EXHIBIT 4.3
SIXTH AMENDMENT TO US CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO US CREDIT AGREEMENT (herein called
the "Amendment") made as of February 9, 2001, by and among Questar
Market Resources, Inc., a Utah corporation ("US Borrower"), Bank of
America, N.A., individually and as administrative agent for the
Lenders as defined below ("US Agent"), and the undersigned Lenders.
W I T N E S S E T H:
WHEREAS, US Borrower, US Agent and the lenders as signatories
thereto (the "Lenders") entered into that certain US Credit
Agreement dated as of April 19, 1999, as amended by that certain
First Amendment to US Credit Agreement dated as of May 17, 1999, as
amended by that certain Second Amendment to US Credit Agreement
dated as of July 30, 1999, as amended by that certain Third
Amendment to US Credit Agreement dated as of November 30, 1999, as
amended by that certain Fourth Amendment to US Credit Agreement
dated as of April 17, 2000, and as amended by that certain Fifth
Amendment to US Credit Agreement dated as of October 6, 2000 (the
"Original Agreement"), for the purpose and consideration therein
expressed, whereby the Lenders became obligated to make loans to US
Borrower as therein provided; and
WHEREAS, US Borrower, US Agent and the undersigned Lenders
desire to amend the Original Agreement for the purposes as provided
herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and in the Original
Agreement, in consideration of the loans which may hereafter be made
by Lenders to US Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement.
Unless the context otherwise requires or unless otherwise expressly
defined herein, the terms defined in the Original Agreement shall
have the same meanings whenever used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context
otherwise requires, the following terms when used in this Amendment
shall have the meanings assigned to them in this Section 1.2.
"Amendment" means this Sixth Amendment to US Credit Agreement.
"US Credit Agreement" means the Original Agreement as
amended hereby.
ARTICLE II.
Amendments to Original Agreement
Section 2.1. Addition of Defined Term to Annex I. The
following definition of "FAS 133" is hereby added to Annex I of the
Original Agreement to read as follows:
"'FAS 133' means the Financial Accounting Standard's Board
Statement No. 133, as amended by Statement Xx. 000 xxx Xxxxxxxxx Xx.
000."
Section 2.2. Amendment to Annex I. The following
definitions set forth in Annex I to the Original Agreement are
hereby amended in their entirety to read as follows:
"'Permitted Liens' means:
(a) operators' liens under customary operating
agreements, statutory Liens for taxes, statutory mechanics' and
materialmen's Liens, and other similar statutory Liens, provided
such Liens secure only Liabilities which are not delinquent or which
are being contested as provided in Section 6.7 of the US Agreement
or Section 6.7 of the Canadian Agreement;
(b) Liens on any oil and gas properties which neither
have developed reserves (producing or non-producing) properly
attributable thereto nor are otherwise held under lease by
production of other reserves;
(c) Liens on the Restricted Persons' office facilities;
(d) Liens on property securing non-recourse debt
permitted under Section 7.1(f) of the US Agreement and Section
7.1(f) of the Canadian Agreement which is acquired with proceeds or
developed with proceeds of the non-recourse debt;
(e) Liens on cash or cash equivalents and letters of
credit permitted under Section 7.10(i)(b) of the US Agreement and
Section 7.10(i)(b) of the Canadian Agreement;
(f) Liens to secure the Obligations;
provided that nothing in this definition shall in and of
itself constitute or be deemed to constitute an agreement or
acknowledgment by the US Agent or the Canadian Agent or any
Lender that the Indebtedness subject to or secured by any
such Permitted Lien ranks (apart from the effect of any Lien
included in or inherent in any such Permitted Liens) in
priority to the Obligations."
"'Shareholders' Equity' means the remainder of (i) US
Borrower's Consolidated assets minus (ii) the sum of (x) US
Borrower's Consolidated liabilities (such assets and liabilities to
be calculated excluding unrealized noncash gains or losses resulting
from "xxxx-to-market" adjustments pursuant to FAS 133) plus (y) all
treasury stock of US Borrower and its Subsidiaries."
"'Consolidated Net Worth' means as to US Borrower and its
properly Consolidated subsidiaries at any time, the remainder of all
Consolidated assets of US Borrower and such subsidiaries which would
be shown on their Consolidated balance sheet prepared as of such
time in accordance with GAAP, minus the sum of (a) all amounts which
would be shown on such balance sheet as minority interests in any
such subsidiaries, plus (b) all Consolidated Liabilities of US
Borrower and such subsidiaries which would be shown on such balance
sheet, adjusted by treating as Liabilities rather than equity all
capital stock and other equity securities which US Borrower or any
such subsidiary would be required to purchase, redeem or otherwise
acquire at the election of any holder thereof, upon the passage of
time, or upon the occurrence of any contingency (other than the
voluntary election of US Borrower or any such subsidiary to make
such purchase, redemption or acquisition) and excluding unrealized
noncash gains or losses resulting from "xxxx-to-market" adjustments
pursuant to FAS 133."
Section 2.3. Hedging Contracts. Section 7.10(i)(B) of the
Original Agreement is hereby amended in its entirety to read as
follows:
"(B) such contracts do not require any Restricted Person
to provide any Lien or letter of credit to secure the Restricted
Persons' obligations thereunder, other than Liens on cash or cash
equivalents and letters of credit; provided that the aggregate
amount of cash and cash equivalents subject to Liens securing such
contracts and the undrawn amount of all letters of credit securing
such contracts shall not exceed (i) US $60,000,000 at any time,
through and including April 1, 2001 and (ii) US $30,000,000 at any
time thereafter."
ARTICLE III.
Waiver
Section 3.1. Waiver. US Borrower has informed US Agent
that US Borrower and Restricted Persons may have violated the
provisions of Section 7.10(i) of the Original Agreement for the
Fiscal Quarter ended December 31, 2000 and for the Fiscal Year ended
December 31, 2000. US Agent and the undersigned Lenders hereby (a)
waive any such violation of Section 7.10(i) for such Fiscal Quarter
and such Fiscal Year, and (b) waive any Default or Event of Default
resulting from such violation.
ARTICLE IV.
Conditions of Effectiveness
Section 4.1. Effective Date. This Amendment shall become
effective as of the date first above written when, and only when, US
Agent shall have received, at US Agent's office:
(i) a counterpart of this Amendment executed and
delivered by US Borrower and Required Lenders;
(ii) a certificate of the Secretary or Assistant Secretary
and of the President, Chief Financial Officer or Vice President of
Administrative Services of US Borrower dated the date of this
Amendment certifying: (a) that resolutions adopted in connection
with the Original Agreement by the Board of Directors of the US
Borrower authorize the execution, delivery and performance of this
Amendment by US Borrower, (b) to the names and true signatures of
the officers of the US Borrower authorized to sign this Amendment,
and (c) that all of the representations and warranties set forth in
Article V hereof are true and correct at and as of the time of such
effectiveness; and
(iii) all fees and reimbursements to be paid to US Agent
pursuant to any US Loan Documents, or otherwise due US Agent,
including fees and disbursements of US Agent's attorneys.
ARTICLE V.
Representations and Warranties
Section 5.1. Representations and Warranties of Borrower.
In order to induce US Agent and Lenders to enter into this
Amendment, US Borrower represents and warrants to US Agent that:
(a) The representations and warranties contained in
Article V of the Original Agreement are true and
correct at and as of the time of the effectiveness
hereof.
(b) US Borrower has duly taken all action
necessary to authorize the execution and
delivery by it of this Amendment and to
authorize the consummation of the transactions
contemplated hereby and the performance of its
obligations hereunder. US Borrower is duly
authorized to borrow funds under the US Credit
Agreement.
(c) The execution and delivery by US Borrower of this
Amendment, the performance by US Borrower of its
obligations hereunder and the consummation of the
transactions contemplated herein do not and will not
(a) conflict with any provision of (i) any Law, (ii)
the organizational documents of US Borrower, or (iii)
any agreement, judgment, license, order or permit
applicable to or binding upon US Borrower, or (b)
result in the acceleration of any Indebtedness owed
by US Borrower, or (c) result in or require the
creation of any Lien upon any assets or properties of
US Borrower, 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 US Borrower of this Amendment or to
consummate any transactions contemplated herein.
(d) This Amendment is a legal, valid and binding
obligation of US Borrower, enforceable in accordance
with its terms, except as such enforcement may be
limited by bankruptcy, insolvency or similar Laws of
general application relating to the enforcement of
creditors' rights and by equitable principles of
general application relating to the enforcement of
creditor's rights.
ARTICLE VI.
Miscellaneous
Section 6.1. Ratification of Agreements. The Original
Agreement as hereby amended is hereby ratified and confirmed in all
respects. The US Loan Documents, as they may be amended or affected
by this Amendment, are hereby ratified and confirmed in all
respects. Any reference to the US Credit Agreement in any Loan
Document shall be deemed to be a reference to the Original Agreement
as hereby amended. The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of Lenders under
the US Credit Agreement, the US Notes, or any other US Loan Document
nor constitute a waiver of any provision of the US Credit Agreement,
the US Notes or any other US Loan Document.
Section 6.2. Survival of Agreements; Cumulative Nature.
All of US Borrower's various representations, warranties, covenants
and agreements herein shall survive the execution and delivery of
this Amendment and the performance hereof, including without
limitation the making or granting of the US Loans, 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 instrument delivered by any Restricted Person
hereunder or under the US Credit Agreement to any Lender Party shall
be deemed representations and warranties by US Borrower or
agreements and covenants of US Borrower under this Amendment and
under the US Credit 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 Amendment 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 6.3. Loan Documents. This Amendment is a US Loan
Document, and all provisions in the US Credit Agreement pertaining
to US Loan Documents apply hereto.
Section 6.4. Governing Law. This Amendment shall be
governed by and construed in accordance the laws of the State of
Utah and any applicable laws of the United States of America in all
respects, including construction, validity and performance. 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 Utah and agrees and consents that
service of process may be made upon it or any Restricted Person in
any legal proceeding relating to the Amendment Documents or the
Obligations by any means allowed under Utah or federal law.
Section 6.5. Counterparts. This Amendment may be
separately executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to constitute one and the same
Amendment. This Amendment may be validly executed and delivered by
facsimile or other electronic transmission.
THIS AMENDMENT 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.
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IN WITNESS WHEREOF, this Amendment is executed as of the date
first above written.
QUESTAR MARKET RESOURCES, INC.
US Borrower
By: /s/ X. X. Xxxxxxx
X. X. Xxxxxxx
President and Chief Executive
Officer
Mailing Address:
X.X. Xxx 00000
Xxxx Xxxx Xxxx,
Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Street Address:
000 Xxxx 000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (801)
324-5497
Fax: (000) 000-0000
BANK OF AMERICA, N.A.
Administrative Agent,
US LC Issuer and Lender
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
Lender
By:
Name:
Title:
BANK OF MONTREAL
Lender
By:
Xxxxx Xxxxxxxx
Director
BANK ONE, NA (MAIN OFFICE CHICAGO)
Lender
By:
Name:
Title:
FIRST SECURITY BANK, N.A.
Lender
By:
Name:
Title:
MELLON BANK, N.A.
Lender
By:
Xxxxx X. Xxxxxx
Vice President
U.S. BANK NATIONAL ASSOCIATION
Lender
By:
Xxxx X. Xxxxxxxx
Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
Lender
By:
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
Lender
By:
Name:
Title:
THE SUMITOMO BANK, LIMITED
Lender
By:
Name:
Title:
