EXHIBIT 10.18
December 16, 2003
5-YEAR REVOLVING CREDIT AGREEMENT
dated as of
December 16, 2003
among
PIONEER NATURAL RESOURCES COMPANY,
as the Borrower
JPMORGAN CHASE BANK,
as Administrative Agent
JPMORGAN CHASE BANK and BANK OF AMERICA, N.A.,
as Issuing Banks
and
The Lenders Party Hereto
----------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
BANK OF AMERICA, N.A., BANK ONE, N.A., FLEET NATIONAL BANK, XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents
----------------------------
X.X. XXXXXX SECURITIES INC. and WACHOVIA CAPITAL MARKETS, LLC,
as Co-Arrangers and Joint Bookrunners
December 16, 2003
TABLE OF CONTENTS
Page:
ARTICLE I Definitions.................................................... 1
Section 1.01 Defined Terms.................................... 1
Section 1.02 Classification of Loans and Borrowings........... 17
Section 1.03 Terms Generally.................................. 17
Section 1.04 Accounting Terms; GAAP........................... 18
ARTICLE II The Credits................................................... 18
Section 2.01 Commitments...................................... 18
Section 2.02 Commitment Increase.............................. 18
Section 2.03 Revolving Loans and Borrowings................... 20
Section 2.04 Requests for Revolving Borrowings................ 20
Section 2.05 Swingline Loans.................................. 21
Section 2.06 Letters of Credit................................ 23
Section 2.07 Funding of Borrowings............................ 26
Section 2.08 Interest Elections............................... 27
Section 2.09 Termination and Reduction of Commitments......... 28
Section 2.10 Repayment of Loans; Evidence of Debt............. 29
Section 2.11 Prepayment of Loans.............................. 30
Section 2.12 Fees............................................. 30
Section 2.13 Interest......................................... 31
Section 2.14 Alternate Rate of Interest....................... 32
Section 2.15 Increased Costs.................................. 32
Section 2.16 Break Funding Payments........................... 33
Section 2.17 Taxes............................................ 34
Section 2.18 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs............................. 35
Section 2.19 Mitigation Obligations; Replacement of Lenders... 37
ARTICLE III Representations and Warranties............................... 38
Section 3.01 Organization; Powers............................. 38
Section 3.02 Authorization; Enforceability.................... 38
Section 3.03 Governmental Approvals; No Conflicts............. 38
Section 3.04 Financial Condition; No Material Adverse Change.. 38
Section 3.05 Properties....................................... 39
Section 3.06 Litigation and Environmental Matters............. 39
Section 3.07 Compliance with Laws............................. 39
Section 3.08 Investment and Holding Company Status............ 39
Section 3.09 Taxes............................................ 39
Section 3.10 ERISA............................................ 39
Section 3.11 Disclosure....................................... 40
ARTICLE IV Conditions.................................................... 40
Section 4.01 Effective Date................................... 40
Section 4.02 Each Credit Event................................ 41
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December 16, 2003
ARTICLE V Affirmative Covenants.......................................... 41
Section 5.01 Financial Statements and Other Information....... 41
Section 5.02 Notices of Material Events....................... 43
Section 5.03 Existence; Conduct of Business................... 43
Section 5.04 Payment of Obligations........................... 43
Section 5.05 Maintenance of Properties; Insurance............. 44
Section 5.06 Books and Records; Inspection Rights............. 44
Section 5.07 Compliance with Laws............................. 44
Section 5.08 Use of Proceeds and Letters of Credit............ 44
Section 5.09 Operations....................................... 44
ARTICLE VI Negative Covenants............................................ 44
Section 6.01 Indebtedness..................................... 44
Section 6.02 Liens............................................ 45
Section 6.03 Fundamental Changes.............................. 45
Section 6.04 Financial Covenants.............................. 46
Section 6.05 Investments, Loans, Advances, Guarantees and
Acquisitions................................... 46
Section 6.06 Swap Agreements.................................. 46
Section 6.07 Transactions with Affiliates..................... 47
Section 6.08 Restrictive Agreements........................... 47
ARTICLE VII Events of Default............................................ 47
ARTICLE VIII The Administrative Agent.................................... 50
Section 8.01 Administrative Agent............................. 50
Section 8.02 The Co-Arrangers, Joint Bookrunners, Syndication
Agent and Co-Documentation Agents.............. 51
ARTICLE IX Miscellaneous................................................. 52
Section 9.01 Notices.......................................... 52
Section 9.02 Waivers; Amendments.............................. 53
Section 9.03 Expenses; Indemnity; Damage Waiver............... 53
Section 9.04 Successors and Assigns........................... 55
Section 9.05 Survival......................................... 58
Section 9.06 Counterparts; Integration; Effectiveness......... 58
Section 9.07 Severability..................................... 58
Section 9.08 Governing Law; Jurisdiction; Consent to
Service of Process............................. 59
Section 9.09 WAIVER OF JURY TRIAL............................. 59
Section 9.10 Headings......................................... 60
Section 9.11 Confidentiality.................................. 60
Section 9.12 Interest Rate Limitation......................... 61
Section 9.13 USA Patriot Act Notice........................... 61
Schedules:
Schedule 2.01 Commitments
Schedule 2.13 Swingline Loan Rate Calculation
Schedule 3.06 Disclosed Matters
Schedule 6.02 Liens
Schedule 6.08 Existing Restrictive Agreements
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December 16, 2003
Exhibits:
Exhibit A Form of Assignment and Assumption
Exhibit B Notice of Commitment Increase
Exhibit C Form of Opinion of Borrower's Counsel
Exhibit D Form of Subsidiary Guaranty
Exhibit E Form of Promissory Note
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December 16, 2003
5-Year Revolving Credit Agreement dated as of December 16, 2003, among
Pioneer Natural Resources Company, a Delaware corporation, as the Borrower,
JPMorgan Chase Bank, as Administrative Agent, JPMorgan Chase Bank and Bank of
America, N.A., as Issuing Banks, the Lenders party hereto, Wachovia Bank,
National Association, as Syndication Agent, Bank of America, N.A., Bank One,
N.A., Fleet National Bank, Xxxxx Fargo Bank, National Association, as
Co-Documentation Agents, and X.X. Xxxxxx Securities Inc. and Wachovia Capital
Markets, LLC, as Co-Arrangers and Joint Bookrunners.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreement" means this 5-Year Revolving Credit Agreement, as the same may
be amended, modified, restated, or replaced from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the Commitments represented by such Lender's Commitment. If the Commitments
have terminated or expired, the Applicable Percentages shall be determined based
upon the Commitments most recently in effect, giving effect to any assignments.
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December 16, 2003
"Applicable Margin" means, for any day, with respect to any Eurodollar
Loan, or with respect to the commitment fees payable hereunder, as the case may
be, the Applicable Margin per annum set forth below under the caption
"Eurodollar Spread" or "Commitment Fee Rate", as the case may be, based upon the
ratings by Xxxxx'x and S&P, respectively, applicable on such date to the Index
Debt:
====================== ======================= =====================
Index Debt Ratings Commitment Fee Rate Eurodollar Spread
---------------------- ----------------------- ---------------------
Category 1 0.15 % 0.625 %
= Baa1/BBB+
---------------------- ----------------------- ---------------------
Category 2 0.20 % 0.750 %
Baa2/BBB
---------------------- ----------------------- ---------------------
Category 3 0.25 % 1.000 %
Baa3/BBB-
---------------------- ----------------------- ---------------------
Category 4 0.30 % 1.250 %
Ba1/BB+
---------------------- ----------------------- ---------------------
Category 5 0.40 % 1.750 %
= Ba2/BB
====================== ======================= =====================
Applicable Margin for ABR Loans is zero percent (0%).
For purposes of the foregoing, if both Xxxxx'x and S&P shall not have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such agencies shall
be deemed to have established a rating in Category 5. If the ratings established
or deemed to have been established by Xxxxx'x and S&P for the Index Debt shall
fall within different Categories, the Applicable Margin shall be based on the
higher of the two ratings, unless one of the two ratings is two or more
Categories lower than the other, in which case the Applicable Margin shall be
determined by reference to the Category next above that of the lower of the two
ratings; provided, however, that if only one of Xxxxx'x or S&P shall have
established a rating, then the Applicable Margin shall be determined by
reference to such available rating. If the ratings established or deemed to have
been established by Xxxxx'x and S&P for the Index Debt shall be changed (other
than as a result of a change in the rating system of Xxxxx'x or S&P), such
change shall be effective as of the date on which it is first announced by the
applicable rating agency, irrespective of when notice of such change shall have
been furnished by the Borrower to the Agent and the Lenders pursuant to Section
5.01 or otherwise. Each change in the Applicable Margin shall apply during the
period commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Xxxxx'x or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Borrower
and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Margin shall be determined by reference to the rating of such agency
most recently in effect prior to such change or cessation.
"Approved Fund" has the meaning assigned to such term in Section 9.04.
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December 16, 2003
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means the Pioneer Natural Resources Company, a Delaware
corporation.
"Borrowing" means Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect or Swingline Loans, as to which a single
Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.04.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City or Texas are authorized or required by
law to remain closed; provided that, when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Certifying Officer" has the meaning set forth in Section 5.01(c).
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of Equity
Interests representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower; or
(b) occupation of a majority of the seats (other than vacant seats) on the board
of directors of the Borrower by Persons who were neither (i) nominated by the
board of directors of the Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or the Issuing Banks
(or, for purposes of Section 2.15(b), by any lending office of such Lender or by
such Lender's or the Issuing Banks' holding companies, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
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December 16, 2003
"CI Lender" has the meaning set forth in Section 2.02(a).
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Swingline Loans.
"Co-Arrangers" means both X.X. Xxxxxx Securities Inc. and Wachovia Capital
Markets, LLC.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Credit Exposure hereunder, as such
commitment may be (a) increased from time to time pursuant to Section 2.02, (b)
reduced from time to time pursuant to Section 2.09, or (c) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Commitment is set forth on
Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender
shall have assumed its Commitment, as applicable. The initial aggregate amount
of the Lenders' Commitments is $700,000,000.
"Commitment Increase" has the meaning set forth in Section 2.02(a).
"Commitment Increase Effective Date" has the meaning set forth in Section
2.02(b).
"Consolidated EBITDAX" means, with respect to the Borrower and its
Restricted Subsidiaries, for any period, Consolidated Net Income for that
period, plus (a) to the extent included in determining Consolidated Net Income
for that period, (i) the aggregate amount of Consolidated Interest Expense for
that period, (ii) the aggregate amount of letter of credit fees paid during that
period, (iii) the aggregate amount of income tax expense for that period, (iv)
non-cash extraordinary losses, (v) losses on the disposition of assets, (vi)
losses or charges under Statement of Financial Accounting Standards 133 (and any
statements replacing, modifying or superceding such statement) resulting from
the net change in the Borrower's (or any Restricted Subsidiary's) xxxx-to-market
portfolio of commodity price risk management activities and (vii) all amounts
attributable to depreciation, depletion, amortization, and other non-cash
charges and expenses for that period and (viii) exploration and abandonment
expenses, minus (b) to the extent included in determining Consolidated Net
Income for that period, (i) non-cash extraordinary income (ii) gains on the
disposition of assets and (iii) non-cash gains under Statement of Financial
Accounting Standard 133 (and any statements replacing, modifying or superceding
such statement) resulting from the net change in Borrower's (or any Restricted
Subsidiary's) xxxx-to-market portfolio of commodity price risk management
activities during that period, in each case determined on a consolidated basis
in accordance with GAAP and without duplication of amounts.
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December 16, 2003
"Consolidated Interest Expense" means, with respect to the Borrower and its
Restricted Subsidiaries on a consolidated basis for any period, the sum of (i)
gross interest expense (including all cash and accrued interest expense) of the
Borrower and its Restricted Subsidiaries for such period on a consolidated basis
in accordance with GAAP, including to the extent included in interest expense in
accordance with GAAP (x) the amortization of debt discounts and (y) the portion
of any payments or accruals with respect to Capital Leases allocable to interest
expense and (ii) capitalized interest of the Borrower and its Restricted
Subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, net income of the Borrower
and its Restricted Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Consolidated Tangible Net Worth" means, at any date, (i) the Consolidated
shareholders' equity of Borrower and its Restricted Subsidiaries (determined in
accordance with GAAP); less (ii) the amount of Consolidated intangible assets of
Borrower and its Restricted Subsidiaries, provided, that to the extent oil and
gas mineral leases are classified as intangible assets under GAAP, for purposes
of this definition, those assets will be treated as tangible assets; less (iii)
the other comprehensive income component of consolidated shareholders' net
equity of Borrower and its Restricted Subsidiaries attributable to deferred
hedge gains; plus (iv) the aggregate amount of any non-cash write downs under
Statements of Financial Accounting Standards Nos. 19, 109, 142, and 144, (and
any statements replacing, modifying or superceding such statement), on a
Consolidated basis, by Borrower and its Restricted Subsidiaries after December
31, 2002, net of associated taxes; plus (v) the other comprehensive income
component of consolidated shareholders' net equity of Borrower and its
Restricted Subsidiaries attributable to deferred hedge losses.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender's Loans and its LC Exposure and
Swingline Exposure at such time.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material.
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December 16, 2003
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants, options
or other rights entitling the holder thereof to purchase or acquire any such
equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
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December 16, 2003
"Event of Default" has the meaning set forth in Article VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Banks or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.19(b), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement whether upon execution or upon
assignment (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.17(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.17(a).
"Executive Officer" means any Financial Officer, executive vice president,
officer ranking above an executive vice president and any officer that is the
functional equivalent of the foregoing.
"Existing Credit Agreement" means that certain Credit Agreement, dated as
of May 31, 2000, among the Borrower, Bank of America, N.A., as Administrative
Agent, Credit Suisse First Boston, as Documentation Agent, Chase Manhattan Bank,
as Syndication Agent, and the lenders parties thereto.
"Existing Letters of Credit" means the Letters of Credit described on
Schedule 1.01 that were issued by Bank of America, N.A. under the Existing
Credit Agreement and that shall be transferred to and deemed issued under this
Agreement, as such Letters of Credit may be renewed or amended from time to
time.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means, with respect to any Person, the chief financial
officer, principal accounting officer, treasurer or controller of such Person.
The term "Financial Officer" without reference to a Person shall mean a
Financial Officer of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
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December 16, 2003
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, or (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, provided, that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Highest Lawful Rate" means, with respect to each Lender, the maximum
nonusurious interest rate, if any, that at any time or from time to time may be
contracted for, taken, reserved charged or received on the Indebtedness under
laws applicable to such Lender which are presently in effect or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect and
which allow a higher maximum nonusurious interest rate than applicable laws
allow as of the date hereof.
"Hydrocarbon Interests" means all rights, titles, interests and estates now
owned or hereafter acquired in and to oil and gas leases, oil, gas and mineral
leases, or other liquid or gaseous hydrocarbon leases, mineral fee or lease
interests, farm-outs, overriding royalty and royalty interests, net profit
interests, oil payments, production payment interests and similar mineral
interests, including any reserved or residual interest of whatever nature.
"Hydrocarbons" means oil, gas, casinghead gas, condensate, distillate,
liquid hydrocarbons, gaseous hydrocarbons, all products refined, separated,
settled and dehydrated therefrom and all products refined therefrom, including,
without limitation, kerosene, liquefied petroleum gas, refined lubricating oils,
diesel fuel, drip gasoline, natural gasoline, helium, sulfur and all other
minerals.
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