EXHIBIT 4.4
SEVENTH AMENDMENT TO US CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO US CREDIT AGREEMENT (herein called the
"Amendment") made as of April 16, 2001 (herein called the "Effective Date"), 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, and as amended by that certain Sixth Amendment to US Credit
Agreement dated as of February 9, 2001 (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 Seventh Amendment to US Credit Agreement.
"US CREDIT AGREEMENT" means the Original Agreement as amended hereby.
ARTICLE II.
AMENDMENTS TO ORIGINAL AGREEMENT
Section 2.1. 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:
"'364-DAY COMMITMENT FEE RATE' means, on any date, the number of Basis
Points per annum set forth below based on the Applicable Rating Level on such
date:
============================= =================================
Applicable Applicable 364-Day
Rating Level Commitment Fee Rate
----------------------------- ---------------------------------
Level I 8.5
----------------------------- ---------------------------------
Level II 10.0
----------------------------- ---------------------------------
Level III 12.5
----------------------------- ---------------------------------
Level IV 15.0
----------------------------- ---------------------------------
Level V 17.0
----------------------------- ---------------------------------
Level VI 22.5
----------------------------- ---------------------------------
Level VII 27.5"
============================= =================================
"'APPLICABLE MARGIN'
(a) means when used with respect to Tranche A Loans in the US
Agreement on any date, the number of Basis Points per annum set forth below
based on the Applicable Rating Level on such date:
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================================= =====================================
Applicable Applicable
Rating Level Margin
--------------------------------- -------------------------------------
Level I 30.0
--------------------------------- -------------------------------------
Level II 35.0
--------------------------------- -------------------------------------
Level III 45.0
--------------------------------- -------------------------------------
Level IV 60.0
--------------------------------- -------------------------------------
Level V 75.0
--------------------------------- -------------------------------------
Level VI 100.0
--------------------------------- -------------------------------------
Level VII 125.0
================================= =====================================
(b) means when used in the Canadian Agreement and when used with
respect to Tranche B Loans in the US Agreement on any date, the number of
Basis Points per annum set forth below based on the Applicable Rating Level
on such date:
================================= =====================================
Applicable Applicable
Rating Level Margin
--------------------------------- -------------------------------------
Level I 30.0
--------------------------------- -------------------------------------
Level II 40.0
--------------------------------- -------------------------------------
Level III 50.0
--------------------------------- -------------------------------------
Level IV 75.0
--------------------------------- -------------------------------------
Level V 87.5
--------------------------------- -------------------------------------
Level VI 100.0
--------------------------------- -------------------------------------
Level VII 125.0
================================= =====================================
In the event that the Canadian Revolving Loans convert into Canadian Term
Loans pursuant to Section 1.7 of the Canadian Agreement, then as of April
20, 2004, and at all times thereafter the Applicable Margin as set forth
above on such Canadian Term Loans shall increase by fifteen (15) Basis
Points per annum. Changes in the Applicable Margin will occur automatically
without prior notice as changes in the Applicable Rating Level occur.
US Agent will give notice promptly to Borrowers and the Lenders of changes
in the Applicable Margin."
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"'BA DISCOUNT RATE' means, in respect of a BA being accepted by a
Lender on any date, (i) for a Lender that is listed in Schedule I to the
BANK ACT (Canada), the average bankers' acceptance rate as quoted on
Reuters CDOR page (or such other page as may, from time to time, replace
such page on that service for the purpose of displaying quotations for
bankers' acceptances accepted by leading Canadian financial institutions)
at approximately 10:00 a.m. (Toronto time) on such drawdown date for
bankers' acceptances having a comparable maturity date as the maturity date
of such BA (the "CDOR Rate"); or, if such rate is not available at or about
such time, the average of the bankers' acceptance rates (expressed to five
decimal places) as quoted to the Agent by the Schedule I BA Reference Banks
as of 10:00 a.m. (Toronto time) on such drawdown date for bankers'
acceptances having a comparable maturity date as the maturity date of such
BA; and (ii) for a Lender that is listed in Schedule II to the BANK ACT
(Canada) or a Lender that is listed in Schedule III to the Bank Act
(Canada) that is not subject to the restrictions and requirements referred
to in subsection 524 (2) of the Bank Act (Canada), the rate established by
the Canadian Agent to be the lesser of (A) the CDOR Rate plus 10 Basis
Points; and (B) the average of the bankers' acceptance rates (expressed to
five decimal places) as quoted to the Canadian Agent by the Schedule II BA
Reference Banks as of 10:00 a.m. (Toronto time) on such drawdown date for
bankers' acceptances having a comparable maturity date as the maturity date
of such BA."
"'Canadian Maximum Credit Amount' means the Canadian Dollar Exchange
Equivalent of US $58,333,333.33; provided that the Canadian Maximum Credit
Amount may be increased up to US $70,000,000 pursuant to Section 1.1(b) of
the Canadian Agreement."
"'CONVERSION DATE' means April 15, 2002, or such later day to which
the Conversion Date is extended pursuant to Section 1.6 of the Canadian
Agreement."
"'MAJORITY LENDERS' means (i) when used in the US Agreement, Lenders
whose aggregate Percentage Shares under the US Agreement equal or exceed
sixty-six and two thirds percent (66 2/3%), and (ii) when used in the
Canadian Agreement, Lenders whose aggregate Percentage Shares under the
Canadian Agreement equal or exceed sixty-six and two thirds percent (66
2/3%)."
"'PERCENTAGE SHARE' means
(a) under the US Agreement with respect to any Lender (i) when no US
Loans are outstanding, the percentage set forth below such Lender's name on
the Lenders Schedule as its Percentage Share under the US Agreement, as
modified by assignments of a Lender's rights and obligations under the US
Agreement made by or to such Lender in accordance with the terms of the US
Agreement or pursuant to Section 1.1(f) of the US Agreement, and (ii) when
used otherwise, the percentage obtained by dividing (x) the sum of the
unpaid principal balance of such Lender's US Loans and such Lender's
Percentage Share of the US LC Obligations, by (y) the sum of the aggregate
unpaid principal balance of all US Loans at such time plus the aggregate
amount of all US LC Obligations outstanding at such time;
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QUESTAR CORP.
(b) under the Canadian Agreement with respect to any Lender (i) when
used in Article I or Article II of the Canadian Agreement, in any Borrowing
Notice thereunder or when no Canadian Advances are outstanding, the
percentage set forth below such Lender's name on the Lenders Schedule as
its Percentage Share under the Canadian Agreement, as modified by
assignments of a Lender's rights and obligations under the Canadian
Agreement made by or to such Lender in accordance with the terms of the
Canadian Agreement or pursuant to Section 1.1(b) of the Canadian Agreement,
and (ii) when used otherwise, the percentage obtained by dividing (x) the
sum of the unpaid principal balance of such Lender's Canadian Advances and
such Lender's Percentage Share of the Canadian LC Obligations, by (y) the
sum of the aggregate unpaid principal balance of all Canadian Advances at
such time plus the aggregate amount of all Canadian LC Obligations
outstanding at such time; and
(c) when used in any Loan Document with respect to all Lenders under
the US Agreement and the Canadian Agreement, (i) for any Lender under the
US Agreement, the percentage obtained by dividing such Lender's Percentage
Share of the US Facility Usage by the Aggregate Facility Usage, and (ii)
for any Lender under the Canadian Agreement, the percentage obtained by
dividing such Lender's Percentage Share of the Canadian Facility Usage by
the Aggregate Facility Usage."
"'PERMITTED LIENS' means:
(a) operators' liens under customary operating agreements, liens
arising under gas transportation and purchase agreements on the gas being
transported or processed which secure related gas transportation and
processing fees only, 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; and
(e) 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."
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"'REQUIRED LENDERS' means (i) when used in the US Agreement, Lenders
whose aggregate Percentage Shares under the US Agreement equal or exceed
fifty percent (50%), and (ii) when used in the Canadian Agreement, Lenders
whose aggregate Percentage Shares under the Canadian Agreement equal or
exceed fifty percent (50%)."
"'TRANCHE B CONVERSION DATE' means April 15, 2002, or such later day
to which the Tranche B Conversion Date is extended pursuant to Section 1.1
of the US Agreement."
"'TRANCHE B MAXIMUM CREDIT AMOUNT' means $41,666,666.67; provided that
the Tranche B Maximum Credit Amount may be increased up to $50,000,000
pursuant to Section 1.1(f) of the US Agreement."
Section.2. ADDITIONAL DEFINITIONS. The following definitions are hereby
added to Annex I of the Original Agreement, in alphabetical order, to read as
follows:
"'AGGREGATE FACILITY USAGe' means, at the time in question, the sum of
(i) the Canadian Facility Usage plus (ii) the US Facility Usage."
"'TRANCHE A LENDERS' means Lenders designated as Tranche A Lenders on
the Lenders Schedule."
"'TRANCHE A PERCENTAGE SHARE' means with respect to any Tranche A
Lender (i) when used in Article I of the US Agreement or in Article II of
the US Agreement, in any Borrowing Notice thereunder or when no Tranche A
Loans are outstanding, the Tranche A percentage set forth below such
Tranche A Lender's name on the Lenders Schedule as modified by assignments
of a Tranche A Lender's rights and obligations under the US Agreement made
by or to such Lender in accordance with the terms of the US Agreement, and
(ii) when used otherwise, the percentage obtained by dividing (x) the sum
of the unpaid principal balance of such Lender's Tranche A Loans and such
Lender's Percentage Share of the US LC Obligations, by (y) the sum of the
aggregate unpaid principal balance of all Tranche A Loans at such time plus
the aggregate amount of all US LC Obligations outstanding at such time."
"'TRANCHE A REQUIRED LENDERS' means Tranche A Lenders whose aggregate
Tranche A Percentage Shares equal or exceed fifty percent (50%)."
"'TRANCHE B LENDERS' means Lenders designated as Tranche B Lenders on
the Lenders Schedule."
"'TRANCHE B PERCENTAGE SHARE' means with respect to any Tranche B
Lender (i) when used in Article I of the US Agreement, in any Borrowing
Notice thereunder or when no Tranche B Loans are outstanding, the Tranche B
percentage set forth below such Tranche B Lender's name on the Lenders
Schedule as modified by assignments of a Tranche B Lender's rights and
obligations under the US Agreement made by or to such Lender in accordance
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with the terms of the US Agreement, and (ii) when used otherwise, the
percentage obtained by dividing (x) the sum of the unpaid principal balance
of such Lender's Tranche B Loans, by (y) the sum of the aggregate unpaid
principal balance of all Tranche B Loans."
"'TRANCHE B REQUIRED LENDERS' means Tranche B Lenders whose aggregate
Tranche B Percentage Shares equal or exceed fifty percent (50%)."
Section.3. COMMITMENT TO LEND; US NOTES. Section 1.1 of the Original
Agreement is hereby amended in its entirety to read as follows:
"Section 1.1. COMMITMENTS TO LEND; US NOTES.
(a) TRANCHE A. Subject to the terms and conditions hereof, each Lender
severally agrees to make loans to US Borrower (herein called such Tranche A
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 Tranche A 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) the US Facility
Usage shall never exceed the US Maximum Credit Amount, (iii) such Tranche A
Lender's Percentage Share of the US Facility Usage shall never exceed such
Tranche A Lender's Percentage Share of the US Maximum Credit Amount
(calculated excluding Competitive Bid Loans), and (iv) such Tranche A
Lender's Percentage Share of the Tranche A Facility Usage shall never
exceed such Tranche A 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, if less, must equal the unadvanced portion of the US Maximum
Credit Amount. The obligation of US Borrower to repay to each Tranche A
Lender the aggregate amount of all Tranche A Loans made by such Tranche A
Lender, together with interest accruing in connection therewith, shall be
evidenced by a single promissory note (herein called such Tranche A
Lender's "Tranche A Note") made by US Borrower payable to the order of such
Tranche A Lender in the form of Exhibit A-1 with appropriate insertions.
The amount of principal owing on any Tranche A Lender's Tranche A Note at
any given time shall be the aggregate amount of all Tranche A Loans
theretofore made by such Tranche A Lender minus all payments of principal
theretofore received by such Tranche A 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
US Facility 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
Tranche B Lender severally agrees to make loans to US Borrower (herein
called such Tranche B Lender's "Tranche B Loans") upon US Borrower's
request from time to time during the
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Tranche B Revolving Period, provided that (i) subject to Sections 3.3, 3.4
and 3.5, all Tranche B 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) the US Facility Usage shall never exceed the US
Maximum Credit Amount , (iii) such Tranche B Lender's Percentage Share of
the US Facility Usage shall never exceed such Tranche B Lender's Percentage
Share of the US Maximum Credit Amount (calculated excluding Competitive Bid
Loans), and (iv) such Tranche B Lender's Percentage Share of the Tranche B
Facility Usage shall never exceed such Tranche B 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, if less, must equal the unadvanced
portion of the US Maximum Credit Amount. The obligation of US Borrower to
repay to each Tranche B Lender the aggregate amount of all Tranche B Loans
made by such Tranche B Lender, together with interest accruing in
connection therewith, shall be evidenced by a single promissory note
(herein called such Tranche B Lender's "Tranche B Note") made by US
Borrower payable to the order of such Tranche B Lender in the form of
Exhibit A-2 with appropriate insertions. The amount of principal owing on
any Tranche B Lender's Tranche B Note at any given time shall be the
aggregate amount of all Tranche B Loans theretofore made by such Tranche B
Lender minus all payments of principal theretofore received by such Tranche
B 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 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 Tranche B Lenders.
Upon receipt by each Tranche B Lender from US Agent of an executed
Request for an Offer of Extension, each Tranche B Lender shall, within
thirty days after the date such Tranche B Lender receives 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 Tranche B 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
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Borrower to allow US Borrower to seek a replacement Tranche B
Lender pursuant to Section 1.1(e) (any Tranche B Lender giving
notice of such denial is herein called a "Non-Accepting Tranche B
Lender"). The failure of a Tranche B Lender to so notify US Agent
within such thirty day period shall be deemed to be notification
by such Tranche B Lender to US Agent that such Tranche B Lender
has denied US Borrower's Request for an Offer of Extension.
(ii) Provided that all Tranche B 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 Tranche B Lenders,
such Tranche B Lenders shall have been repaid pursuant to Section
1.1(e) or replacement Tranche B 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 such 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 Tranche B Lender retains the absolute and
unfettered discretion to make and that no commitment in this regard is
hereby given by a Tranche B 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 Tranche B 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 Tranche B Lender's obligation to make new Tranche B Loans shall be
canceled automatically, and (ii) each Tranche B Lender's Tranche B Loans
shall become term loans maturing on the Tranche B Maturity Date.
(e) NON-ACCEPTING TRANCHE B LENDER. Provided that Tranche B 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 Tranche B 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):
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(i) the Non-Accepting Tranche B 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 Tranche B Lender (as
defined in Section 1.1(c)(i)(2)), or
(ii) replace the Non-Accepting Tranche B Lender by reaching
satisfactory arrangements with one or more existing Tranche B Lenders
or new Tranche B Lenders, for the purchase, assignment and assumption
of all Canadian Obligations and US Obligations of the Non-Accepting
Tranche B Lender, provided that any new Tranche B Lender, with, if
necessary, any Affiliate, shall take a pro rata assignment of both
Canadian Obligations and US Obligations, and such Non-Accepting
Tranche B Lender shall be obligated to sell such Obligations in
accordance with such satisfactory arrangements.
In connection with any such replacement of a Tranche B Lender pursuant to
this Section 1.1(e), US Borrower shall pay all costs that would have been
due to such Tranche B Lender pursuant to Section 3.6 if such Tranche B
Lender's US Loans had been prepaid at the time of such replacement.
(f) INCREASE IN COMMITMENTS. During the Tranche B Revolving Period,
the Tranche A Maximum Credit Amount, the Tranche B Maximum Credit Amount,
the US Maximum Credit Amount and the Canadian Maximum Credit Amount may be
increased, pro rata, by an aggregate amount of $10,000,000 or any higher
integral multiple thereof not to exceed $50,000,000 at the request of US
Borrower and with the prior written consent of the US Agent and the
Canadian Agent, which consent shall not be unreasonably withheld, and
without the consent of any Lender provided that a new Lender becomes a
party to the Credit Agreement with the same Percentage Share under Tranche
B of the US Credit Agreement and the Canadian Credit Agreement, and that
such Lender agrees to all of the terms and conditions of the US Loan
Documents and the Canadian Loan Documents. Each of US Agent and Canadian
Agent are hereby authorized to execute and deliver amendments to the Loan
Documents to effectuate the foregoing on behalf of all Lenders."
Section.4. TRANCHE A COMMITMENT FEES. Section 1.5(a)(ii) of the Original
Agreement is hereby amended in its entirety to read as follows:
"(ii) TRANCHE A COMMITMENT FEES. In consideration of each Tranche
A Lender's commitment to make Tranche A Loans under this Agreement, US
Borrower will pay to US Agent for the account of each Tranche A Lender
a commitment fee determined on a daily basis by applying the Five-Year
Commitment Fee Rate to its Tranche A Percentage Share of the amount by
which the Tranche A Maximum Credit Amount exceeds the Tranche A
Facility Usage on each day during the US Facility Commitment Period.
This commitment fee shall be due and payable in arrears on the
fifteenth day after the end of each Fiscal Quarter and at the end of
the US Facility Commitment Period."
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Section 2.5. TRANCHE B COMMITMENT FEES. Section 1.5(b)(ii) of the Original
Agreement is hereby amended in its entirety to read as follows:
"(ii) COMMITMENT FEES. In consideration of each Tranche B
Lender's commitment to make Tranche B Loans under this Agreement, US
Borrower will pay to US Agent for the account of each Tranche B Lender
a commitment fee determined on a daily basis by applying the 364-Day
Commitment Fee Rate to its Tranche B Percentage Share of the amount by
which the Tranche B Maximum Credit Amount exceeds the outstanding
principal balance of the Tranche B Loans on each day during the period
from the date hereof until the Tranche B Maturity Date. This
commitment fee shall be due and payable in arrears on the fifteenth
day after the end of each Fiscal Quarter and on the Tranche B Maturity
Date."
Section 2.6. UTILIZATION FEES. Section 1.5(c) of the Original Agreement is
hereby amended in its entirety to read as follows:
"(c) UTILIZATION FEES. During the period from April 16, 2001, until
the latest of the Tranche B Conversion Date, the US Facility Maturity Date,
and the Conversion Date under the Canadian Agreement, US Borrower will pay
to US Agent for the account of each Lender under the US Agreement and the
Canadian Agreement, a utilization fee for each day on which the Aggregate
Facility Usage exceeds thirty three and one-third percent (33 1/3%) of the
sum of (i) the US Maximum Credit Amount plus (ii) the Canadian Maximum
Credit Amount; PROVIDED THAT, if the Canadian Loans or Tranche B Loans have
been converted to term loans, they shall be excluded from the calculation
of utilization fees. The amount of the utilization fee shall be determined
on a daily basis by applying the Utilization Fee Rate to each such Lender's
Percentage Share of the Aggregate Facility Usage on each such day. This
utilization fee shall be due and payable in arrears on each Interest
Payment Date for US Base Rate Loans and at the end of the US Facility
Commitment Period."
Section 2.7. LETTERS OF CREDIT. Sections 2.3 and 2.4 of the Original
Agreement are hereby amended in their entirety to read as follows:
"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 Tranche A 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 TRANCHE A LENDERS. US LC Issuer irrevocably
agrees to grant and hereby grants to each Tranche A Lender, and to induce
US LC Issuer to issue Letters of
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Credit hereunder, each Tranche A 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 Tranche A Lender's own
account and risk, an undivided interest equal to its Tranche A 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 Tranche A 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 Tranche A 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, its Tranche A Percentage
Share of such Matured US LC Obligation (or any portion thereof which has
not been reimbursed by US Borrower). Each Tranche A 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 Tranche A
Lender to US LC Issuer pursuant to this subsection is paid by such Tranche
A 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 Tranche A Lender, on demand, interest thereon
calculated from such due date at the Federal Funds Rate. If any amount
required to be paid by any Tranche A Lender to US LC Issuer pursuant to
this subsection is not paid by such Tranche A 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 Tranche A
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 Tranche A Lender payment of
its Tranche A 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 Tranche A Lender make
such payment of its Tranche A Percentage Share), US LC Issuer will
distribute to such Tranche A Lender its Tranche A 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 Tranche A 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 Tranche A 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 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, prorated for the term of the Letter of Credit,
multiplied by the face amount of such Letter of Credit, payable on the
12
date of issuance, and (b) to US Agent, for the account of all Tranche A
Lenders in accordance with their respective Tranche A 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 2.8. RELIANCE BY US AGENT. The third sentence of Section 9.2 of the
Original Agreement is hereby amended in its entirety to read as follows:
"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 Tranche A Required Lenders, Tranche B Required Lenders or Required
Lenders, as provided in this Agreement, and such instructions shall be
binding on all of the Lenders, Tranche A Lenders or Tranche B Lenders,
respectively; 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 2.9. PRO RATA. The fourth sentence of Section 9.11 of the Original
Agreement is hereby amended in its entirety to read as follows:
"Section 9.11 LENDERS TO REMAIN PRO RATA. It is the intent of all
parties hereto that, except for Competitive Bid Loans and matters related
thereto, the Tranche B Percentage Share of each Tranche B Lender and such
Lender's Percentage Share of the Canadian Obligations shall be
substantially the same at all times during the term of this Agreement. All
subsequent assignments and adjustments of the interests of the Lenders in
Tranche B Loans and in 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."
Section 2.10. WAIVERS AND AMENDMENTS. The fourth sentence of Section 10.1
of the Original Agreement is hereby amended in its entirety to read as follows:
"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, (iii) if such party is a Tranche A Lender,
by such Tranche A Lender or by US Agent on behalf of Tranche A Lenders with
the written consent of Tranche A Required Lenders, (iv) if such party is a
Tranche B Lender, by such Tranche B Lender or by US Agent on behalf of
13
Tranche B Lenders with the written consent of Tranche B Required Lenders
and (v) 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)."
Section 2.11 LENDERS SCHEDULE. The Lenders Schedule attached to the
original Agreement is deleted and Schedule 1 hereto is substituted therefor.
ARTICLE III.
AMENDMENT FEE
Section 3.1. AMENDMENT FEE. In consideration of US Agent and each Lenders'
agreement to enter into this Amendment, US Borrower will pay to US Agent for the
account of each Lender an amendment fee determined by applying five Basis Points
to such Lender's Percentage Share of the Tranche B Maximum Credit Amount. This
amendment fee shall be due and payable on the Effective Date of this Amendment.
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.
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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
15
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.
16
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: (000) 000-0000
Fax: (000) 000-0000
BANK OF AMERICA, N.A.
Administrative Agent, US LC Issuer and Lender
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
Principal
TORONTO DOMINION (TEXAS), INC.
Lender
By: /s/ Cank A. Clause
-------------------------------------
Cank A. Clause
Vice President
BANK OF MONTREAL
Lender
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxx
Director
BANK ONE, NA (MAIN OFFICE CHICAGO)
Lender
By: /s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx
Vice President
FIRST SECURITY BANK, N.A.
Lender
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Vice President
MELLON BANK, N.A.
Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Vice President
U.S. BANK NATIONAL ASSOCIATION
Lender
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxx
Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
Lender
By: /s/ X. Xxxxxxxxx
-------------------------------------
X. Xxxxxxxxx
Vice President and Manager
THE INDUSTRIAL BANK OF JAPAN, LIMITED
Lender
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
Vice President
SUMITOMO MITSUI BANKING CORPORATION,
formerly known as The Sumitomo Bank, Limited
Lender
By: /s/ Bob Grenfelt
-------------------------------------
Bob Grenfelt
Vice President and Manager
