administrative Agent the notice
as specified above for Continuation or Conversion of a Eurodollar Advance prior
to the end of the Interest Period with respect thereto, such Eurodollar Advance
shall automatically be Converted into a Prime Rate Advance on the last day of
the Interest Period for such Eurodollar Advance.
SECTION 2.08. Commitment Fee; Reduction or Termination of
Commitments. The Borrowers jointly and severally agree to pay to the
Administrative Agent for the benefit of each Lender a commitment fee on the
average daily Availability, from and including the last Quarterly Payment Date
prior to the Renewal Date, to and including the Revolving Termination Date, at
the rate of three-eighths of one percent (.375%) per annum based on a 365 or
366 day year (as the case may be) and the actual number of days elapsed,
payable on each Quarterly Payment Date prior to the Revolving Termination Date
and on the Revolving Termination Date. The Borrowers jointly and severally
agree to pay to the Administrative Agent for the benefit of each Lender a
commitment fee on the average daily unused portion of the Bridge Sublimit, from
and including the Renewal Date to and including the Bridge Maturity Date, at
the rate of one- fourth of one percent (.25%) per annum based on a 365 or 366
day year (as the case may be) and the actual number of days elapsed, payable on
each Quarterly Payment Date and on the Bridge Maturity Date. The Borrowers
shall have the right at any time to terminate in whole or from time to time to
irrevocably reduce in part the Commitments upon at least three (3) Business
Days prior notice to the Administrative Agent specifying the effective date
thereof, whether a termination or reduction is being made, and the amount of
any partial reduction, provided that (a) each partial reduction shall be in the
amount of One Million Dollars ($1,000,000.00) or an integral multiple thereof,
(b) the Commitments shall not be reduced below an aggregate amount equal to Ten
Million Dollars ($10,000,000.00) unless completely terminated, (c) the
Borrowers shall simultaneously prepay the amount by which the unpaid principal
amount of the Advances exceeds the Commitments (after giving effect to such
notice) plus accrued and unpaid interest on the
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 30
38
principal amount so prepaid and (d) the Borrowers may not reduce the
Commitments below an amount equal to the aggregate unused portion of the stated
amount of the Letters of Credit then outstanding. The Commitments may not be
reinstated after they have been terminated or reduced. The Commitments shall
automatically terminate on the Revolving Termination Date except with respect
to calculating the Lenders' Pro Rata portions hereunder.
SECTION 2.09. Additional Fees.
(a) Revolver Activation Fee. At the time of any increase in the
Borrowing Base after the Renewal Date, the Borrowers shall jointly and
severally pay to the Administrative Agent, for the benefit of each Lender, a
Revolver activation fee equal to three-eighths of one percent (.375%) of the
amount of the increase; provided, however, that the cumulative total of all
Revolver activation fees shall not exceed three-eighths of one percent (.375%)
of $250,000,000.00.
(b) Bridge Activation Fee. Concurrently with the making of any
Bridge Advance, the Borrowers shall jointly and severally pay to the
Administrative Agent, for the benefit of each Lender, a Bridge activation fee
equal to one percent (1.0%) of the amount of the Bridge Advance.
(c) Facility Fee. On the Renewal Date, the Borrowers shall
jointly and severally pay to the Administrative Agent, for the benefit of each
Lender, a Facility Fee equal to one-eighth of one percent (.125%) of the
Borrowing Base in effect at the Renewal Date.
SECTION 2.10. Borrowing Base.
(a) Initial Amount; Waiver of Redetermination. During the period
from August 8, 1996 to the first Redetermination Date following August 8, 1996,
the Borrowing Base shall be equal to One Hundred Thirty Million Dollars
($130,000,000.00).
(b) Semiannual Redeterminations. Promptly after each January 1st
of each calendar year commencing 1997 and in any event prior to each April 1st,
the Borrowers shall furnish to the Administrative Agent and each of the other
Lenders an Engineering Report certified by the Independent Engineer and the
chief financial officer of CRI and prepared within thirty (30) days of the date
of delivery (such report being hereinafter referred to as the "Annual
Engineering Report"). Within thirty (30) days after receipt by the
Administrative Agent and the other Lenders of such Annual Engineering Report,
the Co-Agents shall determine a proposed redetermination of the Borrowing Base
in accordance with Section 2.10(g). The Co-Agents shall then notify the
Lenders of the proposed redetermined Borrowing Base and the NPV - Proven
Reserves used in determining the proposed Borrowing Base and request the
approval of the Lenders to the proposed redetermined Borrowing Base and the NPV
- Proven Reserves and shall also request any Lender who does not agree with the
proposed redetermined Borrowing Base to propose the Borrowing Base level
acceptable to it. If Required Lenders or, if a Borrowing Base increase is
proposed, Supermajority Lenders agree to the proposed redetermined Borrowing
Base, the Administrative Agent shall notify the Borrowers of the redetermined
Borrowing Base and NPV - Proven Reserves. If Required Lenders (or, if a
Borrowing Base increase is requested, Supermajority
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 31
39
Lenders) do not agree with the proposed redetermined Borrowing Base, the
Co-Agents shall determine the Borrowing Base level approved by Required Lenders
(or, if a Borrowing Base increase is requested, Supermajority Lenders), and the
Administrative Agent shall promptly notify the Borrowers of the amount of the
Borrowing Base and NPV - Proven Reserves as so redetermined. Promptly after
each July 1st of each calendar year commencing July 1, 1996 and in any event
prior to each October 1st, Borrower shall furnish to the Administrative Agent
and each of the other Lenders an Engineering Report certified by the chief
financial officer of CRI and prepared within thirty (30) days of the date of
delivery (such report being hereinafter referred to as the "Semi-Annual
Engineering Report"). Within thirty (30) days after receipt by the
Administrative Agent and the other Lenders of such Semi-Annual Engineering
Report and provided that the Administrative Agent reasonably determines that
such Semi-Annual Engineering Report is satisfactory in all respects, the
Co-Agents shall determine a proposed redetermination of the Borrowing Base in
accordance with Section 2.10(g). The Co- Agents shall then notify the Lenders
of the proposed redetermined Borrowing Base and the NPV - Proven Reserves used
to determine the proposed Borrowing Base and request the approval of the
Lenders to the proposed redetermined Borrowing Base and the NPV - Proven
Reserves shall also request any Lender who does not agree with the proposed
redetermined Borrowing Base to propose the Borrowing Base level acceptable to
it. If Required Lenders or, if a Borrowing Base increase is proposed,
Supermajority Lenders agree to the proposed redetermined Borrowing Base, the
Administrative Agent shall notify the Borrowers of the redetermined Borrowing
Base. If Required Lenders (or, if a Borrowing Base increase is requested,
Supermajority Lenders) do not agree with the proposed redetermined Borrowing
Base, the Co-Agents shall determine the Borrowing Base level approved by
Required Lenders (or, if a Borrowing Base increase is requested, Supermajority
Lenders), and the Administrative Agent shall promptly notify the Borrowers of
the amount of the Borrowing Base and NPV - Proven Reserves as so redetermined.
If the Administrative Agent reasonably determines that such Semi- Annual
Engineering Report is not satisfactory, Borrowers shall furnish to the
Administrative Agent and each of the other Lenders, within thirty (30) days
after notification from the Administrative Agent that such Semi-Annual
Engineering Report is not satisfactory, another Semi-Annual Engineering Report
certified by an Independent Engineer and the chief financial officer of CRI and
prepared within thirty (30) days of the date of delivery. Within thirty (30)
days after receipt by the Administrative Agent and the other Lenders of such
re-submitted Semi-Annual Engineering Report, the Co- Agents and the Required
Lenders shall make a redetermination of the Borrowing Base as described above
in accordance with Section 2.10(g) and the Administrative Agent shall promptly
notify the Borrowers of the amount of the Borrowing Base and NPV - Proven
Reserves as so redetermined.
(c) Interim Redetermination by Lenders. The Required Lenders (or,
if a Borrowing Base increase is requested, Supermajority Lenders) may
redetermine the Borrowing Base more often than semiannually in their sole
discretion and based on such information as they may deem relevant (but in
accordance with Section 2.10(g)); provided, however, that (i) the Borrowing
Base will not be redetermined by the Required Lenders more than once during any
period between the semiannual redetermination dates established in Section
2.10(b) and (ii) the Borrowing Base cannot be redetermined under this Section
2.10(c) more than seven (7) times prior to the Revolving Maturity Date. If the
Co- Agents and the Required Lenders redetermine the Borrowing
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 32
40
Base, the Administrative Agent shall promptly provide the Borrowers with notice
of the redetermination and of the amount of the Borrowing Base and NPV - Proven
Reserves as so redetermined.
(d) Interim Redeterminations at the Request of Borrowers. The
Borrowers may request a redetermination of the Borrowing Base more often than
semiannually in order to add to the Borrowing Base the value of additional
Proven Reserves which have been or will be acquired by a Borrower or for any
other reason; provided, however, that the Borrowing Base will not be
redetermined at the request of the Borrowers more than once during any period
between the semiannual Redetermination Dates established in Section 2.10(b).
In order for the Lenders to consider a redetermination of the Borrowing Base
pursuant to this Section 2.10(d), the Borrowers must submit a written request
for redetermination to the Administrative Agent containing (i) a statement as
to the reason for such request; (ii) if additional Proven Reserves are to be
included in the redetermination, an Engineering Report relating to such Proven
Reserves dated a current date and reasonably satisfactory to the Lenders and
otherwise in form and substance reasonably acceptable to the Lenders and (iii)
such other information as the Lenders may reasonably request. Within thirty
(30) days of receipt of all information requested by the Lenders in connection
with a request under this Section 2.10(d), the Co-Agents and the Required
Lenders (or, if a Borrowing Base increase is requested, Supermajority Lenders)
shall redetermine the Borrowing Base in accordance with Section 2.10(g) and as
described above and the Administrative Agent shall promptly notify the
Borrowers of the amount of the Borrowing Base and NPV - Proven Reserves as so
redetermined.
(e) Redetermination as a Result of a Sale of Collateral. In
addition to the redeterminations described above in this Section 2.10, the
Borrowing Base shall be redetermined by the Co-Agents and the Required Lenders
in accordance with Section 2.10(g) each date that a Borrower disposes of
Collateral in accordance with Section 7.02(d) to subtract from the Borrowing
Base the value of the Collateral, if any, disposed of by such Borrower. The
Administrative Agent shall promptly notify the Borrowers of the amount of the
Borrowing Base and NPV - Proven Reserves as so redetermined.
(f) Bridge Redetermination. In the event any of the Borrowers
borrow all or a portion of the amount available under the Bridge, the Borrowing
Base must be redetermined within 30 days of the Bridge Advance (a "Bridge
Redetermination"). In the event of a Bridge Redetermination, the Co-Agents
shall submit the proposed Borrowing Base, as well as the NPV - Proven Reserves
for the approval of Supermajority Lenders. If the proposed Borrowing Base and
NPV - Proven Reserves are not approved by Supermajority Lenders, the Co-Agents
shall make appropriate adjustments to levels approved by Supermajority Lenders.
The Administrative Agent shall promptly notify the Borrowers of the amount of
the Borrowing Base and NPV - Proven Reserves as so redetermined. Immediately
following each redetermination of the Borrowing Base pursuant to this paragraph
(f), the aggregate amount of all outstanding Bridge Advances shall
automatically and without further action be deemed converted to Revolving
Advances (up to the aggregate amount of Availability).
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 33
41
(g) Standards for Redetermination. Each redetermination of the
Borrowing Base made by the Required Lenders or Supermajority Lenders, as
applicable, pursuant to this Section 2.10 shall be made (i) in the sole
discretion of the Required Lenders or Supermajority Lenders, as applicable (but
in accordance with the other provision of this Section 2.10(g)), (ii) in
accordance with the Required Lenders' or Supermajority Lenders' customary
internal standards and practices for valuing and redetermining the value of oil
and gas properties in connection with reserve based oil and gas loan
transactions, (iii) in good faith, (iv) in conjunction with the most recent
Engineering Reports or other information received by the Lenders relating to
the Proven Reserves of the Borrowers and (v) based upon the estimated value of
the Petroleum and Natural Gas Rights (including both Proven Producing Reserves
and Proven Non-Producing Reserves) owned or to be acquired concurrently by the
Borrowers; provided, however, that, in valuing Proven Reserves of the Borrowers
for purposes of redetermining the Borrowing Base, the Administrative Agent and
the Required Lenders or Supermajority Lenders, as applicable, agree to use
customary industry pricing assumptions; provided further, however, no Proven
Reserves shall be considered for inclusion in the Borrowing Base unless (1)
such Proven Reserves are (or will become simultaneously with an Advance
hereunder) Collateral; and (2) unless otherwise agreed, the Administrative
Agent shall have received a reasonably satisfactory title opinion or other
evidence reasonably satisfactory to the Required Lenders that the
Administrative Agent has a valid, first priority Lien on the Petroleum and
Natural Gas Rights relating thereto. At all times after the Borrowers have
been given notification of a redetermination of the Borrowing Base, the
Borrowing Base shall be equal to the amount thereof as so subsequently
redetermined until the Borrowing Base is redetermined in accordance with this
Section 2.10.
ARTICLE III
PAYMENTS
SECTION 3.01. Method of Payment. All payments of principal,
interest, and other amounts to be made by Borrowers under this Agreement, the
Notes, or any other Loan Document shall be made to the Administrative Agent at
its Principal Office for the account of each Lender's Applicable Lending Office
in Dollars and in immediately available funds, without set-off, deduction, or
counterclaim, 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). Borrowers shall, at the time of making each such payment, specify to the
Administrative Agent the sums payable by Borrowers under this Agreement, the
Notes, or any other Loan Document to which such payment is to be applied (and
in the event that Borrowers fail to so specify, or if an Event of Default has
occurred and is continuing, the Administrative Agent may apply such payment to
the Obligations in such order and manner as it may elect in its sole
discretion, subject to Section 3.02 with regard to prepayments, and Section
3.03 hereof). Each payment received by the Administrative Agent under this
Agreement, the Notes, or any other Loan Document for the account of a Lender
shall be paid promptly to such Lender, in immediately available funds, for the
account of such Lender's Applicable Lending Office on the same Business Day of
Administrative Agent's receipt thereof if received before 11:00 A.M. Houston,
Texas time on a Business Day or the next Business Day
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 34
42
if received after 11:00 A.M. Houston, Texas time on a Business Day. Whenever
any payment under this Agreement, the Notes, or any other Loan Document shall
be stated to be due on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of the payment of interest and
commitment fee, as the case may be.
SECTION 3.02. Repayments and Prepayment.
(a) Optional Repayments and Prepayments. Borrowers may, upon at
least two (2) Business Days prior notice to the Administrative Agent in the
case of Prime Rate Advances and at least three (3) Business Days prior notice
to the Administrative Agent in the case of Eurodollar Advances, repay or prepay
the Notes in whole at any time or from time to time in part without premium or
penalty but with accrued and unpaid interest to the date of repayment or
prepayment on the amount so repaid or prepaid; provided that (i) Eurodollar
Advances may be repaid or prepaid only on the last day of the Interest Period
for such Advances, unless the Borrowers shall pay to the Administrative Agent
for the account of the applicable Lenders any amounts owed pursuant to Section
4.05 and (ii) each partial repayment or prepayment shall be in the principal
amount of One Million Dollars ($1,000,000.00) or an integral multiple thereof.
All voluntary prepayments shall be applied first to reduce the outstanding
Bridge Advances and, second, to the outstanding Revolving Advances. The
principal amount of any prepayments of Revolving Advances made under this
subsection 3.02(a) after the Revolving Termination Date shall be applied to the
principal installments owing under Section 2.03 as follows:
(A) fifty percent (50%) of the amount of the prepayment shall be
applied to the principal installments owing under Section 2.03
in the inverse order of maturity; and
(B) fifty percent (50%) of the amount of the prepayment shall be
applied to the next succeeding principal installments owing
under Section 2.03 in the order of maturity.
(b) Mandatory Prepayments. If the Outstanding Credit less the
outstanding principal balance of any Bridge Advances at any time ever exceeds
the Borrowing Base, the Borrowers shall within thirty (30) days after
notification from the Administrative Agent, either (a) provide collateral with
value and quantity in amounts satisfactory to Majority Lenders in their sole
discretion equal to such excess, (b) prepay, without premium or penalty (except
for any applicable breakage costs), the principal amount of the Obligations in
an amount equal to such excess plus accrued interest or (c) prepay the
principal amount of the Obligations in an amount equal to such excess in five
(5) equal monthly installments provided that the entire amount of such
mandatory prepayment shall be paid on or prior to the immediately succeeding
Redetermination Date. Any prepayments under this Section 3.02(b) shall be
distributed to the Lenders pursuant to Section 3.03 until or unless all amounts
under the applicable Notes have been paid, then such repayments shall be held
by the Administrative Agent as additional collateral pursuant to such
documentation and agreements as Administrative Agent may require to secure the
Obligations with respect to the
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 35
43
applicable Letter of Credit Liabilities outstanding, if any. The principal
amount of any mandatory prepayments made under this subsection 3.02(b) and any
prepayments made in accordance with subsection 7.02(d)(iii) after the Revolving
Termination Date shall be applied to all the principal installments owing under
Section 2.03, each such installment to be reduced by an amount equal to the
quotient obtained by dividing the amount of the prepayment by the number of
unpaid installments owing under the terms of Section 2.03. If any Bridge
Advances remain outstanding after a redetermination of the Bridge Borrowing
Base pursuant to Section 2.10(f), the Borrowers shall repay such outstanding
Bridge Advances by the earlier of one (1) year from the date of the respective
Bridge Advances or the Bridge Maturity Date. Upon any sale or sales of
Collateral in any calendar year with aggregate net after-tax proceeds in excess
of $5,000,000, the Borrowers shall make the prepayments required under Section
7.02(d)(iii)(1).
SECTION 3.03. Pro Rata Treatment; Distribution of Payments.
(a) Treatment. Except to the extent otherwise provided herein:
(i) each Advance shall be made by the Lenders under Section 2.01 and each
payment of commitment fee under Section 2.08 shall be made for the account of
the Lenders and each termination or reduction of the Commitments under Section
2.08 shall be applied to the Commitments of the Lenders, Pro Rata according to
the respective unused Commitments; (ii) each Conversion of Advances of a
particular Type (other than Conversions provided for by Section 4.04), shall be
made Pro Rata among the Lenders holding Advances of such Type according to the
respective principal amounts of such Advances held by such Lenders; (iii) each
payment and prepayment of principal of or interest on Advances by Borrowers of
a particular Type shall be made to the Administrative Agent for the account of
the Lenders holding Advances of such Type Pro Rata in accordance with the
respective unpaid principal amounts of such Advances held by such Lenders; (iv)
Interest Periods for Advances of a particular Type shall be allocated among the
Lenders holding Advances of such Type Pro Rata according to the respective
principal amounts held by such Lenders; (v) all proceeds received by the
Administrative Agent on account of the Collateral or from the exercise of any
rights or remedies under the Loan Documents shall be shared by the Lenders,
each Lender to receive its Pro Rata portion thereof determined based on the
outstanding principal amount of the Advances owed to the Lenders; provided,
however, that from any such proceeds, the Administrative Agent shall first be
entitled to deduct all unpaid or unreimbursed Obligations owing to the
Administrative Agent under the terms of the Loan Documents in its capacity as
Administrative Agent only and not in its capacity as a Lender.
(b) Distribution of Payments. The Administrative Agent shall
distribute the amount of each payment or prepayment of principal of or interest
on Advances by Borrowers (other than from proceeds of Collateral or proceeds
from the exercise of rights or remedies) to the Lenders, each Lender to receive
the Pro Rata portion thereof to which it is entitled as calculated pursuant to
clause (a) of this Section 3.03 on the same Business Day of the Administrative
Agent's receipt thereof if received before 11:00 A.M. Houston, Texas time on a
Business Day or the next Business Day if received after 11:00 A.M. Houston,
Texas time on a Business Day. Upon receipt by the Administrative Agent of any
proceeds of Collateral or proceeds received from the exercise of rights or
remedies, the Administrative Agent shall reimburse itself for any unpaid or
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 36
44
unreimbursed Obligations owing to the Administrative Agent under the Loan
Documents in its capacity as Administrative Agent only and not in its capacity
as a Lender and then shall distribute the remaining amount to the Lenders, each
Lender to receive the Pro Rata portion thereof to which it is entitled as
calculated pursuant to clause (a) of this Section 3.03; provided however, if
the Letter of Credit Liabilities remain outstanding and all other Obligations
have been satisfied, the Administrative Agent may hold any such proceeds as
collateral pursuant to such documentation as the Administrative Agent may
require to secure the Obligations with respect to the applicable Letter of
Credit Liabilities outstanding. Subject to the forgoing, any and all other
amounts received by the Administrative Agent as payment on the Obligations,
shall be distributed to the Lenders on the same Business Day of the
Administrative Agent's receipt thereof if received before 11:00 A.M. Houston,
Texas time on a Business Day or the next Business Day if received after 11:00
A.M. Houston, Texas time on a Business Day, each Lender to receive its Pro Rata
portion thereof in immediately available funds (calculated on the basis of the
outstanding principal amount of the Advances or, if no principal is
outstanding, on the basis of the Commitments) unless this Agreement or any
other Loan Document directs that the Administrative Agent distribute such
amounts in an alternative manner.
SECTION 3.04. Non-Receipt of Funds by the Administrative Agent.
Unless the Administrative Agent shall have been notified by a Lender or a
Borrower (the "Payor") prior to the date on which such Lender is to make
payment to the Administrative Agent of the proceeds of an Advance to be made by
it hereunder or a Borrower is to make a payment to the Administrative Agent for
the account of one or more of the Lenders, 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
the Administrative Agent, the 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 the
Administrative Agent, the recipient of such payment shall, on demand, pay to
the 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 the Administrative Agent until the date the Administrative Agent
recovers such amount at a rate per annum equal to the Federal Funds Rate for
such period.
SECTION 3.05. Computation of Interest. Interest on the indebtedness
evidenced by the Notes shall be computed (a) with respect to Eurodollar
Advances, on the basis of a year of 360 days and the actual number of days
elapsed (including the first day but excluding the last day) unless such
calculation would result in a usurious rate, in which case interest shall be
calculated on the basis of a year of 365 or 366 days, as the case may be and
(b) with respect to Prime Rate Advances, on the basis of a year of 365 or 366
days, as the case may be.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 37
45
SECTION 3.06. Taxes.
(a) Payment by Borrowers. All payments made by the Borrowers
hereunder (including, without limitation, payments under Article IV hereof) or
under the Notes shall be made free and clear of and without deduction for any
present or future income, stamp or other taxes, levies, imposts, deductions,
charges, fees, withholding, restrictions or conditions of any nature now or
hereafter imposed, levied, collected, withheld or assessed by any jurisdiction
(whether pursuant to United States Federal, state or local or foreign law) or
by any political subdivision or taxing authority thereof or therein, and all
interest, penalties or similar liabilities, excluding franchise taxes and taxes
based on the overall net income of the Administrative Agent, any other
Co-Agent, any Lender or its Applicable Lending Office (such non-excluded taxes
are hereinafter collectively referred to as the "Taxes"). If the Borrowers
shall be required by law to deduct or to withhold any Taxes from or in respect
of any amount payable hereunder, (i) unless the applicable Lender has failed to
deliver a United States Internal Revenue Service Form 1001 or 4224 or other
applicable form in accordance with Section 3.06(b) and the Borrowers have
notified the applicable Lender of such failure, the amount so payable shall be
increased to the extent necessary so that after making all required deductions
and withholdings (including Taxes on amounts payable to the Lender) the
applicable Lender receives an amount equal to the sum it would have received
had no such deductions or withholdings been made, (ii) the Borrowers shall make
such deductions or withholdings, and (iii) the Borrowers shall jointly and
severally pay the full amount deducted or withheld to the relevant taxation
authority in accordance with applicable law. Whenever any Tax is payable by
the Borrowers, as promptly as possible thereafter the Borrowers shall send the
Administrative Agent and each affected Lender an official receipt showing
payment. In addition, the Borrowers jointly and severally agree to pay any
present or future taxes, charges or similar levies (excluding franchise taxes,
and taxes based on the overall net income of the Administrative Agent, any
Co-Agent, any Lender or its Applicable Lending Office) which arise from any
payment made hereunder or from the execution, delivery, performance,
recordation or filing of, or otherwise with respect to, this Agreement, the
Notes or any other Loan Document (hereinafter referred to as "Other Taxes").
The Borrowers jointly and severally will indemnify the Administrative Agent,
any Co-Agent and each Lender for the full amount of Taxes or Other Taxes
(including, any Taxes or Other Taxes on amounts payable to the Administrative
Agent, any Co-Agent, or any Lender under this paragraph) paid by the
Administrative Agent, any Co-Agent or any Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
upon written demand by the Administrative Agent, any Co-Agent or such Lender
therefor.
(b) Withholding Tax Exemption Forms. Each Lender that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to the Borrowers and the Administrative Agent two
(2) duly completed copies of United States Internal Revenue Service Form 1001
or 4224 certifying in either case that such Lender is entitled to receive
payments from the Borrowers under the Loan Documents without deduction or
withholding of any United States Federal income taxes. Each Lender which so
delivers a Form 1001 or 4224 further undertakes to deliver to the Borrowers and
the Administrative Agent two (2) additional copies of such form (or a successor
form) on or before the date such form expires
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 38
46
or becomes obsolete or after the occurrence of any event requiring a change in
the most recent form so delivered by it and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by the Borrowers
or the Administrative Agent, in each case certifying that such Lender is
entitled to receive payments from the Borrowers under the Loan Documents
without deduction or withholding of any United States Federal income taxes,
unless an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender advises the Borrowers and the Administrative
Agent that it is not capable of receiving such payments without any deduction
or withholding of United States Federal income tax.
ARTICLE IV
YIELD PROTECTION AND ILLEGALITY
SECTION 4.01. Increased Costs and Reduced Return.
(a) If any Lender shall have determined that any Regulatory Change
(other than with respect to taxes referred to in Section 3.06 hereof) shall (i)
change the basis of taxation of payments to the Lender of any amounts payable
hereunder with respect to any Eurodollar Advance (except for taxes based on the
overall net income of such Lender or its Applicable Lending Office), (ii)
impose, modify or deem applicable any reserve, special deposit or similar
requirement (other than Reserve Requirements used in the determination of the
Adjusted Eurodollar Rate) against any Eurodollar Advance or against assets held
by, or deposits with or for the account of, such Lender, or (iii) impose on the
applicable Lender any other condition regarding this Agreement, its Note or any
Eurodollar Advance and the result of any event referred to in clause (i), (ii)
or (iii) above shall be to increase the cost to the applicable Lender of making
or maintaining any Eurodollar Advance or the funding for any Eurodollar
Advance, or to reduce any amount received or receivable by the Lender hereunder
with respect to any such Advance, then, within ten (10) Business Days of
written demand by the applicable Lender (made through the Administrative
Agent), the Borrowers shall jointly and severally pay to the Administrative
Agent for the account of the applicable Lender such additional amounts as will
compensate the Lender for such increased costs or reductions in amount.
(b) If any Lender shall have determined that any Regulatory Change
shall impose, modify or deem applicable any capital adequacy or similar
requirement (including, without limitation, a request or requirement that
affects the manner in which the applicable Lender allocates capital resources
to its Commitment and Advances) that either affects or would affect the amount
of capital to be maintained by the applicable Lender as a consequence of its
commitments or obligations hereunder or reduces or would reduce the rate of
return on the Lender's capital to a level below that which the Lender could
have achieved but for such Regulatory Change as a consequence of its
commitments or obligations hereunder (taking into consideration the Lender's
policies with respect to capital adequacy), then, within ten (10) Business Days
of written demand
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 39
47
by the applicable Lender (made through the Administrative Agent), the Borrowers
shall jointly and severally pay to the Administrative Agent for the account of
the applicable Lender such additional amounts as will compensate the Lender for
such cost of maintaining such increased capital or such reduction in the rate
of return on the Lender's capital.
(c) Before making any claims pursuant to Section 4.01(a) or
4.01(b) hereof, the applicable Lender, shall, if practicable, designate a
different Applicable Lending Office if such designation will avoid the need for
making such claim and will not, in the reasonable judgment of the applicable
Lender be otherwise disadvantageous to the applicable Lender. If the
applicable Lender does make a claim pursuant to subsection 4.01(a) or 4.01(b)
hereof, it shall give notice to the Borrowers of the event by reason of which
it is entitled to do so accompanied by a certificate as described in subsection
4.01(d).
(d) A certificate of the applicable Lender claiming compensation
under this Section 4.01 shall be submitted by the Lender to the Administrative
Agent and the Borrowers, setting forth the Lender's reasons for invoking the
provisions of this Section 4.01, and shall be final and conclusive (absent
manifest error) as to the amount thereof, provided that any determination by a
Lender as to the occurrence and effect of a Regulatory Change for purposes of
this Section 4.01 shall be made on a reasonable basis.
SECTION 4.02. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period applicable to
Eurodollar Advances:
(a) The Administrative Agent determines (which determination shall
be conclusive) that quotations of interest rates for the relevant deposits
referred to in the definition of "Interbank Offered Rate" in Section 1.01 are
not being provided in the relative amounts or for the relative maturities for
purposes of determining the rate of interest for such Advances as provided in
this Agreement; or
(b) The Required Lenders determine (which determination shall be
conclusive) and notify the Administrative Agent that the relevant rates of
interest referred to in the definition of "Interbank Offered Rate" in Section
1.01 on the basis of which the rate of interest for such Advances for such
Interest Period is to be determined do not accurately reflect the cost to the
Lenders of making or maintaining such Advances for such Interest Period;
then the Administrative Agent shall give Borrowers prompt notice thereof
specifying the relevant amounts or periods, and so long as such condition
remains in effect, the Lenders shall be under no obligation to make additional
Eurodollar Advances or to Convert Prime Rate Advances into Eurodollar Advances
and Borrowers shall, on the last day(s) of the then current Interest Period(s)
for the outstanding Advances of the affected Type, either prepay such Advances
or Convert such Advances into Prime Rate Advances in accordance with the terms
of this Agreement.
SECTION 4.03. Illegality. If, after the date of this Agreement, any
Regulatory Change shall make it unlawful or impossible for the applicable
Lender (or its Applicable Lending Office)
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 40
48
to make, maintain or fund its Eurodollar Advances, the applicable Lender shall
forthwith give notice thereof to the Administrative Agent and the Borrowers,
whereupon until such Lender notifies the Borrowers that the circumstances
giving rise to such suspension no longer exist, the obligation of the
applicable Lender to make Eurodollar Advances and to Convert Prime Rate
Advances into Eurodollar Advances hereunder shall be suspended. Before giving
any notice to the Borrowers pursuant to this Section 4.03, the applicable
Lender shall, if practicable, designate a different Applicable Lending Office
if such designation will avoid the need for giving such notice and will not, in
the reasonable judgment of the Lender, be otherwise disadvantageous to the
Lender.
SECTION 4.04. Treatment of Affected Advances: If the Eurodollar
Advances of any Lender (hereinafter called "Affected Advances") are to be
Converted pursuant to Section 4.02 or 4.03 hereof, such Lender's Affected
Advances shall be automatically Converted into Prime Rate Advances on the last
day(s) of the then current Interest Period(s) for the Affected Advances (or, in
the case of a Conversion required by Section 4.01(b) or 4.03 hereof, on such
earlier date as such Lender may specify to Borrowers, with a copy to the
Administrative Agent) and, unless and until such Lender gives notice as
provided below that the circumstances specified in Section 4.01 or 4.03 hereof
which gave rise to such Conversion no longer exist:
(a) To the extent that such Lender's Affected Advances have been
so Converted, all payments and prepayments of principal which
would otherwise be applied to such Lender's Affected Advances
shall be applied instead to its Prime Rate Advances; and
(b) All Advances which would otherwise be made or Continued by
such Lender as Eurodollar Advances shall be made as or
Converted into Prime Rate Advances and all Advances of such
Lender which would otherwise be Converted into Eurodollar
Advances shall be Converted instead into (or shall remain as)
Prime Rate Advances; and
If such Lender gives notice to Borrowers (with a copy to the Administrative
Agent) that the circumstances specified in Section 4.01 or 4.03 hereof which
gave rise to the Conversion of such Lender's Affected Advances pursuant to this
Section 4.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Advances are
outstanding, such Lender's Prime Rate Advances shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Advances to the extent necessary so that, after
giving effect thereto, all Advances held by the Lenders holding Affected
Advances and by such Lender are held Pro Rata (as to principal amounts, Types,
and Interest Periods) in accordance with their respective Commitments.
SECTION 4.05. Funding Losses. The Borrowers shall jointly and
severally compensate each Lender, immediately upon receipt of such Lender's
certificate as to amount (which shall be conclusive in the absence of manifest
error), for all losses, expenses and liabilities (including, without
limitation, any loss, expense or liability incurred by reason of the
liquidation or
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 41
49
reemployment of deposits or other funds acquired by the Lender to fund or
maintain any Advance (but excluding loss of anticipated profits), and including
any costs and expenses arising under or in connection with any interest rate
exchange agreement or similar agreement relating to any such agreement, whether
or not theretofore disclosed to the Borrowers, entered into by such Lender in
connection with the funding or maintenance of any Eurodollar Advance), (a) if
for any reason (other than a default by the applicable Lender) any Borrower
fails to borrow or Convert any Eurodollar Advance after a notice (whether or
not withdrawn by such Borrower) has been given to the Administrative Agent
requesting such Advance or Conversion, as applicable, (b) if any Borrower makes
any payment of principal of any Eurodollar Advance or makes any Conversion of a
Eurodollar Advance on any day other than on the last day of the Interest Period
relating to such Advance for any reason (including, without limitation,
prepayment or acceleration), or (c) if any prepayment of any Eurodollar Advance
is not made on any date specified in a notice of prepayment given by any
Borrower.
ARTICLE V
CONDITIONS OF LENDING
SECTION 5.01. Conditions to the Effectiveness of this Agreement. The
effectiveness of this Agreement is subject to the fulfillment, in a manner
satisfactory to the Co-Agents and each Lender, of each of the following
conditions precedent:
(a) Amendment Fees; Payment of Fees. Borrowers shall have paid to
the Co-Agents and the Lenders any and all fees, costs, expenses and taxes then
payable by Borrowers pursuant to this Agreement relating to the amendments
contemplated hereby.
(b) Representations and Warranties; No Event of Default. The
representations and warranties contained in Section 6.01 of this Agreement and
in each other Related Transactions Document (other than, as to Loan Documents
delivered or effective as of a date prior to the Renewal Date, representations
and warranties limited by their terms to the date given) and each certificate
or other writing delivered to the Administrative Agent or any Lender pursuant
hereto shall be correct on and as of the Renewal Date as though made on and as
of such date; and, no Event of Default or Potential Default shall have occurred
and be continuing on the Renewal Date or would result from the consummation of
the Related Transactions.
(c) Legality. The modifications contemplated hereby and the
transactions contemplated herein shall not contravene any law, rule or
regulation.
(d) Delivery of Documents. The Administrative Agent shall have
received on or before the Renewal Date the following, each duly executed and in
form and substance satisfactory to the Administrative Agent and each Lender
and, unless indicated otherwise, dated the date hereof:
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 42
50
(i) the Notes;
(ii) the Modification Agreement;
(iii) the Second Modification to Louisiana Oil and Gas
Mortgage, the Second Modification to Mississippi Oil and Gas Deed of Trust, the
Seventh Modification of Mississippi Mortgage, the Sixth Modification of Texas
Deed of Trust, and the Second Modification - Brookhaven Deed of Trust
(collectively the "New Mortgage Documents");
(iv) evidence of the recording of the New Mortgage
Documents and the other Security Documents in such office or offices as may be
necessary or, in the opinion of the Lenders, desirable to perfect each Lien
purported to be created thereby or otherwise to protect the rights of the
Administrative Agent thereunder;
(v) Letters in Lieu of Transfer Orders executed by
Exploration in blank, together with a list of the names and addresses of all
presently anticipated purchases of Hydrocarbons attributable to the Petroleum
and Natural Gas Rights of Exploration and such other information with respect
to such purchasers as the Administrative Agent may reasonably request;
(vi) a copy of the resolutions adopted by the Board of
Directors of each Credit Party, certified as of the Renewal Date by an
authorized officer thereof, authorizing (A) the transactions contemplated by
this Agreement, and (B) the execution, delivery and performance by each Credit
Party of the Loan Documents to which it is a party that are executed in
connection herewith;
(vii) a certificate of an authorized officer of each Credit
Party, certifying the names and true signatures of the officers of each such
Credit Party authorized to sign each Loan Document together with evidence of
the incumbency of such authorized officer;
(viii) a certificate, dated as of a current date, of the
appropriate official(s) of the jurisdiction of incorporation or organization of
each Credit Party and the States of Mississippi and Texas and as to ING and the
ING Subsidiaries, Louisiana, Texas and Mississippi, certifying as to the
authority to transact business and good standing of, and the payment of taxes
by, each Credit Party in such jurisdiction, as applicable;
(ix) a copy of the charter of each Credit Party, certified
as of a current date by the appropriate official of the jurisdiction of
incorporation or organization of such Credit Party and as of the Renewal Date
by an authorized officer of such Credit Party;
(x) a copy of the by-laws of each Credit Party, certified
as of the Renewal Date by an authorized officer of such Credit Party;
(xi) a certificate of the president of CRI as to the
solvency of each Credit Party, substantially in the form of Exhibit C hereto as
of the Renewal Date;
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 43
51
(xii) opinions of counsel to the Credit Parties as to such
matters as the Administrative Agent may reasonably request;
(xiii) an Amended and Restated Contribution and
Reimbursement Agreement among the Credit Parties;
(xiv) such other agreements, instruments, approvals,
opinions and other documentation as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. Conditions Precedent to the Advances and Issuances of
Letters of Credit. The obligation of each Lender to make any Advance after the
Renewal Date (other than an Advance pursuant to subsection 2.01(b)(ii)) and the
obligations of the Administrative Agent to issue any Letter of Credit after the
Renewal Date is subject to the fulfillment, in a manner satisfactory to the
Administrative Agent and each Lender, of each of the following conditions
precedent:
(a) Payment of Fees, Etc. The Borrowers shall have paid any and
all fees, costs, expenses and taxes then payable by the Borrowers pursuant to
this Agreement and Section 10.04 hereof.
(b) Representations and Warranties; No Event of Default. The
representations and warranties contained in Section 6.01 of this Agreement and
in each other Loan Document (but excluding those representations and warranties
specifically limited by their terms to another date) and each certificate or
other writing delivered to the Administrative Agent or any Lender pursuant
hereto shall be correct on and as of the Borrowing Date as though made on and
as of such date; and no Event of Default or Potential Default shall have
occurred and be continuing on the Borrowing Date or would result from the
making of the Advance or issuance of the Letter of Credit.
(c) Legality. The making of such Advance or issuance of the
Letter of Credit shall not contravene any law, rule or regulation applicable to
the Administrative Agent or any Lender.
(d) Advance Request Form. The Administrative Agent shall have
received an Advance Request Form pursuant to Section 2.05 hereof with respect
to such Advance or Letter of Credit and, with respect to each Letter of Credit
and the documentation required by the Administrative Agent in accordance with
subsection 2.01(b)(i).
(e) Proceedings; Receipt of Documents. All proceedings in
connection with the making of the Advance or issuance of Letter of Credit and
all documentation incidental thereto, shall be satisfactory to the
Administrative Agent and each Lender and the Administrative Agent and each
Lender shall have received all such information and such counterpart originals
or certified or other copies of such documentation as the Administrative Agent
or any Lender may reasonably request.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 44
52
(f) Bridge Advance. If the Advance is to be a Bridge Advance,
such Advance shall be made on the date of closing of the acquisition and the
Proven Reserves to be acquired with the proceeds of such Bridge Advance shall
be mortgaged to the Administrative Agent for the benefit of the Lenders,
concurrently with the closing of the acquisition, pursuant to documents
reasonably acceptable to the Administrative Agent in form and substance and
creating a first and prior Lien on such Proven Reserves (subject only to Liens
permitted by Section 7.02(a))in favor of the Administrative Agent and the
Lenders.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of Each Company. Each
Company represents and warrants to the Administrative Agent and each Lender as
follows:
(a) Organization, Good Standing, Etc. Holdings and each of its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (ii) has all
requisite power and authority to conduct its business as now conducted and as
presently contemplated and to execute and deliver each Loan Document to which
it is a party and to make the borrowings hereunder and to consummate the
transactions contemplated hereby and thereby and (iii) is duly qualified to do
business and is in good standing in each jurisdiction in which the character of
the properties owned or leased by it or in which the transaction of its
business makes such qualification necessary and in which the failure to be so
qualified would cause a Material Adverse Change.
(b) Authorization, Etc. The execution, delivery and performance
by each Credit Party of each Loan Document to which it is a party (i) have been
duly authorized by all necessary corporate action, (ii) do not and will not
contravene its charter or by-laws, any law or any contractual restriction
binding on or otherwise affecting it or any of its properties, (iii) do not and
will not result in or require the creation of any Lien, other than pursuant to
any Loan Document upon or with respect to any of its properties and in favor of
the Lenders and (iv) do not and will not result in any suspension, revocation,
impairment, forfeiture or nonrenewal of any permit, license, authorization or
approval applicable to its operations or any of its properties.
(c) Governmental Approvals. Except for notices, filings,
authorization, approvals and application actions all of which have been made or
obtained, no authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority is required to permit a Credit Party to
duly execute, deliver and perform its obligations under any Loan Document.
(d) Enforceability of Loan Documents. This Agreement is, and each
other Loan Document, when delivered, will be, a legal, valid and binding
obligation of each Credit Party which is a party thereto, enforceable against
such Credit Party in accordance with its terms, except to the extent that (i)
the enforceability of such Loan Document is limited by any applicable
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 45
53
bankruptcy, insolvency, reorganization, moratorium or similar laws from time to
time in effect affecting generally the enforcement of creditors' rights and
remedies and by general principles of equity, (ii) any Loan Document creates a
security interest in that part of the Collateral, if any, which constitutes a
"security" (as defined in the UCC), such security interest will not be created
until steps necessary to the perfection of such security interest are taken
pursuant to Article 8 or Article 9 of the UCC and (iii) (without limiting the
applicability of the foregoing to the Security Documents) the validity or
enforceability of any Lien on real property or interest in real property which
is purported to be conveyed by the Security Documents is subject to the
recordation of appropriate instruments under local real property law or
applicable federal law.
(e) Subsidiaries; Capitalization. As of the Renewal Date, no
Credit Party has any Subsidiaries other than as set forth in Schedule 6.01(e).
Schedule 6.01(e) hereto is a complete and correct description of the name,
jurisdiction of incorporation and authorized and outstanding Capital Stock of
each Subsidiary of each Credit Party and the percentage interest each Credit
Party holds in each of its Subsidiaries on the Renewal Date. All of the
outstanding Capital Stock of each Subsidiary of each Credit Party has been
validly issued, is fully paid, is nonassessable and is not subject to any
restriction on transfer except for restrictions imposed by applicable federal
and state securities laws. All the issued and outstanding shares of Capital
Stock of each such Subsidiary are free and clear of all Liens other than those
in favor of the Administrative Agent granted pursuant to the Security Documents
and such shares have been issued in compliance with all applicable state and
federal laws concerning the issuance of securities. There are no preemptive or
other outstanding rights, options, warrants, conversion rights or similar
agreements or understandings for the purchase or acquisition from any such
Subsidiary or any Credit Party of any shares of Capital Stock or other
securities of any such Subsidiary. Holdings has the unrestricted right to
pledge the Capital Stock of CRI, Coho Canada, Coho Shell, and ING under the
terms of the Holdings Pledge Agreement. Coho Canada has the unrestricted right
to enter into a negative pledge with respect to the Capital Stock of CRI under
the terms of the Coho Canada Negative Pledge Agreement. CRI has the
unrestricted right to pledge the Capital Stock of ING under the terms of the
CRI Security Agreement. ING has the unrestricted right to pledge the Capital
Stock of the ING Subsidiaries under the terms of the ING Pledge Agreement. The
Production Company has the unrestricted right to pledge the Capital Stock of
Exploration under the terms of the Mid Louisiana Pledge Agreement.
(f) Litigation. Except set forth as Schedule 6.01(f), there is no
pending or, to the knowledge of either Company, threatened action, suit or
proceeding affecting Holdings or any of its Subsidiaries before any court or
other Governmental Authority or any arbitrator which may cause a Material
Adverse Change.
(g) Financial Condition. The Financial Statements fairly present
the financial condition of the Credit Parties subject thereto as at the
respective dates thereof and their results of operations for the fiscal periods
ended on such respective dates, all in accordance with GAAP consistently
applied, and since March 31, 1996, there has been no Material Adverse Change.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 46
54
(h) Compliance with Law, Etc. Neither Holdings nor any of its
Subsidiaries is (i) in violation of its charter or by-laws, any law or (ii) in
violation of any term of any agreement or instrument binding on or otherwise
affecting it or any of its properties, the effect of which violation would
cause a Material Adverse Change.
(i) ERISA. (i) No Termination Event has occurred nor is
reasonably expected to occur with respect to any Employee Plan, (ii) the most
recent annual report (Form 5500 Series) with respect to each Employee Plan,
including Schedule B (Actuarial Information) thereto, copies of which have been
filed with the Internal Revenue Service and delivered to the Administrative
Agent, is complete and correct and fairly presents the funding status of such
Employee Plan, and since the date of such report there has been no material
adverse change in such funding status, and (iii) no Employee Plan has incurred
an "accumulated funding deficiency" within the meaning of Section 412(a) of the
Internal Revenue Code in excess of Two Hundred Fifty Thousand Dollars
($250,000.00) at any time during the previous sixty (60) months unless waived
pursuant to Section 412(c)(8) of the Internal Revenue Code. Neither Holdings
nor any of its Affiliates has incurred any withdrawal liability under ERISA
with respect to any Multiemployer Plan, and neither Company is aware of any
facts indicating that Holdings or any of its Affiliates may in the future incur
any such withdrawal liability. Each Employee Plan now maintained or maintained
during the preceding five (5) years by Holdings or any of its Affiliates has
complied in all material respects in form and in operation with all applicable
laws. Neither Holdings nor any of its Affiliates maintains or has maintained a
Plan that is or was part of a multiple employer welfare arrangement (as defined
in section 3(40) of ERISA), and no welfare benefit plan (as defined in section
3(1) of ERISA) now maintained or maintained during the preceding five (5) years
by Holdings or any of its Affiliates currently provides or is obligated to
provide benefits to former employers of Holdings or any of its Affiliates other
than pursuant to continuing health care requirements of ERISA or the Internal
Revenue Code. Each Plan may be amended or terminated without the consent of
any party other than the parties thereto. There is and has been no actual,
anticipated, threatened or expected litigation, or arbitration or government
audit or proceeding concerning or involving any Plan which could cause a
Material Adverse Change. All reporting and disclosure requirements with
respect to each Plan have been timely satisfied. There have been no prohibited
transactions (as defined in sections 406 or 407 of ERISA or section 4975 of the
Internal Revenue Code excluding prohibited transactions for which an exemption
is available under ERISA or the Internal Revenue Code) involving any Plan.
There have been no failures to comply in any material respect with the
continuing health care coverage requirements of ERISA or the Internal Revenue
Code.
(j) Taxes, Etc. All Federal, state and local tax returns and
other reports required by applicable law to be filed by Holdings or any of its
Subsidiaries have been filed, and all taxes, assessments and other governmental
charges imposed upon Holdings or any of its Subsidiaries or any property of any
such Person and which have become due and payable on or prior to the Renewal
Date have been paid, except to the extent contested in good faith by proper
proceedings which stay the imposition of any penalty, fine or Lien resulting
from the non-payment thereof and with respect to which adequate reserves have
been set aside for the payment thereof.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 47
55
(k) Regulation U. Neither Holdings nor any of its Subsidiaries is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the Board
of Governors of the Federal Reserve System), and no proceeds of any Advance
will be used to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin stock.
(l) Title to Properties. Each of Holdings and its Subsidiaries
has good and defensible title to all of its properties and assets and the
properties and assets of Holdings and its Restricted Subsidiaries are free and
clear of all Liens except such as are permitted by Section 7.02(a) hereof.
(m) Credit Arrangements. Schedule 6.01(m) hereto is a complete
and correct list of each credit agreement, guaranty or other agreement,
instrument or arrangement in effect as of the date hereof and providing for or
relating to the extension of credit (excluding agreements and arrangements for
the purchase of goods and services in the normal course of business, but
including agreements and arrangements for the issuance of letters of credit or
for acceptance financing) in respect of which Holdings or any of its Restricted
Subsidiaries is or may become directly or contingently liable in a principal or
face amount in excess of One Hundred Thousand Dollars ($100,000.00).
(n) Nature of Business. Neither Holdings nor any of its
Subsidiaries is engaged in any business other than the purchase of, exploration
for, and the production, transportation, storage and sale of, Hydrocarbons and
other activities necessary or useful to facilitate the profitable enhancement
of Hydrocarbon value.
(o) Adverse Agreements, Etc. Neither Holdings nor any of its
Subsidiaries is a party to any agreement or instrument, or subject to any
charter or other corporate restriction or any judgment, order, regulation,
ruling or other requirement of a court or other Governmental Authority, which
causes or in the future may cause a Material Adverse Change.
(p) Holding Company and Investment Company Acts. Neither Holdings
nor any of its Subsidiaries is (i) a "holding company" or a subsidiary company
of a "holding company" or an "affiliate" of a "holding company", as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended, or
(ii) an "investment company" or an "affiliated person" or "promoter" of, or
"principal underwriter" of or for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended.
(q) Permits, Etc. Holdings and each of its Subsidiaries maintains
all permits, licenses, authorizations and approvals required for it lawfully to
own, lease, manage or operate each business currently owned, leased, managed or
operated by it and which the failure to so maintain would cause a Material
Adverse Change. No condition exists or event has occurred which, in itself or
with the giving of notice or lapse of time or both, would result in the
suspension, revocation, impairment, forfeiture or non-renewal of any such
permit, license, authorization or approval, and there is no claim that any
thereof is not in full force and effect.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 48
56
(r) Full Disclosure. No Loan Document or schedule or exhibit
thereto and no certificate, report, statement or other document and/or
information furnished to the Administrative Agent or any Lender in connection
herewith or with the consummation of the transactions contemplated by the Loan
Documents, contains or contained, as applicable, as of the date of delivery of
such Loan Documents, any material misstatement of fact or omits to state a
material fact or any fact necessary to make the statements contained therein
not materially misleading. There is no fact existing which could cause a
Material Adverse Change and which has not been set forth in a Schedule hereto
or otherwise disclosed to the Administrative Agent in writing.
(s) Environmental Conditions. Except as disclosed in Schedule
6.01(s) hereto, (i) the operations of Holdings and each of its Subsidiaries
comply in all material respects with all Environmental Laws and, to the
Companies' knowledge, no conditions exist or are likely to exist during the
term of this Agreement which, individually or in the aggregate, would subject
Holdings or any of its Subsidiaries to material damages, penalties, injunctive
relief or cleanup costs under any Environmental Law or which, individually or
in the aggregate, require or are likely to require any material Remedial Action
under any Environmental Law; (ii) Holdings and each of its Subsidiaries has
obtained all material Environmental Permits necessary for its operation, and
all such Environmental Permits are in good standing; (iii) neither Holdings nor
any of its Subsidiaries is a party to any litigation or formal administrative
proceeding alleging the violation of any Environmental Law or asserting that
Holdings or any of its Subsidiaries is required to take any Remedial Action
under any Environmental Law; (iv) neither Holdings nor any of its Subsidiaries
is subject to any outstanding written order or agreement with any Governmental
Authority or other Person respecting (A) any Environmental Law, (B) any
Remedial Action under any Environmental Law or (C) any Environmental Claim
under any Environmental Law; (v) to each Company's knowledge, none of the
operations of Holdings or any of its Subsidiaries is the subject of any pending
or threatened investigation by a Governmental Authority evaluating whether any
Remedial Action under any Environmental Law is needed; (vi) neither Holdings
nor any of its Subsidiaries has filed any notice under federal or state law
indicating past or present treatment, storage or disposal of a hazardous waste
as defined under 40 C.F.R. Parts 260 or 270 (in effect as of the date hereof)
or any state equivalent, or reporting a Release of a Contaminant; (vii) except
as permitted under any Environmental Law, neither Holdings nor any of its
Subsidiaries has experienced a material Release of any Contaminant, and, except
as permitted under and in compliance with applicable Environmental Law, there
has been no material voluntary disposal, use, storage, recycling or treatment
of any Contaminant (A) on, under or at any property of Holdings or any of its
Subsidiaries (or in tanks or other facilities thereon) or (B) by Holdings or
any of its Subsidiaries at any other location, which, if known to be present on
such property, or present in soils or ground water, would require Remedial
Action under any Environmental Law, except for Remedial Action required after
depletion with respect to each production facility located on a portion of the
Collateral, the cost of which will not exceed One Hundred Thousand Dollars
($100,000.00), (viii) no recorded Lien and, to each Company's knowledge, no
unrecorded Lien, in favor of any Governmental Authority relating to (A) any
liability under any Environmental Law or (B) damages arising from or costs
incurred by such Governmental Authority in response to a Release of a
Contaminant into the environment has been filed or attached to any facility of
Holdings or any of its Subsidiaries; and (ix) within the last thirty-six
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 49
57
(36) months, neither Holdings nor any of its Subsidiaries has been subject to a
written order or binding written agreement with any Governmental Authority or
other Person respecting (A) any Environmental Law, (B) any Remedial Action
under any Environmental Law or (C) any Environmental Claim, and neither
Holdings nor any of its Subsidiaries has performed any Remedial Action, the
aggregate cost of which exceeded One Hundred Thousand Dollars ($100,000.00).
For purposes of this Section 6.01(s), "knowledge" means the actual knowledge of
any officer of any Company.
(t) Principal Place of Business; Location of Collateral. The
principal place of business and chief executive office of each Credit Party and
the place where each such Credit Party keeps its books and records is located
at the address of such Credit Party set forth on Schedule 6.01(t). The title
opinions delivered to Administrative Agent in connection with the previously
executed Loan Documents and the title opinion described in Section 5.01(d)(xi)
identify all of the Borrowers material Petroleum and Natural Gas Rights as of
the Renewal Date. Schedule 6.01(t) specifically sets forth all locations where
each Credit Party maintains the Collateral that it owns and all other locations
where such Credit Party maintains a place of business as of the Renewal Date.
Such title opinions and Schedule 6.01(t) correctly identify each location where
each Credit Party's inventory or equipment which constitutes Collateral (other
than mobile goods) is located. No Persons have possession of any Collateral
other than (i) Hydrocarbons held by operators engaged with respect to
Borrowers' Petroleum and Natural Gas Rights; (ii) the Persons who hold hedge
accounts of the Credit Parties other than Coho Canada; (iii) the Credit Parties
other than Coho Canada; and (iv) such other Persons identified to the
Administrative Agent pursuant to the Security Documents. As of the Renewal
Date, Xxxx Oil Company, EOTT Energy and Mid Louisiana Marketing Company are the
only purchasers of Borrowers' Hydrocarbons produced from Petroleum and Natural
Gas Rights which constitute Collateral owned by the Borrowers and the
purchasers identified on the list delivered in accordance with Section
5.01(d)(v) are the only purchasers of Exploration's Hydrocarbons produced from
Petroleum and Natural Gas Rights which constitute Collateral owned by
Exploration. None of the Collateral constituting "goods" has been located in
any location not identified in Schedule 6.01(t) or in such title opinions
within the past four (4) months from the date hereof other than with respect to
mobile goods.
(u) Corporate Name. The exact corporate name of each Credit Party
as it appears in its certificate of incorporation is as set forth on Schedule
6.01(t) and no Credit Party has done business in any location under any other
name.
(v) Security Interests and Liens. The Security Documents create
in favor of Administrative Agent for the benefit of the Lenders valid and
enforceable Liens in the Collateral described therein which secure the payment
and performance of the Obligations that are described therein, including
without limitation, all future Advances pursuant to this Agreement and the
Notes, all contingent Obligations arising in connection with the Letters of
Credit and all extensions, renewals, and other modifications thereof. Upon
delivery to the Administrative Agent from time to time of any promissory note
evidencing Permitted Coho Shell Advances or any Permitted Intercompany Advances
and any other Collateral the possession of which is necessary to perfect the
security interest therein, the Liens created by the Loan Documents shall
constitute
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 50
58
perfected, first priority Liens upon the property described therein which shall
be superior and prior to the rights of all third Persons now existing or
hereafter arising except for Liens permitted by Section 7.02(a).
ARTICLE VII
COVENANTS
SECTION 7.01. Affirmative Covenants. So long as any of the
Obligations shall remain unpaid or any Lender has any Commitment hereunder,
each Company covenants and agrees, unless the Required Lenders shall otherwise
consent in writing, as follows:
(a) Stockholders' Equity. Holdings and its Restricted
Subsidiaries will maintain its Stockholders' Equity in an amount at
all times not less than the sum of (A) Sixty-Five Million Dollars
($65,000,000.00) plus (B) fifty percent (50%) of the Consolidated Net
Income of Holdings for each fiscal year beginning with the fiscal year
ended December 1994, plus (c) seventy-five percent (75%) of the cash
proceeds (less reasonable and customary fees and expenses and
underwriter's discounts) of any sales of Capital Stock of Holdings on
or after the Renewal Date. If Consolidated Net Income of Holdings for
any fiscal year is negative, no adjustment to the requisite level of
Stockholders' Equity shall be made.
(b) Interest Coverage Ratio. Holdings will maintain an
Interest Coverage Ratio measured at the end of each fiscal quarter for
the four fiscal quarters then most recently ended of not less than 2.5
to 1.0;
(c) Current Ratio. Holdings will at all times maintain a
minimum Consolidated Current Ratio of 1.0 to 1.0;
(d) Reporting Requirements. The Companies will furnish
to the Administrative Agent and each Lender:
(i) as soon as available and in any event within
sixty (60) days after the end of each of the first three quarters of
each fiscal year of Holdings, (a) consolidated and consolidating
balance sheets of Holdings and its Restricted Subsidiaries as at the
end of such quarter, and consolidated and consolidating statements of
earnings and cash flow of Holdings and its Restricted Subsidiaries
for such quarter and for the period commencing at the end of the
immediately preceding fiscal year and ending with the end of such
quarter, (b) consolidated and consolidating balance sheets of each
Unrestricted Subsidiary and the applicable Unrestricted Subsidiary's
Subsidiaries as at the end of such quarter and consolidated and
consolidating statements of earnings and cash flow of each
Unrestricted Subsidiary and the applicable Unrestricted Subsidiary's
Subsidiaries for such quarter and for the period commencing at the end
of the immediately preceding fiscal year and ending with the end of
such quarter, all such financial statements to set forth in
comparative form
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 51
59
the corresponding figures for the corresponding date or period of the
immediately preceding fiscal year, all in reasonable detail and
prepared, in the case of the consolidated balance sheets and
statements, in accordance with GAAP (except for the absence of any
footnotes required by GAAP), duly certified by the chief financial
officer of Holdings (or in the case of Unrestricted Subsidiaries, by
an authorized officer thereof) as (A) fairly presenting the financial
condition of the Persons subject thereof at the end of such quarter
and the results of the operations of the Persons subject thereof for
such periods (subject to normal year-end audit adjustments), and (B),
in the case of the consolidated balance sheets and statements, having
been prepared in accordance with GAAP.
(ii) as soon as available and in any event within
one hundred twenty (120) days after the end of each fiscal year of
Holdings,
(A) consolidated and consolidating balance sheets of
Holdings and its Restricted Subsidiaries as at the
end of such fiscal year, and consolidated and
consolidating statements of earnings and cash flow of
Holdings and its Restricted Subsidiaries for such
fiscal year, setting forth in comparative form the
corresponding figures for the immediately preceding
fiscal year, all in reasonable detail and prepared,
in the case of the consolidated balance sheets and
statements, in accordance with GAAP and (1) in the
case of consolidated balance sheets and statements,
accompanied by a report and an opinion that such
balance sheets and statements have been prepared in
accordance with GAAP, of an independent certified
public accountant of recognized standing selected by
Holdings and satisfactory to the Lenders (which
opinion shall not be qualified in any material
respect), together with a written statement of such
accountants (x) to the effect that in making the
examination necessary for their certification of such
financial statements they have not obtained any
knowledge of the existence of an Event of Default or
any Potential Default, or (y) if such accountants
shall have obtained any knowledge of the existence of
an Event of Default or Potential Default, describing
the nature thereof, and (2) in the case of
consolidating balance sheets and statements, duly
certified by the chief financial officer of Holdings
as fairly presenting the financial condition of
Holdings and its Restricted Subsidiaries at the end
of, and the results of operations of Holdings and its
Restricted Subsidiaries for, such fiscal year; and
(B) consolidated and consolidating balance sheets of each
Unrestricted Subsidiary and the applicable
Unrestricted Subsidiary's Subsidiaries as at the end
of such fiscal year, and consolidated and
consolidating statements of earnings and cash flow of
each Unrestricted Subsidiary and the applicable
Unrestricted Subsidiary's Subsidiaries for each
fiscal year, setting forth in comparative form the
corresponding figures for the immediately preceding
fiscal year, all in reasonable detail and prepared,
in the case of the consolidated balance sheets and
statements, in accordance
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 52
60
with GAAP and duly certified by the chief financial
officer of the applicable Unrestricted Subsidiary as
fairly presenting the financial condition of the
applicable Unrestricted Subsidiary and its
Subsidiaries at the end of, and the results of
operations of the applicable Unrestricted Subsidiary
and its Subsidiaries for, such fiscal year;
(iii) as soon as available and in any event within
sixty (60) days after the end of each calendar quarter, a Production
Report for such quarter;
(iv) simultaneously with the delivery of the
financial statements required by paragraphs (i) and (ii) above, a
certificate of the chief financial officer of Holdings, (A) stating
that such officer has reviewed the provisions of this Agreement and
the other Loan Documents and has made or caused to be made under his
supervision a review of the condition and operations of Holdings and
its Subsidiaries during the period covered by such financial
statements with a view to determining whether Holdings and its
Subsidiaries were in compliance with all of the provisions of such
Loan Documents, and that such review has not disclosed, and such
officer has no knowledge of, the existence during such period of an
Event of Default or Potential Default or if an Event of Default or
Potential Default existed, describing the nature and period of
existence thereof and the action which the Companies propose to take
with respect thereto, and (B) setting forth data and calculations
demonstrating in reasonable detail compliance with the provisions of
subsections (a), (b) and (c) of this Section 7.01 as of the end of
such period and the calculation of the ratio of Consolidated
Indebtedness to EBITDA of Holdings and its Restricted Subsidiaries for
the four fiscal quarters then most recently ended;
(v) thirty (30) days before the end of each
fiscal year of Holdings, a projected cash flow statement for the
fiscal year immediately succeeding such fiscal year containing all
projected sources and uses of cash for Holdings and its Restricted
Subsidiaries (on a consolidated basis), disclosing all assumptions
made with respect to general economic, financial and market conditions
utilized in the preparation of such projected cash flow statement and
certified by an officer of Holdings to be, to the best of such
officer's knowledge, (a) based upon reasonable estimates and
assumptions, all of which are fair in light of then current
conditions, (b) prepared on the basis of the assumptions stated
therein and (c) reflective of Holdings estimates of the results of
operations and other matters projected therein;
(vi) promptly upon receipt thereof, copies of all
financial reports (including, without limitation, management letters),
if any, submitted to Holdings or any of its Subsidiaries by its
auditors in connection with any annual or interim audit of the books
thereof;
(vii) as soon as possible and in any event within
five (5) days after obtaining knowledge of the occurrence of an Event
of Default or a Potential Default the written statement of the chief
financial officer of Holdings, setting forth the details of such
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 53
61
Event of Default or Potential Default and the action which the
Companies proposes to take with respect thereto;
(viii) promptly after the sending or filing thereof,
copies of all statements, reports and other information which Holdings
or any of its Subsidiaries sends to its security-holders generally or
files with the Securities and Exchange Commission or any national
securities exchange;
(ix) (A) as soon as possible and in any event (1)
within thirty (30) days after Holdings or any of its Affiliates knows
or has reason to know that any Termination Event described in clause
(a) of the definition of Termination Event with respect to any
Employee Plan has occurred, and (2) within ten (10) days after
Holdings or any of its Affiliates knows or has reason to know that any
other Termination Event with respect to any Employee Plan has
occurred, a statement of the chief financial officer of Holdings
describing such Termination Event and the action, if any, which
Holdings or such Affiliate proposes to take with respect thereto, (B)
promptly and in any event within two Business Days after receipt
thereof by Holdings or any of its Affiliates from the Pension Benefit
Guaranty Corporation, copies of each notice received by Holdings or
any of its Affiliates of the Pension Benefit Guaranty Corporation's
intention to terminate any Plan or to have a trustee appointed to
administer any Plan, (C) promptly and in any event within thirty (30)
days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each Plan, and (D) promptly and in
any event within five (5) Business Days after receipt thereof by
Holdings or any of its Affiliates from a sponsor of a Multiemployer
Plan or from the Pension Benefit Guaranty Corporation, a copy of each
notice received by Holdings or any of its Affiliates concerning the
imposition or amount of withdrawal liability under Section 4202 of
ERISA in an annual amount in excess of Five Hundred Thousand Dollars
($500,000.00), or indicating that such Multiemployer Plan may enter
reorganization status under Section 4241 of ERISA and that, as a
result thereof, Holdings or Affiliate's annual contribution
requirement with respect to such Multiemployer Plan will increase in
an annual amount exceeding Five Hundred Thousand Dollars
($500,000.00);
(x) promptly after the commencement thereof and
in any event not later than five (5) Business Days after service of
process with respect thereto on, or the obtaining of knowledge thereof
by, Holdings or any of its Restricted Subsidiaries, notice of each
action, suit or proceeding before any court or other Governmental
Authority or any arbitrator which may cause a Material Adverse Change;
(xi) promptly after any change in any Person who
purchases any Hydrocarbons from any Borrower produced from Petroleum
and Natural Gas Rights which constitute Collateral, the name and
address of the new purchaser and, if the purchase contract applicable
to the purchaser extends for a period in excess of six (6) months, a
letter executed by such purchaser pursuant to which it shall
acknowledge the Administrative Agent's Lien in the amounts paid by
such purchaser to Borrowers and
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 54
62
agree to pay such amounts to the Administrative Agent upon receipt of
written notice of default from the Administrative Agent. Upon the
request of the Administrative Agent, the Borrowers will provide the
Administrative Agent with the names and address of all purchasers of
Hydrocarbons attributable to the Petroleum and Natural Gas Rights
pledged as Collateral by Exploration and the other Borrowers and such
other information with respect to such purchasers as the
Administrative Agent may reasonably request; and
(xii) promptly upon request, such other information
concerning the Collateral or the condition or operations, financial or
otherwise, of any Credit Party or any of their respective Subsidiaries
as the Administrative Agent or any Lender from time to time may
reasonably request.
(e) Compliance with Laws, Etc. The Companies will
comply, and cause each of their respective Subsidiaries to comply,
with all applicable laws, rules, regulations and orders (including,
without limitation, Environmental Laws) to the extent the failure to
so comply therewith would cause a Material Adverse Change, such
compliance (to the extent required in accordance with the foregoing)
to include, without limitation, (i) paying before the same become
delinquent all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or upon any of its
properties, and (ii) paying all lawful claims which if unpaid might
become a Lien or charge upon any of its properties, except to the
extent contested in good faith by proper proceedings which stay the
imposition of any penalty, fine or Lien resulting from the non-payment
thereof and with respect to which adequate reserves have been set
aside, to the extent required by GAAP, for the payment thereof.
(f) Preservation of Existence, Etc. Each Company will
maintain and preserve its existence and any material rights and
privileges, and cause each of its Subsidiaries to maintain and
preserve its existence, rights and privileges if the failure of any
such Subsidiary (other than a Borrower) so to maintain and preserve
such existence, rights and privileges would cause a Material Adverse
Change, and become or remain, and cause each of its Subsidiaries to
become or remain, duly qualified and in good standing in each
jurisdiction in which the character of the properties owned or leased
by it or in which the transaction of its business makes such
qualification necessary and in which the failure to be so qualified
would cause a Material Adverse Change.
(g) Maintenance of Properties, Etc. Each Company will
maintain and preserve, and cause each of its Subsidiaries to maintain
and preserve, all of the Collateral and all of its other material
properties which are necessary or useful in the proper conduct of its
business in good working order and condition, ordinary wear and tear
excepted and comply in all material respects and cause each of its
Subsidiaries to comply in all material respects, at all times with the
provisions of all leases to which it is a party as lessee or under
which it occupies property, so as to prevent any loss or forfeiture
thereof or thereunder if such a loss or forfeiture would cause a
Material Adverse Change; provided, however, that (i) nothing in this
subsection (g) shall be deemed (x) to require Holdings or
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 55
63
any of its Subsidiaries to perpetuate or renew any oil and gas lease
or other lease by payment of rental or delay rental or by commencement
or continuation of operations or to prevent Holdings or any of its
Subsidiaries from abandoning or releasing any oil and gas lease or
other lease when in any of such events, in the opinion of Holdings or
the applicable Subsidiary exercised in good faith, it is uneconomic so
to perpetuate the same or (y) prohibit Holdings or any of its
Subsidiaries from assigning by customary farmout or farmin agreements,
oil and gas leases in the ordinary course of business which relate to
quantities of Hydrocarbons which are not Proven Reserves and (ii) in
the event of such termination or assignment of any such lease included
in the Collateral, upon request of Holdings, and at the expense of
Holdings, the Administrative Agent shall execute and deliver a
recordable instrument releasing the Liens of the Administrative Agent
therein to the extent that there has been termination or assignment of
such lease.
(h) Obtaining of Permits, Etc. Each Company will obtain,
maintain and preserve, and cause each of its Subsidiaries to obtain,
maintain and preserve, all permits, licenses, authorizations,
approvals and accreditations which are necessary or useful in the
proper conduct of its business and which the failure to so obtain,
maintain or preserve, as applicable, would cause a Material Adverse
Change.
(i) Keeping of Records and Books of Account. Each
Company will keep, and cause each of its Subsidiaries to keep,
adequate records and books of account, with complete entries made in
accordance with GAAP consistently applied, reflecting all of its
financial transactions.
(j) Inspection Rights. Each Company will permit, and
cause each of its Subsidiaries to permit, the Administrative Agent,
any Lender or any agents or representatives thereof at any reasonable
time and from time to time upon reasonable notice to examine and make
copies of and abstracts from its records and books of account, to
visit and inspect its properties and to discuss its affairs, finances
and accounts with any of the directors, officers, employees or other
representatives thereof; provided, however, that neither Holdings nor
any of its Subsidiaries shall be required to disclose to the
Administrative Agent, any Lender or any agents or representatives
thereof any information which is the subject of attorney-client
privilege or attorney's work- product privilege properly asserted by
the applicable Person to prevent the loss of such privilege in
connection with such information.
(k) Environmental Laws. Each Company will (i) provide,
and cause each of its Subsidiaries to provide, to the Administrative
Agent promptly following receipt, copies of any notice, pleading,
citation, indictment, complaint, order, decree or other documentation
from any source asserting or alleging a material violation of any
Environmental Law or a circumstance or condition which requires or may
require a material financial contribution by Holdings or any of its
Subsidiaries for a Remedial Action under any Environmental Law, or
which seeks a material amount of damages or civil, criminal or
punitive penalties from Holdings or any of its Subsidiaries for an
alleged
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 56
64
violation of any Environmental Law, or which names or lists Holdings
or any of its Subsidiaries as a potentially responsible party under
any Environmental Law; and (ii) comply, and cause each of its
Subsidiaries to comply, with any order, decree or similar requirements
from any Governmental Authority concerning a violation of any
Environmental Law or a financial contribution by Holdings or any of
its Subsidiaries or a cleanup, removal, remedial action or other
response by or on the part of Holdings or any of its Subsidiaries
under any Environmental Law, except that compliance shall not be
required so long as (1) the validity of the same shall be contested in
good faith and by proper proceedings, (2) the property shall then be
in no danger of being sold, forfeited or lost pursuant to such
contest, (3) adequate reserves have been established in accordance
with GAAP by Holdings or such Subsidiary in connection therewith and
are maintained for the duration of such contest, (4) the Lien of the
Security Documents shall then be in no danger of being forfeited or
subordinated to any Lien or claim, and (5) by reason of such Person's
action or inaction, neither the Administrative Agent nor any Lender
shall at any time be subject to any liability by reason of such
contest or the alleged noncompliance which is the subject of such
contest.
(l) Environmental Reports and Compliance. If the Lenders
determine in good faith that Holdings or any of its Subsidiaries may
not be operating its properties in accordance with Environmental Laws
or that the Administrative Agent, Lenders, Holdings, any of its
Subsidiaries or any Collateral may be subject to any liability or any
Liens under or in accordance with Environmental Law, the Lenders shall
have the right to require Holdings to cause to be conducted an
environmental audit of any portion of such properties at the
Companies' sole cost and expense, with an independent Person
satisfactory to the Lenders. If Holdings shall fail to cause such
environmental audit to be conducted, the Lenders shall have the right
to cause such environmental audit to be conducted, at the Companies'
sole cost and expense, and Holdings and its Subsidiaries shall give
access to the Administrative Agent and/or its representatives, and
shall otherwise fully cooperate, with respect to such environmental
audit.
(m) Further Assurances; Post Closing Matters; Letters in
Lieu. Each Company will execute and deliver, and will cause each of
its Subsidiaries to execute and deliver, such further documentation as
may be reasonably requested by any Lender to carry out the provisions
and purposes of this Agreement and the other Loan Documents and to
preserve and perfect the Liens of the Administrative Agent in the
Collateral. In furtherance of the foregoing, each Company agrees to
(i) deliver to the Administrative Agent endorsements to the insurance
policies covering the assets of Exploration within thirty (30) days of
the Renewal Date (A) naming the Administrative Agent for the benefit
of the Lenders as named insured or loss payee thereunder as specified
by the Administrative Agent and (B) providing that such policies may
be terminated or cancelled (by the issuer or insured thereunder) only
upon thirty (30) days prior written notice to the Administrative
Agent; (ii) deliver within sixty (60) days of the Renewal Date all
certificates of title issued in respect of equipment (other than motor
vehicles which do not have a material value) pledged by any Borrower
or any Restricted Subsidiary as Collateral with the
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 57
65
Administrative Agent's lien noted thereon; and (iii) from time to
time, provide the Administrative Agent with such additional Letters in
Lieu of Transfer Orders executed in blank by Exploration as the
Administrative Agent may reasonably request. The Letters in Lieu of
Transfer Orders delivered pursuant to Section 5.01(d)(vi) and this
Section 7.01(m) may be completed and sent by the Administrative Agent
to the purchasers of Hydrocarbons attributable to the Petroleum and
Natural Gas Rights pledged as Collateral by Exploration only upon the
occurrence and during a continuance of an Event of Default.
(n) Unrestricted Subsidiaries. Each Company will cause
each of its Unrestricted Subsidiaries at all times to (i) maintain
corporate records and books of account and deposit accounts separate
from those Holdings or any of Holdings' other Subsidiaries; (ii)
prepare separate consolidated financial statements in accordance with
Section 7.01(d); and (iii) observe all formal corporate formalities
applicable to a separate corporation and otherwise observe all other
requirements necessary to establish such Subsidiary, with respect to
all Persons (including all creditors) who deal with such Subsidiary,
as a separate legal entity. When any Unrestricted Subsidiary is
established Holdings will cause, as of such date, (i) the value of
such Unrestricted Subsidiary's assets to be greater than its debt and
other obligations (including contingent obligations) and (ii) such
Unrestricted Subsidiary to have sufficient capital to operate its
business as proposed to be conducted and sufficient anticipated cash
flow to be able to pay its obligations as they become due.
SECTION 7.02. Negative Covenants. So long as any of the Obligations
shall remain unpaid or any Lender has any Commitment hereunder, no Company
will, without the prior written consent of the Required Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Restricted Subsidiaries to create or suffer to exist, any Lien upon or with
respect to any of its properties, rights or other assets, whether now owned or
hereafter acquired, or assign or otherwise transfer as collateral security, or
permit any of its Restricted Subsidiaries to assign or otherwise transfer as
collateral security, any right to receive income, other than:
(i) Liens created pursuant to the Loan Documents
or otherwise created in favor of the Administrative Agent;
(ii) Liens existing on the date hereof, as set
forth in Schedule 7.02(a) hereto and any renewals or extensions
thereof, or replacements therefor, but not the extension of coverage
thereof to other property or the increase in the principal amount
secured thereby;
(iii) (A) purchase money Liens in property acquired
or held by Holdings or any of its Restricted Subsidiaries in the
ordinary course of its business to secure the purchase price of such
property or Indebtedness for borrowed money incurred solely for
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 58
66
the purpose of financing or refinancing the acquisition of such
property and any renewals or extensions thereof, or replacements
therefor, (B) Liens existing on such property at the time of its
acquisition securing Indebtedness for borrowed money permitted by
Section 7.02(b) and any renewals or extensions thereof, or
replacements therefor or (C) Liens arising in connection with
Capitalized Lease Obligations on property leased by Holdings or any of
its Restricted Subsidiaries in the ordinary course of its business to
secure such Capitalized Lease Obligations; provided in the case of
Liens referred to in clauses (A), (B) and (C) above (including the
renewals, extensions and replacements thereof) that (1) no such Lien
shall extend to or cover any property of Holdings or any of its
Restricted Subsidiaries other than the property so acquired or leased,
as applicable, and improvements thereon, and (2) the principal amount
of the Indebtedness secured by any such Lien shall not (x) exceed the
fair market value of such property at the time of the acquisition or
lease, as applicable, thereof or (y) increase in connection with any
renewal, extension or replacement;
(iv) Liens for taxes, assessments or governmental
charges or levies to the extent that the payment thereof shall not be
required by Section 7.01(e) hereof;
(v) Liens created by operation of law, including
but without limitation, carrier's liens, warehousemen's liens,
landlord's liens, materialmen's liens, mechanics' liens and other
similar liens, arising in the ordinary course of business and securing
claims the payment of which shall not be required by Section 7.01(e)
hereof;
(vi) deposits, pledges or liens (other than liens
arising under ERISA) securing (A) obligations incurred in respect of
workers' compensation, unemployment insurance or other forms of
governmental insurance or benefits, (B) the performance of bids,
tenders, leases, contracts (other than for the payment of money) and
statutory obligations, or (C) obligations on surety or appeal bonds,
but only to the extent such deposits, pledges or liens are incurred or
otherwise arise in the ordinary course of business and secure
obligations which are not past due;
(vii) easements, rights-of-way, covenants,
restrictions and other similar encumbrances incurred in the ordinary
course of business and encumbrances consisting of zoning restrictions,
easements, licenses and other restrictions on the use of real property
and minor irregularities in the title thereto which do not (A) secure
obligations for the payment of money or (B) materially impair the
value of such property or its use by Holdings or any of its Restricted
Subsidiaries in the normal conduct of such Person's business;
(viii) royalties, overriding royalties, revenue
interests, net revenue interests, production payments (other than
production payments granted or created by Holdings or its Restricted
Subsidiaries in connection with the borrowing of money), advance
payment obligations (other than obligations in respect of advance
payments received by Holdings in connection with the borrowing of
money) and other similar
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 59
67
burdens incurred in the ordinary course of business and (a) now
existing with respect to the Collateral (provided they do not increase
the Working Interests or decrease the net revenue interests applicable
to the Collateral from that as reflected on the Initial Engineering
Report or the ING Reserve Report (as defined in the ING Acquisition
Agreement) or any oil, gas or mineral leases or other interests or (b)
hereafter created on oil, gas or mineral leases or other interests
which do not constitute Collateral and which are now owned or
hereafter acquired by or any of its Restricted Subsidiaries;
(ix) Liens that are permitted by the Security
Documents;
(x) Liens on property of any corporation that
becomes a Subsidiary of Holdings after the date of this Agreement,
provided that such Liens are in existence at the time such corporation
becomes a Subsidiary of Holdings and were not created in anticipation
thereof;
(xi) with respect to any property from which
Hydrocarbons may be severed or extracted in commercial quantities,
liens for farmout, farmin, joint operating, and area of mutual
interest agreements and/or similar arrangements that Holdings or the
applicable Restricted Subsidiary determines in good faith to be
necessary for the economic development of such property and are
customary and usual for the area in which such property is located;
provided, however, that with respect to any such Liens created
subsequent to the date hereof on property which constitutes
Collateral, such Liens shall be expressly made subordinate to the
Liens created by the Security Documents;
(xii) rights reserved to or vested in any
municipality or other Governmental 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 Holdings or of any of
its Restricted Subsidiaries;
(xiii) rights reserved to or vested in any
municipality or other Governmental Authority to control or regulate
any property of Holdings or of 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 Holdings
or any such Restricted Subsidiary;
(xiv) any obligations or duties affecting the
property of Holdings or of any of its Restricted Subsidiaries to any
municipality or other Governmental Authority with respect to any
franchise, grant, license or permit;
(xv) rights under common law of a common owner of
any interest in real estate, right of way or easement held by Holdings
or any of its Restricted Subsidiaries and such common owner as tenants
in common or through other common ownership;
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 60
68
(xvi) rights of set-off or banker's liens created
by law in favor of commercial banks;
(xvii) Liens encumbering cash and cash equivalents
securing Indebtedness permitted by subsection 7.02(b)(x);
(xviii) Liens granted by Coho Shell to any Borrower
to secure Permitted Coho Shell Advances; and
(xix) Liens granted by any Intercompany Borrower to
any Borrower to secure Permitted Intercompany Advances.
(b) Indebtedness. Create, incur or suffer to exist, or permit any
Restricted Subsidiaries to create, incur or suffer to exist, any Indebtedness,
other than:
(i) Indebtedness evidenced or created hereunder
or under the other Loan Documents and any renewals and extensions
thereof;
(ii) Permitted Coho Shell Advances;
(iii) Permitted Intercompany Advances;
(iv) Indebtedness reflected on the Financial
Statements or on Schedule 6.01(m) hereto and any renewals and
extensions thereof but without any increase in the principal amount
thereof;
(v) Indebtedness incurred if neither Holdings nor
any of its Restricted Subsidiaries has any personal liability for the
repayment thereof and any renewals and extension thereof;
(vi) Guaranties by indorsement of negotiable
instruments for deposit or collection in the ordinary course of
business;
(vii) Indebtedness of Holdings or any of its
Restricted Subsidiaries and any renewals and extensions thereof if
payment of such Indebtedness and any Liens securing the payment
thereof are fully subordinated to the Obligations (including, without
limitation, with respect to each Credit Party, its obligations, if
any, under the Guaranty or a Subsidiary Guaranty) and the Liens of the
Administrative Agent in the Collateral and, with respect to Coho Shell
and any Intercompany Borrower, are fully subordinated to the
obligations to repay the Permitted Coho Shell Advances and the
Permitted Intercompany Advances, as the case may be, and the Liens
securing payment thereof, all upon terms and provisions acceptable to
the Lenders;
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 61
69
(viii) liabilities in an aggregate amount
less than Five Hundred Thousand Dollars ($500,000.00) incurred under
Title IV of ERISA with respect to any Plan (other than a Multiemployer
Plan) covered by Title IV of ERISA and withdrawal liability incurred
under ERISA in an amount notat any time exceeding Five
Hundred Thousand Dollars ($500,000.00);
(ix) Indebtedness (including Capitalized Lease
Obligations) secured by purchase money Liens permitted by Section
7.02(a)(iii) and any renewals or extension thereof provided there is
no increase in the principal amount thereof;
(x) Capitalized Lease Obligations incurred in
accordance with the limitations imposed by Section 7.02(a)(iii);
(xi) Indebtedness arising in connection with
letters of credit issued for the account of Holdings or any of its
Restricted Subsidiaries to secure (A) obligations incurred in respect
of workers' compensation, unemployment insurance or other forms of
governmental insurance or benefits, (B) the performance of bids,
tenders, leases, contracts (other than for the payment of money) and
statutory obligations, or (C) obligations on surety or appeal bonds
but only to the extent that (x) such obligations, bids, tenders,
leases, contracts, statutory obligation or obligations on surety and
appeal bonds are incurred or otherwise arise in the ordinary course of
business; (y) no letter of credit issued under the permission of this
subsection 7.02(b)(x)(i) shall have an original face amount in excess
of One Hundred Thousand Dollars ($100,000.00) and (z) the Indebtedness
of any Borrower arising in connection of each letter of credit issued
under the permission of this subsection 7.02(b)(x)(i) shall be secured
in full by cash or cash equivalent collateral; and
(xii) Indebtedness (and any renewals and extensions
thereof) owed to Holdings or a Restricted Subsidiary of Holdings
arising as a result of an Investment made by Holdings or such
Restricted Subsidiary in the obligor of such Indebtedness that is not
prohibited by Section 7.02(g), if (A) in the case of Indebtedness
incurred by any Credit Party, the payment of such Indebtedness and any
renewals and extensions thereof and any Liens securing the payment
thereof are fully subordinated to the Obligations (including, without
limitation, with respect to each Credit Party, its obligations, if
any, under the Guaranty or a Subsidiary Guaranty) and the Liens of the
Administrative Agent in the Collateral and (B) in the case of
Indebtedness incurred by Coho Shell or any Intercompany Borrower, the
payment of such Indebtedness and any renewals and extensions thereof
and any Liens securing the payment thereof are fully subordinated to
the obligations of Coho Shell or such Intercompany Borrower to repay
the Permitted Coho Shell Advances or the Permitted Intercompany
Advances, as the case may be, and the Liens securing payment thereof,
all upon terms and provisions reasonably acceptable to the Lenders.
(c) Merger, Consolidation. Merge into or consolidate with any
Person or permit any Restricted Subsidiaries to merge into or consolidate with
any Person except as permitted by
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 62
70
Section 7.01(f) or unless the proposed merger or consolidation will not
negatively affect the financial condition or otherwise impair the
creditworthiness of either Company.
(d) Sale of Assets, Etc. Sell, assign, lease or otherwise
transfer or dispose of, or permit any of its Restricted Subsidiaries to sell,
assign, lease or otherwise transfer or dispose of, whether in one transaction
or in a series of related transactions, any of its properties, rights or other
assets (whether now owned or hereafter acquired) to any Person except for sales
and other dispositions by Holdings and its Restricted Subsidiaries of inventory
and assets (other than Petroleum and Natural Gas Rights to which Proven
Reserves are attributable) in the ordinary course of business, including, but
without limitation, routine farmouts by Holding and its Subsidiaries in
connection with quantities of Hydrocarbons which are not Proven Reserves;
provided, however, that
(i) nothing in this subsection (d) shall be
deemed to prohibit Holdings or any of its Restricted Subsidiaries from
making assignments of oil and gas leases pursuant to the provisions of
clause (i) (y) of subsection (g) of Section 7.01 hereof;
(ii) Holdings and its Restricted Subsidiaries may
sell, assign, lease or otherwise transfer or dispose of, in bona fide
arm's length transactions any of their properties, rights and other
assets that do not constitute Collateral; and
(iii) A Borrower may sell, assign, lease or
otherwise transfer or dispose of, in a bona fide arms' length
transaction, one or more portions of the Petroleum and Natural Gas
Rights constituting Collateral (and the Administrative Agent, at
Borrowers' expense, shall execute and deliver a recordable instrument
releasing the Liens of the Administrative Agent therein) so long as:
(1) when any such sale or sales of Collateral in any
calendar year yield aggregate net after-tax proceeds in excess of
$5,000,000, and on any sale thereafter during such calendar year, the
outstanding Advances shall be prepaid on the date of the sale,
assignment, lease, transfer or other disposition which causes the
aggregate of such proceeds to exceed $5,000,000, and on the date of
any subsequent sale during that calendar year, by an amount equal to
the greater of (A) one hundred twenty percent (120%) of the Borrowing
Base or Bridge Borrowing Base valuation of the Collateral so disposed
of (as reasonably determined by the Lenders) or (B) seventy percent
(70%) of the net price paid to the applicable Borrower in connection
with such disposition, such prepayment to be applied as a mandatory
prepayment in accordance with Section 3.02(b); and
(2) no Event of Default or Potential Default exists or
would result therefrom; and
(3) after giving effect to such disposition and the
redetermination of the Borrowing Base in accordance with Section
2.10(e), the value of the Borrowers' Proven
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 63
71
Producing Reserves included as Collateral shall constitute an amount
not less than seventy percent (70%) of the total Borrowing Base, as
determined by the Lenders.
Prior to the disposition of any Collateral in accordance with this
subsection 7.02(d)(iii) and upon the request of Borrowers, the Administrative
Agent and the Lenders shall provide the Borrowers information regarding the
Borrowing Base value being considered by the Lenders for the purposes of this
subsection 7.02(d)(iii) and with respect to the Collateral in question.
(e) Change in Nature of Business. Engage in any business other
than the exploration for, and the production, transportation, storage and sale
of, Hydrocarbons and related products and other activities necessary or useful
to facilitate the profitable enhancement of Hydrocarbon value.
(f) Transactions with Affiliates. Enter into contracts,
agreements, undertakings or transactions with Affiliates of the Companies,
other than contracts, agreements, undertakings or transactions which (i) are
described on Schedule 7.02(f) hereto, or (ii) (A) are at a price and on other
terms which are not less favorable than those which could be obtained from
qualified third parties in arms' length transactions, (B) are set forth in
written agreements and (C) are for the provisions of necessary services;
provided, however, that nothing in this subsection (f) shall prohibit any
Company from declaring or paying any dividends or other distributions to
shareholders in respect of Capital Stock to the extent that any such
declaration or payment otherwise complies with this Agreement and applicable
law.
(g) Restricted Payments and Restricted Investments. Make any
Restricted Payment or Restricted Investment or permit any of its Restricted
Subsidiaries to make any Restricted Payment or Restricted Investment; provided,
however, that Holdings or any Restricted Subsidiary may make a Restricted
Payment or a Restricted Investment if, immediately after giving effect to such
Restricted Payment or Restricted Investment, (a) no Event of Default or
Potential Default shall exist or result therefrom and (b)(i) the sum of the
aggregate amount of Restricted Payments and Restricted Investments made by the
Borrowers and their Restricted Subsidiaries since the Original Closing Date and
made since February 8, 1994 by Holdings and any of its Restricted Subsidiaries
which were not Restricted Subsidiaries as of the Original Closing Date and the
amount of such proposed Restricted Payment or Restricted Investment would not
exceed an amount equal to 50% of Borrowers' Consolidated Net Income for the
entire period from and including January 1, 1992 to the date of making such
proposed Restricted Payment or Restricted Investment, plus, in the case of any
proposed Investment in a Subsidiary of Holdings, an aggregate amount not to
exceed Two Million Five Hundred Thousand Dollars ($2,500,000.00), or (ii) the
ratio of Borrowers' Consolidated Indebtedness to Borrowers' Stockholders'
Equity would not exceed 1.6 to 1 after giving effect to such proposed
Restricted Payment or Restricted Investment or (iii) the sum of the aggregate
amount of Restricted Payments and Restricted Investments made by the Borrowers
and their Restricted Subsidiaries since the Original Closing Date and made
since February 8, 1994 by Holdings and any of its Restricted Subsidiaries
which were not Restricted Subsidiaries as of the Original Closing Date and the
amount of the proposed Restricted Payment or Restricted Investment would not
exceed an amount equal to one hundred percent (100%) of Borrowers'
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 64
72
Consolidated Net Income for the three fiscal years immediately preceding the
date of making such proposed Restricted Payment or Restricted Investment, plus,
in the case of any proposed Investment in a Subsidiary of Holdings, an
aggregate amount equal to Two Million Five Hundred Thousand Dollars
($2,500,000.00). Notwithstanding the foregoing, Borrowers will not make any
advance, loan or extension of credit to Coho Shell or any Intercompany Borrower
out of proceeds of Advances unless such advance, loan or extension of credit
would constitute a Permitted Coho Shell Advance or a Permitted Intercompany
Advance. No Company shall consent to or approve the issuance of any additional
share of any class of Capital Stock of any Borrower or Coho Canada or any
securities convertible into, or exchangeable for, any such shares or any
warrants, options, rights, or other commitments entitling any Person to
purchase or otherwise acquire any such shares.
(h) Financial Covenants. Notwithstanding anything to the contrary
otherwise set forth in this Agreement, (i) create or incur any Indebtedness or
obligations as lessee, (ii) sell or transfer any assets, (iii) make any
investments or capital expenditures, (iv) make any Restricted Payment, (v)
engage in any other act or transaction or (vi) permit any of its Subsidiaries
to do any of the forgoing if, after giving effect thereto, any of the financial
covenants set forth in Section 7.01 hereof would be violated thereby.
(i) Hedging. The Borrowers will not enter into Hedging
Arrangements with respect to more than seventy-five percent (75%) of their
Daily Production of Crude Oil or their Daily Production of Natural Gas.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default. Each of the following shall be
deemed an "Event of Default":
(a) Any Borrower shall fail to pay any principal of any
Note when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise); or
(b) Any Borrower shall fail to pay any interest on any
Note when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) or any Borrower or Holdings shall
fail to pay any other Obligation and such default shall continue for
more than five (5) days; or
(c) Any representation, warranty or certification made by
any Credit Party under or in connection with any Loan Document shall
have been incorrect in any material respect when made; or
(d) Any Credit Party shall fail to perform or observe any
covenant or agreement contained in any Loan Document (except the
covenants and agreements
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 65
73
described in subsections (a) and (b) of this Section 8.01, or set
forth in subsections (b), (d) (vii), (f) and (j) of Section 7.01 and
the entire Section 7.02) and such failure, if capable of being
remedied, shall remain unremedied for thirty (30) days after written
notice thereof shall have been given to such Credit Party by the
Administrative Agent; or any Credit Party shall fail to perform or
observe any covenant or agreement contained in subsections (b), (d)
(vii), (f) and (j) of Section 7.01 or contained in Section 7.02.
(e) Any Credit Party shall fail to pay any of its
Indebtedness (excluding (i) Indebtedness evidenced by the Notes and
(ii) Indebtedness consisting of accounts payable incurred in the
ordinary course of business to the extent contested in good faith by
proper proceedings and where an adverse determination thereof will not
cause a Material Adverse Change in excess of Five Hundred Thousand
($500,000.00)), or any interest or premium thereon, when due (whether
by scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Indebtedness; or any other default under any agreement or
instrument relating to any such Indebtedness, or any other event,
shall occur and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
default or event is to accelerate, or to permit the acceleration of,
the maturity of such Indebtedness; or any such Indebtedness in excess
of such amount shall be declared to be due and payable, or required to
be prepaid (other than by a regularly scheduled required prepayment),
prior to the stated maturity thereof; or
(f) Any Credit Party shall be generally not paying its
debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by any Credit Party seeking to adjudicate it a bankrupt or
insolvent, or seeking dissolution, liquidation, winding-up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for any Credit Party or
for any substantial part of its property; or any Credit Party shall
take any action to authorize or effect any of the actions set forth
above in this subsection (f); or any proceeding shall be instituted
against any Credit Party seeking to adjudicate such Credit Party a
bankrupt or insolvent, or seeking dissolution, liquidation,
winding-up, reorganization, arrangement, adjustment, protection,
relief or composition of such Credit Party or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar
official for such Credit Party or for any substantial part of its
property and such proceeding shall not be dismissed within sixty (60)
days of the institution thereof; or
(g) Any material provision of any Loan Document shall at
any time for any reason be declared to be null and void, or the
validity or enforceability of any provision
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 66
74
of any Loan Document shall be contested by any Credit Party, or a
proceeding shall be commenced by any Credit Party seeking to establish
the invalidity or unenforceability of any provision of any Loan
Document, or a proceeding shall be commenced by any Governmental
Authority or other regulatory body having jurisdiction over any Credit
Party, seeking to establish the invalidity or unenforceability of any
material provision of any Loan Document, or any Credit Party shall
deny that it has any liability or obligation purported to be created
under any Loan Document; or
(h) Any Security Document, after delivery thereof,
pursuant hereto or pursuant to any other Loan Document, shall for any
reason, fail or cease to create a valid and perfected and, except to
the extent permitted by the terms hereof or thereof, first priority
Lien on any Collateral purported to be covered thereby; or
(i) One or more judgments or orders for the payment of
money exceeding any applicable insurance coverage by more than Five
Million Dollars ($5,000,000.00) in the aggregate shall be rendered
against any Credit Party, and either (i) enforcement proceedings shall
have been commenced by any creditor upon any such judgment or order,
or (ii) there shall be any period of thirty (30) consecutive days
during which a stay of enforcement of any such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(j) Holdings or any of its Affiliates shall have made a
complete or partial withdrawal from a Multiemployer Plan, and, as a
result of such complete or partial withdrawal, Holdings or such
Affiliate incurs a withdrawal liability in an annual amount exceeding
Five Hundred Thousand Dollars ($500,000.00) or a Multiemployer Plan
enters reorganization status under Section 42 of ERISA, and, as a
result thereof, Holdings' or such Affiliate's annual contribution
requirement with respect to such Multiemployer Plan increases in an
annual amount exceeding Five Hundred Thousand Dollars ($500,000.00);
or
(k) Any Termination Event with respect to any Employee
Plan shall have occurred, and, thirty (30) days after notice thereof
shall have been given to Holdings by the Administrative Agent, (i)
such Termination Event (if correctable) shall not have been corrected,
and (ii) the then current value of such Employee Plan's vested
benefits exceeds the then current value of assets allocable to such
benefits in such Employee Plan by more than Five Hundred Thousand
Dollars ($500,000.00) (or in the case of a Termination Event involving
the withdrawal of a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the withdrawal of an employer treated as a
"substantial employer" under Section 4062(e) of ERISA, the withdrawing
employer's proportionate share of such excess shall exceed such
amount); or
(l) A "default" (as defined in Section 4.01 of the
Mortgage or as set forth in any other Security Document) shall occur
and be continuing; or
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 67
75
(m) The occurrence of a Change of Control.
SECTION 8.02. Remedies. If any Event of Default shall occur and be
continuing, the Administrative Agent, if requested by Majority Lenders, may
(and if directed by Required Lenders, shall) do any one or more of the
following:
(a) Acceleration. Declare, by written notice to the
Borrowers, all outstanding principal of and all accrued and unpaid
interest on the Notes and all other obligations of the Credit Parties
under the Loan Documents immediately due and payable, and the same
shall thereupon become immediately due and payable, without notice,
demand, presentment, notice of dishonor, notice of acceleration,
notice of intent to accelerate, protest, or other formalities of any
kind, all of which are hereby expressly waived by each Company.
(b) Termination of Commitments. Terminate the
Commitments without notice to any Credit Party.
(c) Judgment. Reduce any claim to judgment.
(d) Foreclosure. Foreclose or otherwise enforce any Lien
granted to the Administrative Agent for the benefit of the Lenders to
secure payment and performance of the Obligations in accordance with
the terms of the Loan Documents.
(e) Rights. Exercise any and all rights and remedies
afforded by the laws of the State of New York or any other
jurisdiction, by any of the Loan Documents, by equity, or otherwise.
Provided, however, that upon the occurrence of an Event of Default under
subsection (f) of Section 8.01, the Commitments of all of the Lenders shall
automatically terminate, and the outstanding principal of and accrued and
unpaid interest on the Notes and all other obligations of the Credit Parties
under the Loan Documents shall thereupon become immediately due and payable
without notice, demand, presentment, notice of dishonor, notice of
acceleration, notice of intent to accelerate, protest, or other formalities of
any kind, all of which are hereby expressly waived by each Company.
SECTION 8.03. Performance by the Administrative Agent. If any Credit
Party shall fail to perform any covenant, duty, or agreement in accordance with
the terms of the Loan Documents, the Administrative Agent may, at the direction
of Required Lenders, and after notice in writing to Borrowers, perform or
attempt to perform, such covenant, duty, or agreement on behalf of such Credit
Party. In such event, Borrowers shall, at the request of the Administrative
Agent, promptly jointly and severally pay any amount expended by the
Administrative Agent or the Lenders in such performance or attempted
performance to the Administrative Agent at the Principal Office, together with
interest thereon at the Default Rate from the date of such expenditure until
paid. Notwithstanding the foregoing, it is expressly agreed that neither the
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 68
76
Administrative Agent nor any Lender shall have any liability or responsibility
for the performance of any obligation of any Credit Party under this Agreement
or any of the other Loan Documents.
ARTICLE IX
THE ADMINISTRATIVE AGENT AND THE CO-AGENTS
SECTION 9.01. Appointment, Powers and Immunities of Co-Agents. In
order to expedite the various transactions contemplated by this Agreement, the
Lenders hereby irrevocably appoint (and confirm their prior appointment
pursuant to the Original Credit Agreement and the First Amended Credit
Agreement) and authorize Paribas to act as their Administrative Agent hereunder
and under each of the other Loan Documents. Paribas consents to such
appointment and agrees to perform the duties of the Administrative Agent as
specified herein. The Lenders authorize and direct the Administrative Agent to
take such action in their name and on their behalf under the terms and
provisions of the Loan Documents and to exercise such rights and powers
thereunder as are specifically delegated to or required of the Administrative
Agent for the Lenders, together with such rights and powers as are reasonably
incidental thereto. Each Lender hereby irrevocably appoints and authorizes
Paribas, Bank One and MeesPierson to act as Co-Agents under this Agreement and
the other Loan Documents. Except as expressly set out herein and unless
otherwise agreed by the Administrative Agent and the Lenders, the Co-Agents
(excluding Paribas, in its capacity as Administrative Agent) shall have no
obligations or duties other than those of a Lender hereunder. The
Administrative Agent is hereby expressly authorized to act as the
Administrative Agent on behalf of itself and the other Lenders:
(a) To receive on behalf of each of the Lenders any payment of
principal, interest, fees or other amounts paid pursuant to this Agreement and
the Notes and to distribute to each Lender its Pro Rata share of all payments
so received as provided in this Agreement;
(b) To receive all documents and items to be furnished under the
Loan Documents;
(c) To act as nominee for and on behalf of the Lenders in and
under the Loan Documents;
(d) To arrange for the means whereby the funds of the Lenders are
to be made available to Borrowers;
(e) To distribute to the Lenders information, requests, notices,
payments, prepayments, documents and other items received from any Credit Party
and other Persons;
(f) To execute and deliver to any Credit Party and other Persons,
all requests, demands, approvals, notices, and consents received from the
Lenders;
(g) To the extent permitted by the Loan Documents, to exercise on
behalf of each Lender all rights and remedies of Lenders upon the occurrence of
any Event of Default;
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 69
77
(h) To accept, execute, and deliver the Security Agreement and any
other Security Documents as the secured party or beneficiary; and
(i) To take such other actions as may be requested by Required
Lenders.
Neither the Administrative Agent, any Co-Agent nor any of their
Affiliates, officers, directors, employees, attorneys, or agents shall be
liable for any action taken or omitted to be taken by any of them hereunder or
otherwise in connection with this Agreement or any of the other Loan Documents
or Related Transactions Documents (as defined in the Second Amended Credit
Agreement) except for its or their own gross negligence or willful misconduct.
Without limiting the generality of the preceding sentence, the Administrative
Agent (i) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form satisfactory to the Administrative
Agent; (ii) shall have no duties or responsibilities except those expressly set
forth in this Agreement and the other Loan Documents, and shall not by reason
of this Agreement or any other Loan Document be a trustee or fiduciary for any
Lender; (iii) shall not be required to initiate any litigation or collection
proceedings hereunder or under any other Loan Document except to the extent
requested by Required Lenders; (iv) shall not be responsible to the Lenders for
any recitals, statements, representations or warranties contained in this
Agreement or any other Loan Documents or Related Transactions Document (as
defined in the Second Amended Credit Agreement), or any certificate or other
document referred to or provided for in, or received by any of them under this
Agreement or any other Loan Document or Related Transaction Document (as
defined in the Second Amended Credit Agreement), or for the value, validity,
effectiveness, enforceability or sufficiency of this Agreement or any other
Loan Document or Related Transactions Document (as defined in the Second
Amended Credit Agreement) or any other document referred to or provided for
herein or therein or for any failure by any Person to perform any of its
obligations hereunder or thereunder; (v) may consult with legal counsel
(including counsel for the Credit Parties), independent public accountants, and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants, or experts; and (vi) shall incur no liability under or in
respect of any Loan Documents or Related Transactions Document (as defined in
the Second Amended Credit Agreement) by acting upon any notice, consent,
certificate, or other instrument or writing believed by it to be genuine and
signed or sent by the proper party or parties. As to any matters not expressly
provided for by this Agreement, the Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions signed by Required Lenders, and such instructions
of Required Lenders and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders; provided, however, that the
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this
Agreement or any other Loan Document or applicable law.
SECTION 9.02. Rights of Co-Agents as a Lender. With respect to their
respective Commitments, the Advances made by them and the Notes issued to them,
Paribas, Bank One and MeesPierson in their capacities as Lenders hereunder
shall have the same rights and powers
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 70
78
hereunder as any other Lender and may exercise the same as though they were not
acting as the Administrative Agent or Co-Agent, as applicable, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include
the Administrative Agent and Co-Agents in their individual capacities. The
Administrative Agent and Co-Agents and their Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, act as
trustee under indentures of, provide interest rate and commodities hedging
services to, provide other merchant banking services to, and generally engage
in any kind of business with any Company, any of their respective Subsidiaries,
and any other Person who may do business with or own securities of either
Company or any of their respective Subsidiaries, all as if they were not acting
as the Administrative Agent or Co-Agent and without any duty to account
therefor to the Lenders.
SECTION 9.03. Sharing of Payments, Etc. If any Lender shall obtain
any payment of any principal of or interest on any Advance made by it under
this Agreement or payment of any other Obligation, whether voluntary,
involuntary, through the exercise of any right of set-off, banker's lien,
counterclaim or similar right, or otherwise, in excess of its Pro Rata share
(determined based on the outstanding Advances), such Lender shall promptly
purchase from the other Lenders participations in the Obligations held by them
hereunder in such amounts, and make such other adjustments from time to time as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of the other Lenders in accordance with its Pro Rata portion
(determined based on the outstanding Advances) thereof. To such end, all of
the Lenders shall make appropriate adjustments among themselves (by the resale
of participations sold or otherwise) if all or any portion of such excess
payment is thereafter rescinded or must otherwise be restored. Each Company
agrees, to the fullest extent it may effectively do so under applicable law,
that any Lender so purchasing a participation in the Obligations may exercise
all rights of set-off, banker's lien, counterclaim, or similar rights with
respect to such participation as fully as if such Lender were a direct holder
of the Obligations in the amount of such participation. Nothing contained
herein shall require any Lender to exercise any such right or shall affect the
right of any Lender to exercise, and retain the benefits of exercising, any
such right with respect to any other indebtedness or obligation of any Credit
Party.
SECTION 9.04. Indemnification. The Lenders hereby agree to indemnify
the Administrative Agent from and hold the Administrative Agent harmless
against (to the extent not reimbursed under Sections 10.04 and 10.05, but
without limiting the obligations of the Companies under Section 10.04 or
Section 10.05), ratably in accordance with their respective Commitments, any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, deficiencies, suits, costs, expenses (including attorneys' fees),
and disbursements of any kind or nature whatsoever which may be imposed on,
incurred or asserted against the Administrative Agent in any way relating to or
arising out of the Original Credit Agreement, the First Amended Credit
Agreement, any of the Related Transactions Documents (as defined in the Second
Amended Credit Agreement) or any action taken or omitted to be taken by the
Administrative Agent under or in respect of the Original Credit Agreement, the
First Amended Credit Agreement, the Second Amended Credit Agreement or any of
the Related Transactions Documents (as defined in the Second Amended Credit
Agreement); provided, however, that no Lender shall be liable for any portion
of the foregoing to the extent caused by the Administrative Agent's gross
negligence or
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 71
79
willful misconduct. WITHOUT LIMITATION OF THE FOREGOING, IT IS THE EXPRESS
INTENTION OF THE LENDERS THAT THE ADMINISTRATIVE AGENT SHALL BE INDEMNIFIED
HEREUNDER FROM AND HELD HARMLESS AGAINST ALL OF SUCH LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, DEFICIENCIES, SUITS, COSTS,
EXPENSES (INCLUDING ATTORNEYS' FEES) AND DISBURSEMENTS OF ANY KIND OR NATURE
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RESULTING FROM THE SOLE OR
CONTRIBUTORY NEGLIGENCE OF THE ADMINISTRATIVE AGENT. Without limiting any
other provision of this Section, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its Pro Rata share (calculated on
the basis of the Commitments) of any and all out-of-pocket expenses (including
attorneys' fees) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings, or otherwise) of,
or legal advice in respect of rights or responsibilities under, the Loan
Documents, to the extent that the Administrative Agent is not reimbursed for
such expenses by any Company.
SECTION 9.05. Independent Credit Decisions. Each Lender agrees that
it has independently and without reliance on the Administrative Agent or any
other Lender, and based on such documentation and information as it has deemed
appropriate, made its own credit analysis of the Credit Parties and decision to
enter into the Original Credit Agreement, the First Amended Credit Agreement
(to the extent applicable), the Second Amended Credit Agreement and this
Agreement and that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based upon 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. The Administrative Agent shall not be
required to keep itself informed as to the performance or observance by any
Credit Party of this Agreement or any other Loan Document or to inspect the
properties or books of any Credit Party. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Administrative Agent hereunder or under the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other financial information concerning the affairs,
financial condition or business of any Credit Party (or any of their
Affiliates) which may come into the possession of the Administrative Agent or
any of its Affiliates.
SECTION 9.06. Several Commitments. The Commitments and other
obligations of the Lenders under this Agreement are several. The default by
any Lender in making an Advance in accordance with its Commitment shall not
relieve the other Lenders of their obligations under this Agreement. In the
event of any default by any Lender in making any Advance, each nondefaulting
bank shall be obligated to make its Advance but shall not be obligated to
advance the amount which the defaulting Lender was required to advance
hereunder. In no event shall any Lender be required to advance an amount or
amounts to any Borrower which shall in the aggregate exceed such Lender's
Commitment. No Lender shall be responsible for any act or omission of any
other Lender.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 72
80
SECTION 9.07. Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and Borrowers and the Administrative Agent may be removed at any
time if the Administrative Agent fails to perform its obligations hereunder by
the vote of all of the Lenders other than Paribas. Upon any such resignation
or removal, the Lenders will have the right to appoint a successor
Administrative Agent with the consent of the Borrowers, unless any Default or
Event of Default shall have occurred and be continuing, in which case the
consent of the Borrowers shall not be required. If no successor Administrative
Agent shall have been so appointed by the Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation or the Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of America or any
State thereof and having combined capital and surplus of at least One Hundred
Million Dollars ($100,000,000.00). Upon the acceptance of its appointment as
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all rights, powers, privileges,
immunities, and duties of the resigning or removed Administrative Agent, and
the resigning or removed Administrative Agent shall be discharged from its
duties and obligations under this Agreement and the other Loan Documents.
After any Administrative Agent's resignation or removal as Administrative
Agent, the provisions of this Article IX shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was the Administrative Agent.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices, Etc. All notices and other communications
provided for hereunder or under any other Loan Document shall be in writing and
shall be mailed, telegraphed, telecopied, telexed or delivered, to the intended
recipient at the "Address for Notices" specified below its name on the
signature pages hereto; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other party complying as to
delivery with the terms of this Section 10.01. Except as otherwise provided in
this Agreement, all such communications shall be deemed to have been duly given
when transmitted by telex or telecopy, subject to telephone confirmation of
receipt, or when personally delivered or, in the case of a mailed notice, when
duly deposited in the mails, in each case given or addressed as aforesaid;
provided, however notices to the Administrative Agent pursuant to Sections 2.05
or 2.08 shall not be effective until received by the Administrative Agent.
SECTION 10.02. Amendments, Etc. No amendment of any provision of
this Agreement, the Notes or any other Loan Document shall be effective unless
it is in writing and signed by the Credit Parties who are a party thereto and
the Required Lenders, and no waiver of any provision of this Agreement, the
Notes or any other Loan Document, nor consent to any departure by any Credit
Party therefrom (notwithstanding anything in any Loan Document to the
contrary), shall
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 73
81
be effective unless it is in writing and signed by the Required Lenders, and
then 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 all of the Lenders and
each applicable Credit Party, do any of the following: (a) increase the
Commitments of the Lenders or subject the Lenders to any additional
obligations; (b) reduce the principal of, or interest on, the Notes or any fees
or other amounts payable hereunder; (c) postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder; (d) waive any of the conditions specified in Article V; (e) change
the percentage of the Commitments or of the aggregate unpaid principal amount
of the Notes or the number of Lenders which shall be required for the Lenders
or any of them to take any action under this Agreement; (f) change any
provision contained in this Section 10.02; or (g) release any Collateral (other
than in accordance with Section 7.02(d)). Notwithstanding anything to the
contrary contained in this Section, no amendment, waiver or consent shall be
made with respect to Article IX hereof without the prior written consent of the
Administrative Agent.
SECTION 10.03. No Waiver; Remedies, Etc. No failure on the part of
the Administrative Agent or any Lender to exercise, and no delay in exercising
any right hereunder or under any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right. The rights and remedies of the Administrative Agent and the
Lenders provided herein and in the other Loan Documents are cumulative and are
in addition to, and not exclusive of, any rights or remedies provided by law.
The rights of the Administrative Agent and the Lenders under any Loan Document
against any party thereto are not conditional or contingent on any attempt by
the Administrative Agent or any Lender to exercise any of its rights under any
other Loan Document against such party or against any other Person.
SECTION 10.04. Fees, Costs, Expenses and Taxes. Whether or not any
Advances are made hereunder or the transactions contemplated hereby are
consummated, each Company, jointly and severally, agrees to pay within ten (10)
days following demand (a) all fees, costs and expenses in connection with the
preparation, execution, delivery, filing, recording and administration of, and
any amendment, supplement or modification to, the Loan Documents, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, and of any other special counsel or consultant retained
by the Administrative Agent with respect thereto and with respect to advising
the Administrative Agent as to its rights and responsibilities under the Loan
Documents, and (b) all costs and expenses, if any (including reasonable counsel
fees and disbursements), incurred in connection with the enforcement or
preservation of any rights under the Loan Documents and the other documents to
be delivered pursuant to the Loan Documents. In addition, each Company will,
jointly and severally, pay any and all stamp and other taxes and fees payable
or determined to be payable in connection with the execution, delivery, filing
and recording of the Loan Documents, and will save the Administrative Agent and
each Lender harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such taxes and fees.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 74
82
SECTION 10.05. Indemnity.
(a) Environmental Indemnity. Each Company will, jointly
and severally, defend, indemnify and hold harmless the Administrative
Agent, the Co-Agents, each Lender, and their respective officers,
directors, affiliates, employees and agents (each, an "Indemnified
Party") from and against all losses, liabilities, claims, damages,
penalties, judgments, costs and expenses (including reasonable
attorneys' fees) of whatever kind or nature, known or unknown,
contingent or otherwise, including, but without limitation, reasonable
attorney and consultant fees, investigation and laboratory fees, court
costs and litigation expenses incurred by any of them arising out of,
or in any way relating to (i) any violation or any non-compliance or
alleged non-compliance with any Environmental Laws by any Company or
any of its Subsidiaries or by any other Person with whom any Company
or any of its Subsidiaries are allegedly jointly, severally or
contingently liable or responsible, or (ii) any Release or alleged
Release into the environment of any Contaminant generated or allegedly
generated by any Company or any of its Subsidiaries or by any other
Person with whom any Company or any of its Subsidiaries are allegedly
jointly, severally or contingently liable or responsible, or (iii) any
material breach of any representation or warranty made by any Company
in Section 6.1(s) hereof, Section 6.1(s) of the Original Credit
Agreement, the First Amended Credit Agreement or the Second Amended
Credit Agreement, (iv) the Administrative Agent's or any Lender's
enforcement or attempted enforcement of any of the provisions of this
Section 10.05 or (v) otherwise arising in connection with any
Environmental Claim relating to any Company, any of its Subsidiaries
or their respective properties.
(b) General Indemnity. In addition to the foregoing
indemnity, each Company hereby jointly and severally indemnifies from,
and holds each of the Indemnified Parties harmless against, any and
all losses, liabilities, claims, damages, penalties, judgments, costs,
and expenses (including reasonable attorneys' fees) to which any of
them may become subject (other than those described in Section
10.05(a)) which directly or indirectly arise from or relate to (i) the
negotiation, execution, delivery, performance, administration,
enforcement or existence of the Original Credit Agreement, the First
Amended Credit Agreement, the Second Amended Credit Agreement, any
Loan Documents or any of the Related Transactions Documents (as
defined in the Second Amended Credit Agreement), (ii) any of the
transactions contemplated by the Original Credit Agreement, the First
Amended Credit Agreement, the Second Amended Credit Agreement or any
of the Related Transactions Documents (as defined in the Second
Amended Credit Agreement), (iii) any breach by any Credit Party of any
representation, warranty, covenant, or other agreement contained in
the Original Credit Agreement, the First Amended Credit Agreement, the
Second Amended Credit Agreement or any of the Related Transactions
Documents (as defined in the Second Amended Credit Agreement), or (iv)
any investigation, litigation, or other proceeding, including, without
limitation, any threatened investigation, litigation, or other
proceeding relating to any of the foregoing.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 75
83
(c) Provisions Applicable to All Indemnities. WITHOUT
LIMITING ANY PROVISION OF THIS AGREEMENT OR OF ANY OTHER LOAN
DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH
INDEMNIFIED PARTY SHALL BE INDEMNIFIED FROM AND HELD HARMLESS AGAINST
ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES,
JUDGMENTS, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES)
ARISING OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE
OF THE INDEMNIFIED PARTY; provided, however, that the indemnities
provided for in this Section 10.05 shall not apply to any loss,
damage, liability, claim, damage, penalties, judgments, cost or
expense (or the applicable part thereof) resulting from, or
attributable to, any bad faith, gross negligence or willful misconduct
of any Indemnified Party. The provisions of this Section 10.05 shall
survive the repayment of the Obligations, and shall continue
thereafter in full force and effect, notwithstanding the foreclosure
of any Security Document or realization on any other Collateral, and
notwithstanding any insolvency, bankruptcy or reorganization of any
Credit Party.
SECTION 10.06. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, the Administrative Agent and any Lender
may, and is hereby authorized to, at any time and from time to time, without
notice to any Company (any such notice being expressly waived by each Company)
and to the fullest extent permitted by law, set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by Administrative Agent or any
Lender to or for the credit or the account of any Borrower or Holdings against
any and all Obligations now or hereafter existing under any Loan Document,
irrespective of whether or not the Administrative Agent or any Lender shall
have made any demand hereunder or thereunder and although such Obligations may
be contingent or unmatured. The Administrative Agent or any Lender exercising
the right of set-off agrees promptly to notify the Borrowers, after any such
set-off and application, provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application or
otherwise subject the Administrative Agent or the Lenders to liability of any
kind or nature whatsoever. The rights of the Administrative Agent and any
Lender under this Section 10.06 are in addition to the other rights and
remedies (including, without limitation, other rights of set-off) which the
Administrative Agent and any Lender may have.
SECTION 10.07. Severability. Any provision of this Agreement, or of
any other Loan Document to which any Company is a party, which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or thereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
SECTION 10.08. Successors and Assigns.
(a) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Borrowers, Holdings, the Administrative Agent and
the Lenders and their respective
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 76
84
successors and assigns, except that neither the Borrowers nor Holdings may
assign their rights hereunder or any interest herein without the prior written
consent of all the Lenders.
(b) Participations. Any Lender may sell participations to one or
more banks or other institutions in all or a portion of its rights and
obligations under this Agreement and the other Loan Documents (including,
without limitation, all or a portion of its Commitments and the Advances owing
to it); provided, however, that (i) such Lender's obligations under this
Agreement and the other Loan Documents (including, without limitation, its
Commitment) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the Borrowers for the performance of such obligations, (iii)
such Lender shall remain the holder of its Note for all purposes of this
Agreement, (iv) the Borrowers shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents, and (v) such Lender shall not sell a
participation that conveys to the participant the right to vote or give or
withhold consents under this Agreement or any other Loan Document, other than
the right to vote upon or consent to (1) any increase of such Lender's
Commitment, (2) any reduction of the principal amount of, or interest to be
paid on, the Advances or the Note of such Lender, (3) any reduction of any
commitment fee or other amount payable to such Lender under any Loan Document,
or (4) any postponement of any date for the payment of any amount payable in
respect of the Advances or Note of such Lender. Any Lender who has sold a
participation under this Section 10.08, may on behalf of the participant but
subject to the next sentence of this clause (b), make claims hereunder in its
own name for amounts incurred by the participant which would be payable by the
Borrowers under Section 3.06 or Article IV hereof if such participant were a
Lender and in furtherance of the foregoing, the Borrowers agree that the
provisions of Section 3.06 and Article IV run to the benefit of each such
participant. Except in respect of the Reserve Requirements, no participant in
the Advances and the Note of a Lender shall be entitled to receive any greater
payment from the Borrowers than the Lender or, if greater, any bank which is a
member of the Federal Reserve System (and subject only to the laws, regulations
and administrative practices in effect in the United States) would have been
entitled to receive had the Lender or such bank held the interest in the
Advances and the Note held by such participant. No Lender nor any participant
in the Advances and the Note of a Lender that has changed its Applicable
Lending Office shall be entitled to receive any greater payment from the
Borrowers than it would have received had it not changed its Applicable Lending
Office unless the Lender or such participant was required to change its
Applicable Lending office as provided in Sections 4.01(c) and 4.03 hereof.
(c) Assignments by Lenders. No Lender may assign any portion of
its rights or obligations under this Agreement and the other Loan Documents
without the consent of the Administrative Agent and, prior to the occurrence of
an Event of Default, the Borrowers, which consents shall not be unreasonably
withheld by either the Administrative Agent or the Borrowers. With respect to
any permitted assignment by a Lender of its rights and obligations hereunder or
any portion thereof, the Administrative Agent shall maintain at its address
referred to on the signature pages hereto a copy of each assignment by a Lender
delivered to and accepted by it in a register (which may be a computer record)
for the recordation of the names and addresses of the assignees under this
Section 10.08 and the Commitments of, and the principal amount of the
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 77
85
Advances owing to, each such assignee from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and each Company, the Lenders, and the assignees may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by each Company, any Lender, or any assignee at any reasonable time
and from time to time upon reasonable prior notice.
(d) Deliveries of Information. Any Lender may furnish any
information concerning any Company or any of its Subsidiaries in the possession
of such Lender from time to time to assignees and participants (including
prospective assignees and participants), subject, however, to the requirements
of Section 10.16.
SECTION 10.09. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original at such time as
both parties have executed a counterpart, but all of which taken together shall
constitute one and the same agreement.
SECTION 10.10. Headings. Section headings herein are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
SECTION 10.11. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the law of the State of New
York, without regard to principles of conflicts of law and the applicable laws
of the United States of America. The parties submit to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Courts located in New York, New York with respect to any action or
proceeding relating to the Loan Documents.
SECTION 10.12. WAIVER OF JURY TRIAL. EACH COMPANY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY
RIGHTS UNDER THIS AGREEMENT, ANY NOTE OR OTHER LOAN DOCUMENT OR UNDER ANY
AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED
OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, OR ARISING IN
CONNECTION WITH ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT,
AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
SECTION 10.13. Maximum Interest Rate. No provision of this Agreement
or of any other Loan Document shall require the payment or the collection of
interest in excess of the maximum permitted by applicable law. If any excess
of interest in such respect is hereby provided for, or shall be adjudicated to
be so provided, in any Loan Document or otherwise in connection with this loan
transaction, the provisions of this Section 10.13 shall govern and prevail and
neither of the Companies nor the sureties, guarantors, successors, or assigns
of any of the Companies shall be obligated to pay the excess amount of such
interest or any other excess sum paid for the use, forbearance, or detention of
sums loaned pursuant hereto. In the event any
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 78
86
Lender ever receives, collects, or applies as interest any such sum, such
amount which would be in excess of the maximum amount permitted by applicable
law shall be applied as a payment and reduction of the principal of the
indebtedness evidenced by the Notes; and, if the principal of the Notes has
been paid in full, any remaining excess shall forthwith be paid to the
Borrowers. In determining whether or not the interest paid or payable exceeds
the Maximum Rate, the Borrowers and each Lender shall, to the extent permitted
by applicable law, (i) characterize any nonprincipal payment as an expense,
fee, or premium rather than as interest, (ii) exclude voluntary prepayments and
the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal
or unequal parts the total amount of interest throughout the entire
contemplated term of the indebtedness evidenced by the Notes so that interest
for the entire term does not exceed the Maximum Rate. Without limiting the
generality of the foregoing, if and to the extent necessary to ensure
compliance with this Section 10.13, what would otherwise be the joint and
several liability of a Borrower with respect to any Advances and any Notes
shall instead be deemed to be the liability of such Borrower as a guarantor of
payment of such Advances and not as a co-borrower of such Advances or as a
co-maker of such Notes. In furtherance of the foregoing, each Borrower hereby
irrevocable and unconditionally guarantees to the Administrative Agent and the
Lenders the punctual payment and performance of the obligations of each other
Borrower under the Loan Documents, including without limitations the timely
payment of the Obligations.
SECTION 10.14. Non-Application of Chapter 15 of Texas Credit Code.
The provisions of Chapter 15 of the Texas Credit Code (Vernon's Texas Civil
Statutes, Article 5069-15) are specifically declared by the parties hereto not
to be applicable to this Agreement or any of the other Loan Documents or to the
transactions contemplated hereby.
SECTION 10.15. Construction. Each Company, the Administrative Agent,
and each Lender acknowledges that each of them has had the benefit of legal
counsel of its own choice and has been afforded an opportunity to review this
Agreement and the other Loan Documents with its legal counsel and that this
Agreement and the other Loan Documents shall be construed as if jointly drafted
by the parties hereto.
SECTION 10.16. Confidentiality. The Administrative Agent and each
Lender agrees (on behalf of itself and each of its affiliates, directors,
officers, employees and representatives) to use reasonable precautions to keep
confidential, in accordance with its customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, any non-public information supplied to it by any Company or
any Subsidiary of any Company pursuant to this Agreement which is identified by
either such Company or such Subsidiary as being confidential at the time the
same is delivered to the Administrative Agent or any Lender, provided that
nothing herein shall limit the disclosure of any such information (a) to the
extent required by statute, rule, regulation or judicial process, (b) to
counsel for the Administrative Agent or any Lender, (c) in connection with the
enforcement of the Loan Documents and in any litigation to which the
Administrative Agent or any Lender is a party or (d) to any permitted assignee
or participant (or prospective permitted assignee or participant) so long as
such permitted assignee or participant (or prospective permitted assignee or
participant) first enters into a confidentiality agreement with the
Administrative Agent or such Lender binding itself to comply with the terms of
this Section 10.16.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 79
87
SECTION 10.17. Survival. All representations and warranties made in
this Agreement or any other Loan Document or in any document, statement, or
certificate furnished in connection with this Agreement shall survive the
execution and delivery of this Agreement and the other Loan Documents, and no
investigation by the Administrative Agent or any Lender or any closing shall
affect the representations and warranties or the right of the Administrative
Agent or any Lender to rely upon them. Without prejudice to the survival of
any other obligation of the Borrowers and Holdings hereunder, the obligations
of the Borrowers and Holdings under Article IV and Sections 10.04 and 10.05
shall survive repayment of the Obligations and termination of the Commitments.
SECTION 10.18. Joint and Several Obligations. Each and every
representation, warranty, covenant or agreement of the Companies contained
herein shall be, and shall be deemed to be, the joint and several
representation, warranty, covenant and agreement of each of the Companies and
of all such Persons. In addition, the indebtedness, liabilities and
obligations of the Borrowers shall be, and shall be deemed to be, the joint and
several indebtedness, liabilities and obligations of each of the Borrowers and
of all Borrowers. Notwithstanding the foregoing, if and to the extent that the
joint and several liability of a Borrower with respect to any Advance or
Advances made to another Borrower is determined by a court of competent
jurisdiction to cause the obligations of such Borrower to repay such Advance or
Advances to be subject to avoidance under Sections 544, 548 or 550 of the
Bankruptcy Code or subject to being set aside or annulled under any applicable
state law relating to fraud on creditors, the amount of such joint and several
or co-maker liability of such Borrower shall, without any further action by any
Borrower, the Administrative Agent or any Lender, be automatically limited to
the greatest amount which is valid and enforceable as determined in such
proceeding; provided, however, that for purposes of this sentence it shall be
presumed that the joint and several liabilities of the Borrowers under this
Agreement and the Notes do not equal or exceed an aggregate amount which would
render any such Borrower's obligations under this Agreement or any Note subject
to being avoided, set aside or annulled, and the burden of proof to the
contrary shall be on the party asserting to the contrary.
SECTION 10.19. ENTIRE AGREEMENT; AMENDMENT AND RESTATEMENT.
(a) This Agreement amends and restates in its entirety the Second
Amended Credit Agreement which amended and restated the terms and provisions of
the First Amended Credit Agreement, which amended and restated the terms and
provisions of the Original Credit Agreement in its entirety, which amended and
restated the terms and provisions of the Canada Trust Credit Agreement in its
entirety. The execution of this Agreement, the Notes and the other Loan
Documents executed in connection herewith does not constitute a novation with
respect to indebtedness outstanding in connection with the Original Credit
Agreement, the First Amended Credit Agreement, the Second Amended Credit
Agreement, the Canada Trust Credit Agreement, or the indebtedness evidenced by
the Canada Trust Note or any Note executed prior to the Renewal Date. The
parties hereto hereby ratify and confirm each of the Loan Documents entered
into prior to the Renewal Date, including without limitation, the Guaranty and
the other Security Documents and agree that such Loan Documents continue to be
legal, valid, binding and enforceable in accordance with their respective
terms. Without limiting the generality of the foregoing, the parties hereto
agree and acknowledge that (i) the Liens created by the (A) the Original
Security Agreement, Additional Security Agreement and Holdings Pledge Agreement
secure the Obligations as defined hereby, including without limitation, the
obligations, indebtedness and liability of the Credit Parties arising in
connection with this Agreement and the
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 80
88
Loan Documents executed by the Credit Parties pursuant hereto and (B) the Deed
of Trust and Mortgage secure the Obligations of the Borrowers; (ii) the term
"Credit Agreement" as used in the Security Documents, includes without
limitation, this Agreement; and (iii) the term "Security Documents" as defined
in the Security Documents includes, without limitation, the New Mortgage
Documents, the Subsidiary Guaranties, the Holdings Pledge Agreement, the
Borrower Pledge Agreement and the Mid Louisiana Pledge Agreement.
(b) THIS AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS
REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO
AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF
(INCLUDING, WITHOUT LIMITATION, THE FIRST AMENDED CREDIT AGREEMENT, THE
ORIGINAL CREDIT AGREEMENT AND THE CANADA TRUST CREDIT AGREEMENT) AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
IN WITNESS WHEREOF, the Borrowers, Holdings, the Administrative Agent,
the Co-Agents and the Lenders have executed this Agreement as of the date first
written above.
BORROWERS:
COHO RESOURCES, INC.
By:
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman, President and
Chief Executive Officer
Address for Notices:
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, President
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 81
89
COHO LOUISIANA PRODUCTION COMPANY
By:
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President and Chief
Executive Officer
Address for Notices:
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, President
COHO EXPLORATION, INC.
By:
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
Address for Notices:
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, President
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 82
90
HOLDINGS :
COHO ENERGY, INC.
By:
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman, President and
Chief Executive Officer
Address for Notices:
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, President
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 83
91
CO-AGENTS AND LENDERS:
COMMITMENTS: BANQUE PARIBAS, Houston Agency
as Administrative Agent for Lenders and
as a Lender
$50,000,000.00
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address for Notices:
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Lending Office for Prime Rate Advances
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Lending Office for Eurodollar Advances
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 84
92
$50,000,000.00 MEESPIERSON N.V., as Co-Agent for the
Lenders and as a Lender
By:
-----------------------------------
Xxxxx Xxxxxx
Vice President
Address for Operational Notices:
MeesPierson N.V.
Loan Administration
Coolsingel 93
P. O. Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Xxx xx Xxxx
PHONE: 00 00 000 0000
FAX: 00 00 000 0000
With a copy to:
Xxxxxxx Xxxxxxx
Dallas Office
MeesPierson N.V.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
PHONE: 000-000-0000
FAX: 000-000-0000
Address for Other Notices:
MeesPierson N.V.
Coolsingel 93
P. O. Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Xxxxxx van der Klaauw
PHONE: 00 00 000 0000
FAX: 00 00 000 0000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 85
93
With a copy to:
Xxxxx Xxxxxx
Vice President & Manager
Dallas Representative Office
MeesPierson N.V.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
PHONE: 000-000-0000
FAX: 000-000-0000
Lending Office for Prime Rate Advances
X.X. Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Lending Office for Eurodollar Advances
X.X. 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 86
94
Commitments: BANK ONE, TEXAS, N.A., as Co-Agent for
$50,000,000.00 the Lenders and as a Lender
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Address for Notices:
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx,
Vice President
Lending Office for Prime Rate Advance:
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Lending Office for Eurodollar Advances:
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 87
95
$25,000,000.00 BANK OF SCOTLAND
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address for Notices for operational
matters:
Bank of Scotland, Grand Cayman
c/o 000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx, Assistant Vice
President
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Addresses for Notices for credit
matters:
Bank of Scotland
Two Xxxxx Center
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxx XxXxxxx/Vice President
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Lending Office for Prime Rate Advances
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Lending Office for Eurodollar Advances
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 88
96
$25,000,000.00 CREDIT LYONNAIS NEW YORK BRANCH
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address for Notices for operational
matters:
c/o Credit Lyonnais Houston
Representative Xxxxxx
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxxxxx Xxxxxx
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Addresses for Notices for credit
matters:
c/o Credit Lyonnais Houston
Representative Xxxxxx
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Mr. Xxxxx Xxxx
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Lending Office for Prime Rate Advances
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Lending Office for Eurodollar Advances
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 89
97
$25,000,000.00 CHRISTIANIA BANK OG KREDITKASSE
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address for Notices:
Christiania Bank og Kreditkasse
00 X. 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxxxxxx
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
Lending Office for Prime Rate Advances
00 X. 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Lending Office for Eurodollar Advances
00 X. 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 90
98
$25,000,000.00 DEN NORSKE BANK AS
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address for Notices:
Den norske Bank AS
Attn: Credit Administration
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
PHONE: (000) 000-0000
FAX: (000) 000-0000
CC: Den norske Bank AS
Attn: Xx. Xxxxxxx X. Xxxx,
Vice President
Three Xxxxx Center
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
PHONE: (000) 000-0000
FAX: (000) 000-0000
Lending Office for Prime Rate Advances
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Lending Office for Eurodollar Advances
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 91
99
COHO CANADA ACKNOWLEDGMENT
Coho Resources Limited hereby consents and agrees to the execution and
delivery of this Agreement, ratifies and confirms that the certain Negative
Pledge Agreement dated February 8, 1994, executed by Coho Resources Limited for
the benefit of the Administrative Agent and the Lenders is in full force and
effect; agrees that it continues to be legal, valid, binding and enforceable in
accordance with its terms and acknowledges and agrees that the term "Credit
Agreement" as defined therein means this Agreement.
COHO RESOURCES LIMITED
By:
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 92
100
EXHIBIT A
to
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
NOTE
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 93
101
PROMISSORY NOTE
$__,000,000.00 Houston, Texas August 8, 1996
FOR VALUE RECEIVED, the undersigned, COHO RESOURCES, INC. a Nevada
corporation, COHO LOUISIANA PRODUCTION COMPANY, a Delaware corporation, and
COHO EXPLORATION, INC., a Delaware corporation (collectively, the "Borrowers"),
hereby jointly and severally promise to pay to the order of
__________________________ ("Lender"), at the Principal Office for the account
of the Applicable Lending Office of Lender, in lawful money of the United
States of America and in immediately available funds, the principal amount of
_______ Million Dollars ($__,000,000.00) or such lesser amount as shall equal
the aggregate unpaid principal amount of the Advances made by Lender to the
Borrowers under the Credit Agreement referred to below, on the dates and in the
principal amounts required by the Credit Agreement, and to pay interest on the
amount of each such Advance, at such office, in like money and funds, for the
period commencing on the date of such Advance until such Advance shall be paid
in full, at the rates per annum and on the dates required by the Credit
Agreement.
The Borrowers hereby authorize Lender to record in its records the
amount and Type of Advances made to the Borrowers by Lender and all
Continuations, Conversions, and payments of principal in respect of such
Advances, which records shall, in the absence of manifest error, be conclusive
as to the outstanding principal amount of all such Advances; provided, however,
that the failure to make such recording with respect to any such Advance or
payment shall not limit or otherwise affect the obligations of the Borrowers
under the Credit Agreement or this Note.
This Note is one of the Notes referred to in that certain Third
Amended and Restated Credit Agreement dated August 8, 1996, among the
Borrowers, Coho Energy, Inc., Banque Paribas, as administrative agent, Bank
One, Texas, N.A. and MeesPeirson N.V., as co-agents, and certain other lenders
named therein (such Credit Agreement, as the same may be amended, supplemented
or otherwise modified from time to time, being referred to herein as the
"Credit Agreement") and evidences Advances made by Lender thereunder and under
the Second Amended Credit Agreement and the First Amended Credit Agreement.
Capitalized terms used herein and not otherwise defined herein shall have the
same meanings as set forth in the Credit Agreement. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity of
this Note upon the happening of certain stated events, for prepayments of
Advances prior to the maturity of this Note upon certain terms and conditions
and for limiting the interest that may be charged on the Advances outstanding
hereunder.
This Note shall be governed by and construed in accordance with the
laws of the State of New York and the applicable laws of the United States of
America.
The Borrowers and each surety, guarantor, endorser, and other party
ever liable for payment of any sums of money payable on this Note jointly and
severally waive notice, presentment, demand for payment, protest, notice of
protest and non-payment or dishonor, notice
PROMISSORY NOTE - PAGE 1
102
of acceleration, notice of intent to accelerate, notice of intent to demand,
diligence in collecting, grace, and all other formalities of any kind, and
consent to all extensions without notice for any period or periods of time and
partial payments, before or after maturity, and any impairment of any
collateral securing this Note, all without prejudice to the holder. The holder
shall similarly have the right to deal in any way, at any time, with one or
more of the foregoing parties without notice to any other party, and to grant
any such party any extensions of time for payment of any of said indebtedness,
or to release or substitute part or all of the collateral securing this Note,
or to grant any other indulgences or forbearances whatsoever, without notice to
any other party and without in any way affecting the personal liability of any
party hereunder.
This Note evidences a portion of the indebtedness originally evidenced
by that certain Promissory Note dated August 16, 1990, executed by Coho
Resources, Inc. and payable to Canada Trust in the original, stated principal
amount of $75,000,000.00.
COHO RESOURCES, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
COHO LOUISIANA PRODUCTION COMPANY
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
COHO EXPLORATION, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
PROMISSORY NOTE - PAGE 2
103
EXHIBIT B
to
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
ADVANCE REQUEST FORM
PROMISSORY NOTE - PAGE 3
104
---------------
Draft Dated
11/12/96, :35am
---------------
ADVANCE REQUEST FORM
TO: Banque Paribas, as Administrative Agent
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Gentlemen:
The undersigned is an officer of ______________ (the "Borrower"), and
is authorized to make and deliver this certificate pursuant to that certain
Third Amended and Restated Credit Agreement (as amended, the "Credit
Agreement") dated as of August 8, 1996 among Coho Resources, Inc., Coho
Louisiana Production Company, Coho Exploration, Inc., Coho Energy, Inc., Banque
Paribas, as administrative agent for itself and certain other lenders (the
"Administrative Agent"), Bank One, Texas, N.A., and MeesPierson N.V., as
co-agents, and the lenders. All terms defined in the Credit Agreement shall
have the same meaning herein. In accordance with the Credit Agreement,
Borrower hereby (check whichever is applicable):
___ 1. Requests that the Lenders make Prime Rate Advances to
the Borrower in the aggregate amount set forth in
item (k)(i) below;
___ 2. Requests that the Lenders make Eurodollar Advances in
the aggregate amount set forth in item (k)(ii) below;
and/or
___ 3. Requests Agent to issue a Letter of Credit for the
account of the Borrower in the form attached hereto
as Exhibit "A" supporting the transaction described
on Exhibit "B".
The requested Advance _____ is ______ is not a Bridge Advance.
In connection with the foregoing and pursuant to the terms and
provisions of the Credit Agreement, the undersigned hereby represents and
warrants to the Administrative Agent and each Lender that the following
statements are true and correct:
(i) The representations and warranties (other than those
expressly limited by their terms to the date originally given)
contained in Article VI of the Credit Agreement and in each of the
other Loan Documents are true and correct on and as of the date hereof
with the same force and effect as if made on and as of such date.
(ii) No Event of Default or Potential Default has occurred
and is continuing or would result from the Advances requested
hereunder or Letter of Credit requested hereunder.
ADVANCE REQUEST FORM - PAGE 1
105
(iii) Since _____________, 19___,1 there has been no
Material Adverse Change.
(iv) The amount of the Revolving Advance requested hereby
and the amount of the Letter of Credit Liabilities related to the
Letter of Credit requested hereby, when added to all outstanding
Revolving Advances and all outstanding Letters of Credit Liabilities,
will not exceed the Borrowing Base2.
(v) The Advance requested hereby will not be readvanced
or, if the blank in this subparagraph (v) is filled in, is to be
readvanced to the following Intercompany Borrower or Coho Shell, as
the case may be: __.
(vi) The aggregate amount of Permitted Coho Shell
Advances, after taking the Permitted Coho Shell Advance requested
hereby into account, is $____________________.
(vii) The aggregate amount of Permitted Intercompany
Advances to each Intercompany Borrower, after taking the Permitted
Intercompany Advance requested hereby into account, is:
Name of Intercompany Borrower: Aggregate Amount:
------------------------------ -----------------
------------------------------ -----------------
------------------------------ -----------------
(viii) All information supplied below is true, correct, and
complete as of the date hereof.
Advance Request Information2
(a) Outstanding principal amount of Revolving Advances . . .$____________
(b) Outstanding Letter of Credit Liabilities . . . . . . . .$____________
(c) Outstanding 7.02 (b)(xi) letter of credit liabilities .$____________
(d) Borrowing Base . . . . . . . . . . . . . . . . . . . . .$____________
(e) Net Availability for Revolving Advances/Letters
of Credit:[item (d) minus item (a)
and minus item (b) and minus item (c)] . . . . . . . . .$____________
__________________________________
1 Insert the effective date of the most recent financial
statements referred to in Section 7.01(d) of the Credit Agreement.
2 To be included unless the Advance is a Bridge Advance.
ADVANCE REQUEST FORM - PAGE 2
106
(f) Aggregate Amount of Requested Advance
or applicable Letter of Credit Liabilities . . . . . . .$____________
Advance Request Information3
---------------------------
(a) 65% of NPV-Proven Reserves at last Redetermination . . .$____________
(b) 65% NPV 10-Proven Producing Reserves being acquired
with the Bridge Advance . . . . . . . . . . . . . . . .$____________
(c) Sum of (a) plus (b) . . . . . . . . . . . . . . . . . .$____________
(d) Borrowing Base . . . . . . . . . . . . . . . . . . . . .$____________
(e) Bridge Sublimit (lesser of (c) minus (d) or
$20,000,000 . . . . . . . . . . . . . . . . . . . . . .$____________
(f) Outstanding Bridge Advances . . . . . . . . . . . . . .$____________
(g) Net Availability for Bridge Advances (item (e) minus
item (f) . . . . . . . . . . . . . . . . . . . . . . . .$____________
Advance Request Information
---------------------------
(a) Date of Requested Advance
or issuance of Letter of Credit . . . . . . . . . . . . _______, 19__
(b) Type of Advance
Type Amount
---- ------
(i) Prime Rate Advances . . . . . . . . . . . . . .$____________
(ii) EuroDollar Advances . . . . . . . . . . . . . .$____________
(c) Duration of Interest Period if
EuroDollar Advances:
Advance Amount Duration
-------------- --------
(i) $______________ _______________
(ii) $______________ _______________
(iii) $______________ _______________
(iv) $______________ _______________
__________________________________
3 To be included only if the requested Advance is a Bridge Advance.
ADVANCE REQUEST FORM - PAGE 3
107
BORROWER:
---------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Dated as of:
-----------------------------
[insert proposed date
of Requested Advance or
issuance of Letter of Credit]
ADVANCE REQUEST FORM - PAGE 4
108
EXHIBIT C
to
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
SOLVENCY CERTIFICATE
ADVANCE REQUEST FORM - PAGE 5
109
SOLVENCY CERTIFICATE
This Certificate is delivered in connection with that certain Third
Amended and Restated Credit Agreement dated as of August 8, 1996 (the "Credit
Agreement"), among COHO RESOURCES, INC., COHO LOUISIANA PRODUCTION COMPANY,
COHO EXPLORATION, INC., COHO ENERGY, INC., BANQUE PARIBAS, as administrative
agent, BANK ONE, TEXAS, N.A. and MEESPIERSON N.V. as co-agents, and the lenders
named therein. Terms defined in the Credit Agreement and not otherwise defined
herein have the same meanings herein as set forth therein.
Xxxxxxx Xxxxxx hereby certifies to the Administrative Agent and each
Lender that, to the best of his knowledge and belief:
1. I am President of each Credit Party.
2. The Advances are evidenced by the Notes and
are secured by, inter alia, the Security
Documents. The proceeds of the Advances are
to be used for the purposes set forth in
Section 2.06 of the Credit Agreement.
3. I have reviewed and am fully familiar with
(i) the terms and conditions of, and each
Credit Parties' rights and obligations under,
the Loan Documents to which it is a party and
(ii) the contents of this Certificate, and I
have conferred with counsel for the Credit
Parties for the purpose of discussing the
meaning of its contents.
4. I am fully familiar with the financial
condition of each Credit Party and its
material rights, obligations, assets and
liabilities.
5. No Credit Party intends or believes that the
execution and delivery of the Loan Documents
to which it is a party will defraud, hinder,
or delay any of its creditors.
6. I have no reason to believe that the amount
of the proved oil and gas reserves
constituting a part of the Collateral is
materially less than the estimate of volumes
of proved oil and gas reserves of properties
constituting the Collateral set forth in the
most recent Engineering Report delivered
under the Loan Documents.
7. Immediately before the Renewal Date, the
value to each Credit Party of its assets,
including its interest in the Collateral, was
greater than all of its debts and
obligations.
8. Immediately after the Renewal Date, the value
to each Credit Party of its interest in its
assets, including its interest in the
Collateral, will be greater than its
SOLVENCY CERTIFICATE - PAGE 1
110
obligations under the Loan Documents to which
it is a party and any of its other debts and
obligations.
9. Immediately before the Renewal Date, each
Credit Party has sufficient capitalization
and anticipated cash flow from its assets,
including its interest in the Collateral,
such that it was able to pay is debts and
obligations as they became due (including
contingent obligations).
10. Immediately after the Renewal Date, each
Credit Party will have sufficient
capitalization and anticipated cash flow from
its interest in its assets, such that it will
be able to pay its obligations under the Loan
Documents and any of its other debts and
obligations as they become due (including
contingent obligations).
11. Immediately before and after the Renewal
Date, each Credit Party has and will have
sufficient capital to operate its business.
12. Each Credit Party (i) is not and will not be
rendered insolvent by reason of the
execution, delivery and performance of the
Loan Documents, (ii) will be able to pay its
debts and obligations as they become due,
(iii) has sufficient capital to operate its
business as presently conducted, and (iv)
does not intend to incur, and does not
believe it will incur, debts and obligations
that are beyond its ability to pay as they
become due.
Dated: August 8, 1996
-----------------------------------
Xxxxxxx Xxxxxx, President of each
Credit Party
SOLVENCY CERTIFICATE - PAGE 2
111
SCHEDULE 6.01(e)
to
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
SUBSIDIARIES
===========================================================================================================
Jurisdiction Authorized
Subsidiary Of Incorporation Capitalization Outstanding % Owned
===========================================================================================================
A. Holdings
-----------------------------------------------------------------------------------------------------------
1. Coho Canada Alberta, Canada 1. Unlimited Common 1. 31,432,517 100%
2. 2,000,000 first 2. None
preferred shares 3. None
3. 5,000,000 second 4. None
preferred shares
4. Unlimited nonvoting
common
-----------------------------------------------------------------------------------------------------------
2. Coho Shell Delaware 1000 shares common 1000 100%
-----------------------------------------------------------------------------------------------------------
3. CRI Nevada 1. 50,000,000 common stock,1. 7,505,275 100% of common
$.01 par value 0% of Class A
2. 8,000,000 class A Common2. 8,000,000 common
Stock, $.01 par value
3. 10,000,000 shares of
preferred stock $.01 par3. None
value
-----------------------------------------------------------------------------------------------------------
B. Coho Canada
-----------------------------------------------------------------------------------------------------------
1. CRI Nevada 1. 50,000,000 common stock,1. 7,505,275 0% of common
$.01 par value
2. 8,000,000 class A Common2. 8,000,000 100% of Class A
Stock, $.01 par value Common
3. 10,000,000 shares of
preferred stock $.01 par3. None.
value
-----------------------------------------------------------------------------------------------------------
2. Profile Petroleum Alberta Unlimited common shares, no 888,002 100%
Ltd. par value
-----------------------------------------------------------------------------------------------------------
3. Grayon Developments Alberta 1. Unlimited common shares,1. 5,290,020 100%
Ltd. no par value
2. Unlimited First 2. 320,250 100%
Preferred, no par value
3. Unlimited Second 3. 2,000 100%
Preferred, no par value
-----------------------------------------------------------------------------------------------------------
4. Coho International Bahamas 5,000 common shares, $1 par 3,000 100%
Ltd. value
-----------------------------------------------------------------------------------------------------------
SCHEDULE 6.01(E), PAGE 1 OF 2
112
===========================================================================================================
Jurisdiction Authorized
Subsidiary Of Incorporation Capitalization Outstanding % Owned
===========================================================================================================
C. CRI
-----------------------------------------------------------------------------------------------------------
1. Tierra Exploration, Nevada 2,500 common stock, $0.01 par 100 100%
Inc. value
-----------------------------------------------------------------------------------------------------------
2. Coho Marketing and Nevada 1. 1,000 common stock, no 1. 100 100%
Transportation, Inc. par value
2. 1,000 shares of 2. None
preferred stock, no par
value
-----------------------------------------------------------------------------------------------------------
3. ING Delaware 1. 600,000 common stock, 1. 20,000 100% of Common
$.01 par value 100% of
2. 250,000 preferred stock,2. 200,025 Preferred
$.01 par value series 8%
Preferred
----------------------------------------------------------------------------------------------------------
4. Coho Anaguid Inc. Delaware 1. 9,870 common stock, 1. 2,700 100%
$0.01 par value
2. 130 preferred stock, 2. 120 100% by Coho
$20,000 par value International
-----------------------------------------------------------------------------------------------------------
D. ING
-----------------------------------------------------------------------------------------------------------
1. Production Company Delaware 1,000 shares of common stock, 1,000 100%
$.10 par value
-----------------------------------------------------------------------------------------------------------
2. Coho Fairbanks Delaware 1,000 shares of common stock, 1,000 100%
Gathering Company $.10 par value
-----------------------------------------------------------------------------------------------------------
3. Coho Louisiana Delaware 1,000 shares of common stock, 1,000 100%
Gathering Company $.10 par value
-----------------------------------------------------------------------------------------------------------
4. Coho Exploration, Delaware 1,000 shares of common stock, 1,000 100%
Inc. $.10 par value
===========================================================================================================
SCHEDULE 6.01(E), PAGE 2 OF 2
113
SCHEDULE 6.01(f)
to
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
LITIGATION
A. Coho Resources, Inc.
(a) Wall & Redekop Petroleum Inc. vs. Coho Resources,
Inc. (1983)
Alleging amounts owing by CRI
Claim amount approximately $150,000
(b) Humble Resources Management, Inc. vs. Coho
Resources, Inc. (1991)
Alleging economic loss by drainage of oil
Claiming actual, incidental, compensatory and punitive damages
Lawsuit will expire through statute of limitations.
Properties no longer owned by CRI.
3. During June and July, 1994, CRI, together with several
companies, was named as a defendant in three lawsuits filed in
Mississippi. The lawsuits, which are basically identical,
involve claims by landowners for purported damages caused by
naturally occurring radioactive materials at various wellsite
locations on land leased by CRI in Mississippi. The
plaintiffs are seeking compensatory and punitive damages,
including damages for "emotional distress". Two of these
lawsuits have been settled. The well sites contained in the
third lawsuit have been remediated, and the lawsuit has no
activity currently pending.
4. Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx vs. Coho Resources, Inc.
CRI purchased an interest in the eastern part of the Laurel
Field in Xxxxx County, Mississippi in 1993 from Xxxxxxxxx
Energy, Inc. Plaintiffs live in a house adjacent to CRI's
production facility in that area, and have sued CRI generally
claiming contamination, nuisance and other matters.
Plaintiffs had sued Xxxxxxxxx in 1991 for these same claims,
and Xxxxxxxxx settled in 1992, receiving a general release
from plaintiffs. This lawsuit has been settled for a nominal
amount ($5,000).
SCHEDULE 6.01(F), PAGE 1 OF 3
114
5. Xxxxxx XxXxxxxx, Administrator of the Estate of Xxxxxx Xxxx
XxXxxxxx vs. Coho Resources, Inc. On December 6, 1995, Xxxxxx
XxXxxxxx, employee of Xxxxx Bros., Inc., an independent
contractor, was killed when a workover rig collapsed in the
Soso Field, Mississippi. His estate filed an action against
CRI for actual damages in the amount of lifetime earnings
(present value $470,000), damages under the Mississippi
Wrongful Death Act and punitive damages ($3.5 million). Xxxxx
Bros. insurer has agreed to defend the lawsuit on behalf of
CRI.
6. Xxxxx Xxxxx, et ux vs. Coho Resources, Inc. This is a
companion suit to the XxXxxxxx lawsuit. During the same
incident on December 6, 1995 where Xx. XxXxxxxx was killed
after a workover rig collapsed in the Soso Field, Mississippi,
Xx. Xxxxx injured his wrist. He has filed an action against
CRI for actual damage in the amount of $2,000,000.00. CRI's
insurer is defending the lawsuit on behalf of CRI.
7. Xxxxx Xxxxx, et al vs. Chevron USA Inc., et al; Xxx Xxx Xxxxx,
et ux vs. Chevron USA Inc. et al. Both of these lawsuits were
filed in early 1996 against CRI and several other companies:
Chevron USA Inc. and Florabama/Marjoe Inc., both prior
operators of the Brookhaven Field, Lincoln County,
Mississippi. The lawsuits, which are basically identical,
involve claims by landlowners for purported damage caused by
NORM at various wellsite locations on land leased by CRI. The
plaintiffs are seeking compensatory and punitive damages
including damages for the contamination of the land and
personal injury to the health of the plaintiffs.
8. Xxxxxx Xxxxxx vs. Fina Oil & Gas Chemical Company, et al. In
June of 1996 Xxxxxx Xxxxxx filed an action against 20 oil
companies and a bank for damage to land owned by him in Xxxxx
County, Mississippi. The damages claim to be contamination of
land from disposal operations by an oilfield contractor who
was the prior owner of the land. The field in question is the
Eucutta Field, of which Coho owned a small portion and
divested to a third party in 1989. There is no evidence that
Coho's operations in any way contributed to the problem
claimed by Xx. Xxxxxx in regard to contamination of his land.
B. ING and IN Subsidiaries
1. Litigation
ARCADIA HOLINESS ASSOCIATION V. IMC CORPORATION, ET AL. (V.
MID LOUISIANA GATHERING COMPANY), 15th Judicial District
Court, Xxxxxxxxxx Parish, Louisiana Case No. 87-52966.
Royalty owners seek asserted underpayment for production
produced by IMC Production Company and by Wintershall
Corporation/BASF Corporation in excess of $7,000,000.00. Mid
Louisiana Gathering Company has been indemnified by BASF for
this.
SCHEDULE 6.01(F), PAGE 2 OF 3
115
2. Asserted Claims
X.X. XXXXXX, JR. ET AL VS. IMC EXPLORATION CO. INC., ET AL
(VS. MID LOUISIANA PRODUCTION COMPANY), 0xx Xxxxxxxx Xxxxxxxx
Xxxxx, Xxxxxxxx Xxxxxx, Louisiana, Case No. 96-2616.
Overriding royalty owners seek asserted underpayment for
production produced by IMC Production Company, Wintershall
Energy, and Mid Louisiana Production Company. Plaintiffs are
seeking the sum of $147,613.25 in actual damages. Mid
Louisiana Production Company is of the belief that the leases
that are purported to support this claim have expired, and no
payments are due.
SCHEDULE 6.01(F), PAGE 3 OF 3
116
SCHEDULE 6.01(m)
to
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
CREDIT AGREEMENTS
I. INTERCOMPANY INDEBTEDNESS
Debtor Lender Amount
------ ------ ------
Coho International Limited Coho Resources Limited $ 279,544
Coho International Limited Coho Resources Inc. $ 2,674,814
Coho Energy Inc. Coho Resources Limited $ 96,897
Coho Resources Limited Coho Resources Inc. $ 91,884
Coho Resources Inc. Coho Anaguid Inc. $ 265,000
Coho Resources Inc. Coho Marketing & Transportation $ 382,594
Coho Resources Inc. Coho Energy Inc. $ 6,860,957
Coho Resources Inc. Interstate Natural Gas Co. $ 22,281,215*
Coho Exploration Inc. Coho Resources Inc. $ 27,494,293*
Interstate Natural Gas Co. Coho Louisiana Production Co. $ 2,071,305
Interstate Natural Gas Co. Coho Fairbanks Gathering Co. $ 1,171
Coho Louisiana Gathering Co. Coho Louisiana Production Co. $ 348,741
Coho Louisiana Production Co. Coho Fairbanks Gathering Co. $ 256,895
II. GAS PROCESSING PLANT MORTGAGE
In October, 1994, CRI acquired, from Pronto Gas Co., Inc. ("Pronto") a
mechanical refrigeration plant and certain vapor recovery units
intended to extract liquid petroleum products from natural gas
produced at the Laurel field in Mississippi. The purchase price was
$440,000, $100,000 down plus a note for $340,000 due March 1997. CRI
is required to make monthly principal and interest payments of
$12,500. CRI pledged the plant and 60% of the value of the liquids
extracted as security for the note.
____________________
* On or before September 8, 1996, these items shall have been evidenced
by subordinated promissory notes in form and substance reasonably acceptable to
the Administrative Agent, or shall have been repaid or recharacterized as
something other than indebtedness, to the extent permitted by this Agreement.
SCHEDULE 6.01(M), PAGE 1 OF 2
117
III. BROOKHAVEN ACQUISITION
In August 1995, CRI acquired from Florabama Associates, Inc.
(Florabama) and Seminoil, Inc. (Seminoil) certain oil and gas
properties in Brookhaven, Mississippi. The purchase price was
$5,642,000. To evidence the purchase price, CRI executed promissory
notes in the aggregate principal amount of $4,199,566. Letters of
credit totalling $4,199,566.00 were issued to secure such promissory
notes. Of the letters of credit issued, $1,866,846.99 expire 8/28/96
with the balance expiring 8/28/97.
SCHEDULE 6.01(M), PAGE 2 OF 2
118
SCHEDULE 6.01(s)
to
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
ENVIRONMENTAL MATTERS
A. Coho Resources, Inc.
1. Agreed Order No. 1615-89 of the Mississippi Commission on
Environmental Quality, dated August 24, 1989, pursuant to which CRI
has paid to such Commission the sum of $6,000.00 as full and complete
settlement of such Commission's proposed citation of CRI for violation
of Mississippi Code Annotated Section 49-17-29(l)(c) by permitting a
facility owned by CRI in the Xxxxxxxxxxx Field to cause pollution in
an unnamed tributary of the Strong River on or about July 9, 1989.
2. Order of Dismissal, dated March 30, 1990, and Settlement
Agreement and Mutual Release, entered into on March 26, 1990, in the
litigation matter of X.X. Xxxxxx v. Coho Resources, Inc., Cause No.
9064-8800 in the Circuit Court of the First Judicial District of Xxxxx
County, Mississippi, pursuant to which CRI has paid to Xx. X.X. Xxxxxx
the sum of $4,000.00 in settlement of Xx. Xxxxxx'x complaint alleging
damages resulting from the presence of drilling fluids and related
materials in an unnamed tributary of the Strong River on his property
on or about July 9, 1990.
3. Other matters disclosed on the Initial Environmental Report.
4. As a result of heavy rainfall, on July 14, 1993, the reserve
pit at Coho's Country Club location at Laurel, Mississippi overflowed
causing approximately $44,000 of damage to third parties. The
Company's insurance coverage will reimburse Coho for approximately
$33,000. The Company was not cited by the Mississippi Commission on
Environmental Quality.
5. On May 25, 1993, CRI had a salt water spill at its Summerland
field. Approximately 900 barrels of salt water were spilled. Of this
amount, approximately 50% was recovered and disposed. The remaining
amount was flushed with fresh water into the Leaf River. The Company
was not cited by the Mississippi Commission on Environmental Quality.
6. During June and July, 1994, CRI, together with several other
companies, were named as a defendant in three lawsuits filed in
Mississippi. The lawsuits, which are basically identical, involve
claims by landowners for purported damages caused by
SCHEDULE 6.01(S), PAGE 1 OF 2
119
naturally occurring radioactive materials at various wellsite
locations on land leased by CRI in Mississippi. The plaintiffs are
seeking compensatory and punitive damages, including damages for
"emotional distress".
7. In early 1996 CRI, together with Chevron USA Inc. and
Florabama/Marjoe Inc., both prior operators, were named as defendants
in two suits in Brookhaven Field, Lincoln County, Mississippi. The
lawsuits deal with purported damage to land caused by the presence of
NORM at wellsite locations in the field. The plaintiffs are seeking
compensatory and punitive damages including damages for contamination
to the land.
B. ING and ING Subsidiaries
1. In response to natural gas industry concerns, ING and its
affiliates have voluntarily commenced a program in its production
areas to remove measurement meters which utilized elemental mercury.
The program involves the removal and replacement of each mercury meter
with a newer style bellows meter, and removal of any mercury found on
the location site of the meter. Over the years, as mercury meters were
repaired or replaced, a small amount of mercury might occasionally
escape, falling to the ground. In connection with this program, ING
has worked extensively with the United States Fish and Wildlife
Services ("USFW") in the D'Arbonne and Upper Ouachita Wildlife Refuges
located in Northeast Louisiana, where ING through its affiliates have
approximately 100 mercury meter site locations. The USFW seeks the
voluntary removal of the mercury meters from its refuges and the
cleanup of any mercury which may have spilled. At this time the USFW
has only commenced an investigation of its concern, and through
meetings with the USFW, the Mid Louisiana Production Company has
reached a tentative agreement, yet to be put in writing, with the USFW
to address their concerns. The agreement requires the Production
Company to remove and replace its approximately 150 mercury meters
from the refuge areas with bellows meters and to remove any elemental
mercury that might have been spilled to mutually agreeable levels by
revolving and replacing the soil underneath each mercury meter
location which shows the presence of elemental mercury in the soil. A
similar program for the remainder of the Production Company's
operations in the Monroe Gas Field where ING's affiliates operate
approximately another 1,200 to 1,400 mercury meters will be
concurrently pursued over the next 5 years. ING has discussed the
program with the Louisiana Department of Environmental Quality
("LDEQ") for guidance and is in the process of submitting a plan to
the LDEQ for comment.
2. ING/Coho has commenced a remediation operation within the
refuges specified in Item B.1 above and will have remediated all sites
on USFW land that have had some spillage of the elemental mercury from
prior removed mercury meters. It is anticipated that this process of
remediation in the D'Arbonne and Upper Ouchita Refuges will be
completed by the end of September 1996.
SCHEDULE 6.01(S), PAGE 2 OF 2
120
SCHEDULE 6.01(t)
to
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
LOCATIONS OF COLLATERAL
1 Chief Executive Xxxxxx
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
2. Exact Corporate Name
Coho Energy, Inc.
Coho Resources, Inc.
Interstate Natural Gas Company
Coho Louisiana Production Company
Coho Fairbanks Gathering Company
Coho Louisiana Gathering Company
Coho Exploration, Inc.
3. Additional Locations
Interstate Natural Gas Company
a. Secretary of State, Texas
Coho Louisiana Production Company
x. Xxxxxxxxxx Parish, LA
x. Xxxxxxxxx Parish, LA
c. Ouachita Parish, LA
d. Union Parish, LA
e. Amite County, XX
x. Xxxxxxxxx County, MS
g. Secretary of State, MS
h. Secretary of State, TX
Coho Fairbanks Gathering Company
x. Xxxxxxxxx Parish, LA
SCHEDULE 6.01(T), PAGE 1 OF 2
121
b. Ouachita Parish, LA
c. Union Parish, LA
d. Secretary of State, MI
e. Secretary of State, TX
Coho Louisiana Gathering Company
x. Xxxxxxxxx Parish, LA
b. Ouachita Parish, LA
c. Union Parish, LA
d. Secretary of State, MI
e. Secretary of State, TX
Coho Exploration, Inc.
x. Xxxxxxx County, MS
Coho Resources, Inc.
x. Xxxxx County, XX
x. Xxxxx County, XX
x. Xxxxxxxxx County, XX
x. Xxxxxx County, XX
x. Xxxxxxx County, MS
f. Yazoo County, XX
x. Xxxxxxx County, XX
x. Xxxxx County, MS
SCHEDULE 6.01(T), PAGE 2 OF 2
122
SCHEDULE 7.02(a)
to
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
LIENS SECURING INDEBTEDNESS
1. Cash deposits securing Indebtedness described on Schedule 6.01(m).
2. Security Agreement dated October 1, 1994 between CRI and Pronto Gas
Co., Inc. securing a $340,000 promissory note issued by CRI. The
security agreement covers a mechanical refrigeration plant and related
equipment and 60% of the liquids extracted by the plant.
3. Letters of Credit dated August 16, 1995, securing promissory notes
issued by CRI pursuant to that certain Purchase and Sale Agreement
between CRI and Floribama Associates, Inc. and Seminoil, Inc. dated
August 9, 1995. The purchase and sale agreement relates to the
acquisition of certain oil and gas properties in Brookhaven,
Mississippi.
SCHEDULE 7.02(A), SOLO PAGE
123
SCHEDULE 7.02(f)
to
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
AFFILIATED TRANSACTIONS
1. The Exclusive Territory Agreement entered into by Coho Canada and CRI
which provides that CRI will have the exclusive right to produce, explore and
develop all present and future prospects in the United States, and Coho Canada
will have the exclusive right to conduct such activities outside the United
States. The Agreement has an initial term that expires on January 1, 1995 and
will continue thereafter until Coho Canada's fully-diluted proportionate voting
interest in CRI falls below 35%.
2. The Management Services Agreement entered into by Coho Canada and CRI
pursuant to which Coho Canada will provide all senior management and various
services, such as accounting, legal, technical support and administration
service to CRI. CRI will reimburse Coho Canada for all of its direct costs
incurred in rendering services to CRI under the contract and will pay Coho
Canada for allocated indirect costs incurred in rendering such services. The
Management Services Agreement provides that CRI will furnish certain services,
such as technical support services, to Coho Canada. CRI will be reimbursed by
Coho Canada for the direct and indirect expenses of providing such services to
Coho Canada on the same or similar basis. The Management Services Agreement
has an initial term that expires on January 1, 1995 and will continue
thereafter until terminated by either party upon 180 days' written notice to
the other party.
3. The Equity Participation Agreement entered into by Coho Canada and CRI
which entitles Coho Canada to participate in any future issuances by CRI of
equity securities at the time of such issuance and on terms equivalent in cash
to those terms being offered to others. Under the Equity Participation
Agreement, Coho Canada is entitled to acquire equity securities upon their
being issued by CRI (including, among others, issuances in connection with
public offerings, private placements or acquisitions of businesses or assets in
exchange for equity securities) in proportion to Coho Canada's percentage,
calculated on a fully-diluted basis immediately prior to such issuances, of the
total votes that could be cast upon an election of directors of CRI. Equity
securities include common shares, preferred shares (with or without voting
rights) and securities convertible into or exchangeable for, or options,
warrants or rights to acquire or subscribe for, common shares or preferred
shares (with or without voting rights) of CRI. The Equity Participation
Agreement terminates when Coho Canada's fully-diluted proportionate voting
interest in the Company falls below 35%.
4. The Registration Rights Agreement entered into by Coho Canada and CRI,
pursuant to which the Company agreed that, upon the request of Coho Canada, CRI
will register under the Securities Act of 1933 and applicable state securities
laws the sale of the common shares of CRI
SCHEDULE 7.02(F), PAGE 1 OF 2
124
owned by Coho Canada that Coho Canada (or certain assignees) has requested to
be registered. Such registration right will expire on the earlier of 21 years
from the date of the proposed public offering of common shares of CRI and the
date on which Coho Canada's fully-diluted proportionate voting interest in CRI
falls below 10%. CRI's obligation is subject to certain limitations relating
to a minimum amount of common shares of CRI required for registration, the
timing of registration and other similar matters. CRI will pay all
out-of-pocket expenses in connection with Coho Canada's initial two exercises
of its registration rights under the Registration Rights Agreement and Coho
Canada will pay all expenses in connection with all subsequent exercises.
5. The Registration Rights Agreement entered into by Holdings and Mr. Xxx
Xxxxxxx and Xx. Xxxxxxxxx Xxxxxxxx whereby upon the request of Xx. Xxxxxxx or
Xx. Xxxxxxxx Holdings will register, on a one-time basis only for each, under
the Securities Act of 1933, and applicable state securities laws the sale of
the common shares of Xxxxxxx or Xxxxxxxx.
6. The Registration Rights Agreement entered into by Holdings, Xxxxxx
Xxxxxxx Leverage Equity Fund II, LP ("Xxxxxx") and Xxxxx Oil Company Ltd,
("Xxxxx") whereby upon the request of Xxxxxx or Xxxxx Holdings will register
under the Securities Act of 1993, and applicable state securities laws, its
sale of common shares of Xxxxxx or Xxxxx.
7. The Amended and Restated Registration Rights Agreement entered into by
Holdings and Xx. Xxx Xxxxxxx and Xx. Xxxxxxxxx Xxxxxxxx.
8. Holdings has entered into Employment Agreements with Xxxxxxx Xxxxxx,
X. X. Xxxxxx and X. X. XxXxxxx providing for, among other things, severance
payments in the event of termination by Holdings without "cause".
9. CRI has entered into Executive Severance Agreements with Xxxx Xxxxxx,
R. Xxxx Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxx Xxxxx X'Xxxxxx and Xxxxxxx X. Xxxxxx.
10. In 1990, Holdings made a non-interest bearing loan in the amount of
$205,000.00 to Xxxxxxx Xxxxxx, President, Chief Executive Officer and Director
of Holdings, to assist him in the purchase of a house in Dallas. The loan is
unsecured and is repayable on the date Xx. Xxxxxx ceases employment with
Holdings.
SCHEDULE 7.02(F), PAGE 2 OF 2
