US CREDIT AGREEMENT
_______________________________________________________
DEVON ENERGY CORPORATION
as US Borrower
BANK OF AMERICA, N.A.
as Administrative Agent
BANC OF AMERICA SECURITIES LLC
as Lead Arranger
BANC ONE CAPITAL MARKETS, INC.
as Syndication Agent
THE CHASE MANHATTAN BANK
as Documentation Agent
FIRST UNION NATIONAL BANK
as Co-Documentation Agent
and CERTAIN FINANCIAL INSTITUTIONS
as Lenders
_______________________________________________________
US $475,000,000
October 15, 1999
TABLE OF CONTENTS
Page
CREDIT AGREEMENT 1
ARTICLE I - The US Loans 1
Section 1.1. Commitments to Lend; US Notes 1
Section 1.2. Requests for New US Loans 4
Section 1.3. Continuations and Conversions of Existing
US Loans 5
Section 1.4. Use of Proceeds 7
Section 1.5. Interest Rates and Fees 7
Section 1.6. Prepayments 8
Section 1.7. Competitive Bid Loans 9
Section 1.8. Refinancings of US Swing Loans 12
ARTICLE II - Letters of Credit 13
Section 2.1. Letters of Credit 13
Section 2.2. Requesting Letters of Credit 14
Section 2.3. Reimbursement and Participations 14
Section 2.4. Letter of Credit Fees 15
Section 2.5. No Duty to Inquire 15
Section 2.6. LC Collateral 16
ARTICLE III - Payments to Lenders 17
Section 3.1. General Procedures 17
Section 3.2. Increased Cost and Reduced Return 18
Section 3.3. Limitation on Types of US Loans 20
Section 3.4. Illegality 20
Section 3.5. Treatment of Affected US Loans 20
Section 3.6. Compensation 21
Section 3.7. Change of Applicable Lending Office 21
Section 3.8. Replacement of Lenders 22
Section 3.9. Taxes 22
Section 3.10. Currency Conversion and Currency Indemnity 24
ARTICLE IV - Conditions Precedent to Lending 25
Section 4.1. Documents to be Delivered 25
Section 4.2. Additional Conditions Precedent to First
US Loan or First Letter of Credit 26
Section 4.3. Additional Conditions Precedent to all
US Loan and Letters of Credit 26
ARTICLE V - Representations and Warranties 27
Section 5.1. No Default 27
Section 5.2. Organization and Good Standing 27
Section 5.3. Authorization 27
Section 5.4. No Conflicts or Consents 27
Section 5.5. Enforceable Obligations 28
Section 5.6. Full Disclosure 28
Section 5.7. Litigation 28
Section 5.8. ERISA Plans and Liabilities 28
Section 5.9. Environmental and Other Laws 29
Section 5.10. Names and Places of Business 29
Section 5.11. US Borrower's Subsidiaries 29
Section 5.12. Title to Properties; Licenses 29
Section 5.13. Government Regulation 30
Section 5.14. Insider 30
Section 5.15. Solvency 30
Section 5.16. Year 2000 Compliance 30
ARTICLE VI - Affirmative Covenants of US Borrower 31
Section 6.1. Payment and Performance 31
Section 6.2. Books, Financial Statements and Reports 31
Section 6.3. Other Information and Inspections 32
Section 6.4. Notice of Material Events and Change of
Address 32
Section 6.5. Maintenance of Properties 33
Section 6.6. Maintenance of Existence and
Qualifications 33
Section 6.7. Payment of Trade Liabilities, Taxes, etc. 33
Section 6.8. Insurance 33
Section 6.9. Performance on US Borrower's Behalf 33
Section 6.10. Interest 34
Section 6.11. Compliance with Law 34
Section 6.12. Environmental Matters 34
Section 6.13. Bank Accounts; Offset. 34
Section 6.14. Year 2000 Compliance 35
ARTICLE VII - Negative Covenants of US Borrower 35
Section 7.1. Indebtedness 35
Section 7.2. Limitation on Liens 37
Section 7.3. Limitation on Mergers 37
Section 7.4. Limtation on Issuance of Securities by
Subsidiaries of US Borrower 37
Section 7.5. Limitation on Restricted Payments 37
Section 7.6. Transactions with Affiliates 37
Section 7.7. Prohibited Contracts; ERISA 38
Section 7.8. Funded Debt to Total Capitalization 38
Section 7.9. Devon Trust; Devon Trust Securities 38
ARTICLE VIII - Events of Default and Remedies 38
Section 8.1. Events of Default 38
Section 8.2. Remedies 41
ARTICLE IX - US Agent 41
Section 9.1. Appointment, Powers, and Immunities 41
Section 9.2. Reliance by US Agent 41
Section 9.3. Defaults 42
Section 9.4. Rights as Lender 42
Section 9.5. Indemnification 42
Section 9.6. Non-Reliance on US Agent and Other Lenders 43
Section 9.7. Rights as Lender 43
Section 9.8. Sharing of Set-Offs and Other Payments 43
Section 9.9. Investments 44
Section 9.10. Benefit of Article IX 44
Section 9.11. Resignation 44
Section 9.12. Lenders to Remain Pro Rata 45
ARTICLE X - Miscellaneous 45
Section 10.1. Waivers and Amendments; Acknowledgments 45
Section 10.2. Survival of Agreements; Cumulative Nature 46
Section 10.3. Notices 47
Section 10.4. Payment of Expenses; Indemnity 47
Section 10.5. Parties in Interest 48
Section 10.6. Assignments and Participations 49
Section 10.7. Confidentiality 50
Section 10.8. Governing Law; Submission to Process 51
Section 10.9. Limitation on Interest 51
Section 10.10. Termination; Limited Survival 52
Section 10.11. Severability 52
Section 10.12. Counterparts; Fax 52
Section 10.13. Waiver of Jury Trial, Punitive Damages,
etc. 52
Section 10.14. Defined Terms 53
Section 10.15. Annex I, Exhibits and Schedules;
Additional Definitions 53
Section 10.16. Amendment of Defined Instruments 53
Section 10.17. References and Titles 53
Section 10.18. Calculations and Determinations 53
Section 10.19. Construction of Indemnities and Releases 54
Section 10.20. Termination of Existing US Agreement 54
Schedules and Exhibits:
Annex I - Defined Terms
Annex II - Lenders Schedule
Schedule 1 - Disclosure Schedule
Schedule 2 - Surety Bonds & Letters of Credit
Exhibit A-1 - Tranche A Promissory Note
Exhibit A-2 - Tranche B Promissory Note
Exhibit A-3 - US Swing Promissory Note
Exhibit B - Borrowing Notice
Exhibit C - Continuation/Conversion Notice
Exhibit D - Certificate Accompanying Financial Statements
Exhibit E - Opinion of Counsel for Restricted Persons
Exhibit F - Assignment and Acceptance Agreement
Exhibit G - Letter of Credit Application and Agreement
Exhibit H - Competitive Bid Request
Exhibit I - Invitation to Bid
Exhibit J - Competitive Bid
Exhibit K - Competitive Bid Accept/Reject Letter
Exhibit L - Competitive Bid Note
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made as of October 15, 1999, by and
among Devon Energy Corporation, a Delaware corporation (herein
called "US Borrower"), Bank of America, N.A., individually and as
administrative agent (herein called "US Agent"), and the
undersigned Lenders. In consideration of the mutual covenants
and agreements contained herein the parties hereto agree as
follows:
ARTICLE I - The US Loans
Section 1.1. Commitments to Lend; US Notes.
(a) Tranche A. Subject to the terms and conditions hereof,
each Lender agrees to make loans to US Borrower (herein called
such Lender's "Tranche A Loans") upon US Borrower's request from
time to time during the US Facility Commitment Period, provided
that (i) subject to Sections 3.3, 3.4 and 3.5, all Lenders are
requested to make Tranche A Loans of the same Type in accordance
with their respective Percentage Shares and as part of the same
Borrowing, (ii) such Lender's Percentage Share of the US Facility
Usage shall never exceed such Lender's Percentage Share of the US
Maximum Credit Amount, and (iii) such Lender's Percentage Share
of the Tranche A Facility Usage shall never exceed such Lender's
Percentage Share of the Tranche A Maximum Credit Amount. The
aggregate amount of all Tranche A Loans in any Borrowing must be
an integral multiple of US $100,000 which equals or exceeds US
$200,000 or must equal the unadvanced portion of the US Maximum
Credit Amount. The obligation of US Borrower to repay to each
Lender the aggregate amount of all Tranche A Loans made by such
Lender, together with interest accruing in connection therewith,
shall be evidenced by a single promissory note (herein called
such Lender's "Tranche A Note") made by US Borrower payable to
the order of such Lender in the form of Exhibit A-1 with
appropriate insertions. The amount of principal owing on any
Lender's Tranche A Note at any given time shall be the aggregate
amount of all Tranche A Loans theretofore made by such Lender
minus all payments of principal theretofore received by such
Lender on such Tranche A Note. Interest on each Tranche A Note
shall accrue and be due and payable as provided herein and
therein. Each Tranche A Note shall be due and payable as
provided herein and therein, and shall be due and payable in full
on the Tranche A Maturity Date. Subject to the terms and
conditions hereof, US Borrower may borrow, repay, and reborrow
Tranche A Loans under the US Agreement during the US Facility
Commitment Period. US Borrower may have no more than ten
Borrowings of US Dollar Eurodollar Loans (including Tranche A
Loans and Tranche B Loans) outstanding at any time.
(b) Tranche B. Subject to the terms and conditions hereof,
each Lender agrees to make loans to US Borrower (herein called
such Lender's "Tranche B Loans") upon US Borrower's request from
time to time during the Tranche B Revolving Period, provided that
(i) subject to Sections 3.3, 3.4 and 3.5, all Lenders are
requested to make Tranche B Loans of the same Type in accordance
with their respective Percentage Shares and as part of the same
Borrowing, (ii) such Lender's Percentage Share of the US Facility
Usage shall never exceed such Lender's Percentage Share of the US
Maximum Credit Amount, and (iii) such Lender's Percentage Share
of the Tranche B Facility Usage shall never exceed such Lender's
Percentage Share of the Tranche B Maximum Credit Amount. The
aggregate amount of all Tranche B Loans in any Borrowing must be
an integral multiple of US $100,000 which equals or exceeds US
$200,000 or must equal the unadvanced portion of the US Maximum
Credit Amount. The obligation of US Borrower to repay to each
Lender the aggregate amount of all Tranche B Loans made by such
Lender, together with interest accruing in connection therewith,
shall be evidenced by a single promissory note (herein called
such Lender's "Tranche B Note") made by US Borrower payable to
the order of such Lender in the form of Exhibit A-2 with
appropriate insertions. The amount of principal owing on any
Lender's Tranche B Note at any given time shall be the aggregate
amount of all Tranche B Loans theretofore made by such Lender
minus all payments of principal theretofore received by such
Lender on such Tranche B Note. Interest on each Tranche B Note
shall accrue and be due and payable as provided herein and
therein. Each Tranche B Note shall be due and payable as
provided herein and therein, and shall be due and payable in full
on the Tranche B Maturity Date. Subject to the terms and
conditions hereof, US Borrower may borrow, repay, and reborrow
Tranche B Loans under the US Agreement during the Tranche B
Revolving Period. US Borrower may have no more than ten
Borrowings of US Dollar Eurodollar Loans (including Tranche A
Loans and Tranche B Loans) outstanding at any time.
(c) Extension of Conversion Date.
(i) US Borrower may, at its option and from time to
time during the Tranche B Revolving Period, request an offer
to extend the Tranche B Revolving Period by delivering to US
Agent a Request for an Offer of Extension not more than
sixty days and not less than thirty days prior to the then
current Tranche B Conversion Date. US Agent shall forthwith
provide a copy of the Request for an Offer of Extension to
each of the Lenders. Upon receipt from US Agent of an
executed Request for an Offer of Extension, each Lender
shall, within twenty days after the date of such Lender's
receipt of such request from US Agent, either:
(1) notify US Agent of its acceptance of the
Request for an Offer of Extension, and the terms and
conditions, if any, upon which such Lender is prepared
to extend the Tranche B Conversion Date; or
(2) notify US Agent that the Request for an Offer
of Extension has been denied, such notice to forthwith
be forwarded by US Agent to US Borrower to allow US
Borrower to seek a replacement lender pursuant to
Section 1.1(e) (any Lender giving notice of such denial
is herein called a "Non-Accepting Lender"). The
failure of a Lender to so notify US Agent within such
twenty day period shall be deemed to be notification by
such Lender to US Agent that such Lender has denied US
Borrower's Request for an Offer of Extension.
(ii) Provided that all Lenders provide notice to US
Agent under Section 1.1(c)(i) that they accept the Request
for an Offer of Extension, or if there are Non-Accepting
Lenders, such Lenders shall have been repaid pursuant to
Section 1.1(e) or replacement lenders shall have become
parties hereto pursuant to Section 1.1(e) and shall have
accepted the Request for an Offer of Extension, such
acceptance having common terms and conditions, US Agent
shall deliver to US Borrower an Offer of Extension
incorporating the said terms and conditions. Such offer
shall be open for acceptance by US Borrower until the fifth
Business Day immediately preceding the then current Tranche
B Conversion Date. Upon written notice by US Borrower to US
Agent accepting an outstanding Offer of Extension and
agreeing to the terms and conditions, if any, specified
therein (the date of such notice of acceptance in this
Section 1.1 being called the "Extension Date"), the Tranche
B Conversion Date shall be extended to the date 364 days
from the Extension Date and the terms and conditions
specified in such Offer of Extension shall be immediately
effective.
(iii) US Borrower understands that the
consideration of any Request for an Offer of Extension
constitutes an independent credit decision which each Lender
retains the absolute and unfettered discretion to make and
that no commitment in this regard is hereby given by a
Lender and that any offer to extend the Tranche B Conversion
Date may be on such terms and conditions in addition to
those set out herein as the extending Lenders stipulate.
(d) Conversion to Tranche B Term Loan. Effective at 11:59
p.m. Dallas, Texas time on the day immediately preceding the
Tranche B Conversion Date, (i) each Lender's obligation to make
new Tranche B Loans shall be canceled automatically, and
(ii) each Lender's Tranche B Loans shall become term loans
maturing on the Tranche B Maturity Date.
(e) Non-Accepting Lender. Provided that Lenders whose
Percentage Shares represent more than 50% but less than 100% of
the US Maximum Credit Amount provide notice to US Agent under
Section 1.1(c)(i) that they accept the Request for an Offer of
Extension, on notice of US Borrower to US Agent, US Borrower
shall be entitled to choose any of the following in respect of
each Non-Accepting Lender prior to the expiration of the Tranche
B Revolving Period, provided that if US Borrower does not make an
election prior to the expiration of the Tranche B Revolving
Period, US Borrower shall be deemed to have irrevocably elected
to exercise the provisions of Section 1.1(e)(i):
(i) the Non-Accepting Lender's obligations to make US
Loans shall be canceled as of the Extension Date, the US
Maximum Credit Amount shall be reduced by the amount so
canceled, and on or prior to the Extension Date the US
Borrower shall repay in full all Obligations then
outstanding to the Non-Accepting Lender (as defined in
Section 1.1(c)(i)(2)), or
(ii) replace the Non-Accepting Lender by reaching
satisfactory arrangements with one or more existing
Lenders or new Lenders, for the purchase, assignment and
assumption of all Canadian Obligations and US Obligations of
the Non-Accepting Lender, provided that any new Lender,
with, if necessary, any Affiliate, shall take a pro rata
assignment of both Canadian Obligations and US Obligations,
and such Non-Accepting Lender shall be obligated to sell
such Obligations in accordance with such satisfactory
arrangements.
In connection with any such replacement of a Lender Party
pursuant to this Section 1.1(e), US Borrower shall pay all costs
that would have been due to such Lender Party pursuant to Section
3.6 if such Lender Party's US Loans had been prepaid at the time
of such replacement.
(f) Swing Line Loans. Subject to the terms and conditions
hereof, US Agent agrees to make loans to US Borrower (herein
called "US Swing Loans") upon US Borrower's request from time to
time during the US Facility Commitment Period, provided that (i)
the US Facility Usage shall never exceed the US Maximum Credit
Amount, and (ii) the aggregate amount of US Swing Loans
outstanding shall never exceed the US Swing Sublimit. The
aggregate amount of all US Swing Loans in any Borrowing must be
an integral multiple of US $100,000 which equals or exceeds US
$1,000,000 or must equal the unadvanced portion of the US Maximum
Credit Amount. The obligation of US Borrower to repay to US
Agent the aggregate amount of all US Swing Loans made by US
Agent, together with interest accruing in connection therewith,
shall be evidenced by a single promissory note (herein called the
"US Swing Note") made by US Borrower payable to the order of US
Agent in the form of Exhibit A-3 with appropriate insertions.
The amount of principal owing on the US Swing Note at any given
time shall be the aggregate amount of all US Swing Loans
theretofore made by US Agent minus all payments of principal
theretofore received by US Agent on the US Swing Note (including
as a result of any refinancing pursuant to Section 1.8).
Interest on the US Swing Note shall accrue and be due and payable
as provided herein and therein. The US Swing Note shall be due
and payable as provided herein and therein, and shall be due and
payable in full on the Tranche A Maturity Date. Subject to the
terms and conditions hereof, US Borrower may borrow, repay, and
reborrow US Swing Loans under the US Agreement during the US
Facility Commitment Period.
Section 1.2. Requests for New US Loans. US Borrower must
give to US Agent written notice (or telephonic notice promptly
confirmed in writing) of any requested Borrowing of new US Loans
to be advanced by Lenders. Each such notice constitutes a
"Borrowing Notice" hereunder and must:
(a) specify the aggregate amount of any such Borrowing of
new US Base Rate Loans and the date on which such US Base Rate
Loans are to be advanced, the aggregate amount of any such
Borrowing of new US Dollar Eurodollar Loans, the date on which
such US Dollar Eurodollar Loans are to be advanced (which shall
be the first day of the Eurodollar Interest Period which is to
apply thereto), and the length of the applicable Eurodollar
Interest Period, or the aggregate amount of any such Borrowing of
new US Swing Loans and the date on which such US Swing Loans are
to be advanced; and
(b) be received by US Agent (i) in the case of US Loans
that are not US Swing Loans, not later than 11:00 a.m., Dallas,
Texas time, on the day on which any such US Base Rate Loans are
to be made, or the second Business Day preceding the day on which
any such US Dollar Eurodollar Loans are to be made, and (ii) in
the case of US Loans that are US Swing Loans, not later than 4:00
p.m., Dallas, Texas time on the Business Day on which any such US
Swing Loans are to be made.
Each such written request or confirmation must be made in the
form and substance of the "Borrowing Notice" attached hereto as
Exhibit B, duly completed. Each such telephonic request shall be
deemed a representation, warranty, acknowledgment and agreement
by US Borrower as to the matters which are required to be set out
in such written confirmation. Upon receipt of any such Borrowing
Notice, US Agent shall give each Lender notice of the terms
thereof (excluding US Swing Loans) not later than 2:00 p.m.,
Dallas, Texas time on the day it receives such Borrowing Notice
from US Borrower if it receives such Borrowing Notice by 11:00
a.m., Dallas, Texas time, otherwise on the next Business Day. If
all conditions precedent to such new US Loans have been met, each
Lender will on the date requested promptly remit to US Agent at
US Agent's office in Dallas, Texas the amount of such Lender's
new US Loan in immediately available funds, and upon receipt of
such funds, unless to its actual knowledge any conditions
precedent to such US Loans have been neither met nor waived as
provided herein, US Agent shall promptly make such US Loans
available to US Borrower. Unless US Agent shall have received
prompt notice from a Lender that such Lender will not make
available to US Agent such Lender's new US Loan, US Agent may in
its discretion assume that such Lender has made such US Loan
available to US Agent in accordance with this section and US
Agent may if it chooses, in reliance upon such assumption, make
such US Loan available to US Borrower. If and to the extent such
Lender shall not so make its new US Loan available to US Agent,
such Lender and US Borrower severally agree to pay or repay to US
Agent within three days after demand the amount of such US Loan
together with interest thereon, for each day from the date such
amount was made available to US Borrower until the date such
amount is paid or repaid to US Agent, with interest at (1) the
Federal Funds Rate, if such Lender is making such payment;
provided that US Agent gave notice of the terms of the Borrowing
Notice to such Lender in accordance with the terms of this
Section 1.2, and (2) the interest rate applicable at the time to
the other new US Loans made on such date, if US Borrower is
making such repayment. If neither such Lender nor US Borrower
pays or repays to US Agent such amount within such three-day
period, US Agent shall in addition to such amount be entitled to
recover from such Lender and from US Borrower, on demand,
interest thereon at the Default Rate for US Base Rate Loans,
calculated from the date such amount was made available to US
Borrower. The failure of any Lender to make any new US Loan to
be made by it hereunder shall not relieve any other Lender of its
obligation hereunder, if any, to make its new US Loan, but no
Lender shall be responsible for the failure of any other Lender
to make any new US Loan to be made by such other Lender.
Section 1.3. Continuations and Conversions of Existing US
Loans. US Borrower may make the following elections with respect
to US Loans already outstanding under this Agreement: to convert
US Base Rate Loans to US Dollar Eurodollar Loans, to convert US
Dollar Eurodollar Loans to US Base Rate Loans on the last day of
the Eurodollar Interest Period applicable thereto, to continue US
Dollar Eurodollar Loans beyond the expiration of such Eurodollar
Interest Period by designating a new Eurodollar Interest Period
to take effect at the time of such expiration, and to convert US
Swing Loans to US Dollar Eurodollar Loans simultaneously with the
refinancing of such US Swing Loans pursuant to Section 1.8. In
making such elections, US Borrower may combine existing Tranche A
Loans made pursuant to separate Borrowings into one new Borrowing
or divide existing Tranche A Loans made pursuant to one Borrowing
into separate new Borrowings, or combine existing Tranche B Loans
made pursuant to separate Borrowings into one new Borrowing or
divide existing Tranche B Loans made pursuant to one Borrowing
into separate new Borrowings, provided that US Borrower may have
no more than ten Borrowings of US Dollar Eurodollar Loans
outstanding at any time. To make any such election, US Borrower
must give to US Agent written notice (or telephonic notice
promptly confirmed in writing) of any such Conversion or
Continuation of existing US Loans, with a separate notice given
for each new Borrowing. Each such notice constitutes a
"Continuation/Conversion Notice" hereunder and must:
(a) specify the existing US Loans made under this Agreement
which are to be continued or converted and whether such US Loans
are Tranche A Loans or Tranche B Loans;
(b) specify the aggregate amount of any Borrowing of US
Base Rate Loans into which such existing US Loans are to be
continued or converted and the date on which such Continuation or
Conversion is to occur, or the aggregate amount of any Borrowing
of US Dollar Eurodollar Loans into which such existing US Dollar
Eurodollar Loans are to be continued or converted, the date on
which such Continuation or Conversion is to occur (which shall be
the first day of the Eurodollar Interest Period which is to apply
to such US Dollar Eurodollar Loans), and the length of the
applicable Eurodollar Interest Period; and
(c) be received by US Agent not later than 10:00 a.m.,
Dallas, Texas time, on the day on which any such Continuation or
Conversion to US Base Rate Loans is to occur, or the second
Business Day preceding the day on which any such Continuation or
Conversion to US Dollar Eurodollar Loans is to occur.
Each such written request or confirmation must be made in the
form and substance of the "Continuation/Conversion Notice"
attached hereto as Exhibit C, duly completed. Each such
telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by US Borrower as to the matters
which are required to be set out in such written confirmation.
Upon receipt of any such Continuation/Conversion Notice, US Agent
shall give each Lender prompt notice of the terms thereof. Each
Continuation/Conversion Notice shall be irrevocable and binding
on US Borrower. During the continuance of any Default, US
Borrower may not make any election to convert existing US Loans
made under this Agreement into US Dollar Eurodollar Loans or
continue existing US Loans made under this Agreement as US Dollar
Eurodollar Loans. If (due to the existence of a Default or for
any other reason) US Borrower fails to timely and properly give
any Continuation/Conversion Notice with respect to a Borrowing of
existing US Dollar Eurodollar Loans at least two Business Days
prior to the end of the Eurodollar Interest Period applicable
thereto, such US Dollar Eurodollar Loans shall automatically be
converted into US Base Rate Loans at the end of such Eurodollar
Interest Period. No new funds shall be repaid by US Borrower or
advanced by any Lender in connection with any Continuation or
Conversion of existing US Loans pursuant to this section, and no
such Continuation or Conversion shall be deemed to be a new
advance of funds for any purpose; such Continuations and
Conversions merely constitute a change in the interest rate
applicable to already outstanding US Loans.
Section 1.4. Use of Proceeds. US Borrower shall use all
US Loans made under this Agreement to pay in full on the Closing
Date all indebtedness outstanding under the Existing US Agreement
and the PennzEnergy Agreement and thereafter to refinance
existing indebtedness (including any commercial paper issued by
or for the account of US Borrower), to finance capital
expenditures, to refinance Matured US LC Obligations outstanding
under this Agreement, and provide working capital for its
operations and for other general business purposes. US Borrower
shall use all Letters of Credit for its general corporate
purposes. In no event shall the funds from any US Loan or any
Letter of Credit be used directly or indirectly by any Person for
personal, family, household or agricultural purposes or for the
purpose, whether immediate, incidental or ultimate, of
purchasing, acquiring or carrying any "margin stock" (as such
term is defined in Regulation U promulgated by the Board of
Governors of the Federal Reserve System) or to extend credit to
others directly or indirectly for the purpose of purchasing or
carrying any such margin stock. US Borrower represents and
warrants that US Borrower is not engaged principally, or as one
of US Borrower's important activities, in the business of
extending credit to others for the purpose of purchasing or
carrying such margin stock.
Section 1.5. Interest Rates and Fees.
(a) Tranche A Loans. The following interest and fees shall
be payable with respect to Tranche A Loans:
(i) Interest. Each Tranche A Loan that is a US Base
Rate Loan shall bear interest on each day outstanding at the
US Base Rate in effect on such day. Each Tranche A Loan
that is a US Dollar Eurodollar Loan shall bear interest on
each day during the related Eurodollar Interest Period at
the related Adjusted US Dollar Eurodollar Rate in effect on
such day.
(ii) Facility Fees. In consideration of each Lender's
commitment to make Tranche A Loans under this Agreement, US
Borrower will pay to US Agent for the account of each Lender
a facility fee determined on a daily basis by applying the
Facility Fee Rate to such Lender's Percentage Share of the
Tranche A Maximum Credit Amount on each day during the US
Facility Commitment Period. This facility fee shall be due
and payable in arrears on the last day of each Fiscal
Quarter and at the end of the US Facility Commitment Period.
(b) Tranche B Loans. The following interest and fees shall
be payable with respect to Tranche B Loans:
(i) Interest. Each Tranche B Loan that is a US Base
Rate Loan shall bear interest on each day outstanding at the
US Base Rate in effect on such day. Each Tranche B Loan
that is a US Dollar Eurodollar Loan shall bear interest on
each day during the related Eurodollar Interest Period at
the related Adjusted US Dollar Eurodollar Rate in effect on
such day.
(ii) Facility Fees. In consideration of each Lender's
commitment to make Tranche B Loans under this Agreement, US
Borrower will pay to US Agent for the account of each Lender
a facility fee determined on a daily basis by applying (i)
the Tranche B Facility Fee Rate to such Lender's Percentage
Share of the Tranche B Maximum Credit Amount on each day
during the period from the date hereof until the Tranche B
Conversion Date and (ii) the Tranche B Facility Fee Rate to
such Lender's Percentage Share of the Tranche B Facility
Usage on each day from the Tranche B Conversion Date until
the Tranche B Maturity Date. This facility fee shall be due
and payable in arrears on the last day of each Fiscal
Quarter and on the Tranche B Maturity Date.
(c) US Swing Loans. Each US Swing Loan shall bear interest
on each day outstanding at the US Swing Rate for such US Swing
Loan in effect on such day.
(d) Utilization Fees. In consideration of each Lender's
commitment to make US Loans under this Agreement, US Borrower
will pay to US Agent for the account of each Lender a utilization
fee determined on a daily basis by applying (i) a rate of 7.5
Basis Points per annum to such Lender's Percentage Share of the
US Facility Usage on each day during the term of this Agreement
that the US Facility Usage exceeds thirty-three percent (33%) of
the US Maximum Credit Amount, and (ii) a rate of 15 Basis Points
per annum to such Lender's Percentage Share of the US Facility
Usage on each day during the term of this Agreement that the US
Facility Usage exceeds sixty-six percent (66%) of the US Maximum
Credit Amount. This utilization fee shall be due and payable in
arrears on each Interest Payment Date for US Base Rate Loans and
on the date all US Obligations are repaid in full.
(e) Competitive Bid Loans. Each Competitive Bid Loan shall
bear interest on each
day outstanding at the Competitive Bid Rate for such Competitive
Bid Loan.
(f) All US Loans. Notwithstanding the foregoing, if an
Event of Default has occurred
and is continuing, all US Loans shall bear interest on each day
outstanding at the applicable Default Rate. Past due payments of
principal and interest shall bear interest at the rates and in
the manner set forth in the US Notes.
(g) US Agent's Fees. In addition to all other amounts due
to US Agent under the US Loan Documents, US Borrower will pay
fees to US Agent as described in a letter agreement dated
September 16, 1999 between US Agent and US Borrower.
Section 1.6. Prepayments.
(a) Optional Prepayments. US Borrower may, upon giving
notice to US Agent by 11:00 a.m., Dallas, Texas time on the
Business Day of prepayment, from time to time and without premium
or penalty prepay the US Notes, including Competitive Bid Notes,
in whole or in part, so long as all partial prepayments of
principal concurrently paid on the US Notes are in increments of
US $100,000 and in an aggregate amount greater than or equal to
US $200,000, and so long as US Borrower pays all amounts owing in
connection with the prepayment of any US Dollar Eurodollar Loan
owing under Section 3.6. US Agent shall give each Lender notice
thereof by 2:00 p.m. Dallas, Texas time on the date such notice
is received from US Borrower. Each prepayment of principal under
this section shall be accompanied by all interest then accrued
and unpaid on the principal so prepaid. Any principal or
interest prepaid pursuant to this section shall be in addition
to, and not in lieu of, all payments otherwise required to be
paid under the US Loan Documents at the time of such prepayment.
Unless otherwise designated by US Borrower, any prepayment of
Competitive Bid Loans shall be applied to the outstanding
Competitive Bid Loans in order of shortest maturity.
(b) Mandatory Prepayments of Tranche A Loans. If the
Tranche A Facility Usage exceeds the Tranche A Maximum Credit
Amount, US Borrower shall immediately prepay the principal of the
Tranche A Loans in an amount at least equal to such excess.
(c) Mandatory Prepayments of Tranche B Loans. If the
aggregate amount of the outstanding Tranche B Loans ever exceeds
the Tranche B Maximum Credit Amount, US Borrower shall
immediately prepay the principal of the Tranche B Loans in an
amount at least equal to such excess.
(d) Procedures. Each prepayment of principal under this
section shall
be accompanied by all interest then accrued and unpaid on the
principal so prepaid. Any principal or interest prepaid pursuant
to this section shall be in addition to, and not in lieu of, all
payments otherwise required to be paid under the US Loan
Documents at the time of such prepayment.
Section 1.7. Competitive Bid Loans.
(a) US Borrower may request that each Lender submit
Competitive Bids (on a several basis) for requested maturities of
thirty days or more to US Borrower on any Business Day during the
US Facility Commitment Period, provided that all Lenders are
requested to make a Competitive Bid on the same basis at the same
time. In order to request Competitive Bids, US Borrower shall
deliver by hand or facsimile to US Agent a Competitive Bid
Request, to be received by US Agent not later than 9:00 a.m.,
Dallas, Texas time one Business Day before the date specified for
a proposed Competitive Bid Loan. A Competitive Bid Request that
does not conform substantially to the format of Exhibit H may be
rejected in US Agent's sole discretion, and US Agent shall
promptly notify US Borrower of such rejection by facsimile.
After receiving an acceptable Competitive Bid Request, US Agent
shall no later than 12:00 noon, Dallas, Texas time on the date
such Competitive Bid Request is received by US Agent, by
facsimile deliver to Lenders an Invitation to Bid substantially
in the form of Exhibit I with respect thereto.
(b) Each Lender may, in its sole discretion, make one or
more Competitive Bids to US Agent responsive to each Competitive
Bid Request given by US Borrower. Each Competitive Bid by a
Lender must be received by US Agent by facsimile not later than
9:00 a.m., Dallas, Texas time on the date specified for a
proposed Competitive Bid Loan. Multiple bids may be accepted by
US Agent. Competitive Bids that do not conform substantially to
the format of Exhibit J may be rejected by US Agent after
conferring with, and upon the instruction of, US Borrower, and US
Agent shall notify the bidding Lender of such rejection as soon
as practicable. If any Lender shall elect not to make a
Competitive Bid, such Lender shall so notify US Agent by
facsimile not later than 9:00 a.m., Dallas, Texas time, on the
date specified for a Competitive Bid Loan; provided, however,
that failure by any Lender to give such notice shall not cause
such Lender to be obligated to make any Competitive Bid Loan and
by such failure such Lender shall be deemed to have rejected such
Competitive Bid. A Competitive Bid submitted by a Lender shall
be irrevocable.
(c) Promptly, and in no event later than 9:30 a.m., Dallas,
Texas time, on the date specified for a proposed Competitive Bid
Loan, US Agent shall notify US Borrower by facsimile of all the
Competitive Bids made, the Competitive Bid Rate and the principal
amount of each Competitive Bid Loan in respect of which a
Competitive Bid was made, and the identity of each Lender that
made each Competitive Bid. US Agent shall send a copy of all
Competitive Bids to US Borrower for its records as soon as
practicable after completion of the bidding process.
(d) US Borrower may, subject only to the provisions hereof,
accept or reject any Competitive Bid. US Borrower shall notify
US Agent by facsimile pursuant to a Competitive Bid Accept/Reject
Letter whether and to what extent US Borrower has decided to
accept or reject any or all of the Competitive Bids, not later
than 10:00 a.m., Dallas, Texas time, on the date specified for a
proposed Competitive Bid Loan; provided, however, that:
(i) the failure by US Borrower to accept or reject any
Competitive Bid within the time period specified herein
shall be deemed to be a rejection of such Competitive Bid,
(ii) the aggregate amount of the Competitive Bids
accepted by US Borrower shall not exceed the principal
amount specified in the Competitive Bid Request,
(iii) the aggregate amount of all outstanding US
Loans and US LC Obligations shall never exceed the US
Maximum Credit Amount,
(iv) if US Borrower shall accept a Competitive Bid or
Competitive Bids made at a particular Competitive Bid Rate,
but the amount of such Competitive Bid or Competitive Bids
shall cause the total amount of Competitive Bids to be
accepted by US Borrower to exceed the amount specified in
the Competitive Bid Request, then US Borrower shall accept a
portion of such Competitive Bid or Competitive Bids in an
amount equal to the amount specified in the Competitive Bid
Request less the amount of all other Competitive Bids
accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made pro rata in accordance
with the amount of each such Competitive Bid at such
Competitive Bid Rate, and
(v) no Competitive Bid shall be accepted for a
Competitive Bid Loan unless such Competitive Bid Loan is in
a minimum principal amount of US $5,000,000 or a higher
integral multiple of US $1,000,000; provided, however, that
if a Competitive Bid Loan must be in an amount less than US
$5,000,000 because of the provisions of clause (iv) above,
such Competitive Bid Loan may be for a minimum of US
$1,000,000 or any higher integral multiple thereof, and in
calculating the pro rata allocation of acceptances or
portions of multiple bids at a particular Competitive Bid
Rate pursuant to clause (iv), the amounts shall be rounded
to integral multiples of US $1,000,000 in a manner which
shall be in the sole and absolute discretion of US Borrower.
(e) Promptly on each date US Borrower accepts a Competitive
Bid, US Agent shall notify each Lender whether or not its
Competitive Bid has been accepted (and if so, in what amount and
at what Competitive Bid Rate) by facsimile transmission sent by
US Agent, and each successful bidder will thereupon become bound,
subject to the other applicable conditions hereof, to make the
Competitive Bid Loan in respect of which its Competitive Bid has
been accepted. After completing the notifications referred to in
the immediately preceding sentence, US Agent shall notify each
Lender of the aggregate principal amount of all Competitive Bids
accepted. Each Lender which is to make a Competitive Bid Loan
shall, before 11:00 a.m., Dallas, Texas time, on the borrowing
date specified in the Competitive Bid Request applicable thereto,
make available to US Agent in immediately available funds the
amount of each Competitive Bid Loan to be made by such Lender,
and US Agent shall promptly deposit such funds to an account
designated by US Borrower. As soon as practicable thereafter, US
Agent shall notify each Lender of the aggregate amount of
Competitive Bid Loans advanced, the respective Competitive Bid
Interest Periods thereof and Competitive Bid Rate applicable
thereto.
(f) The obligation of US Borrower to repay to each Lender
the aggregate amount of all Competitive Bid Loans made by such
Lender, together with interest accruing in connection therewith,
shall be evidenced by promissory notes (respectively, such
Lender's "Competitive Bid Note") made by US Borrower payable to
the order of such Lender in the form of Exhibit L, with
appropriate insertions. The amount of principal owing on any
Lender's Competitive Bid Note at any given time shall be the
aggregate amount of all Competitive Bid Loans theretofore made by
such Lender thereunder minus all payments of principal
theretofore received by such Lender thereon. Interest on each
Competitive Bid Note shall accrue and be due and payable as
provided herein and therein. US Borrower shall repay on the
final day of the Competitive Bid Interest Period of each
Competitive Bid Loan (such date being that specified by US
Borrower for repayment of such Competitive Bid Loan in the
related Competitive Bid Request and such date being no later than
six months after the date of the Competitive Bid Loan) the then
unpaid principal amount of such Competitive Bid Loan. Subject to
Section 1.6 and the payment of amounts described in Section 3.6,
US Borrower shall have the right to prepay any principal amount
of any Competitive Bid Loan.
(g) No Competitive Bid Loan shall be made within five
Business Days after the date of any other Competitive Bid Loan,
unless US Borrower and US Agent shall mutually agree otherwise.
If US Agent shall at any time elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such bid directly to
US Borrower requesting such Competitive Bid one quarter of an
hour earlier than the latest time at which the other Lenders are
required to submit their bids to US Agent.
Section 1.8. Refinancings of US Swing Loans. US Agent, at
any time in its sole and absolute discretion, may, upon notice
given to each Lender by not later than 11:30 a.m., Dallas, Texas
time, on any Business Day, request that each Lender make a
Tranche A Loan or a Tranche B Loan that is a US Base Rate Loan
(or a Tranche A Loan or a Tranche B Loan that is a US Dollar
Eurodollar Loan if requested by US Borrower in accordance with
Section 1.2) in an aggregate amount equal to its Percentage Share
of the aggregate unpaid principal amount of any outstanding US
Swing Loans for the purpose of refinancing such US Swing Loans
(in this section called a "Refinancing Loan"). In any event, not
later than 11:30 a.m., Dallas, Texas time, on the first day and
the fifteenth day of each calendar month (or if such day is not a
Business Day, on the next Business Day), US Agent will notify
each Lender of the aggregate amount of US Swing Loans which are
then outstanding and the amount of the Refinancing Loan required
to be made by each Lender to refinance such outstanding US Swing
Loans (the aggregate amount of such Refinancing Loan to be made
by each Lender shall equal such Lender's Percentage Share of such
outstanding US Swing Loans). Upon the giving of notices by US
Agent described above, each Lender shall promptly remit to US
Agent such Refinancing Loan in the manner described above in
Section 1.2, so long as (a) US Agent believed in good faith that
all conditions to making the subject US Swing Loan were satisfied
at the time such US Swing Loan was made, or (b) if the conditions
to such US Swing Loan were not satisfied, the satisfaction of
such conditions have been waived in a writing by Required Lenders
in accordance with the provisions of this Agreement
(collectively, the "Refinancing Conditions"). The proceeds of
the Refinancing Loans made pursuant to the preceding sentence
shall be paid to US Agent (and not to US Borrower) and applied to
the payment of principal of the outstanding US Swing Loans. If
and to the extent any Lender shall not so make its Refinancing
Loan, such Lender and US Borrower severally agree to pay to US
Agent (for delivery to US Swing Lender) within three days after
demand the amount of such Refinancing Loan together with interest
thereon, for each day from the date such Refinancing Loan was
required to be made until the date such amount is paid to US
Agent, with interest at (1) the Federal Funds Rate, if such
Lender is making such payment; provided that US Agent gave notice
of the terms of the Borrowing Notice to such Lender in accordance
with the terms of this Section 1.2, and (2) the interest rate
applicable at the time to the other Refinancing Loans, if US
Borrower is making such repayment. If neither such Lender nor US
Borrower pays to US Agent (for delivery to US Swing Lender) such
amount within such three-day period, US Swing Lender shall in
addition to such amount be entitled to recover from such Lender
and from US Borrower, on demand, interest thereon at the Default
Rate for US Base Rate Loans, calculated from the date such
Refinancing Loan was required to be made. Each Lender's
obligation to make Refinancing Loans pursuant to this Section
shall be absolute and unconditional and shall not be affected by
any circumstances, including, without limitation, (1) any setoff,
counterclaim, recoupment, defense or other right which such
Lender may have against US Agent, US Borrower or anyone else for
any reason whatsoever; (2) the occurrence or continuance of an
Event of Default or Default; (3) any adverse change in the
condition (financial or otherwise) of US Borrower; (4) any breach
of this Agreement by US Borrower, US Agent or any Lender, except
with respect to the Refinancing Conditions; or (5) any other
circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided, that in no event shall
a Lender be obligated to make a Refinancing Loan pursuant to this
Section if, after giving effect thereto, the outstanding
principal balance of such Lender's US Loans would exceed its
Percentage Share of the US Maximum Credit Amount. If any Lender
is prohibited by Law from making a Loan to refinance a US Swing
Loan, such Lender shall purchase from US Swing Lender a
participation in such US Swing Loan in the amount of such
Lender's refinancing obligation hereunder.
ARTICLE II - Letters of Credit
Section 2.1. Letters of Credit. Subject to the terms and
conditions hereof, US Borrower may during the US Facility
Commitment Period request US LC Issuer to issue one or more
Letters of Credit, provided that, after taking such Letter of
Credit into account:
(a) the Tranche A Facility Usage does not exceed the
Tranche A Maximum Credit Amount at such time;
(b) the aggregate amount of US LC Obligations arising from
Letters of Credit issued under this Agreement at such time does
not exceed the US LC Sublimit;
(c) the expiration date of such Letter of Credit is prior
to the end of the US Facility Commitment Period;
(d) such Letter of Credit is to be used for general
corporate purposes of US Borrower;
(e) such Letter of Credit is not directly or indirectly
used to assure payment of or otherwise support any Indebtedness
of any Person other than Indebtedness of any Restricted Person
permitted by this Agreement;
(f) the issuance of such Letter of Credit will be in
compliance with all applicable governmental restrictions,
policies, and guidelines and will not subject US LC Issuer to any
cost which is not reimbursable under Article III;
(g) the form and terms of such Letter of Credit are
acceptable to US LC Issuer in its reasonable discretion; and
(h) all other conditions in this Agreement to the issuance
of such Letter of Credit have been satisfied.
US LC Issuer will honor any such request if the foregoing
conditions (a) through (h) (in the following Section 2.2 called
the "LC Conditions") have been met as of the date of issuance of
such Letter of Credit. US LC Issuer may choose to honor any such
request for any other Letter of Credit but has no obligation to
do so and may refuse to issue any other requested Letter of
Credit for any reason which US LC Issuer in its sole discretion
deems relevant. Upon the execution and delivery of this
Agreement by each of the parties hereto, any letters of credit
issued under the Existing Agreement and outstanding as of the
date hereof shall be deemed Letters of Credit issued hereunder as
of the date hereof and shall be subject to the terms and
conditions hereof, including without limitation US Borrower's
reimbursement obligations under Section 2.3 and Lenders'
participation obligations under Section 2.3.
Section 2.2. Requesting Letters of Credit. US Borrower
must make written application for any Letter of Credit at least
three Business Days before the date on which US Borrower desires
for US LC Issuer to issue such Letter of Credit. By making any
such written application US Borrower shall be deemed to have
represented and warranted that the LC Conditions described in
Section 2.1 will be met as of the date of issuance of such Letter
of Credit. Each such written application for a Letter of Credit
must be made in writing in the form and substance of Exhibit G,
the terms and provisions of which are hereby incorporated herein
by reference (or in such other form as may mutually be agreed
upon by US LC Issuer and US Borrower). Two Business Days after
the LC Conditions for a Letter of Credit have been met as
described in Section 2.1 (or if US LC Issuer otherwise desires to
issue such Letter of Credit), US LC Issuer will issue such Letter
of Credit at US LC Issuer's office in Dallas, Texas. If any
provisions of any LC Application conflict with any provisions of
this Agreement, the provisions of this Agreement shall govern and
control.
Section 2.3. Reimbursement and Participations.
(a) Reimbursement by US Borrower. If the beneficiary of
any Letter of Credit issued hereunder makes a draft or other
demand for payment thereunder then Tranche A Loans that are US
Base Rate Loans shall be made by Lenders to US Borrower in the
amount of such draft or demand notwithstanding the fact that one
or more conditions precedent to the making of such US Base Rate
Loans may not have been satisfied. Such US Base Rate Loans shall
be made concurrently with US LC Issuer's payment of such draft or
demand without any request therefor by US Borrower and shall be
immediately used by US LC Issuer to repay the amount of the
resulting Matured US LC Obligation.
(b) Participation by Lenders. US LC Issuer irrevocably
agrees to grant and hereby grants to each Lender, and to induce
US LC Issuer to issue Letters of Credit hereunder, each Lender
irrevocably agrees to accept and purchase and hereby accepts and
purchases from US LC Issuer, on the terms and conditions
hereinafter stated and for such Lender's own account and risk, an
undivided interest equal to such Lender's Percentage Share of US
LC Issuer's obligations and rights under each Letter of Credit
issued hereunder and the amount of each Matured US LC Obligation
paid by US LC Issuer thereunder. Each Lender unconditionally and
irrevocably agrees with US LC Issuer that, if a Matured US LC
Obligation is paid under any Letter of Credit issued hereunder
for which US LC Issuer is not reimbursed in full, whether
pursuant to Section 2.3(a) above or otherwise, such Lender shall
(in all circumstances and without set-off or counterclaim) pay to
US LC Issuer on demand, in immediately available funds at US LC
Issuer's address for notices hereunder, such Lender's Percentage
Share of such Matured US LC Obligation (or any portion thereof
which has not been reimbursed by US Borrower). Each Lender's
obligation to pay US LC Issuer pursuant to the terms of this
subsection is irrevocable and unconditional. If any amount
required to be paid by any Lender to US LC Issuer pursuant to
this subsection is paid by such Lender to US LC Issuer within
three Business Days after the date such payment is due, US LC
Issuer shall in addition to such amount be entitled to recover
from such Lender, on demand, interest thereon calculated from
such due date at the Federal Funds Rate. If any amount required
to be paid by any Lender to US LC Issuer pursuant to this
subsection is not paid by such Lender to US LC Issuer within
three Business Days after the date such payment is due, US LC
Issuer shall in addition to such amount be entitled to recover
from such Lender, on demand, interest thereon calculated from
such due date at the Default Rate.
(c) Distributions to Participants. Whenever US LC Issuer
has in accordance with this section received from any Lender
payment of such Lender's Percentage Share of any Matured US LC
Obligation, if US LC Issuer thereafter receives any payment of
such Matured US LC Obligation or any payment of interest thereon
(whether directly from US Borrower or by application of LC
Collateral or otherwise, and excluding only interest for any
period prior to US LC Issuer's demand that such Lender make such
payment of its Percentage Share), US LC Issuer will distribute to
such Lender its Percentage Share of the amounts so received by US
LC Issuer; provided, however, that if any such payment received
by US LC Issuer must thereafter be returned by US LC Issuer, such
Lender shall return to US LC Issuer the portion thereof which US
LC Issuer has previously distributed to it.
(d) Calculations. A written advice setting forth in
reasonable detail the amounts owing under this section, submitted
by US LC Issuer to US Borrower or any Lender from time to time,
shall be conclusive, absent manifest error, as to the amounts
thereof.
Section 2.4. Letter of Credit Fees. In consideration of
US LC Issuer's issuance of any Letter of Credit, US Borrower
agrees to pay (a) to US LC Issuer for its own account, a letter
of credit fronting fee at a rate equal to 12.5 Basis Points per
annum multiplied by the face amount of such Letter of Credit,
payable on the date of issuance, and (b) to US Agent, for the
account of all Lenders in accordance with their respective
Percentage Shares, a letter of credit issuance fee calculated by
applying the Applicable Margin to the face amount of all Letters
of Credit outstanding on each day, payable in arrears on the last
day of each Fiscal Quarter.
Section 2.5. No Duty to Inquire.
(a) Drafts and Demands. US LC Issuer is authorized and
instructed to accept and pay drafts and demands for payment under
any Letter of Credit without requiring, and without
responsibility for, any determination as to the existence of any
event giving rise to said draft, either at the time of acceptance
or payment or thereafter. US LC Issuer is under no duty to
determine the proper identity of anyone presenting such a draft
or making such a demand (whether by tested telex or otherwise) as
the officer, representative or agent of any beneficiary under any
Letter of Credit, and payment by US LC Issuer to any such
beneficiary when requested by any such purported officer,
representative or agent is hereby authorized and approved. US
Borrower releases each Lender Party from, and agrees to hold each
Lender Party harmless and indemnified against, any liability or
claim in connection with or arising out of the subject matter of
this section, which indemnity shall apply whether or not any such
liability or claim is in any way or to any extent caused, in
whole or in part, by any negligent act or omission of any kind by
any Lender Party, provided only that no Lender Party shall be
entitled to indemnification for that portion, if any, of any
liability or claim which is proximately caused by its own
individual gross negligence or willful misconduct, as determined
in a final judgment.
(b) Extension of Maturity. If the maturity of any Letter
of Credit is extended by its terms or by Law or governmental
action, if any extension of the maturity or time for presentation
of drafts or any other modification of the terms of any Letter of
Credit is made at the request of any Restricted Person, or if the
amount of any Letter of Credit is increased at the request of any
Restricted Person, this Agreement shall be binding upon all
Restricted Persons with respect to such Letter of Credit as so
extended, increased or otherwise modified, with respect to drafts
and property covered thereby, and with respect to any action
taken by US LC Issuer, US LC Issuer's correspondents, or any
Lender Party in accordance with such extension, increase or other
modification.
(c) Transferees of Letters of Credit. If any Letter of
Credit provides that it is transferable, US LC Issuer shall have
no duty to determine the proper identity of anyone appearing as
transferee of such Letter of Credit, nor shall US LC Issuer be
charged with responsibility of any nature or character for the
validity or correctness of any transfer or successive transfers,
and payment by US LC Issuer to any purported transferee or
transferees as determined by US LC Issuer is hereby authorized
and approved, and US Borrower releases each Lender Party from,
and agrees to hold each Lender Party harmless and indemnified
against, any liability or claim in connection with or arising out
of the foregoing, which indemnity shall apply whether or not any
such liability or claim is in any way or to any extent caused, in
whole or in part, by any negligent act or omission of any kind by
any Lender Party, provided only that no Lender Party shall be
entitled to indemnification for that portion, if any, of any
liability or claim which is proximately caused by its own
individual gross negligence or willful misconduct, as determined
in a final judgment.
Section 2.6. LC Collateral.
(a) US LC Obligations in Excess of US Maximum Credit
Amount. If, after the making of all mandatory prepayments
required under Section 1.6(b), the US LC Obligations outstanding
under the US Agreement will exceed the Tranche A Maximum Credit
Amount, then in addition to prepayment of the entire principal
balance of the US Loans US Borrower will immediately pay to US LC
Issuer an amount equal to such excess. US LC Issuer will hold
such amount as security for the remaining US LC Obligations
outstanding under the US Agreement (all such amounts held as
security for US LC Obligations being herein collectively called
"LC Collateral") and the other US Obligations, and such
collateral may be applied from time to time to any Matured US LC
Obligations or other US Obligations which are due and payable.
Neither this subsection nor the following subsection shall,
however, limit or impair any rights which US LC Issuer may have
under any other document or agreement relating to any Letter of
Credit, LC Collateral or US LC Obligation, including any LC
Application, or any rights which any Lender Party may have to
otherwise apply any payments by US Borrower and any LC Collateral
under Section 3.1.
(b) Acceleration of US LC Obligations. If the US
Obligations or any part thereof become immediately due and
payable pursuant to Section 8.1 then, unless Required Lenders
otherwise specifically elect to the contrary (which election may
thereafter be retracted by Required Lenders at any time), all US
LC Obligations shall become immediately due and payable without
regard to whether or not actual drawings or payments on the
Letters of Credit have occurred, and US Borrower shall be
obligated to pay to US LC Issuer immediately an amount equal to
the aggregate US LC Obligations which are then outstanding.
(c) Investment of LC Collateral. Pending application
thereof, all LC Collateral shall be invested by US LC Issuer in
such Investments as US LC Issuer may choose in its sole
discretion. All interest on (and other proceeds of) such
Investments shall be reinvested or applied to Matured US LC
Obligations or other US Obligations which are due and payable.
When all US Obligations have been satisfied in full, including
all US LC Obligations, all Letters of Credit have expired or been
terminated, and all of US Borrower's reimbursement obligations in
connection therewith have been satisfied in full, US LC Issuer
shall release any remaining LC Collateral. US Borrower hereby
assigns and grants to US LC Issuer a continuing security interest
in all LC Collateral paid by it to US LC Issuer, all Investments
purchased with such LC Collateral, and all proceeds thereof to
secure its Matured US LC Obligations and the other US Obligations
hereunder, each US Note, and the other US Loan Documents. US
Borrower further agrees that US LC Issuer shall have all of the
rights and remedies of a secured party under the Uniform
Commercial Code as adopted in the State of Texas with respect to
such security interest and that an Event of Default under this
Agreement shall constitute a default for purposes of such
security interest. When US Borrower is required to provide LC
Collateral for any reason and fails to do so on the day when
required, US LC Issuer may without notice to US Borrower or any
other Restricted Person provide such LC Collateral (whether by
transfers from other accounts maintained with US LC Issuer, or
otherwise) using any available funds of US Borrower or any other
Person also liable to make such payments.
ARTICLE III - Payments to Lenders
Section 3.1. General Procedures. US Borrower will make
each payment which it owes under the US Loan Documents to US
Agent for the account of the Lender Party to whom such payment is
owed, in lawful money of the United States of America, without
set-off, deduction or counterclaim, and in immediately available
funds. Each such payment must be received by US Agent not later
than 11:00 a.m., Dallas, Texas time, on the date such payment
becomes due and payable. Any payment received by US Agent after
such time will be deemed to have been made on the next following
Business Day. Should any such payment become due and payable on
a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day, and, in
the case of a payment of principal or past due interest, interest
shall accrue and be payable thereon for the period of such
extension as provided in the US Loan Document under which such
payment is due. Each payment under a US Loan Document shall be
due and payable at the place provided therein and, if no specific
place of payment is provided, shall be due and payable at the
place of payment of US Agent's US Note. When US Agent collects
or receives money on account of the US Obligations, US Agent
shall distribute all money so collected or received by 2:00 p.m.
Dallas, Texas time on the Business Day received, if received by
11:00 a.m. Dallas, Texas time, otherwise on the day of deemed
receipt, and each Lender Party shall apply all such money so
distributed, as follows:
(a) first, for the payment of all US Obligations which are
then due (and if such money is insufficient to pay all such US
Obligations, first to any reimbursements due US Agent under
Section 6.9 or 10.4, then to any reimbursement due any other
Lender Party under Section 10.4, and then to the partial payment
of all other US Obligations then due in proportion to the amounts
thereof, or as Lender Parties shall otherwise agree);
(b) then for the prepayment of amounts owing under the US
Loan Documents (other than principal on the US Notes) if so
specified by US Borrower;
(c) then for the prepayment of principal on the US Notes,
together with accrued and unpaid interest on the principal so
prepaid; and
(d) last, for the payment or prepayment of any other US
Obligations.
All payments applied to principal or interest on any US Note
shall be applied first to any interest then due and payable, then
to principal then due and payable, and last to any prepayment of
principal and interest in compliance with Sections 1.6 and 2.1.
All distributions of amounts described in any of subsections (b),
(c) or (d) above shall be made by US Agent pro rata to each
Lender Party then owed US Obligations described in such
subsection in proportion to all amounts owed to all Lender
Parties which are described in such subsection; provided that if
any Lender then owes payments to US LC Issuer for the purchase of
a participation under Section 2.3(b) or to US Agent under Section
9.9, any amounts otherwise distributable under this section to
such Lender shall be deemed to belong to US LC Issuer, or US
Agent, respectively, to the extent of such unpaid payments, and
US Agent shall apply such amounts to make such unpaid payments
rather than distribute such amounts to such Lender.
Section 3.2. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any
applicable Law, rule, or regulation, or any change in any
applicable Law, rule, or regulation, or any change in the
interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any
Lender Party (or its Applicable Lending Office) with any request
or directive (whether or not having the force of Law) of any such
Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender Party (or its Applicable
Lending Office) to any tax, duty, or other charge with
respect to any US Dollar Eurodollar Loans or Competitive Bid
Loans, or its obligation to make US Dollar Eurodollar Loans,
or change the basis of taxation of any amounts payable to
such Lender Party (or its Applicable Lending Office) under
this Agreement or its Note in respect of any US Dollar
Eurodollar Loans or Competitive Bid Loans (other than taxes
(including franchise taxes) imposed on the overall net
income of such Lender Party by the jurisdiction in which
such Lender Party has its principal office or such
Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Adjusted US Dollar Eurodollar Rate)
relating to any extensions of credit or other assets of, or
any deposits with or other liabilities or commitments of,
such Lender Party (or its Applicable Lending Office),
including the commitment of such Lender Party hereunder; or
(iii) shall impose on such Lender Party (or its
Applicable Lending Office) or the London interbank market
any other condition affecting this Agreement or its US Notes
or any of such extensions of credit or liabilities or
commitments;
and the result of any of the foregoing is to increase the cost to
such Lender Party (or its Applicable Lending Office) of making,
converting into, continuing, or maintaining any US Dollar
Eurodollar Loans or Competitive Bid Loans or to reduce any sum
received or receivable by such Lender Party (or its Applicable
Lending Office) under this Agreement or its US Notes with respect
to any US Dollar Eurodollar Loans or Competitive Bid Loans, then
US Borrower shall pay to such Lender Party on demand such amount
or amounts as will compensate such Lender Party for such
increased cost or reduction. If any Lender Party requests
compensation by US Borrower under this Section 3.2(a), US
Borrower may, by notice to such Lender Party (with a copy to US
Agent), suspend the obligation of such Lender Party to make or
continue US Loans of the Type with respect to which such
compensation is requested, or to convert US Loans of any other
Type into US Loans of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case
the provisions of Section 3.5 shall be applicable); provided that
such suspension shall not affect the right of such Lender Party
to receive the compensation so requested.
(b) If, after the date hereof, any Lender Party shall have
determined that the adoption of any applicable Law, rule, or
regulation regarding capital adequacy or any change therein or in
the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the
force of Law) of any such Governmental Authority, central bank,
or comparable agency, has or would have the effect of reducing
the rate of return on the capital of such Lender Party or any
corporation controlling such Lender Party as a consequence the
obligations of such Lender Party hereunder to a level below that
which such Lender Party or such corporation could have achieved
but for such adoption, change, request, or directive (taking into
consideration its policies with respect to capital adequacy),
then from time to time upon demand US Borrower shall pay such
Lender Party such additional amount or amounts as will compensate
such Lender Party for such reduction, but only to the extent that
such Lender Party has not been compensated therefor by any
increase in the Adjusted US Dollar Eurodollar Rate; provided that
if such Lender Party fails to give notice to US Borrower of any
additional costs within ninety (90) days after it has actual
knowledge thereof, such Lender Party shall not be entitled to
compensation for such additional costs incurred more than ninety
(90) days prior to the date on which notice is given by such
Lender Party.
(c) US LC Issuer and each Lender Party shall promptly
notify US Borrower and US Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle US
LC Issuer or such Lender Party to compensation pursuant to this
Section and will designate a different Applicable Lending Office
if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of such
Lender Party, be otherwise disadvantageous to it. US LC Issuer
or any Lender Party claiming compensation under this Section
shall furnish to US Borrower and US Agent a statement setting
forth the additional amount or amounts to be paid to it hereunder
which shall be conclusive in the absence of manifest error. In
determining such amount, US LC Issuer or such Lender Party shall
act in good faith and may use any reasonable averaging and
attribution methods.
Section 3.3. Limitation on Types of US Loans. If on or
prior to the first day of any Eurodollar Interest Period for any
US Dollar Eurodollar Loan:
(a) US Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the US Dollar Eurodollar Rate for such Eurodollar
Interest Period; or
(b) the Required Lenders determine (which determination
shall be conclusive) and notify US Agent that the Adjusted US
Dollar Eurodollar Rate will not adequately and fairly reflect the
cost to the Lenders of funding US Dollar Eurodollar Loans or for
such Eurodollar Interest Period;
then US Agent shall give US Borrower prompt notice thereof
specifying the relevant amounts or periods, and so long as such
condition remains in effect, the Lender Parties shall be under no
obligation to make additional US Dollar Eurodollar Loans,
continue US Dollar Eurodollar Loans or convert US Base Rate Loans
into US Dollar Eurodollar Loans, and US Borrower shall, on the
last day(s) of the then current Eurodollar Interest Period(s) for
the outstanding US Dollar Eurodollar Loans, either prepay such US
Loans or convert such US Loans into US Base Rate Loans in
accordance with the terms of this Agreement.
Section 3.4. Illegality. Notwithstanding any other
provision of this Agreement, in the event that it becomes
unlawful for any Lender Party or its Applicable Lending Office to
make, maintain, or fund US Dollar Eurodollar Loans hereunder,
then such Lender Party shall promptly notify US Borrower thereof
and such Lender Party's obligation to make or continue US Dollar
Eurodollar Loans and to convert US Base Rate Loans into US Dollar
Eurodollar Loans shall be suspended until such time as such
Lender Party may again make, maintain, and fund US Dollar
Eurodollar Loans (in which case the provisions of Section 3.5
shall be applicable).
Section 3.5. Treatment of Affected US Loans. If the
obligation of any Lender Party to make a particular Type of Loan
or to continue, or to convert US Loans of any other Type into, US
Loans of a particular Type shall be suspended pursuant to
Sections 3.2, 3.3 or 3.4 hereof (US Loans of such Type being
herein called "Affected Loans" and such Type being herein called
the "Affected Type"), such Lender Party's Affected Loans shall be
automatically converted into US Base Rate Loans on the last
day(s) of the then current Interest Period(s) for Affected Loans
(or, in the case of a Conversion required by Section 3.4 hereof,
on such earlier date as such Lender Party may specify to US
Borrower with a copy to US Agent) and, unless and until such
Lender Party gives notice as provided below that the
circumstances specified in Sections 3.2, 3.3 or 3.4 hereof that
gave rise to such Conversion no longer exist:
(a) to the extent that such Lender Party's Affected Loans
have been so converted, all payments and prepayments of principal
that would otherwise be applied to such Lender Party's Affected
Loans shall be applied instead to its US Base Rate Loans; and
(b) all US Loans that would otherwise be made or continued
by such Lender Party as US Loans of the Affected Type shall be
made or continued instead as US Base Rate Loans, and all US Loans
of such Lender Party that would otherwise be converted into US
Loans of the Affected Type shall be converted instead into (or
shall remain as) US Base Rate Loans.
If such Lender Party gives notice to US Borrower (with a copy to
US Agent) that the circumstances specified in Section 3.2, 3.3 or
3.4 hereof that gave rise to the Conversion of such Lender
Party's Affected Loans pursuant to this Section no longer exist
(which such Lender Party agrees to do promptly upon such
circumstances ceasing to exist) at a time when US Loans of the
Affected Type made by other Lender Parties are outstanding, such
Lender Party's US Base Rate Loans shall be automatically
converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding US Loans of the Affected Type, to
the extent necessary so that, after giving effect thereto, all US
Loans held by the Lender Parties holding US Loans of the Affected
Type and by such Lender Party are held pro rata (as to principal
amounts, Types, and Interest Periods) in accordance with their
Percentage Shares of the US Maximum Credit Amount.
Section 3.6. Compensation. Upon the request of any Lender
Party, US Borrower shall pay to such Lender Party such amount or
amounts as shall be sufficient (in the reasonable opinion of such
Lender Party) to compensate it for any loss, cost, or expense
(including loss of anticipated profits) incurred by it as a
result of:
(a) any payment, prepayment, or Conversion of a US Dollar
Eurodollar Loan for any reason (including, without limitation,
the acceleration of the US Loans pursuant to Section 8.1) on a
date other than the last day of the Interest Period for such US
Loan; or
(b) any failure by US Borrower for any reason (including,
without limitation, the failure of any condition precedent
specified in Article IV to be satisfied) to borrow, convert,
continue, or prepay a US Dollar Eurodollar Loan on the date for
such borrowing, Conversion, Continuation, or prepayment specified
in the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Agreement.
Section 3.7. Change of Applicable Lending Office. Each
Lender Party agrees that, upon the occurrence of any event giving
rise to the operation of Sections 3.2 through 3.5 with respect to
such Lender Party, it will, if requested by US Borrower, use
reasonable efforts (subject to overall policy considerations of
such Lender Party) to designate another Applicable Lending
Office, provided that such designation is made on such terms that
such Lender Party and its Applicable Lending Office suffer no
economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the
operation of any such section. Nothing in this section shall
affect or postpone any of the obligations of US Borrower or the
rights of any Lender Party provided in Sections 3.2 through 3.5.
Section 3.8. Replacement of Lenders. If any Lender Party
seeks reimbursement for increased costs under Sections 3.2
through 3.5, or if a US Borrower is required to increase any such
payment under Section 3.9, then within ninety days thereafter --
provided no Event of Default then exists -- US Borrower shall
have the right (unless such Lender Party withdraws its request
for additional compensation) to replace such Lender Party by
requiring such Lender Party to assign its US Loans, US Notes, US
LC Obligations, Canadian Advances, Canadian Notes, Canadian LC
Obligations and its commitments hereunder and under the Canadian
Agreement to an Eligible Transferee reasonably acceptable to all
Borrowers, provided that: (a) all Obligations of Borrowers owing
to such Lender Party being replaced (including such increased
costs, but excluding principal and accrued interest on the US
Notes and the Canadian Notes being assigned) shall be paid in
full to such Lender Party concurrently with such assignment, and
(b) the replacement Eligible Transferee shall purchase the
foregoing by paying to such Lender Party a price equal to the
principal amount thereof plus accrued and unpaid interest
thereon. In connection with any such assignment US Borrower, US
Agent, such Lender Party and the replacement Eligible Transferee
shall otherwise comply with Section 10.5. Notwithstanding the
foregoing rights of US Borrower under this section, however, US
Borrower may not replace any Lender Party which seeks
reimbursement for increased costs under Section 3.2 through 3.5
unless US Borrower is at the same time replacing all Lender
Parties which are then seeking such compensation. In connection
with any such replacement of a Lender Party, US Borrower shall
pay all costs that would have been due to such Lender Party
pursuant to Section 3.6 if such Lender Party's US Loans had been
prepaid at the time of such replacement.
Section 3.9. Taxes. (a) Any and all payments by US
Borrower to or for the account of any Lender Party, US Agent or
US LC Issuer hereunder or under any other US Loan Document shall
be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender Party, taxes
imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the Laws of which such Lender Party (or its
Applicable Lending Office) is organized or is a resident for tax
purposes or any political subdivision thereof (all such non-
excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter in this section
3.9 referred to as "Taxes"). If US Borrower shall be required by
Law to deduct any Taxes from or in respect of any sum payable
under this Agreement or any other US Loan Document to any Lender
Party, (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this section) such
Lender Party receives an amount equal to the sum it would have
received had no such deductions been made, (ii) US Borrower shall
make such deductions, and (iii) US Borrower shall pay the full
amount deducted to the relevant taxation authority or other
authority in accordance with applicable Law.
(b) In addition, US Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise
or property taxes or charges or similar levies which arise from
any payment made under this Agreement or any other US Loan
Document or from the execution or delivery of, or otherwise with
respect to, this Agreement or any other US Loan Document
(hereinafter in this Section 3.9 referred to as "Other Taxes").
(c) US Borrower agrees to indemnify each Lender Party, US
Agent and US LC Issuer for the full amount of Taxes and Other
Taxes (including, without limitation, any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under
this section) paid by such Lender Party or US Agent (as the case
may be) and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto.
(d) Each Lender Party organized under the Laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Lender Party listed on the signature pages hereof and on or
prior to the date on which it becomes a Lender Party in the case
of each other Lender Party, and from time to time thereafter if
requested in writing by US Borrower or US Agent (but only so long
as such Lender Party remains lawfully able to do so), shall
provide US Borrower and US Agent with a properly executed
(i) Internal Revenue Service Form 1001 or 4224, as appropriate,
or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender Party is entitled to benefits under
an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement
is effectively connected with the conduct of a trade or business
in the United States, (ii0 Internal Revenue Service Form W-8 or W-
9, as appropriate, or any successor form prescribed by the
Internal Revenue Service, and (iii) any other form or certificate
required by any taxing authority (including any certificate
required by Sections 871(h) and 881(c) of the Internal Revenue
Code), certifying that such Lender Party is entitled to an
exemption from or a reduced rate of tax on payments pursuant to
this Agreement or any of the other US Loan Documents.
(e) For any period with respect to which a Lender Party has
failed to provide US Borrower and US Agent with the appropriate
form pursuant to Section 3.9(d) (unless such failure is due to a
change in treaty, Law, or regulation occurring subsequent to the
date on which a form originally was required to be provided),
such Lender Party shall not be entitled to indemnification under
Sections 3.9(a), 3.9(b) or 3.9(c) with respect to Taxes imposed
by the United States; provided, however, that should a Lender
Party, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its
failure to deliver a form required hereunder, US Borrower shall
take such steps as such Lender Party shall reasonably request to
assist such Lender Party to recover such Taxes. Further, US
Borrower shall not be required to indemnify such Lender Party for
any withholding taxes which US Borrower is required to withhold
and remit in respect of any principal, interest or other amount
paid or payable by US Borrower to or for account of any Lender
Party hereunder or under any other US Loan Document.
(f) If US Borrower is required to pay additional amounts to
or for the account of any Lender Party pursuant to this Section,
then such Lender Party will agree to use reasonable efforts to
change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender
Party, is not otherwise disadvantageous to such Lender Party and
in the event Lender Party is reimbursed for an amount paid by US
Borrower pursuant to this Section, it shall promptly return such
amount to US Borrower.
(g) Within thirty (30) days after the date of any payment
of Taxes, US Borrower shall furnish to US Agent the original or a
certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other
agreement of US Borrower hereunder, the agreements and
obligations of US Borrower contained in this section shall
survive the termination of the US Facility Commitment Period and
the payment in full of the US Notes.
Section 3.10. Currency Conversion and Currency Indemnity.
(a) Restricted Persons shall make payment relative to any
US Obligation in the currency (the "Agreed Currency") in which
the US Obligation was incurred. If any payment is received on
account of any US Obligation in any currency (the "Other
Currency") other than the Agreed Currency (whether voluntarily or
pursuant to an order or judgment or the enforcement thereof or
the realization of any security or the liquidation of such
Restricted Person or otherwise howsoever), such payment shall
constitute a discharge of the liability of a Restricted Person
hereunder and under the other US Loan Documents in respect of
such US Obligation only to the extent of the amount of the Agreed
Currency which the relevant Lender Parties are able to purchase
with the amount of the Other Currency received by it on the
Business Day next following such receipt in accordance with its
normal procedures and after deducting any premium and costs of
exchange.
(b) If, for the purpose of obtaining or enforcing judgment
in any court in any jurisdiction, it becomes necessary to convert
into a particular currency (the "Judgment Currency") any amount
due in the Agreed Currency then the conversion shall be made on
the basis of the rate of exchange prevailing on the next Business
Day following the date such judgment is given and in any event
each Restricted Person shall be obligated to pay the Lender
Parties any deficiency in accordance with Section 3.10(c). For
the foregoing purposes "rate of exchange" means the rate at which
the relevant Lender Parties, as applicable, in accordance with
their normal banking procedures are able on the relevant date to
purchase the Agreed Currency with the Judgment Currency after
deducting any premium and costs of exchange.
(c) If (i) any Lender Party receives any payment or
payments on account of the liability of a Restricted Person
hereunder pursuant to any judgment or order in any Other
Currency, and (ii) the amount of the Agreed Currency which the
relevant Lender Party is able to purchase on the Business Day
next following such receipt with the proceeds of such payment or
payments in accordance with its normal procedures and after
deducting any premiums and costs of exchange is less than the
amount of the Agreed Currency due in respect of such US
Obligations immediately prior to such judgment or order, then US
Borrower on demand shall, and US Borrower hereby agrees to,
indemnify and save such Lender Party harmless from and against
any loss, cost or expense arising out of or in connection with
such deficiency. The agreement of indemnity provided for in this
Section 3.10(c) shall constitute an obligation separate and
independent from all other obligations contained in this
Agreement, shall give rise to a separate and independent cause of
action, shall apply irrespective of any indulgence granted by the
Lender Parties or any of them from time to time, and shall
continue in full force and effect notwithstanding any judgment or
order for a liquidated sum in respect of an amount due hereunder
or under any judgment or order.
ARTICLE IV - Conditions Precedent to Lending
Section 4.1. Documents to be Delivered. No Lender has any
obligation to make its first US Loan, and US LC Issuer has no
obligation to issue the first Letter of Credit, unless US Agent
shall have received all of the following, at US Agent's office in
Dallas, Texas, duly executed and delivered and in form, substance
and date satisfactory to US Agent:
(a) This Agreement and any other documents that Lenders are
to execute in connection herewith.
(b) Each US Note.
(c) Certain certificates of US Borrower including:
(i) An "Omnibus Certificate" of the Secretary or
Assistant Secretary and of the Chairman of the Board,
President, or Senior Vice President - Finance of US
Borrower, which shall contain the names and signatures of
the officers of US Borrower authorized to execute US Loan
Documents and which shall certify to the truth, correctness
and completeness of the following exhibits attached thereto:
(1) a copy of resolutions duly adopted by the Board of
Directors of US Borrower and in full force and effect at the
time this Agreement is entered into, authorizing the
execution of this Agreement and the other US Loan Documents
delivered or to be delivered in connection herewith and the
consummation of the transactions contemplated herein and
therein, (2) a copy of the charter documents of US Borrower
and all amendments thereto, certified by the appropriate
official of the State of Delaware, and (3) a copy of the
bylaws of US Borrower; and
(ii) A "Compliance Certificate" of the Senior Vice
President - Finance and of the Treasurer or Vice President -
Accounting of US Borrower, of even date with such US Loan or
such Letter of Credit, in which such officers certify to the
satisfaction of the conditions set out in subsections (a),
(b), and (c) of Section 4.3.
(d) certificate (or certificates) of the due formation,
valid existence and good standing of US Borrower in the State of
Delaware, issued by the appropriate official of such State.
(e) A favorable opinion of McAfee & Xxxx, a professional
corporation, counsel for Restricted Persons, substantially in the
form set forth in Exhibit E and a favorable opinion of Xxxxxxxx &
Knight L.L.P. covering the matters requested by US Agent.
(f) The Initial Financial Statements.
Section 4.2. Additional Conditions Precedent to First US
Loan or First Letter of Credit. No Lender has any obligation to
make its first US Loan, and US LC Issuer has no obligation to
issue the first Letter of Credit, unless on the date thereof:
(a) All commitment, facility, agency, legal and other fees
required to be paid or
reimbursed to any Lender pursuant to any US Loan Documents or
any commitment agreement heretofore entered into shall have been
paid.
(b) No event which would reasonably be expected to have a
Material Adverse Effect shall have occurred since June 30, 1999.
(c) US Borrower shall have certified to US Agent and
Lenders that the Initial Financial Statements fairly present US
Borrower's Consolidated financial position at the respective
dates thereof and the Consolidated results of US Borrower's
operations and US Borrower's Consolidated cash flows for the
respective periods thereof.
(d) US Borrower shall have certified to US Agent and
Lenders that no Restricted Person has any outstanding Liabilities
of any kind (including contingent obligations, tax assessments,
and unusual forward or long-term commitments) which are, in the
aggregate, material to US Borrower or material with respect to US
Borrower's Consolidated financial condition and not shown in the
Initial Financial Statements or disclosed in the Disclosure
Schedule.
(e) All legal matters relating to the US Loan Documents and
the consummation of the transactions contemplated thereby shall
be satisfactory to Xxxxxxxx & Xxxxxx L.L.P., counsel to US Agent.
Section 4.3. Additional Conditions Precedent to all US
Loan and Letters of Credit. No Lender has any obligation to make
any US Loan (including its first), and US LC Issuer has no
obligation to issue any Letter of Credit (including its first),
unless the following conditions precedent have been satisfied:
(a) All representations and warranties made by any
Restricted Person in any US Loan Document shall be true on and as
of the date of such US Loan or the date of issuance of such
Letter of Credit (except to the extent that the facts upon which
such representations are based have been changed by the extension
of credit hereunder) as if such representations and warranties
had been made as of the date of such US Loan or the date of
issuance of such Letter of Credit.
(b) No Default shall exist at the date of such US Loan or
the date of issuance of such Letter of Credit.
(c) The making of such US Loan or the issuance of such
Letter of Credit shall not be prohibited by any Law and shall not
subject any Lender or any US LC Issuer to any material penalty
under or pursuant to any such Law.
ARTICLE V - Representations and Warranties
To confirm each Lender's understanding concerning Restricted
Persons and Restricted Persons' businesses, properties and
obligations and to induce each Lender to enter into this
Agreement and to extend credit hereunder, US Borrower represents
and warrants to each Lender that:
Section 5.1. No Default. No event has occurred and is
continuing which constitutes a Default.
Section 5.2. Organization and Good Standing. Each
Restricted Person is duly organized, validly existing and in good
standing under the Laws of its jurisdiction of organization,
having all powers required to carry on its business and enter
into and carry out the transactions contemplated hereby. Each
Restricted Person is duly qualified, in good standing, and
authorized to do business in all other jurisdictions within the
United States wherein the character of the properties owned or
held by it or the nature of the business transacted by it makes
such qualification necessary except where failure to so qualify
would not have a Material Adverse Effect. Each Restricted Person
has taken all actions and procedures customarily taken in order
to enter, for the purpose of conducting business or owning
property, each jurisdiction outside the United States wherein the
character of the properties owned or held by it or the nature of
the business transacted by it makes such actions and procedures
desirable except where failure to so qualify would not have a
Material Adverse Effect.
Section 5.3. Authorization. US Borrower and Canadian
Borrowers have duly taken all action necessary to authorize the
execution and delivery by it of the Loan Documents to which it is
a party and to authorize the consummation of the transactions
contemplated thereby and the performance of its obligations
thereunder. US Borrower is duly authorized to borrow funds
hereunder.
Section 5.4. No Conflicts or Consents. The execution and
delivery by the various Restricted Persons of the Loan Documents
to which each is a party, the performance by each of its
obligations under such Loan Documents, and the consummation of
the transactions contemplated by the various Loan Documents, do
not and will not (i) conflict with any provision of (A) any Law,
(B) the organizational documents of any Restricted Person, or (C)
any agreement, judgment, license, order or permit applicable to
or binding upon any Restricted Person unless such conflict would
not reasonably be expected to have a Material Adverse Effect, or
(ii) result in the acceleration of any Indebtedness owed by any
Restricted Person which would reasonably be expected to have a
Material Adverse Effect, or (iii) result in or require the
creation of any Lien upon any assets or properties of any
Restricted Person which would reasonably be expected to have a
Material Adverse Effect, except as expressly contemplated or
permitted in the Loan Documents. Except as expressly
contemplated in the Loan Documents no consent, approval,
authorization or order of, and no notice to or filing with, any
Tribunal or third party is required in connection with the
execution, delivery or performance by any Restricted Person of
any Loan Document or to consummate any transactions contemplated
by the Loan Documents, unless failure to obtain such consent
would not reasonably be expected to have a Material Adverse
Effect.
Section 5.5. Enforceable Obligations. This Agreement is,
and the other Loan Documents when duly executed and delivered
will be, legal, valid and binding obligations of each Restricted
Person which is a party hereto or thereto, enforceable in
accordance with their terms except as such enforcement may be
limited by bankruptcy, insolvency or similar Laws of general
application relating to the enforcement of creditors' rights.
Section 5.6. Full Disclosure. No certificate, statement
or other information delivered herewith or heretofore by any
Restricted Person to any Lender in connection with the
negotiation of this Agreement or in connection with any
transaction contemplated hereby contains any untrue statement of
a material fact or omits to state any material fact known to any
Restricted Person (other than industry-wide risks normally
associated with the types of businesses conducted by Restricted
Persons) necessary to make the statements contained herein or
therein not misleading as of the date made or deemed made. There
is no fact known to any Restricted Person (other than
industry-wide risks normally associated with the types of
businesses conducted by Restricted Persons) that has not been
disclosed to each Lender in writing which would reasonably be
expected to have a Material Adverse Effect.
Section 5.7. Litigation. Except as disclosed in the
Initial Financial Statements or in the Disclosure Schedule:
(a) there are no actions, suits or legal, equitable, arbitrative
or administrative proceedings pending, or to the knowledge of any
Restricted Person threatened, against any Restricted Person
before any Tribunal which would reasonably be expected to have a
Material Adverse Effect, and (b) there are no outstanding
judgments, injunctions, writs, rulings or orders by any such
Tribunal against any Restricted Person which would reasonably be
expected to have a Material Adverse Effect.
Section 5.8. ERISA Plans and Liabilities. All currently
existing ERISA Plans are listed in the Disclosure Schedule.
Except as disclosed in the Initial Financial Statements or in the
Disclosure Schedule, no Termination Event has occurred with
respect to any ERISA Plan and all ERISA Affiliates are in
compliance with ERISA in all material respects. No ERISA
Affiliate is required to contribute to, or has any other absolute
or contingent liability in respect of, any "multiemployer plan"
as defined in Section 4001 of ERISA. Except as set forth in the
Disclosure Schedule: (a) no "accumulated funding deficiency" (as
defined in Section 412(a) of the Internal Revenue Code) exists
with respect to any ERISA Plan, whether or not waived by the
Secretary of the Treasury or his delegate, and (b) the current
value of each ERISA Plan's benefits does not exceed the current
value of such ERISA Plan's assets available for the payment of
such benefits by more than US $50,000,000.
Section 5.9. Environmental and Other Laws. Except as
disclosed in the Disclosure Schedule: (a) Restricted Persons are
conducting their businesses in material compliance with all
applicable Laws, including Environmental Laws, and have and are
in compliance with all licenses and permits required under any
such Laws, unless failure to so comply would not reasonably be
expected to have a Material Adverse Effect; (b) none of the
operations or properties of any Restricted Person is the subject
of federal, state or local investigation evaluating whether any
material remedial action is needed to respond to a release of any
Hazardous Materials into the environment or to the improper
storage or disposal (including storage or disposal at offsite
locations) of any Hazardous Materials, unless such remedial
action would not reasonably be expected to have a Material
Adverse Effect; and (c) no Restricted Person (and to the best
knowledge of US Borrower, no other Person) has filed any notice
under any Law indicating that any Restricted Person is
responsible for the improper release into the environment, or the
improper storage or disposal, of any material amount of any
Hazardous Materials or that any Hazardous Materials have been
improperly released, or are improperly stored or disposed of,
upon any property of any Restricted Person, unless such failure
to so comply would not reasonably be expected to have a Material
Adverse Effect.
Section 5.10. Names and Places of Business. No Restricted
Person has, during the preceding five years, had, been known by,
or used any other trade or fictitious name, except as disclosed
in the Disclosure Schedule. Except as otherwise indicated in the
Disclosure Schedule, the chief executive office and principal
place of business of each Restricted Person are (and for the
preceding five years have been) located at the address of US
Borrower set out on the signature pages hereto. Except as
indicated in the Disclosure Schedule, no Restricted Person has
any other office or place of business.
Section 5.11. US Borrower's Subsidiaries. US Borrower does
not presently have any Subsidiary or own any stock in any other
corporation or association except those listed in the Disclosure
Schedule. Neither US Borrower nor any Restricted Person is a
member of any general or limited partnership, limited liability
company, joint venture formed under the laws of the United States
or any State thereof or association of any type whatsoever except
those listed in the Disclosure Schedule and associations, joint
ventures or other relationships (a) which are established
pursuant to a standard form operating agreement or similar
agreement or which are partnerships for purposes of federal
income taxation only, (b) which are not corporations or
partnerships (or subject to the Uniform Partnership Act) under
applicable state Law, and (c) whose businesses are limited to the
exploration, development and operation of oil, gas or mineral
properties, pipelines or gathering systems and interests owned
directly by the parties in such associations, joint ventures or
relationships. US Borrower owns, directly or indirectly, the
equity interest in each of its Subsidiaries which is indicated in
the Disclosure Schedule.
Section 5.12. Title to Properties; Licenses. Each
Restricted Person has good and defensible title to all of its
material properties and assets, free and clear of all Liens other
than Permitted Liens and of all impediments to the use of such
properties and assets in such Restricted Person's business except
to the extent failure to have such title would not have a
Material Adverse Effect. Each Restricted Person possesses all
licenses, permits, franchises, patents, copyrights, trademarks
and trade names, and other intellectual property (or otherwise
possesses the right to use such intellectual property without
violation of the rights of any other Person) which are necessary
to carry out its business as presently conducted and as presently
proposed to be conducted hereafter, and no Restricted Person is
in violation in any material respect of the terms under which it
possesses such intellectual property or the right to use such
intellectual property except to the extent failure to possess
such licenses, permits, franchises, and intellectual property
would not have a Material Adverse Effect.
Section 5.13. Government Regulation. Neither US Borrower
nor any other Restricted Person owing Obligations is subject to
regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Investment Company Act of 1940 (as any
of the preceding acts have been amended) or any other Law which
regulates the incurring by such Person of Indebtedness, including
Laws relating to common contract carriers or the sale of
electricity, gas, steam, water or other public utility services.
Section 5.14. Insider. Except as disclosed on the
Disclosure Schedule, no Restricted Person, nor any Person having
"control" (as that term is defined in 12 U.S.C. 375b(9) or in
regulations promulgated pursuant thereto) of any Restricted
Person, is a "director" or an "executive officer" or "principal
shareholder" (as those terms are defined in 12 U.S.C. 375b(8)
or (9) or in regulations promulgated pursuant thereto) of any
Lender, of a bank holding company of which any Lender is a
Subsidiary or of any Subsidiary of a bank holding company of
which any Lender is a Subsidiary.
Section 5.15. Solvency. Upon giving effect to the issuance
of the US Notes, the execution of the US Loan Documents by US
Borrower and the consummation of the transactions contemplated
hereby, US Borrower will be solvent (as such term is used in
applicable bankruptcy, liquidation, receivership, insolvency or
similar Laws).
Section 5.16. Year 2000 Compliance. US Borrower has
(a) initiated a review and assessment of all areas within its and
each of its Subsidiaries' business and operations (including
those affected by suppliers and vendors) that could be adversely
affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by US Borrower and its Subsidiaries
may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after
December 31, 1999), (b) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (c) to
date, implemented that plan in accordance with that timetable.
US Borrower reasonably believes that all computer applications
(including those of its suppliers and vendors) that are material
to its or any of its Subsidiaries' business and operations will
on a timely basis be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that
is, be "Year 2000 compliant"), except to the extent that a
failure to do so would not reasonably be expected to have a
Material Adverse Effect.
ARTICLE VI - Affirmative Covenants of US Borrower
To conform with the terms and conditions under which each
Lender is willing to have credit outstanding to US Borrower, and
to induce each Lender to enter into this Agreement and extend
credit hereunder, US Borrower warrants, covenants and agrees that
until the full and final payment of the Obligations and the
termination of this Agreement, unless Required Lenders have
previously agreed otherwise:
Section 6.1. Payment and Performance. US Borrower will
pay all amounts due under the US Loan Documents in accordance
with the terms thereof and will observe, perform and comply with
every covenant, term and condition expressed or implied in the US
Loan Documents. US Borrower will cause each other Restricted
Person to observe, perform and comply with every such term,
covenant and condition in any Loan Document.
Section 6.2. Books, Financial Statements and Reports.
Each Restricted Person will at all times maintain full and
accurate books of account and records. US Borrower will maintain
and will cause its Subsidiaries to maintain a standard system of
accounting, will maintain its Fiscal Year, and will furnish the
following statements and reports to each Lender Party at US
Borrower's expense:
(a) As soon as available, and in any event within ninety
(90) days after the end of each Fiscal Year, complete
Consolidated financial statements of US Borrower together with
all notes thereto, prepared in reasonable detail in accordance
with US GAAP, together with an unqualified opinion, based on an
audit using generally accepted auditing standards, by KPMG Peat
Marwick L.L.P., or other independent certified public accountants
selected by US Borrower and acceptable to US Agent, stating that
such Consolidated financial statements have been so prepared.
These financial statements shall contain a Consolidated balance
sheet as of the end of such Fiscal Year and Consolidated
statements of earnings, of cash flows, and of changes in owners'
equity for such Fiscal Year, each setting forth in comparative
form the corresponding figures for the preceding Fiscal Year. In
addition, within ninety (90) days after the end of each Fiscal
Year US Borrower will furnish to US Agent and each Lender a
certificate in the form of Exhibit D signed by the President,
Senior Vice President - Finance, Treasurer or Vice President -
Accounting of US Borrower, stating that such financial statements
are accurate and complete, stating that such Person has reviewed
the US Loan Documents, containing all calculations required to be
made to show compliance or non-compliance with the provisions of
Sections 7.8 and 7.9, and further stating that there is no
condition or event at the end of such Fiscal Year or at the time
of such certificate which constitutes a Default and specifying
the nature and period of existence of any such condition or
event.
(b) As soon as available, and in any event within forty-
five (45) days after the end of each Fiscal Quarter, US
Borrower's Consolidated and consolidating balance sheet and
income statement as of the end of such Fiscal Quarter and a
Consolidated statement of cash flows for the period from the
beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, all in reasonable detail and prepared in
accordance with US GAAP, subject to changes resulting from normal
year-end adjustments. In addition US Borrower will, together
with each such set of financial statements, furnish a certificate
in the form of Exhibit D signed by the President, Senior Vice
President - Finance, Treasurer or Vice President - Accounting of
US Borrower stating that such financial statements are accurate
and complete (subject to normal year-end adjustments), stating
that such Person has reviewed the US Loan Documents, containing
all calculations required to be made by US Borrower to show
compliance or non-compliance with the provisions of Sections 7.8
and 7.9 and further stating that there is no condition or event
at the end of such Fiscal Quarter or at the time of such
certificate which constitutes a Default and specifying the nature
and period of existence of any such condition or event.
(c) Promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent
by any Restricted Person to its stockholders and all registration
statements, periodic reports and other statements and schedules
filed by any Restricted Person with any securities exchange, the
Securities and Exchange Commission or any similar Governmental
Authority, including any information or estimates with respect to
US Borrower's oil and gas business (including its exploration,
development and production activities) which are required to be
furnished in US Borrower's annual report pursuant to Sections 13
or 15(d) of the Securities Exchange Act of 1934, as amended.
Section 6.3. Other Information and Inspections. Each
Restricted Person will furnish to each Lender any information
which US Agent may from time to time reasonably request
concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with Restricted Persons'
businesses and operations. Each Restricted Person will permit
representatives appointed by US Agent (including independent
accountants, auditors, agents, attorneys, appraisers and any
other Persons) to visit and inspect upon prior written notice
during normal business hours any of such Restricted Person's
property, including its books of account, other books and
records, and any facilities or other business assets, and to make
extra copies therefrom and photocopies and photographs thereof,
and to write down and record any information such representatives
obtain, and each Restricted Person shall permit US Agent or its
representatives to investigate and verify the accuracy of the
information furnished to US Agent or any Lender in connection
with the Loan Documents and to discuss all such matters with its
officers, employees and representatives.
Section 6.4. Notice of Material Events and Change of
Address. US Borrower will promptly notify each Lender in
writing, stating that such notice is being given pursuant to this
Agreement, of:
(a) the occurrence of any event which would have a Material
Adverse Effect,
(b) the occurrence of any Default,
(c) the acceleration of the maturity of any Indebtedness
owed by any Restricted Person having a principal balance of more
than US $50,000,000, or of any default by any Restricted Person
under any indenture, mortgage, agreement, contract or other
instrument to which any of them is a party or by which any of
them or any of their properties is bound, if such default would
have a Material Adverse Effect,
(d) the occurrence of any Termination Event,
(e) any claim of US $50,000,000 or more, any notice of
potential liability under any Environmental Laws which might
exceed such amount, or any other material adverse claim asserted
against any Restricted Person or with respect to any Restricted
Person's properties, and
(f) the filing of any suit or proceeding against any
Restricted Person in which an adverse decision would have a
Material Adverse Effect.
US Borrower will also notify US Agent and US Agent's counsel in
writing promptly in the event that any Restricted Person changes
its name or the location of its chief executive office.
Section 6.5. Maintenance of Properties. Each Restricted
Person will maintain, preserve, protect, and keep all property
used or useful in the conduct of its business in good condition,
and will from time to time make all repairs, renewals and
replacements needed to enable the business and operations carried
on in connection therewith to be promptly and advantageously
conducted at all times except to the extent failure to do so
would not reasonably be expected to have a Material Adverse
Effect.
Section 6.6. Maintenance of Existence and Qualifications.
Each Restricted Person will maintain and preserve its existence
and its rights and franchises in full force and effect and will
qualify to do business in all states or jurisdictions where
required by applicable Law, except where the failure so to
qualify will not have a Material Adverse Effect.
Section 6.7. Payment of Trade Liabilities, Taxes, etc.
Each Restricted Person will (a) timely file all required tax
returns; (b) timely pay all taxes, assessments, and other
governmental charges or levies imposed upon it or upon its
income, profits or property; and (c) maintain appropriate
accruals and reserves for all of the foregoing in accordance with
US GAAP. Each Restricted Person may, however, delay paying or
discharging any of the foregoing so long as it is in good faith
contesting the validity thereof by appropriate proceedings and
has set aside on its books adequate reserves therefor.
Section 6.8. Insurance. Each Restricted Person will keep
or cause to be kept insured in accordance with industry standards
by financially sound and reputable insurers, its surface
equipment and other property of a character usually insured by
similar Persons engaged in the same or similar businesses.
Section 6.9. Performance on US Borrower's Behalf. If any
Restricted Person fails to pay any taxes, insurance premiums,
expenses, attorneys' fees or other amounts it is required to pay
under any US Loan Document, US Agent may pay the same, and shall
use its best efforts to give at least five (5) Business Days
notice to US Borrower prior to making any such payment; provided,
however, that any failure by US Agent to so notify US Borrower
shall not limit or otherwise impair US Agent's ability to make
any such payment. US Borrower shall immediately reimburse US
Agent for any such payments and each amount paid by US Agent
shall constitute an US Obligation owed hereunder which is due and
payable on the date such amount is paid by US Agent.
Section 6.10. Interest. US Borrower hereby promises to
each Lender Party to pay interest at the Default Rate applicable
to Base Rate Loans on all US Obligations (including US
Obligations to pay fees or to reimburse or indemnify any Lender)
which US Borrower has in this Agreement promised to pay to such
Lender Party and which are not paid when due. Such interest
shall accrue from the date such US Obligations become due until
they are paid.
Section 6.11. Compliance with Law. Each Restricted Person
will conduct its business and affairs in compliance with all Laws
applicable thereto except to the extent failure to do so would
not reasonably be expected to have a Material Adverse Effect.
Section 6.12. Environmental Matters.
(a) Each Restricted Person will comply in all material
respects with all Environmental Laws now or hereafter applicable
to such Restricted Person, as well as all contractual obligations
and agreements with respect to environmental remediation or other
environmental matters, and shall obtain, at or prior to the time
required by applicable Environmental Laws, all environmental,
health and safety permits, licenses and other authorizations
necessary for its operations and will maintain such
authorizations in full force and effect, unless such failure to
so comply would not reasonably be expected to have a Material
Adverse Effect.
(b) will promptly furnish to US Agent all written notices
of violation, orders, claims, citations, complaints, penalty
assessments, suits or other proceedings received by US Borrower,
or of which it has notice, pending or threatened against US
Borrower, by any Governmental Authority with respect to any
alleged violation of or non-compliance with any Environmental
Laws or any permits, licenses or authorizations in connection
with its ownership or use of its properties or the operation of
its business which involve a potential liability or claim in
excess of US $50,000,000.
Section 6.13. Bank Accounts; Offset. To secure the
repayment of the Obligations US Borrower hereby grants to each
Lender a right of offset, each of which shall be in addition to
all other interests, liens, and rights of any Lender at common
Law, under the Loan Documents, or otherwise, and each of which
shall be upon and against (a) any and all moneys, securities or
other property (and the proceeds therefrom) of US Borrower now or
hereafter held or received by or in transit to any Lender from or
for the account of US Borrower, whether for safekeeping, custody,
pledge, transmission, collection or otherwise, (b) any and all
deposits (general or special, time or demand, provisional or
final) of US Borrower with any Lender, and (c) any other credits
and claims of US Borrower at any time existing against any
Lender, including claims under certificates of deposit. At any
time and from time to time after the occurrence of any Default,
each Lender is hereby authorized to offset against the
Obligations then due and payable (in either case without notice
to US Borrower), any and all items herein above referred to. To
the extent that US Borrower has accounts designated as royalty or
joint interest owner accounts, the foregoing right of offset
shall not extend to funds in such accounts which belong to, or
otherwise arise from payments to US Borrower for the account of,
third party royalty or joint interest owners.
Section 6.14. Year 2000 Compliance. US Borrower will
promptly notify US Agent in the event US Borrower discovers or
determines that any computer application (including those of its
suppliers and vendors) that is material to its or any of its
Subsidiaries' business and operations that will not be Year 2000
compliant on a timely basis, except to the extent that such
failure would not reasonably be expected to have a Material
Adverse Effect.
ARTICLE VII - Negative Covenants of US Borrower
To conform with the terms and conditions under which each
Lender is willing to have credit outstanding to US Borrower, and
to induce each Lender to enter into this Agreement and make the
US Loans, US Borrower warrants, covenants and agrees that until
the full and final payment of the Obligations and the termination
of this Agreement, unless Required Lenders have previously agreed
otherwise:
Section 7.1. Indebtedness. No Restricted Subsidiary will
in any manner owe or be liable for Indebtedness except:
(a) the Canadian Obligations.
(b) capital lease obligations (excluding oil, gas or
mineral leases) entered into in the ordinary course of such
Restricted Person's business in arm's length transactions at
competitive market rates under competitive terms and conditions
in all respects, provided that such capital lease obligations
required to be paid in any Fiscal Year do not in the aggregate
exceed US $35,000,000 for all Restricted Subsidiaries.
(c) unsecured Liabilities owed among Restricted Persons.
(d) guaranties by one Restricted Person of Liabilities owed
by another Restricted Person, if such Liabilities either (i) are
not Indebtedness, or (ii) are allowed under subsections (a), (b)
or (c) of this Section 7.1.
(e) Indebtedness of the Restricted Persons for plugging and
abandonment bonds or for letters of credit issued by any Lender
in place thereof which are required by regulatory authorities in
the area of operations, and Indebtedness of the Restricted
Persons for other bonds or letters of credit issued by any Lender
which are required by such regulatory authorities with respect to
other normal oil and gas operations.
(f) obligations under the Subordinated Devon Oklahoma
Indenture, the Subordinated Devon Oklahoma Debentures and the
Subordinated Devon Oklahoma Guarantee;
(g) non-recourse Indebtedness as to which no Restricted
Person (i) provides any guaranty or credit support of any kind
(including any undertaking, guarantee, indemnity, agreement or
instrument that would constitute Indebtedness) or (ii) is
directly or indirectly liable (as a guarantor or otherwise);
provided, that after giving effect to such Indebtedness
outstanding from time to time, US Borrower is not in violation of
Section 7.8.
(h) the following long-term institutional Indebtedness of
Northstar Energy:
(i) US $150,000,000 indebtedness to The Prudential
Insurance Company of America pursuant to a Note Agreement
dated as of March 2, 1998 including the following guarantees
of such indebtedness: (1) guarantees both dated March 2,
1998 made by Northstar Energy Partnership and Xxxxx Limited
Partnership; (2) guarantee dated as of July 31, 1998 made by
728098 Alberta Ltd.; and (3) any other guarantees of
Subsidiaries of Northstar Energy executed after the date
hereof pursuant to the terms of such Note Agreement.
(ii) US $75,000,000 indebtedness to certain
institutional investors pursuant to a Note Agreement dated
as of July 19, 1995, as amended from time to time, including
the following guarantees of such indebtedness: (1)
guarantee dated as of July 31, 1998 made by Northstar Energy
Partnership; (2) guarantee dated as of July 31, 1998 made by
728098 Alberta Ltd.; and (3) any other guarantee of
Subsidiaries of Northstar Energy executed after the date
hereof pursuant to the terms of such Note Agreement.
including any refinancing of the above institutional
indebtedness by Northstar Energy, US Borrower, or any other
Restricted Person on similar terms taking into account
current market conditions.
(i) Indebtedness that is subordinated to the US Obligations
and the Canadian Obligations on terms acceptable to Required
Lenders.
(j) Indebtedness in the approximate amount of C $4,784,000
owed to Indeck Gas Supply Corporation by Northstar Energy
pursuant to a Gas Sales and Purchase Agreement dated as of March
9, 1989, as heretofore or hereafter amended from time to time.
(k) Acquired Debt.
(l) Indebtedness under Hedging Contracts.
(m) Indebtedness relating to the surety bond and letter of
credit obligations listed on Schedule 2.
(n) miscellaneous items of Indebtedness of all Restricted
Persons (other than US Borrower) not described in subsections (a)
through (m) which do not in the aggregate exceed US $100,000,000
in principal amount at any one time outstanding.
Section 7.2. Limitation on Liens. Except for Permitted
Liens, no Restricted Person will create, assume or permit to
exist any Lien upon any of the properties or assets which it now
owns or hereafter acquires. No Restricted Person will allow the
filing or continued existence of any financing statement
describing as collateral any assets or property of such
Restricted Person, other than financing statements which describe
only collateral subject to a Lien permitted under this section
and which name as secured party or lessor only the holder of such
Lien.
Section 7.3. Limitation on Mergers. No Restricted Person
will merge or consolidate with or into any other Person except
that any Subsidiary of US Borrower may be merged into or
consolidated with (a) another Subsidiary of US Borrower, or
(b) US Borrower, so long as US Borrower is the surviving business
entity.
Section 7.4. Limitation on Issuance of Securities by
Subsidiaries of US Borrower.
(a) No Restricted Subsidiary of US Borrower (other than
Devon Trust) will issue any additional shares of its capital
stock, additional partnership interests or other securities or
any options, warrants or other rights to acquire such additional
shares, partnership interests or other securities except to
another Restricted Person which is a wholly-owned direct or
indirect Subsidiary of US Borrower unless such securities are
being issued to acquire a business, directly or indirectly
through the use of the proceeds of such issuance, and such
securities are convertible into the common or similar securities
of US Borrower. In addition, (i) Northstar Energy may issue
"Exchangeable Shares" (as defined in the Restated Articles of
Incorporation of Northstar Energy) upon the terms specified in
the Restated Articles of Incorporation of Northstar Energy as in
effect on the date hereof (in this section called "Exchangeable
Shares"), (ii) Devon Canada may issue exchangeable shares upon
substantially the same terms as such Exchangeable Shares, and
(iii) Northstar Energy may issue stock options to its employees
from time to time to acquire such Exchangeable Shares, provided
that such options are granted under a stock option plan of
Northstar Energy and/or US Borrower. US Borrower shall never own
(directly or indirectly) less than one hundred percent (100%) of
the common shares of each Canadian Borrower.
(b) Devon Trust will not issue any securities except common
securities to Devon Oklahoma and the Devon Trust Securities.
Devon Nevada and Devon Oklahoma will at all times remain a
wholly-owned direct or indirect Subsidiary of US Borrower. Devon
Oklahoma will at all times own all of the outstanding common
securities of Devon Trust.
Section 7.5. Limitation on Restricted Payments. Except as
permitted below in this section, no Restricted Person shall
directly or indirectly (i) make any Restricted Distribution, or
(ii) any Restricted Investment (the above being herein
collectively referred to as "Restricted Payments"), unless the
aggregate amount of Restricted Payments made during any Fiscal
Year never exceeds five percent (5%) of the book value of the
Consolidated Assets of US Borrower.
Section 7.6. Transactions with Affiliates. No Restricted
Person will engage in any material transaction with any of its
Affiliates on terms which are less favorable in any material
respect to it than those which would have been obtainable at the
time in arm's-length dealing with Persons other than such
Affiliates, provided that such restriction shall not apply to
transactions among US Borrower and the other Restricted Persons
that are wholly-owned, directly or indirectly, by US Borrower.
Section 7.7. Prohibited Contracts; ERISA. Except as
expressly provided for in the US Loan Documents and in the
Support Agreement dated December 10, 1998 between the US Borrower
and Northstar Energy, no Restricted Person will, directly or
indirectly, enter into, create, or otherwise allow to exist any
contract or other consensual restriction on the ability of any
Restricted Person that is a Subsidiary of US Borrower: (a) to pay
dividends or make other distributions to US Borrower, (b) to
redeem equity interests held in it by US Borrower, (c) to repay
loans and other indebtedness owing by it to US Borrower, or
(d) to transfer any of its assets to US Borrower. No ERISA
Affiliate will incur any obligation to contribute to any
"multiemployer plan" as defined in Section 4001 of ERISA.
Section 7.8. Funded Debt to Total Capitalization. At the
end of each Fiscal Quarter, the ratio of US Borrower's
Consolidated Total Funded Debt to US Borrower's Total
Capitalization will never exceed sixty-five percent (65%).
Section 7.9. Devon Trust; Devon Trust Securities. Devon
Trust shall exist for the exclusive purposes of (a) issuing the
Devon Trust Securities, (b) investing the gross proceeds of the
Devon Trust Securities in the Subordinated Devon Oklahoma
Debentures and (c) engaging in only those other activities
necessary or incidental thereto. Devon Oklahoma shall exercise
its option to defer interest payments on the Subordinated Devon
Oklahoma Debentures rather than default on such interest
payments. Devon Trust shall not be dissolved without prior
written notice by US Borrower to US Agent. Devon Trust shall not
redeem the Devon Trust Securities prior to their stated maturity,
and Devon Oklahoma shall not prepay or redeem the Subordinated
Devon Oklahoma Debentures prior to their stated maturity, unless
both immediately before and immediately after any such proposed
prepayment or redemption, US Borrower is in compliance with
Section 7.8, and no Default under Section 8.1(a), 8.1(f)
or 8.1(h) is continuing.
ARTICLE VIII - Events of Default and Remedies
Section 8.1. Events of Default. Each of the following
events constitutes an Event of Default under this Agreement:
(a) Any Restricted Person fails to pay any principal
component of any US Obligation when due and payable or fails to
pay any other US Obligation within three (3) days after the date
when due and payable, whether at a date for the payment of a
fixed installment or as a contingent or other payment becomes due
and payable or as a result of acceleration or otherwise;
(b) Any "default" or "event of default" occurs under any US
Loan Document which defines either such term, and the same is not
remedied within the applicable period of grace (if any) provided
in such Loan Document;
(c) Any Restricted Person fails (other than as referred to
in subsections (a) or (b) above) to (i) duly comply with the last
sentence of Section 7.4(a) of the US Agreement or (ii) duly
observe, perform or comply with any other covenant, agreement,
condition or provision of any US Loan Document, and such failure
remains unremedied for a period of thirty (30) days after notice
of such failure is given by US Agent to US Borrower;
(d) Any representation or warranty previously, presently or
hereafter made in writing by or on behalf of any Restricted
Person in connection with any US Loan Document shall prove to
have been false or incorrect in any material respect on any date
on or as of which made provided that if such falsity or lack of
correctness is capable of being remedied or cured within a 30-day
period, US Borrower shall (subject to the other provisions of
this Section 8.1) have a period of 30 days after written notice
thereof has been given to US Borrower by US Agent within which to
remedy or cure such lack of correctness, or this Agreement or any
US Note is asserted to be or at any time ceases to be valid,
binding and enforceable in any material respect as warranted in
Section 5.5 for any reason other than its release or
subordination by US Agent;
(e) Any Restricted Person (i) fails to duly pay any
Indebtedness in excess of US $50,000,000 constituting principal
or interest owed by it with respect to borrowed money or money
otherwise owed under any note, bond, or similar instrument,
including without limitation the Subordinated Devon Oklahoma
Debentures, the Subordinated Devon Oklahoma Indenture, the
Subordinated Devon Oklahoma Guarantee and the Devon Trust
Securities, or (ii) breaches or defaults in the performance of
any agreement or instrument by which any such Indebtedness is
issued, evidenced, governed, or secured, other than a breach or
default described in clause (i) above, and any such failure,
breach or default results in the acceleration of such
Indebtedness;
(f) Either (i) any "accumulated funding deficiency" (as
defined in Section 412(a) of the Internal Revenue Code of 1986,
as amended) in excess of US $50,000,000 exists with respect to
any ERISA Plan, whether or not waived by the Secretary of the
Treasury or his delegate, or (ii) any Termination Event occurs
with respect to any ERISA Plan and the then current value of such
ERISA Plan's benefit liabilities exceeds the then current value
of such ERISA Plan's assets available for the payment of such
benefit liabilities by more than US $50,000,000 (or in the case
of a Termination Event involving the withdrawal of a substantial
employer, the withdrawing employer's proportionate share of such
excess exceeds such amount);
(g) Any Change in Control occurs;
(h) US Borrower or any other Restricted Person having
assets with a book value of at least US $50,000,000:
(i) suffers the entry against it of a judgment, decree
or order for relief by a Tribunal of competent jurisdiction
in an involuntary proceeding commenced under any applicable
bankruptcy, insolvency or other similar Law of any
jurisdiction now or hereafter in effect, including the
federal Bankruptcy Code, as from time to time amended, or
has any such proceeding commenced against it which remains
undismissed for a period of thirty days; or
(ii) commences a voluntary case under any applicable
bankruptcy, insolvency or similar Law now or hereafter in
effect, including the federal Bankruptcy Code, as from time
to time amended; or applies for or consents to the entry of
an order for relief in an involuntary case under any such
Law; or makes a general assignment for the benefit of
creditors; or fails generally to pay (or admits in writing
its inability to pay) its debts as such debts become due; or
takes corporate or other action to authorize any of the
foregoing; or
(iii) suffers the appointment of or taking
possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of all or a
substantial part of its property in a proceeding brought
against or initiated by it, and such appointment or taking
possession is neither made ineffective nor discharged within
thirty days after the making thereof, or such appointment or
taking possession is at any time consented to, requested by,
or acquiesced to by it; or
(iv) suffers the entry against it of a final judgment
for the payment of money in an amount that exceeds (x) the
valid and collectible insurance in respect thereof or (y)
the amount of an indemnity with respect thereto reasonably
acceptable to the Required Lenders by US $50,000,000 or
more, unless the same is discharged within thirty days after
the date of entry thereof or an appeal or appropriate
proceeding for review thereof is taken within such period
and a stay of execution pending such appeal is obtained; or
(v) suffers a writ or warrant of attachment or similar
process to be issued by any Tribunal against all or any part
of its property having a book value of at least US
$50,000,000, and such writ or warrant of attachment or any
similar process is not stayed or released within thirty days
after the entry or levy thereof or after any stay is vacated
or set aside; and
(i) Any "Event of Default" occurs under the Canadian
Agreement.
Upon the occurrence of an Event of Default described in
subsection (h)(i), (h)(ii) or (h)(iii) of this section with
respect to US Borrower, all of the US Obligations shall thereupon
be immediately due and payable, without demand, presentment,
notice of demand or of dishonor and nonpayment, protest, notice
of protest, notice of intention to accelerate, declaration or
notice of acceleration, or any other notice or declaration of any
kind, all of which are hereby expressly waived by US Borrower and
each Restricted Person who at any time ratifies or approves this
Agreement. Upon any such acceleration, any obligation of any
Lender to make any further US Loans, any obligation of US LC
Issuer to issue Letters of Credit hereunder, and any obligation
of US Swing Lender to make any further US Swing Loans shall be
permanently terminated. During the continuance of any other
Event of Default, US Agent at any time and from time to time may
(and upon written instructions from Required Lenders, US Agent
shall), without notice to US Borrower or any other Restricted
Person, do either or both of the following: (1) terminate any
obligation of Lenders to make US Loans hereunder, any obligation
of US LC Issuer to issue Letters of Credit hereunder, and any
obligation of US Swing Lender to make US Swing Loans hereunder,
and (2) declare any or all of the US Obligations immediately due
and payable, and all such US Obligations shall thereupon be
immediately due and payable, without demand, presentment, notice
of demand or of dishonor and nonpayment, protest, notice of
protest, notice of intention to accelerate, declaration or notice
of acceleration, or any other notice or declaration of any kind,
all of which are hereby expressly waived by US Borrower and each
Restricted Person who at any time ratifies or approves this
Agreement.
Section 8.2. Remedies. If any Default shall occur and be
continuing, each Lender Party may protect and enforce its rights
under the US Loan Documents by any appropriate proceedings,
including proceedings for specific performance of any covenant or
agreement contained in any Loan Document, and each Lender Party
may enforce the payment of any US Obligations due it or enforce
any other legal or equitable right which it may have. All
rights, remedies and powers conferred upon Lender Parties under
the US Loan Documents shall be deemed cumulative and not
exclusive of any other rights, remedies or powers available under
the US Loan Documents or at Law or in equity.
ARTICLE IX - US Agent
Section 9.1. Appointment, Powers, and Immunities. Each
Lender hereby irrevocably appoints and authorizes US Agent to act
as its agent under this Agreement and the other US Loan Documents
with such powers and discretion as are specifically delegated to
US Agent by the terms of this Agreement and the other US Loan
Documents, together with such other powers as are reasonably
incidental thereto. US Agent (which term as used in this
sentence and in Section 9.5 and the first sentence of Section 9.6
hereof shall include its Affiliates and its own and its
Affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee
or fiduciary for any Lender; (b) shall not be responsible to the
Lenders for any recital, statement, representation, or warranty
(whether written or oral) made in or in connection with any Loan
Document or any certificate or other document referred to or
provided for in, or received by any of them under, any Loan
Document, or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of any Loan Document, or any other
document referred to or provided for therein or for any failure
by any Restricted Person or any other Person to perform any of
its obligations thereunder; (c) shall not be responsible for or
have any duty to ascertain, inquire into, or verify the
performance or observance of any covenants or agreements by any
Restricted Person or the satisfaction of any condition or to
inspect the property (including the books and records) of any
Restricted Person or any of its Subsidiaries or Affiliates;
(d) shall not be required to initiate or conduct any litigation
or collection proceedings under any Loan Document; and (e) shall
not be responsible for any action taken or omitted to be taken by
it under or in connection with any Loan Document, except for its
own gross negligence or willful misconduct. US Agent may employ
agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
Section 9.2. Reliance by US Agent. US Agent shall be
entitled to rely upon any certification, notice, instrument,
writing, or other communication (including, without limitation,
any thereof by telephone or telecopy) believed by it to be
genuine and correct and to have been signed, sent or made by or
on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel for any Restricted
Person), independent accountants, and other experts selected by
US Agent. US Agent may deem and treat the payee of any Note as
the holder thereof for all purposes hereof unless and until US
Agent receives and accepts an Assignment and Acceptance executed
in accordance with Section 10.6 hereof. As to any matters not
expressly provided for by this Agreement, US Agent shall not be
required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall
be binding on all of the Lenders; provided, however, that US
Agent shall not be required to take any action that exposes US
Agent to personal liability or that is contrary to any Loan
Document or applicable Law or unless it shall first be
indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason
of taking any such action.
Section 9.3. Defaults. US Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default or Event
of Default unless US Agent has received written notice from a
Lender or US Borrower specifying such Default or Event of Default
and stating that such notice is a "Notice of Default". In the
event that US Agent receives such a notice of the occurrence of a
Default or Event of Default, US Agent shall give prompt notice
thereof to the Lenders. US Agent shall (subject to Section 9.1
hereof) take such action with respect to such Default or Event of
Default as shall reasonably be directed by the Required Lenders.
Notwithstanding the foregoing, unless and until US Agent shall
have received such directions, US Agent may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it
shall deem advisable in the best interest of the Lenders.
Section 9.4. Rights as Lender. With respect to its
Percentage Share of the US Maximum Credit Amount and the US Loans
made by it, US Agent (and any successor acting as US Agent) in
its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as
though it were not acting as US Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include
US Agent in its individual capacity. US Agent (and any successor
acting as US Agent) and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money
to, make Investments in, provide services to, and generally
engage in any kind of lending, trust, or other business with any
Restricted Person or any of its Subsidiaries or Affiliates as if
it were not acting as US Agent, and US Agent (and any successor
acting as US Agent) and its Affiliates may accept fees and other
consideration from any Restricted Person or any of its
Subsidiaries or Affiliates for services in connection with this
Agreement or otherwise without having to account for the same to
the Lenders.
Section 9.5. Indemnification. The Lenders agree to
indemnify US Agent (to the extent not reimbursed under Section
10.4 hereof, but without limiting the obligations of US Borrower
under such section) ratably in accordance with their respective
Percentage Shares, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or
asserted against US Agent (including by any Lender) in any way
relating to or arising out of any Loan Document or the
transactions contemplated thereby or any action taken or omitted
by US Agent under any Loan Document (INCLUDING ANY OF THE
FOREGOING ARISING FROM THE NEGLIGENCE OF US AGENT); provided that
no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the
Person to be indemnified. Without limitation of the foregoing,
each Lender agrees to reimburse US Agent promptly upon demand for
its ratable share of any costs or expenses payable by US Borrower
under Section 10.4, to the extent that US Agent is not promptly
reimbursed for such costs and expenses by US Borrower. The
agreements contained in this section shall survive payment in
full of the US Loans and all other amounts payable under this
Agreement.
Section 9.6. Non-Reliance on US Agent and Other Lenders.
Each Lender agrees that it has, independently and without
reliance on US Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its
own credit analysis of the US Borrower and its Subsidiaries and
decision to enter into this Agreement and that it will,
independently and without reliance upon US Agent or any other
Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own analysis
and decisions in taking or not taking action under the US Loan
Documents. Except for notices, reports, and other documents and
information expressly required to be furnished to the Lenders by
US Agent hereunder, US Agent shall not have any duty or
responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or
business of any Restricted Person or any of its Subsidiaries or
Affiliates that may come into the possession of US Agent or any
of its Affiliates.
Section 9.7. Rights as Lender. In its capacity as a
Lender, US Agent shall have the same rights and obligations as
any Lender and may exercise such rights as though it were not US
Agent. US Agent may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of
business with any Restricted Person or their Affiliates, all as
if it were not US Agent hereunder and without any duty to account
therefor to any other Lender.
Section 9.8. Sharing of Set-Offs and Other Payments. Each
Lender Party agrees that if it shall, whether through the
exercise of rights under US Loan Documents or rights of banker's
lien, set off, or counterclaim against US Borrower or otherwise,
obtain payment of a portion of the aggregate Obligations owed to
it which, taking into account all distributions made by US Agent
under Section 3.1, causes such Lender Party to have received more
than it would have received had such payment been received by US
Agent and distributed pursuant to Section 3.1, then (a) it shall
be deemed to have simultaneously purchased and shall be obligated
to purchase interests in the Obligations as necessary to cause
all Lender Parties to share all payments as provided for in
Section 3.1, and (b) such other adjustments shall be made from
time to time as shall be equitable to ensure that US Agent and
all Lender Parties share all payments of Obligations as provided
in Section 3.1; provided, however, that nothing herein contained
shall in any way affect the right of any Lender Party to obtain
payment (whether by exercise of rights of banker's lien, set-off
or counterclaim or otherwise) of indebtedness other than the
Obligations. US Borrower expressly consents to the foregoing
arrangements and agrees that any holder of any such interest or
other participation in the Obligations, whether or not acquired
pursuant to the foregoing arrangements, may to the fullest extent
permitted by Law exercise any and all rights of banker's lien,
set-off, or counterclaim as fully as if such holder were a holder
of the Obligations in the amount of such interest or other
participation. If all or any part of any funds transferred
pursuant to this section is thereafter recovered from the seller
under this section which received the same, the purchase provided
for in this section shall be deemed to have been rescinded to the
extent of such recovery, together with interest, if any, if
interest is required pursuant to the order of a Tribunal order to
be paid on account of the possession of such funds prior to such
recovery.
Section 9.9. Investments. Whenever US Agent in good faith
determines that it is uncertain about how to distribute to Lender
Parties any funds which it has received, or whenever US Agent in
good faith determines that there is any dispute among Lender
Parties about how such funds should be distributed, US Agent may
choose to defer distribution of the funds which are the subject
of such uncertainty or dispute. If US Agent in good faith
believes that the uncertainty or dispute will not be promptly
resolved, or if US Agent is otherwise required to invest funds
pending distribution to Lender Parties, US Agent shall invest
such funds pending distribution; all interest on any such
Investment shall be distributed upon the distribution of such
Investment and in the same proportion and to the same Persons as
such Investment. All moneys received by US Agent for
distribution to Lender Parties (other than to the Person who is
US Agent in its separate capacity as a Lender Party) shall be
held by US Agent pending such distribution solely as US Agent for
such Lender Parties, and US Agent shall have no equitable title
to any portion thereof.
Section 9.10. Benefit of Article IX. The provisions of
this Article (other than the following Section 9.11) are intended
solely for the benefit of Lender Parties, and no Restricted
Person shall be entitled to rely on any such provision or assert
any such provision in a claim or defense against any Lender.
Lender Parties may waive or amend such provisions as they desire
without any notice to or consent of US Borrower or any Restricted
Person.
Section 9.11. Resignation. US Agent may resign at any time
by giving written notice thereof to Lenders and US Borrower.
Each such notice shall set forth the date of such resignation.
Upon any such resignation, Required Lenders shall have the right
to appoint a successor US Agent and if no Default or Event of
Default has occurred and is continuing, Required Lenders shall
obtain the consent of US Borrower. A successor must be appointed
for any retiring US Agent, and such US Agent's resignation shall
become effective when such successor accepts such appointment.
If, within thirty days after the date of the retiring US Agent's
resignation, no successor US Agent has been appointed and has
accepted such appointment, then the retiring US Agent may appoint
a successor US Agent, which shall be a commercial bank organized
or licensed to conduct a banking or trust business under the Laws
of the United States of America or of any state thereof and if no
Default or Event of Default has occurred and is continuing,
retiring US Agent shall obtain the consent of US Borrower. Upon
the acceptance of any appointment as US Agent hereunder by a
successor US Agent, the retiring US Agent shall be discharged
from its duties and obligations under this Agreement and the
other US Loan Documents. After any retiring US Agent's
resignation hereunder the provisions of this Article IX shall
continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was US Agent under the US Loan
Documents.
Section 9.12. Lenders to Remain Pro Rata. It is the intent
of all parties hereto that, except for Competitive Bid Loans,
Canadian Swing Loans, US Swing Loans and matters related thereto,
the pro rata share of each Lender in the US Obligations and in
the Canadian Obligations shall be substantially the same at all
times during the term of this Agreement. Accordingly, the
initial Percentage Share of each Lender in the US Maximum Credit
Amount will be the same as the initial Percentage Share of such
Lender in the Canadian Maximum Credit Amount. All subsequent
assignments and adjustments of the interests of the Lenders in
the US Obligations and the Canadian Obligations will be made so
as to maintain such a pro rata arrangement; provided that for the
purposes of determining these pro rata shares, any Percentage
Share held by any Lender's Affiliates shall be included in
determining the interests of such Lender.
ARTICLE X - Miscellaneous
Section 10.1. Waivers and Amendments; Acknowledgments.
(a) Waivers and Amendments. No failure or delay (whether
by course of conduct or otherwise) by any Lender Party in
exercising any right, power or remedy which such Lender Party may
have under any of the US Loan Documents shall operate as a waiver
thereof or of any other right, power or remedy, nor shall any
single or partial exercise by any Lender Party of any such right,
power or remedy preclude any other or further exercise thereof or
of any other right, power or remedy. No waiver of any provision
of any US Loan Document and no consent to any departure therefrom
shall ever be effective unless it is in writing and signed as
provided below in this section, and then such waiver or consent
shall be effective only in the specific instances and for the
purposes for which given and to the extent specified in such
writing. No notice to or demand on any Restricted Person shall
in any case of itself entitle any Restricted Person to any other
or further notice or demand in similar or other circumstances.
This Agreement and the other US Loan Documents set forth the
entire understanding between the parties hereto with respect to
the transactions contemplated herein and therein and supersede
all prior discussions and understandings with respect to the
subject matter hereof and thereof, and no waiver, consent,
release, modification or amendment of or supplement to this
Agreement or the other US Loan Documents shall be valid or
effective against any party hereto unless the same is in writing
and signed by (i) if such party is US Borrower, by US Borrower,
(ii) if such party is US Agent or US LC Issuer, by such party,
and (iii) if such party is a Lender, by such Lender or by US
Agent on behalf of Lenders with the written consent of Required
Lenders (which consent has already been given as to the
termination of the US Loan Documents as provided in Section
10.10). Notwithstanding the foregoing or anything to the
contrary herein, US Agent shall not, without the prior consent of
Majority Lenders, execute and deliver on behalf of such Lender
any waiver or amendment which would increase the US Maximum
Credit Amount hereunder. Notwithstanding the foregoing or
anything to the contrary herein, US Agent shall not, without the
prior consent of each individual Lender, execute and deliver on
behalf of such Lender any waiver or amendment which would: (1)
waive any of the conditions specified in Article IV, (2) increase
the maximum amount which such Lender is committed hereunder to
lend, (3) reduce any fees payable to such Lender hereunder, or
the principal of, or interest on, such Lender's Note, (4)
postpone any date fixed for any payment of any such fees,
principal or interest, (5) amend the definition herein of
"Required Lenders", "Majority Lenders", or otherwise change the
aggregate amount of Percentage Shares which is required for US
Agent, Lenders or any of them to take any particular action under
the US Loan Documents, (6) release US Borrower from its
obligation to pay such Lender's Note, or (7) amend this Section
10.1(a).
(b) Acknowledgments and Admissions. US Borrower hereby
represents, warrants, acknowledges and admits that (i) it has
been advised by counsel in the negotiation, execution and
delivery of the US Loan Documents to which it is a party, (ii) it
has made an independent decision to enter into this Agreement and
the other US Loan Documents to which it is a party, without
reliance on any representation, warranty, covenant or undertaking
by US Agent or any Lender, whether written, oral or implicit,
other than as expressly set out in this Agreement or in another
Loan Document delivered on or after the date hereof, (iii) there
are no representations, warranties, covenants, undertakings or
agreements by any Lender as to the US Loan Documents except as
expressly set out in this Agreement or in another Loan Document
delivered on or after the date hereof, (iv) no Lender has any
fiduciary obligation toward US Borrower with respect to any Loan
Document or the transactions contemplated thereby, (v) the
relationship pursuant to the US Loan Documents between US
Borrower and the other Restricted Persons, on one hand, and each
Lender, on the other hand, is and shall be solely that of debtor
and creditor, respectively, (vi) no partnership or joint venture
exists with respect to the US Loan Documents between any
Restricted Person and any Lender, (vii) US Agent is not US
Borrower's US Agent, but US Agent for Lenders, (viii) without
limiting any of the foregoing, US Borrower is not relying upon
any representation or covenant by any Lender, or any
representative thereof, and no such representation or covenant
has been made, that any Lender will, at the time of an Event of
Default or Default, or at any other time, waive, negotiate,
discuss, or take or refrain from taking any action permitted
under the US Loan Documents with respect to any such Event of
Default or Default or any other provision of the US Loan
Documents, and (ix) all Lender Parties have relied upon the
truthfulness of the acknowledgments in this section in deciding
to execute and deliver this Agreement and to become obligated
hereunder.
(c) Joint Acknowledgment. This written Agreement and the
other US Loan Documents represent the final agreement between the
parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.
Section 10.2. Survival of Agreements; Cumulative Nature.
All of Restricted Persons' various representations, warranties,
covenants and agreements in the US Loan Documents shall survive
the execution and delivery of this Agreement and the other US
Loan Documents and the performance hereof and thereof, including
the making or granting of the US Loans and the delivery of the
US Notes and the other US Loan Documents, and shall further
survive until all of the US Obligations are paid in full to each
Lender Party and all of Lender Parties' obligations to US
Borrower are terminated. All statements and agreements contained
in any certificate or other instrument delivered by any
Restricted Person to any Lender Party under any Loan Document
shall be deemed representations and warranties by US Borrower or
agreements and covenants of US Borrower under this Agreement.
The representations, warranties, indemnities, and covenants made
by Restricted Persons in the US Loan Documents, and the rights,
powers, and privileges granted to Lender Parties in the US Loan
Documents, are cumulative, and, except for expressly specified
waivers and consents, no Loan Document shall be construed in the
context of another to diminish, nullify, or otherwise reduce the
benefit to any Lender Party of any such representation, warranty,
indemnity, covenant, right, power or privilege. In particular
and without limitation, no exception set out in this Agreement to
any representation, warranty, indemnity, or covenant herein
contained shall apply to any similar representation, warranty,
indemnity, or covenant contained in any other Loan Document, and
each such similar representation, warranty, indemnity, or
covenant shall be subject only to those exceptions which are
expressly made applicable to it by the terms of the various US
Loan Documents.
Section 10.3. Notices. All notices, requests, consents,
demands and other communications required or permitted under any
Loan Document shall be in writing, unless otherwise specifically
provided in such Loan Document (provided that US Agent may give
telephonic notices to the other Lender Parties), and shall be
deemed sufficiently given or furnished if delivered by personal
delivery, by facsimile or other electronic transmission, by
delivery service with proof of delivery, or by registered or
certified United States mail, postage prepaid, to US Borrower and
Restricted Persons at the address of US Borrower specified on the
signature pages hereto and to each Lender Party at its address
specified on Annex II hereto (unless changed by similar notice in
writing given by the particular Person whose address is to be
changed). Any such notice or communication shall be deemed to
have been given (a) in the case of personal delivery or delivery
service, as of the date of first attempted delivery during normal
business hours at the address provided herein, (b) in the case of
facsimile or other electronic transmission, upon receipt, or
(c) in the case of registered or certified United States mail,
three days after deposit in the mail; provided, however, that no
Borrowing Notice shall become effective until actually received
by US Agent.
Section 10.4. Payment of Expenses; Indemnity.
(a) Payment of Expenses. Whether or not the transactions
contemplated by this Agreement are consummated, US Borrower will
promptly (and in any event, within 30 days after any invoice or
other statement or notice) pay: (i) all reasonable costs and
expenses incurred by or on behalf of US Agent (including without
limitation, attorneys' fees) in connection with (1) the
negotiation, preparation, execution and delivery of the US Loan
Documents, and any and all consents, waivers or other documents
or instruments relating thereto, (2) the filing, recording,
refiling and re-recording of any US Loan Documents and any other
documents or instruments or further assurances required to be
filed or recorded or refiled or re-recorded by the terms of any
Loan Document, (3) the borrowings hereunder and other action
reasonably required in the course of administration hereof,
(4) monitoring or confirming (or preparation or negotiation of
any document related to) US Borrower's compliance with any
covenants or conditions contained in this Agreement or in any
Loan Document, and (ii) all reasonable costs and expenses
incurred by or on behalf of any Lender Party (including without
limitation, attorneys' fees, consultants' fees and accounting
fees) in connection with the defense or enforcement of any of the
US Loan Documents (including this section) or the defense of any
Lender Party's exercise of its rights thereunder.
(b) Indemnity. US Borrower agrees to indemnify each Lender
Party , upon demand, from and against any and all liabilities,
obligations, claims, losses, damages, penalties, fines, actions,
judgments, suits, settlements, costs, expenses or disbursements
(including reasonable fees of attorneys, accountants, experts and
advisors) of any kind or nature whatsoever (in this section
collectively called "liabilities and costs") which to any extent
(in whole or in part) may be imposed on, incurred by, or asserted
against such Lender Party growing out of, resulting from or in
any other way associated with the US Loan Documents and the
transactions and events (including the enforcement or defense
thereof) at any time associated therewith or contemplated therein
(whether arising in contract or in tort or otherwise and
including any violation or noncompliance with any Environmental
Laws by any Lender Party or any other Person or any liabilities
or duties of any Lender Party or any other Person with respect to
Hazardous Materials found in or released into the environment).
The foregoing indemnification shall apply whether or not such
liabilities and costs are in any way or to any extent owed, in
whole or in part, under any claim or theory of strict liability
or caused, in whole or in part by any negligent act or omission
of any kind by any Lender Party,
provided only that no Lender Party shall be entitled under this
section to receive indemnification for that portion, if any, of
any liabilities and costs which is proximately caused by its own
individual gross negligence or willful misconduct, as determined
in a final judgment. If any Person (including US Borrower or any
of its Affiliates) ever alleges such gross negligence or willful
misconduct by any Lender Party, the indemnification provided for
in this section shall nonetheless be paid upon demand, subject to
later adjustment or reimbursement, until such time as a court of
competent jurisdiction enters a final judgment as to the extent
and effect of the alleged gross negligence or willful misconduct.
As used in this section the term "Lender Party" shall refer not
only to each Person designated as such in Section 1.1 but also to
each director, officer, agent, attorney, employee, representative
and Affiliate of such Person.
Section 10.5. Parties in Interest. All grants, covenants
and agreements contained in the US Loan Documents shall bind and
inure to the benefit of the parties thereto and their respective
successors and assigns; provided, however, that no Restricted
Person may assign or transfer any of its rights or delegate any
of its duties or obligations under any Loan Document without the
prior consent of Required Lenders. Neither US Borrower nor any
Affiliates of US Borrower shall directly or indirectly purchase
or otherwise retire any Obligations owed to any Lender nor will
any Lender accept any offer to do so, unless each Lender shall
have received substantially the same offer with respect to the
same Percentage Share of the Obligations owed to it. If US
Borrower or any Affiliate of US Borrower at any time purchases
some but less than all of the Obligations owed to all Lender
Parties, such purchaser shall not be entitled to any rights of
any Lender under the US Loan Documents unless and until US
Borrower or its Affiliates have purchased all of the Obligations.
Section 10.6. Assignments and Participations.
(a) Each Lender may assign to one or more Eligible
Transferees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion
of its US Loans, its Note, and its Percentage Share of the US
Maximum Credit Amount); provided, however, that
(i) each such assignment shall be to an Eligible
Transferee;
(ii) together with each such assignment of its rights
and obligations under this Agreement, such Lender shall
assign the same Percentage Share of its rights and
obligations under the Canadian Agreement to the same
Eligible Transferee or an Affiliate of such Eligible
Transferee.
(iii) except in the case of such an assignment to
another Lender or an assignment of all of a Lender's rights
and obligations under this Agreement, any partial assignment
of such Lender's rights and obligations under this Agreement
and under the Canadian Agreement shall be in a collective
amount at least equal to US $20,000,000 or an integral
multiple of US $5,000,000 in excess thereof;
(iv) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights
and obligations under the US Loan Documents;
(v) the parties to such assignment shall execute and
deliver to US Agent for its acceptance an Assignment and
Acceptance in the form of Exhibit F hereto, together with
any Note subject to such assignment and a processing fee of
US $3,500; and
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of such assignment, have the obligations, rights,
and benefits of a Lender hereunder and the assigning Lender
shall, to the extent of such assignment, relinquish its rights
and be released from its obligations under this Agreement. Upon
the consummation of any assignment pursuant to this section, the
assignor, US Agent and US Borrower shall make appropriate
arrangements so that, if required, new US Notes are issued to the
assignor and the assignee. If the assignee is not incorporated
under the Laws of the United States of America or a state
thereof, it shall deliver to US Borrower and US Agent
certification as to exemption from deduction or withholding of
Taxes in accordance with Section 3.10.
(b) US Agent shall maintain at its address referred to in
Section 10.3 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and their Percentage Share of
the US Maximum Credit Amount of, and principal amount of the US
Loans owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and US Borrower, US Agent
and the Lenders 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 US
Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance
executed by the parties thereto, together with any Note subject
to such assignment and payment of the processing fee, US Agent
shall, if such Assignment and Acceptance has been completed and
is in substantially the form of Exhibit F hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to
the parties thereto.
(d) Each Lender may sell participations to one or more
Persons that are Eligible Transferees in all or a portion of its
rights and obligations under this Agreement (including all or a
portion of its US Maximum Credit Amount and its US Loans);
provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions
contained in Article III and the right of offset contained in
Section 6.14, and (iv) US Borrower shall continue to deal solely
and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, and such Lender
shall retain the sole right to enforce the obligations of US
Borrower relating to its US Loans and its Note and to approve any
amendment, modification, or waiver of any provision of this
Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which
interest is payable on such US Loans or Note, extending any
scheduled principal payment date or date fixed for the payment of
interest on such US Loans or Note, or extending its US Maximum
Credit Amount).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or
any portion of its US Loans and its Note to any Federal Reserve
Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank. No such
assignment shall release the assigning Lender from its
obligations hereunder.
(f) Any Lender may furnish any information concerning US
Borrower 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
provisions of Section 10.7 hereof.
Section 10.7. Confidentiality. US Agent and each Lender
(each, a "Lending Party") agrees to keep confidential any
information furnished or made available to it by US Borrower
pursuant to this Agreement that is marked confidential; provided
that nothing herein shall prevent any Lending Party from
disclosing such information (a) to any other Lending Party or any
Affiliate of any Lending Party, or any officer, director,
employee, US Agent, or advisor of any Lending Party or Affiliate
of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided
herein, (c) as required by any Law, rule, or regulation, (d) upon
the order of any court or administrative agency, (e) upon the
request or demand of any regulatory agency or authority, (f) that
is or becomes available to the public or that is or becomes
available to any Lending Party other than as a result of a
disclosure by any Lending Party prohibited by this Agreement,
(g) in connection with any litigation to which such Lending Party
or any of its Affiliates may be a party, (h) to the extent
necessary in connection with the exercise of any remedy under
this Agreement or any other Loan Document, and (i) subject to
provisions substantially similar to those contained in this
section, to any actual or proposed participant or assignee.
Section 10.8. Governing Law; Submission to Process. Except
to the extent that the law of another jurisdiction is expressly
elected in a Loan Document, the US Loan Documents shall be deemed
contracts and instruments made under the laws of the State of
Texas and shall be construed and enforced in accordance with and
governed by the laws of the State of Texas and the laws of the
United States of America, without regard to principles of
conflicts of law. Chapter 346 of the Texas Finance Code (which
regulates certain revolving credit loan accounts and revolving
tri-party accounts) does not apply to this Agreement or to the US
Notes. US Borrower hereby irrevocably submits itself and each
other Restricted Person to the non-exclusive jurisdiction of the
state and federal courts sitting in the State of Texas and agrees
and consents that service of process may be made upon it or any
Restricted Person in any legal proceeding relating to the US Loan
Documents or the Obligations by any means allowed under Texas or
federal law.
Section 10.9. Limitation on Interest. Lender Parties,
Restricted Persons and any other parties to the US Loan Documents
intend to contract in strict compliance with applicable usury Law
from time to time in effect. In furtherance thereof such Persons
stipulate and agree that none of the terms and provisions
contained in the US Loan Documents shall ever be construed to
create a contract to pay, for the use, forbearance or detention
of money, interest in excess of the maximum amount of interest
permitted to be charged by applicable Law from time to time in
effect. Neither any Restricted Person nor any present or future
guarantors, endorsers, or other Persons hereafter becoming liable
for payment of any Obligation shall ever be liable for unearned
interest thereon or shall ever be required to pay interest
thereon in excess of the maximum amount that may be lawfully
charged under applicable Law from time to time in effect, and the
provisions of this section shall control over all other
provisions of the US Loan Documents which may be in conflict or
apparent conflict herewith. Lender Parties expressly disavow any
intention to charge or collect excessive unearned interest or
finance charges in the event the maturity of any Obligation is
accelerated. If (a) the maturity of any Obligation is
accelerated for any reason, (b) any Obligation is prepaid and as
a result any amounts held to constitute interest are determined
to be in excess of the legal maximum, or (c) any Lender or any
other holder of any or all of the Obligations shall otherwise
collect moneys which are determined to constitute interest which
would otherwise increase the interest on any or all of the
Obligations to an amount in excess of that permitted to be
charged by applicable Law then in effect, then all sums
determined to constitute interest in excess of such legal limit
shall, without penalty, be promptly applied to reduce the then
outstanding principal of the related Obligations or, at such
Lender's or holder's option, promptly returned to US Borrower or
the other payor thereof upon such determination. In determining
whether or not the interest paid or payable, under any specific
circumstance, exceeds the maximum amount permitted under
applicable Law, Lender Parties and Restricted Persons (and any
other payors thereof) shall to the greatest extent permitted
under applicable Law, (i) characterize any non-principal 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 the total amount of
interest throughout the entire contemplated term of the
instruments evidencing the Obligations in accordance with the
amounts outstanding from time to time thereunder and the maximum
legal rate of interest from time to time in effect under
applicable Law in order to lawfully charge the maximum amount of
interest permitted under applicable Law. In the event applicable
Law provides for an interest ceiling under Chapter 303 of the
Texas Finance Code (the "Texas Finance Code") as amended, for
that day, the ceiling shall be the "weekly ceiling" as defined in
the Texas Finance Code; provided that if any applicable Law
permits greater interest, the Law permitting the greatest
interest shall apply. As used in this section the term
"applicable Law" means the Laws of the State of Texas or the Laws
of the United States of America, whichever Laws allow the greater
interest, as such Laws now exist or may be changed or amended or
come into effect in the future.
Section 10.10. Termination; Limited Survival. In its sole
and absolute discretion US Borrower may at any time that no
Obligations are owing elect in a written notice delivered to US
Agent to terminate this Agreement. Upon receipt by US Agent of
such a notice, if no Obligations are then owing this Agreement
and all other US Loan Documents shall thereupon be terminated and
the parties thereto released from all prospective obligations
thereunder. Notwithstanding the foregoing or anything herein to
the contrary, any waivers or admissions made by any Restricted
Person in any Loan Document, any Obligations under Sections 3.2
through 3.6, and any obligations which any Person may have to
indemnify or compensate any Lender Party shall survive any
termination of this Agreement or any other Loan Document. At the
request and expense of US Borrower, US Agent shall prepare and
execute all necessary instruments to reflect and effect such
termination of the US Loan Documents. US Agent is hereby
authorized to execute all such instruments on behalf of all
Lenders, without the joinder of or further action by any Lender.
Section 10.11. Severability. If any term or provision of
any Loan Document shall be determined to be illegal or
unenforceable all other terms and provisions of the US Loan
Documents shall nevertheless remain effective and shall be
enforced to the fullest extent permitted by applicable Law.
Section 10.12. Counterparts; Fax. This Agreement may be
separately executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to constitute one and the same
Agreement. This Agreement and the US Loan Documents may be
validly executed and delivered by facsimile or other electronic
transmission.
Section 10.13. Waiver of Jury Trial, Punitive Damages, etc.
US Borrower and each Lender Party hereby knowingly, voluntarily,
intentionally, and irrevocably (a) waives, to the maximum extent
not prohibited by Law, any right it may have to a trial by jury
in respect of any litigation based hereon, or directly or
indirectly at any time arising out of, under or in connection
with the US Loan Documents or any transaction contemplated
thereby or associated therewith, before or after maturity; (b)
waives, to the maximum extent not prohibited by Law, any right it
may have to claim or recover in any such litigation any "Special
Damages", as defined below, (c) certifies that no party hereto
nor any representative or agent or counsel for any party hereto
has represented, expressly or otherwise, or implied that such
party would not, in the event of litigation, seek to enforce the
foregoing waivers, and (d) acknowledges that it has been induced
to enter into this Agreement, the other US Loan Documents and the
transactions contemplated hereby and thereby by, among other
things, the mutual waivers and certifications contained in this
section. As used in this section, "Special Damages" includes all
special, consequential, exemplary, or punitive damages
(regardless of how named), but does not include any payments or
funds which any party hereto has expressly promised to pay or
deliver to any other party hereto.
Section 10.14. Defined Terms. Capitalized terms and phrases
used and not otherwise defined herein shall for all purposes of
this Agreement have the meaning given to such terms and phrases
in Annex I hereto.
Section 10.15. Annex I, Exhibits and Schedules; Additional
Definitions. Annex I, Annex II and all Exhibits and Schedules
attached to this Agreement are a part hereof for all purposes.
Section 10.16. Amendment of Defined Instruments. Unless the
context otherwise requires or unless otherwise provided herein
the terms defined in this Agreement which refer to a particular
agreement, instrument or document also refer to and include all
renewals, extensions, modifications, amendments and restatements
of such agreement, instrument or document, provided that nothing
contained in this section shall be construed to authorize any
such renewal, extension, modification, amendment or restatement.
Section 10.17. References and Titles. All references in
this Agreement to Exhibits, Schedules, articles, sections,
subsections and other subdivisions refer to the Exhibits,
Schedules, articles, sections, subsections and other subdivisions
of this Agreement unless expressly provided otherwise. Titles
appearing at the beginning of any subdivisions are for
convenience only and do not constitute any part of such
subdivisions and shall be disregarded in construing the language
contained in such subdivisions. The words "this Agreement",
"this instrument", "herein", "hereof", "hereby", "hereunder" and
words of similar import refer to this Agreement as a whole and
not to any particular subdivision unless expressly so limited.
The phrases "this section" and "this subsection" and similar
phrases refer only to the sections or subsections hereof in which
such phrases occur. The word "or" is not exclusive, and the word
"including" (in its various forms) means "including without
limitation". Pronouns in masculine, feminine and neuter genders
shall be construed to include any other gender, and words in the
singular form shall be construed to include the plural and vice
versa, unless the context otherwise requires.
Section 10.18. Calculations and Determinations. All
calculations under the US Loan Documents of interest chargeable
with respect to Eurodollar Loans and of fees shall be made on the
basis of actual days elapsed (including the first day but
excluding the last) and a year of 360 days. All other
calculations of interest made under the US Loan Documents shall
be made on the basis of actual days elapsed (including the first
day but excluding the last) and a year of 365 or 366 days, as
appropriate. Each determination by a Lender Party of amounts to
be paid under Article III or any other matters which are to be
determined hereunder by a Lender Party (such as any US Dollar
Eurodollar Rate, Adjusted US Dollar Eurodollar Rate, Business
Day, Interest Period, or Reserve Requirement) shall, in the
absence of manifest error, be conclusive and binding. Unless
otherwise expressly provided herein or unless Required Lenders
otherwise consent all financial statements and reports furnished
to any Lender Party hereunder shall be prepared and all financial
computations and determinations pursuant hereto shall be made in
accordance with US GAAP.
Section 10.19. Construction of Indemnities and Releases. All
indemnification and release provisions of this Agreement shall be
construed broadly (and not narrowly) in favor of the Persons
receiving indemnification from or being released.
Section 10.20. Termination of Existing US Agreement. Upon
the payment in full of all outstanding indebtedness owing under
the Existing US Agreement, the Existing US Agreement and the
other loan documents executed pursuant thereto shall be
terminated and the parties thereto shall have no further
obligations or liabilities, covenants, or representations
thereunder; provided, however, the indemnification obligations
provided in the Existing US Agreement shall not be terminated and
shall survive the termination of the Existing US Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement is executed as of the
date first written above.
DEVON ENERGY CORPORATION
US Borrower
By:
Xxxxxxx X. Xxxxxx
Senior Vice President - Finance
Address:
00 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Senior Vice
President - Finance
Telephone: (000) 000-0000
Fax: (000) 000-0000
BANK OF AMERICA, N.A.,
Administrative Agent, US LC
Issuer and Lender
By:
Xxxxxx X. Xxxxx
Managing Director
Address:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
BANK OF MONTREAL
Lender
By:
Name:
Title:
BANK ONE, NA
Lender
By:
Name:
Title:
THE CHASE MANHATTAN BANK
Lender
By:
Name:
Title:
UMB OKLAHOMA BANK
Lender
By:
Name:
Title:
FIRST UNION NATIONAL BANK
Lender
By:
Name:
Title:
TORONTO-DOMINION (TEXAS), INC.
Lender
By:
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Lender
By:
Name:
Title:
By:
Name:
Title:
THE BANK OF NEW YORK
Lender
By:
Name:
Title:
ROYAL BANK OF CANADA
Lender
By:
Name:
Title:
SUNTRUST BANK, ATLANTA
Lender
By:
Name:
Title:
By:
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
Lender
By:
Name:
Title:
CITIBANK, N.A.
Lender
By:
Name:
Title:
DEUTSCHE BANK AG
Lender
By:
Name:
Title:
CIBC, INC.
Lender
By:
Name:
Title:
