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$100,000,000
CREDIT AGREEMENT
dated as of
March 11, 1997
among
UNION TEXAS PETROLEUM HOLDINGS, INC.
The BANKS Listed Herein
and
NATIONSBANK OF TEXAS, N.A.
as Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
UNION BANK OF SWITZERLAND, HOUSTON AGENCY
as Co-Agents
THE INDEMNIFICATION PROVISIONS OF SECTIONS 7.06 AND 9.03(b) OF THIS
AGREEMENT INCLUDE INDEMNIFICATION FROM THE CONSEQUENCES OF THE
NEGLIGENCE OF THE PERSONS INDEMNIFIED THEREBY TO THE EXTENT SET FORTH
THEREIN
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Accounting Terms and Determinations . . . . . . . . . 19
SECTION 1.03. Types of Borrowings . . . . . . . . . . . . . . . . . 20
SECTION 1.04. Miscellaneous . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.05. Unimar. . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.06. Ratings. . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend . . . . . . . . . . . . . . . . . 21
SECTION 2.02. Notice of Borrowings . . . . . . . . . . . . . . . . 21
SECTION 2.03. Conversions . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.04. Notice to Banks; Funding of Loans . . . . . . . . . . 23
SECTION 2.05. Notes . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.06. Maturity of Loans . . . . . . . . . . . . . . . . . . 24
SECTION 2.07. Interest Rates . . . . . . . . . . . . . . . . . . . 25
SECTION 2.08. Facility Fees . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.09. Optional Termination or Reduction of Commitments . . 26
SECTION 2.10. Mandatory Termination or Reduction of Commitments . . 26
SECTION 2.11. Optional Prepayments . . . . . . . . . . . . . . . . 27
SECTION 2.12. General Provisions as to Payments . . . . . . . . . . 27
SECTION 2.13. Funding Losses . . . . . . . . . . . . . . . . . . . 28
SECTION 2.14. Computation of Interest and Fees . . . . . . . . . . 28
SECTION 2.15. Chapter 15 . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.16. Maximum Interest Rate . . . . . . . . . . . . . . . . 28
SECTION 2.17. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE III
CONDITIONS
SECTION 3.01. Initial Borrowing . . . . . . . . . . . . . . . . . . 32
SECTION 3.02. All Borrowings . . . . . . . . . . . . . . . . . . . 33
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power . . . . . . . . . . . . 34
SECTION 4.02. Corporate and Governmental Authorization;
Contravention . . . . . . . . . . . . . . . . . . 34
SECTION 4.03. Binding Effect . . . . . . . . . . . . . . . . . . . 34
SECTION 4.04. Information . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.05. Litigation . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.06. Compliance with ERISA . . . . . . . . . . . . . . . . 36
SECTION 4.07. Environmental Matters . . . . . . . . . . . . . . . . 36
SECTION 4.08. Subsidiaries . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.09. Ownership of Restricted Subsidiaries . . . . . . . . 36
SECTION 4.10. Title to Properties . . . . . . . . . . . . . . . . . 37
SECTION 4.11. Taxes and Other Obligations . . . . . . . . . . . . . 37
SECTION 4.12. Regulation U . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.13. Certain Obligations . . . . . . . . . . . . . . . . . 38
SECTION 4.14. United Kingdom Assets . . . . . . . . . . . . . . . . 38
ARTICLE V
COVENANTS
SECTION 5.01. Information . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.02. Affirmative Covenants . . . . . . . . . . . . . . . . 42
SECTION 5.03. Primary Business . . . . . . . . . . . . . . . . . . 43
SECTION 5.04. Insurance . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.05. Debt . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.06. Restricted Payments . . . . . . . . . . . . . . . . . 44
SECTION 5.07. Negative Pledge . . . . . . . . . . . . . . . . . . . 44
SECTION 5.08. Consolidations and Mergers . . . . . . . . . . . . . 45
SECTION 5.09. Use of Proceeds . . . . . . . . . . . . . . . . . . . 46
SECTION 5.10. Addition of Guarantors . . . . . . . . . . . . . . . 46
SECTION 5.11. Restrictions on Dividends, Intercompany Loans,
or Investments . . . . . . . . . . . . . . . . . . 46
SECTION 5.12. Loans and Advances . . . . . . . . . . . . . . . . . 46
SECTION 5.13. Cross-Default . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.14. Subsidiaries . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.15. Adjusted Equity and Interest Coverage . . . . . . . . 48
SECTION 5.16. Excluded Subordinated Debt and Preferred Stock . . . 48
SECTION 5.17. Certain Obligations . . . . . . . . . . . . . . . . . 48
SECTION 5.18. Restrictions on Asset Sales . . . . . . . . . . . . . 48
SECTION 5.19. Conversion to Unrestricted Subsidiary . . . . . . . . 48
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ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . 49
SECTION 6.02. Notice of Default . . . . . . . . . . . . . . . . . . 51
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization . . . . . . . . . . . . 52
SECTION 7.02. Agent and Affiliates . . . . . . . . . . . . . . . . 52
SECTION 7.03. Action by Agent . . . . . . . . . . . . . . . . . . . 52
SECTION 7.04. Consultation with Experts . . . . . . . . . . . . . . 52
SECTION 7.05. Liability of Agent . . . . . . . . . . . . . . . . . 52
SECTION 7.06. Indemnification . . . . . . . . . . . . . . . . . . . 53
SECTION 7.07. Credit Decision . . . . . . . . . . . . . . . . . . . 53
SECTION 7.08. Successor Agent . . . . . . . . . . . . . . . . . . . 53
SECTION 7.09. Agent's Fees . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.02. Illegality . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.03. Increased Cost and Reduced Return . . . . . . . . . . 55
SECTION 8.04. Base Rate Loans Substituted for Affected
Euro-Dollar Loans . . . . . . . . . . . . . . . . . 56
SECTION 8.05. Substitution of Bank . . . . . . . . . . . . . . . . 57
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.02. No Waivers . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.03. Expenses; Indemnification . . . . . . . . . . . . . . 58
SECTION 9.04. Sharing of Set-Offs, Etc. . . . . . . . . . . . . . . 59
SECTION 9.05. Amendments and Waivers . . . . . . . . . . . . . . . 59
SECTION 9.06. Successors and Assigns . . . . . . . . . . . . . . . 60
SECTION 9.07. Collateral . . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.08. Texas Law . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.09. CONSENT TO JURISDICTION . . . . . . . . . . . . . . . 62
SECTION 9.10. Counterparts . . . . . . . . . . . . . . . . . . . . 62
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SECTION 9.11. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . 62
SECTION 9.12. COMPLETE AGREEMENT . . . . . . . . . . . . . . . . . 62
SECTION 9.13. Liability of Co-Agents and Arranger . . . . . . . . . 63
SECTION 9.14. Termination of 1996 Short-Term Commitments . . . . . 63
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Schedule I - Facility Fees and Applicable Margins
Schedule II - Existing Subsidiaries
Schedule III - Existing Liens
Schedule IV - Existing Restrictions
Schedule V - Joint Venture Debt Agreements
Schedule VI - Outstanding Options
Exhibit A - Form of Note
Exhibit B - Form of Assignment and Assumption Agreement
Exhibit C - Opinion of General Counsel of the Company
Exhibit D - Opinion of Special Counsel for the Company
Exhibit E - Opinion of Special Counsel for the Agent
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CREDIT AGREEMENT
Credit Agreement dated as of March 11, 1997 among Union Texas
Petroleum Holdings, Inc., the Banks party hereto, NationsBank of Texas, N.A.,
as Agent, and Bank of America National Trust and Savings Association and Union
Bank of Switzerland, Houston Agency, as Co-Agents.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"Acceptable Engineer" means XxXxxxxx & XxxXxxxxxxx or such other
independent engineering firm that is mutually acceptable to the Agent and the
Company.
"Adjusted Equity" means the consolidated stockholders equity of the
Company and its Consolidated Subsidiaries, as determined on a consolidated
basis in accordance with generally accepted accounting principles, adjusted to
exclude (i) any cumulative foreign exchange translation adjustments, (ii) any
non-cash write-up or writedown of any assets of the Company and its
Consolidated Subsidiaries made after March 31, 1995 in accordance with
generally accepted accounting principles, and (iii) the non-cash effect of the
adoption of any change after March 31, 1995 required by generally accepted
accounting principles.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form requested by the Agent submitted to
the Agent (with a copy to the Company) duly completed by such Bank.
"Affiliate" means (i) any Person holding 5% or more of any class of
capital stock of the Company, and (ii) any Person (other than the Company, a
Subsidiary or a Partnership) directly or indirectly controlling, controlled by
or under common control with any Person described in clause (i). As used in
this definition of "Affiliate", the term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
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"Agent" means NationsBank in its capacity as agent for the Banks
hereunder and any successor in such capacity.
"Agreement" means this Credit Agreement dated as of March 11, 1997
among the Company, the Banks, the Agent and the Co-Agents, as amended from time
to time in accordance with the terms hereof.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Base Rate Loans, its Domestic Lending Office, and (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Applicable Margin" means, for any Interest Period for each
Euro-Dollar Loan, the rate per annum applicable to such Euro-Dollar Loan during
such Interest Period, as shown on Schedule I and based on the Rating Level in
effect on the first day of such Interest Period.
"Arranger" means NationsBanc Capital Markets, Inc.
"Asset Sale" means any sale, lease, transfer or other disposition of
any Restricted Asset by the Company or any Restricted Subsidiary, whether such
sale, lease, transfer or other disposition is direct or indirect (such as by
selling capital stock of the Subsidiary that owns such Restricted Asset, but
excluding sales of capital stock of the Company), other than (i) farm-outs in
the ordinary course of business of properties containing substantially no
proved reserves at the time of the farm-out, (ii) sales in the ordinary course
of business of Hydrocarbons after severance, (iii) sales, transfers, leases or
other dispositions of inventory and obsolete or surplus equipment in the
ordinary course of business, and (iv) sales, transfers, leases or other
dispositions to the Company or any Restricted Subsidiary if no Default then
exists or would result therefrom.
"Assignee" has the meaning set forth in Section 9.06(c).
"Assignment" means an Assignment and Assumption Agreement in
substantially the form of Exhibit B hereto.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Corporate Base Rate for such day and (ii) the sum of 1/2 of 1% plus
the Federal Funds Rate for such day.
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"Base Rate Loan" means a Loan which bears interest as provided in
Section 2.07(a).
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrowing" has the meaning set forth in Section 1.03.
"Cash Interest Expense" means, for any period, the sum of (i) the
aggregate amount accrued during such period by the Company and its Consolidated
Subsidiaries for interest determined on a consolidated basis, but excluding
interest on Non-Recourse Debt and interest on Debt of Unrestricted Subsidiaries
to the extent such Debt does not constitute Debt of the Company or any
Restricted Subsidiary plus (ii) the aggregate amount paid during such period by
the Company and its Consolidated Subsidiaries for dividends on Restricted
Preferred Stock, determined on a consolidated basis.
"Co-Agents" means Bank of America National Trust and Savings
Association and Union Bank of Switzerland, Houston Agency in their capacities
as Co-Agents hereunder.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof (or, if such Bank
is an Assignee and its name is not set forth on the signature pages hereof, the
amount of its Commitment as set forth in the Assignment pursuant to which it
became a Bank), as such amount may be reduced from time to time pursuant to
Sections 2.09 and 2.10 or reduced or increased from time to time pursuant to
any Assignment to which it is a party.
"Company" means Union Texas Petroleum Holdings, Inc., a Delaware
corporation.
"Company's 1996 Form 10-K" means the Company's annual report on Form
10-K for 1996, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"Consolidated Debt" means, at any date, an amount equal to (a) the sum
(without duplication) of (i) the aggregate amount of Debt (other than Defeased
Debt, Excluded Subordinated Debt not exceeding $100,000,000 and Debt that would
not constitute Debt of the Company or any of its Consolidated Subsidiaries if
clause (viii) were not included in the definition herein of Debt) of the
Company and its Consolidated Subsidiaries, determined on a consolidated basis
as of such date, plus (ii) the Unimar Percentage at such date of the aggregate
Debt (other than Defeased Debt and Debt that would not constitute Debt of
Unimar or any of the Unimar Restricted Subsidiaries if clause (viii) were not
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included in the definition herein of Debt) of Unimar and the Unimar Restricted
Subsidiaries, determined on a consolidated basis as of such date, plus (iii)
the Excess Letter of Credit/Guarantee Amount at such date, minus (b) the sum
(without duplication and only to the extent that any of the following are
included in the foregoing clause (a)) at such date of (1) Debt of Unrestricted
Subsidiaries to the extent such Debt does not constitute Debt of the Company or
any Restricted Subsidiary plus (2) Non-Restricted Asset Non-Recourse Debt plus
(3) Existing Pakistan Non-Recourse Debt.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements as of such date.
"Convert", "Conversion" and "Converted" each refers to (i) the change
of Loans of one Type into Loans of the other Type pursuant to Section 2.03 or
Article VIII, (ii) the continuation of all Euro-Dollar Loans comprising the
same Borrowing as such for an additional Interest Period pursuant to Section
2.03, and (iii) an election to change, pursuant to Section 2.03, the Interest
Period applicable to all Euro-Dollar Loans comprising the same Borrowing prior
to the end of the Interest Period then applicable thereto.
"Corporate Base Rate" means a fluctuating interest rate per annum as
shall be in effect from time to time equal to the rate of interest publicly
announced by NationsBank as its base rate, whether or not the Company has
notice thereof. Such rate is set by NationsBank as a general reference rate of
interest, taking into account such factors as NationsBank may deem appropriate,
it being understood that many of NationsBank's commercial or other loans are
priced in relation to such rate, that it is not necessarily the lowest or best
rate actually charged to any customer and that NationsBank may make various
commercial or other loans at rates of interest having no relationship to such
rate.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except accrued expenses, trade accounts payable and taxes
payable arising in the ordinary course of business, (iv) the present value,
determined in accordance with generally accepted accounting principles, of the
obligations of such Person to make payments under capital leases, (v) all
obligations of such Person which shall have been outstanding for more than five
days owed to a bank or other Person in respect of amounts theretofore paid
under a letter of credit or similar instrument, (vi) all Debt of others secured
by a Lien on any asset owned by such Person whether or not such Debt is assumed
by such Person (except that Joint Venture Debt shall for purposes of this
Agreement be deemed to be Debt of Pertamina and not of the Company or a
Subsidiary), (vii) all Restricted Preferred Stock issued by such Person or as
to which such Person is otherwise liable, (viii) all Debt of others Guaranteed
by such Person, to the extent of such
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Guarantee, and (ix) all obligations of such Person which have been outstanding
for more than five days to pay any margin call (or similar requirement) on any
Derivative Transaction (excluding, in the case of the Company and its
Subsidiaries, such obligations not exceeding $5,000,000 in the aggregate);
provided that, neither Debt nor Guarantee includes (a) obligations under leases
other than capital leases and under bona fide Derivative Transactions (except
as provided in clause (ix) above) and obligations with respect to take-or-pay
payments theretofore received which remain subject to cash settlement or make-
up; (b) Debt of the Company or a Subsidiary owing to the Company or a
Subsidiary, except for Debt not eliminated in consolidation pursuant to the
proviso in Section 1.02; (c) obligations under the Indonesian Participating
Units; (d) any preferred stock that does not constitute Restricted Preferred
Stock; and (e) the existing agreements relating to Joint Venture Debt set forth
in the contracts described on Schedule V of the parties thereto as to
allocation of responsibility for damages caused by reason of an act or failure
to act by, or otherwise related to, any such party, or any similar agreement
hereafter entered into providing for a similar allocation of liability in
respect of similar actions or failures to act. The amount of Debt attributable
to any Restricted Preferred Stock shall be the maximum consideration required
to be paid upon the purchase, retirement, redemption, exchange, or conversion
of the portion thereof constituting Debt (such consideration, if other than
cash, to be valued at the fair market value thereof); provided that, in
computing such consideration there shall be excluded (A) any consideration
payable solely in common stock of the Company; (B) dividends to the extent such
dividends do not materially exceed the generally prevailing market rate (at the
time of issuance of such Restricted Preferred Stock) on preferred stock of
comparable risk and maturity; and (C) any premium payable upon any such
purchase, retirement, redemption, exchange or conversion only as a result of
the exercise by the issuer of a call provision exercisable only at the option
of the issuer, if failure to exercise such option would not have an adverse
effect on the Company or any Subsidiary pursuant to the terms of any such
Restricted Preferred Stock or any documents related thereto.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Defeased Debt" means any Debt of the Company or any Subsidiary (i)
which has been defeased in accordance with the terms of the applicable Debt
instruments, (ii) which is deemed to be extinguished under generally accepted
accounting principles applicable to the Company or such Subsidiary, and (iii)
with respect to which the Agent has received a certificate of an officer of the
Company or such Subsidiary to the effect that the requirements of clauses (i)
and (ii) of this definition have been met as to such Debt and such evidence, if
any, in support of such certificate as the Agent may reasonably request.
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"Derivative Transactions" means foreign exchange transactions and
commodity, currency and interest rate swaps, floors, caps, collars, forward
sales, options, other similar transactions and combinations of the foregoing.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City, San Francisco or Houston
are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent.
"EBITDA" means, for any period, the sum of (i) the consolidated net
income of the Company and its Consolidated Subsidiaries for such period before
non-cash non-recurring items, gains or losses on dispositions of assets and the
cumulative effect of changes in accounting principles plus (ii) to the extent
included in the determination of such income, the consolidated charges for such
period for interest, depreciation, depletion and amortization plus (or, if
there is a benefit from income taxes, minus) (iii) to the extent included in
the determination of such income, the amount of the provision for or benefit
from income taxes; provided that in determining such consolidated net income,
such consolidated charges and such provision for or benefit from income taxes,
there shall be excluded therefrom (to the extent otherwise included therein)
(a) the net income (or loss) of, charges for interest, depreciation, depletion
and amortization of, and such provision for or benefit from income taxes of,
any Person acquired by the Company or a Subsidiary in a pooling-of-interest
transaction for any period prior to the date of such transaction, and (b) the
net income (but not loss) of, charges for interest, depreciation, depletion and
amortization of, and such provision for (but not benefit from) income taxes of,
any Person which is subject to any contractual restriction which prevents the
payment of dividends or the making of distributions on the capital stock or
other ownership interests of such Person to the extent of such contractual
restrictions.
"Effective Date" means the date of this Agreement, which is March 11,
1997.
"Engineering Report" means a report of an Acceptable Engineer
providing an estimate of the proved reserves of Hydrocarbons attributable to
the properties of the Company and the Restricted Subsidiaries.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants,
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contaminants, petroleum or petroleum products, chemicals or industrial, toxic
or hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances or
wastes or the clean-up or other remediation thereof, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act, the Resource Conservation and Recovery Act, the Oil Pollution
Act, and their state analogs, in each case as they have been or may be amended.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Company and all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Company, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Bank
as it may hereafter designate as its Euro-Dollar Lending Office by notice to
the Company and the Agent.
"Euro-Dollar Loan" means a Loan which bears interest as provided in
Section 2.07(b).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Letter of Credit/Guarantee Amount" means, at any date, the
excess of (a) the sum of (i) the aggregate undrawn amount, at such date, of all
letters of credit as to which the Company or any Restricted Subsidiary (other
than Unimar and the Unimar Restricted Subsidiaries) is the account party or in
respect of which the Company or any Restricted Subsidiary (other than Unimar
and the Unimar Restricted Subsidiaries) has Guaranteed payment plus the unpaid
drawn portions, at such date, of all such letters of credit to the extent such
drawn portions do not constitute Debt of the Company or a Restricted Subsidiary
(other than Unimar and the Unimar Restricted Subsidiaries), plus (ii) the
Unimar Percentage of the aggregate undrawn amount, at such date, of all letters
of credit as to which Unimar or any of the Unimar Restricted Subsidiaries is
the account party or in respect of
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which Unimar or any of the Unimar Restricted Subsidiaries has Guaranteed
payment plus the unpaid drawn portions, at such date, of such letters of credit
to the extent such drawn portions do not constitute Debt of Unimar or any of
the Unimar Restricted Subsidiaries, plus (iii) Debt that constitutes Debt of
the Company or any Restricted Subsidiary (other than Unimar or any Unimar
Restricted Subsidiary) pursuant to clause (viii) of the definition herein of
Debt, plus (iv) the Unimar Percentage at such date of Debt that constitutes
Debt of Unimar or any of the Unimar Restricted Subsidiaries pursuant to clause
(viii) of the definition herein of Debt, over (b) $50,000,000.
"Excess Net Sales Proceeds" means
(i) with respect to any Asset Sale involving, directly or indirectly, a UK
Asset (a "UK Asset Sale"),
(a) if, after giving effect to such Asset Sale, the aggregate Net
Sales Proceeds from all UK Asset Sales since December 31, 1993
would be less than or equal to $50,000,000 and the aggregate Net
Sales Proceeds from all Asset Sales since such date would be less
than or equal to $100,000,000, zero; or
(b) if, after giving effect to such Asset Sale, the aggregate Net
Sales Proceeds from all UK Asset Sales since December 31, 0000
("XX Xxxxxxxxx Xxxxxx") would be greater than $50,000,000 or the
aggregate Net Sales Proceeds from all Asset Sales since such date
("Total Aggregate Amount") would be greater than $100,000,000, the
lesser of (1) the greater of the amount by which the UK Aggregate
Amount exceeds $50,000,000 or the amount by which the Total
Aggregate Amount exceeds $100,000,000 or (2) the Net Sales
Proceeds from such Asset Sale; and
(ii) with respect to any Asset Sale not involving, directly or
indirectly, a UK Asset,
(a) if, after giving effect to such Asset Sale, the aggregate Net
Sales Proceeds from all Asset Sales since December 31, 1993 would
be less than or equal to $100,000,000, zero; or
(b) if, after giving effect to such Asset Sale, the aggregate Net
Sales Proceeds from all Asset Sales since December 31, 1993 would
be greater than $100,000,000, the lesser of (1) the amount by
which such aggregate Net Sales Proceeds exceeds $100,000,000 or
(2) the Net Sales Proceeds from such Asset Sale.
-8-
15
"Excluded Subordinated Debt" means Debt that (i) is subordinate and
junior, on terms reasonably satisfactory to the Agent, to the Loans in all
respects and (ii) has no requirement, absent a default under such Debt, that
any principal thereof be paid, purchased, redeemed, defeased, acquired,
exchanged or converted (other than exchange for or conversion to common stock
of the Company) prior to March 31, 2003.
"Existing Pakistan Non-Recourse Debt" means the Debt, not exceeding
the principal amount of $9,500,000, evidenced by that certain promissory note
dated December 20, 1988, issued by UT Pakistan in the original principal amount
of $21,250,000, the related Finance Agreement between UT Pakistan and the
Overseas Private Investment Corporation ("OPIC") and the related Issuing and
Paying Agency Agreement among First Trust New York National Association (as
successor to Xxxxxx Guaranty Trust Company of New York) as issuing and paying
agent, OPIC and UT Pakistan.
"Fair Market Value" means with respect to any asset of the Company or
any Subsidiary at any date the open market cash purchase price that an informed
and willing purchaser would pay for such asset in an arm's length transaction
to a willing and informed owner under no compulsion to sell, all as reasonably
determined in good faith by the Company.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day; provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day, as so published on
the next succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to NationsBank on such day on
such transactions as determined by the Agent.
"Financing Documents" means this Agreement and the Notes.
"Guarantee" by any Person means any obligation, contingent or
otherwise (including, without limitation, any obligation to repay to a payor or
creditor of a payor amounts previously paid to such Person by such payor), of
such Person directly or indirectly guaranteeing any Debt of any other Person or
otherwise incurred for the purpose of assuring the holder of payment of any
such Debt; provided that (i) the obligations of any Person in respect of Debt
of any Partnership in which such Person is a general partner shall not
constitute a Guarantee of such Debt so long as substantially all assets of such
Person are comprised of its Investment in such Partnership, (ii) the obligation
of a Person to transfer or
-9-
16
restore cash to the account of a Partnership, Subsidiary or Affiliate pursuant
to periodic settlements or adjustments under cash management practices of such
Persons shall not constitute a Guarantee, (iii) the contractual obligation of a
Person to assure that a Subsidiary, Partnership or Affiliate conducts its
operations as a prudent operator shall not constitute a Guarantee of
indebtedness of the Subsidiary, Partnership or Affiliate, (iv) the obligation
of a Person to cause net amounts of cash owned by a Subsidiary, Partnership or
Affiliate to be applied to payment of indebtedness of such Subsidiary,
Partnership or Affiliate shall not constitute a Guarantee of such indebtedness
and (v) the reaffirmation to or for the benefit of a lender of contractual
obligations (as, for example, those set forth in the Production Sharing
Contracts) previously entered into in good faith and not in contemplation of
the incurrence of Debt shall not constitute a Guarantee so long as the other
arrangements entered into in connection with such reaffirmation do not increase
the likelihood that additional funds will be required to meet such obligations
(as would be the case, for example, if revenues otherwise available to meet
such obligations were dedicated to such lender).
"HPG Plant" means the five-twelfths interest in the Geismar, Louisiana
olefins plant owned by UTPC and its subsidiaries, the supply and distribution
assets related to such plant and all other operating assets of UTPC and its
subsidiaries as of December 31, 1993.
"Hydrocarbons" means crude oil, including all kinds of hydrocarbons
and bitumens in solid or liquid form, and natural gas, including all gaseous
hydrocarbons produced from xxxxx, and liquefied natural gas and liquefied
petroleum gases.
"Indonesian Participating Units" means the Indonesian Participating
Units issued by Unimar pursuant to the Indenture dated as of September 24, 1984
between Unimar and Irving Trust Company, Trustee, as amended and in effect on
May 13, 1994, and as thereafter amended to the extent such subsequent
amendments do not change the term thereof, provide additional security
therefor, or increase the payments to be made to holders thereof.
"Interest Period" means, with respect to each Euro-Dollar Loan
comprising part of the same Borrowing, the period commencing on the date of
such Loan or the date of the Conversion of any Base Rate Loan into such Euro-
Dollar Loan and ending on the last day of the period selected by the Company
pursuant to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period (or on
any other date selected by the Company pursuant to Section 2.03) and ending on
the last day of the period selected by the Company pursuant to the provisions
below and Section 2.03. The duration of each such Interest Period shall be 1,
2, 3 or 6 months or (subject to Section 2.02(b)) 9 or 12 months, in each case
as the Company may, upon notice received by the Agent not later than 10:00 A.M.
(Houston time) on the third Euro-Dollar Business Day prior to the first day of
such Interest Period, select; provided that:
-10-
17
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Euro-Dollar Business Day of a calendar month;
(c) the Company may not select an Interest Period for any Loan if the
last day of such Interest Period would be after March 9, 1999; and
(d) Interest Periods for all Loans comprising the same Borrowing shall
commence on the same date and shall be of the same duration.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, advance, Guarantee or otherwise.
It is understood that a joint operating agreement or similar arrangement with
respect to Hydrocarbon properties or the HPG Plant does not constitute a Person
and hence that payments in respect of the acquisition or maintenance of an
interest in such Hydrocarbon properties or the HPG Plant do not constitute an
Investment.
"Joint Venture Debt" means obligations secured by a Lien on the
interests of the Company or a Subsidiary, as the case may be, arising under
either of the Production Sharing Contracts or any related supply contracts, if
such Lien covers ratably the interests of Pertamina and all production sharing
contractors thereunder.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
(including, without limitation, any production payment, advance payment or
similar arrangement with respect to minerals in place), whether or not filed,
recorded or otherwise perfected under applicable law. For the purposes of this
Agreement, the Company or any Subsidiary shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset. The right of set-off,
whether by operation of law or by
-11-
18
contract, does not constitute a Lien unless there is a related obligation to
maintain a deposit of cash or other assets in respect of which such right of
set-off may be exercised.
"Loan" means a loan made by a Bank to the Company pursuant to section
2.01 and refers to a Base Rate Loan or a Euro-Dollar Loan (each of which shall
be a "Type" of Loan), and "Loans" means Base Rate Loans or Euro-Dollar Loans or
any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07(b).
"material" means, with respect to any matter so characterized herein,
that such matter would reasonably be expected to be significant to a Bank in
determining whether to enter into this Agreement or to extend credit hereunder.
"Material Debt" means Debt of the Company and/or any one or more
Restricted Subsidiaries (other than Non-Recourse Debt) in an aggregate
principal amount equal to or greater than $15,000,000, whether incurred under
one or more related or unrelated documents or instruments.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $15,000,000.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to
its debt ratings business.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"NationsBank" means NationsBank of Texas, N.A., a national banking
association.
"Net Sales Proceeds" means, with respect to any Asset Sale, the Fair
Market Value of the Restricted Asset that is sold, leased, transferred or
otherwise disposed of in such Asset Sale, minus the sum of (i) all reasonable
fees, commissions and expenses incurred by the Company or any Subsidiary as a
result of or in connection with such Asset Sale and (ii) all taxes required to
be paid by the Company or any Subsidiary as a result of such Asset Sale.
-12-
19
"Non-Recourse Debt" means, at any date, (a) the aggregate amount at
such date of Debt of the Company or a Subsidiary (other than Unimar and each
Unimar Subsidiary) and (b) the Unimar Percentage of the aggregate amount at
such date of all Debt of each of Unimar and each Unimar Subsidiary, in respect
of which in the case of either (a) or (b) (i) the recourse of the holder of
such Debt, whether direct or indirect and whether contingent or otherwise,
shall be effectively limited to Non-Restricted Assets (or, in the case of the
Existing Pakistan Non-Recourse Debt, the assets described in Schedule III) and
(ii) in the case of any such Debt incurred after the date of this Agreement,
the Company shall have, at or prior to the time of incurrence thereof, notified
the Agent of such incurrence and delivered to the Agent a certificate of an
officer of the Company certifying that such Debt constitutes Non-Recourse Debt
(or that such Debt will be converted into Non-Recourse Debt at some specified
time or upon the occurrence of some specified event); provided that, if any
such Debt is secured by any interest in a license, concession, production
sharing contract or other right and any of the Restricted Assets consists of an
interest in such license, concession, production sharing contract or other
right, then the agreements evidencing such Debt must provide that default under
such Debt will not impair or affect such license, concession, production
sharing contract or other right. In the case of any Non-Recourse Debt incurred
after the date of this Agreement, such limitation on recourse (i) must be set
forth in the instrument evidencing such Debt, and (ii) must be on terms
acceptable to the Agent as evidenced by the written approval thereof by the
Agent (which approval will not be unreasonably withheld, and in deciding
whether to approve such terms the Agent will, if requested by the Company, take
into account what terms are usual and customary in non-recourse financings) and
in any event must provide that the holder of such Debt waives, to the extent
such holder may effectively do so, such holder's right to elect recourse
treatment under 11 U.S.C. Section 1111(b) unless such holder obtains the prior
written consent of the Required Banks. For avoidance of doubt, (a) if any such
Debt is Guaranteed by the Company or a Restricted Subsidiary in a limited
amount, the excess over such amount (but only the excess) constitutes Non-
Recourse Debt, and (b) Debt shall not be determined to not be Non-Recourse Debt
solely as a result of the existence of either of the following: (i) an
agreement by a direct or indirect parent corporation to repay to a subsidiary
amounts received by such parent corporation from such subsidiary in the event
such subsidiary has a need for such amounts in future periods or (ii) an
agreement by a direct or indirect parent corporation to cause a subsidiary to
comply with such subsidiary's contractual obligations so long as the parent
corporation is not obligated to contribute funds to the subsidiary to enable it
to comply with such contractual obligations and has not otherwise Guaranteed
such obligations.
"Non-Restricted Asset Non-Recourse Debt" means, at any date, the
aggregate amount at such date of Non-Recourse Debt as to which the recourse of
the holder is limited exclusively to Non-Restricted Assets as contemplated by
clause (i) of the first sentence of the definition of Non-Recourse Debt.
-13-
20
"Non-Restricted Assets" means all assets of the Company and its
Subsidiaries other than Restricted Assets.
"Non-UK Asset" means any Restricted Asset other than a UK Asset.
"Notes" means promissory notes of the Company, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Company to repay the
Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" has the meaning specified in Section 2.02.
"Operating Cash Flow" means, with respect to any period, an amount
equal to
(i) the "net cash (required) provided by operating activities before
changes in other assets and liabilities" of the Company and its
Consolidated Subsidiaries for such period, that should be reflected in
the consolidated statement of cash flows of the Company and its
Consolidated Subsidiaries for such period prepared in accordance with
generally accepted accounting principles on substantially the same
basis as the consolidated statement of cash flows of the Company and
its Consolidated Subsidiaries for the year ended December 31, 1996 as
set forth in the Company's 1996 Form 10-K; provided that in
determining such "net cash (required) provided by operating activities
before changes in other assets and liabilities" there shall be
excluded therefrom (to the extent otherwise included therein) (a) the
portion of such net cash provided by assets securing any Non-Recourse
Debt other than the Existing Pakistan Non-Recourse Debt, (b) the net
cash provided or required by operating activities before changes in
other assets and liabilities of any Person acquired by the Company or
a Subsidiary in a pooling-of-interest transaction for any period prior
to the date of such transaction, and (c) the net cash provided by
operating activities before changes in other assets and liabilities of
any Person which is subject to any contractual restriction which
prevents the payment of dividends or the making of distributions on
the capital stock or other ownership interests of such Person to the
extent of such contractual restrictions,
plus (ii) to the extent included in the determination of the "net cash
(required) provided by operating activities before changes in other
assets and liabilities" for such period in accordance with the
foregoing clause (i), exploration expenses incurred by the Company or
any Consolidated Subsidiary during such period other than (a)
exploration expenses incurred in connection with assets securing any
Non-Recourse Debt other than the Existing Xxxxxxxx Xxx-
-00-
00
Xxxxxxxx Xxxx, (x) the exploration expenses of any Person acquired
by the Company or a Subsidiary in a pooling-of-interest transaction
for any period prior to the date of such transaction, and (c) the
exploration expenses of any Person which is subject to any contractual
restriction which prevents the payment of dividends or the making of
distributions on the capital stock or other ownership interests of
such Person to the extent of such contractual restrictions,
plus(or, if cash is required by equity investee, minus) (iii) the
amount of the "cash (required) provided by equity investee" of the
Company and its Consolidated Subsidiaries for such period, that should
be reflected in the consolidated statement of cash flows of the
Company and its Consolidated Subsidiaries for such period prepared in
accordance with generally accepted accounting principles on
substantially the same basis as the consolidated statement of cash
flows of the Company and its Consolidated Subsidiaries for the year
ended December 31, 1996 as set forth in the Company's 1996 Form 10-K,
excluding the effect of any cash required by such equity investee for
the payment of the principal of its Debt and any cash provided by such
equity investee from incurrence of its Debt,
minus (iv) dividends on preferred stock paid during such period by the
Company or any Consolidated Subsidiary, determined on a consolidated
basis.
"Other Credit Agreement" means the Second Amended and Restated Credit
Agreement dated as of March 29, 1996 among the Company, NationsBank, as agent
thereunder, and the co-agents and the banks parties thereto, as amended or
otherwise modified from time to time, providing a $450,000,000 credit facility
to the Company.
"Other Credit Agreement Commitments" means the "Commitments" as
defined in the Other Credit Agreement.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"Partnership" means any general or limited partnership which is
accounted for on the equity method in the Company's consolidated financial
statements and in which the Company or a Subsidiary is a general partner.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
-15-
22
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
It is understood that a joint operating agreement or similar arrangement with
respect to Hydrocarbon properties or the HPG Plant does not constitute a
Person.
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any Person
which was at such time a member of the ERISA Group.
"Production Sharing Contracts" means the production sharing contracts
pertaining to certain operations in Indonesia filed as Exhibits 10.102 and
10.103 to the Company's quarterly report on Form 10-Q for the quarter ending
June 30, 1990, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"Rating Level" means the applicable category of rating level contained
in Schedule I (subject, however, to the footnotes on Schedule I), based on the
ratings of the senior unsecured long-term debt of the Company by S&P or Moody's
or both.
"Reference Banks" means the principal London offices of NationsBank,
Bank of America National Trust and Savings Association and Union Bank of
Switzerland and such substitute Bank or Banks as may be mutually agreed to by
the Company and the Agent, and "Reference Bank" means any one of such Reference
Banks.
"Regulation G" means Regulation G of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 51% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 51% of the aggregate unpaid
principal amount of the Loans.
"Restricted Assets" means (1) all proved reserves of the Company and
the Subsidiaries as of December 31, 1993 in Indonesia, the United Kingdom
(including the United Kingdom Sector of the North Sea) and Pakistan, (2) all
licenses, concessions,
-16-
23
production sharing contracts and other rights pertaining to any such proved
reserves (excluding the portion thereof that does not pertain to any of such
proved reserves, if such portion can be severed without material adverse
consequences on the portion pertaining to such proved reserves), (3) equipment
used in the production of any such proved reserves or in the transportation of
production from any such proved reserves if such equipment is a fixture or
otherwise attached to realty, constitutes all or a part of any pipeline or
related equipment, is all or part of a production platform or related equipment
or is equipment similar to any of the foregoing or used for a similar purpose,
and (4) the HPG Plant.
"Restricted Payment" means (i) any dividend or other distribution on
any shares of the Company's capital stock (except dividends payable solely in
shares of its common stock), or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Company's
capital stock or (b) any option, warrant or other right to acquire shares of
the Company's capital stock (except any such payment made solely in shares of
its common stock); provided that payments of stock-related and other employee
benefits (including purchases by the Company of its common stock in connection
with the payment of such benefits) in the ordinary course of business to
employees of the Company or a Subsidiary shall not be deemed Restricted
Payments.
"Restricted Preferred Stock" means (i) all preferred stock which (a)
is subject to purchase, retirement, redemption, exchange or conversion (other
than exchange for or conversion to common stock of the Company), in whole or in
part under any circumstance whatsoever (other than purchase, retirement,
redemption, exchange or conversion by the issuer thereof, at the sole option of
such issuer, if failure to exercise such option would not have an adverse
effect on the Company or any Subsidiary pursuant to the terms of any such
preferred stock or any documents related thereto) and (b) provides for
dividends materially in excess of the generally prevailing market dividend rate
(at the time of issuance of such preferred stock) for preferred stock of
comparable risk and maturity, and (ii) the portion of all other preferred stock
which is subject to purchase, retirement, redemption, exchange or conversion
(other than exchange for or conversion to common stock of the Company) at any
date or dates on or prior to March 31, 2003 under any circumstance whatsoever
(other than purchase, retirement, redemption, exchange or conversion by the
issuer thereof, at the sole option of such issuer, if failure to exercise such
option would not have an adverse effect on the Company or any Subsidiary
pursuant to the terms of any such preferred stock or any documents related
thereto). For avoidance of doubt, to the extent that any shares of Restricted
Preferred Stock are exchanged for or converted to common stock of the Company
and as a consequence such shares of Restricted Preferred Stock are cancelled,
such shares shall no longer constitute Restricted Preferred Stock.
"Restricted Subsidiaries Recourse Debt" means, at any date, the sum of
(a) the aggregate amount of all Debt (other than (i) Non-Recourse Debt, (ii)
any Guarantee of Debt of the Company (including the Loans) and (iii) the
amount, if any, by which the Guarantees
-17-
24
of the Restricted Subsidiaries (other than Unimar and the Unimar Restricted
Subsidiaries) included in the determination of Excess Letter of
Credit/Guarantee Amount exceeds the Excess Letter of Credit/Guarantee Amount)
of each Restricted Subsidiary (other than Unimar and the Unimar Restricted
Subsidiaries), determined on a consolidated basis as of such date, and (b) the
Unimar Percentage of the aggregate amount of all Debt (other than (i) Non-
Recourse Debt, (ii) any Guarantee of Debt of the Company and (iii) the amount,
if any, by which the Unimar Percentage of the Guarantees of Unimar and the
Unimar Restricted Subsidiaries included in the determination of Excess Letter
of Credit/Guarantee Amount exceeds the Excess Letter of Credit/Guarantee
Amount) of Unimar and the Unimar Restricted Subsidiaries, determined on a
consolidated basis as of such date.
"Restricted Subsidiary" means each Person listed in Part B of Schedule
II hereto and each Subsidiary that owns directly or indirectly any interest in
any Restricted Assets or any Restricted Subsidiary; provided that a Restricted
Subsidiary shall cease to be such at such time as it is converted to an
Unrestricted Subsidiary pursuant to Section 5.19 or ceases to be a Subsidiary
as a result of a transaction permitted by Section 5.14.
"Restricted Transfer" means (i) any Investment in an Affiliate, any
Unrestricted Subsidiary or any subsidiary of an Unrestricted Subsidiary, but
excluding to the extent otherwise included in the foregoing, Investments in
Unimar and the Unimar Subsidiaries, or (ii) any payment by the Company or any
Subsidiary, directly or indirectly, in respect of Non-Recourse Debt to the
extent such Person is not legally obligated to make such payment by the terms
of such Debt, or solely in the case of Unimar, Unistar, Inc. or any of the
Unimar Subsidiaries, to the extent such Person is not legally obligated to fund
such payment under the terms of the Unimar Partnership Agreement.
"Revolving Credit Period" means the period from and including the
Effective Date to but not including the Termination Date.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc. or any successor to its debt rating business.
"Subsidiary" means (a) Unimar and the Unimar Subsidiaries (except at
such times as the Company does not own, directly or indirectly, any of the
ownership interest in Unimar) and (b) any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Company, it being
understood that the power to elect exactly 50% of the board of directors or
such other persons does not constitute a "majority" as used herein.
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"Termination Date" means March 10, 1998, or, if such day is not a
Euro-Dollar Business Day, the Termination Date shall be the next preceding
Euro-Dollar Business Day.
"Type" has the meaning specified in the definition of Loan.
"UK Assets" means all Restricted Assets of UTPL as of December 31,
1993.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefits under such
Plan as determined by such Plan's actuary exceeds (ii) the fair market value of
all Plan assets allocable to such benefits (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA if such Plan terminated as of such date.
"Unimar" means Unimar Company, a partnership organized and existing
under the laws of Texas.
"Unimar Partnership Agreement" means the Amended and Restated
Agreement of General Partnership of Unimar dated as of September 11, 1990
between Unistar, Inc. and LASMO (USTAR) Inc. (formerly Ultrastar, Inc.), as
amended from time to time.
"Unimar Percentage" means, at any date, the aggregate percentage
ownership interest in Unimar owned at such date by the Company and the
Subsidiaries.
"Unimar Restricted Subsidiary" means any Unimar Subsidiary that is
also a Restricted Subsidiary at the relevant date.
"Unimar Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by Unimar, it being
understood that the power to elect exactly 50% of the board of directors or
such other persons does not constitute a majority as used herein.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"UT Pakistan" means Union Texas Pakistan, Inc., a Delaware
corporation.
"UTPC" means Union Texas Products Corporation, a Delaware corporation.
-19-
26
"UTPL" means Union Texas Petroleum Limited, an English company.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time,
applied on a basis consistent with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Banks (except for changes concurred in by the Company's independent
public accountants); provided that in any determination of Consolidated Debt if
(i) the Company or any Restricted Subsidiary owes any Debt to an Unrestricted
Subsidiary which would otherwise be eliminated in such determination of
Consolidated Debt (the "intercompany Debt") (other than Debt in an amount not
exceeding $10,000,000 in the aggregate at any time and representing advances by
the Unrestricted Subsidiaries to the Company or a Restricted Subsidiary made in
the ordinary course of the cash management practices of the Company and its
Subsidiaries) and (ii) such Unrestricted Subsidiary owes, at the date of
determination, any Debt for borrowed money to a Person other than the Company
or a Subsidiary (the "third party Debt") (other than any such Debt that also
constitutes Debt of the Company or a Restricted Subsidiary), then an amount
equal to the lesser of (1) such intercompany Debt and (2) such third party
Debt, shall not be eliminated in such determination of Consolidated Debt.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregate of Loans made by Banks to the Company pursuant to Article II on a
single date, of a single Type and, if such Loans are Euro-Dollar Loans, for a
single Interest Period. Borrowings are classified for purposes of this
Agreement by reference to the pricing of Loans comprising such Borrowing (e.g.,
a "Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans).
SECTION 1.04. Miscellaneous. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, Schedule and Exhibit references are to
Articles and Sections of and Schedules and Exhibits to this Agreement, unless
otherwise specified. The term "including" as used herein means "including
without limitation". Definitions of terms defined herein shall be applicable
to both the singular and plural forms of the terms defined as appropriate.
References to "directly or indirectly" in respect of ownership of any interest
in any assets shall include, without limitation, direct ownership, indirect
ownership through capital stock or other ownership interest (whether through
one or more levels of subsidiaries, affiliates or other Persons) and any other
direct or indirect ownership arrangement.
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SECTION 1.05. Unimar. To the extent this Agreement or any other
Financing Document obligates the Company or a Subsidiary to cause Unimar and
the Unimar Subsidiaries to take any action, such obligation shall be satisfied
if (a) the Company votes (or causes a Subsidiary to vote) the Unimar Percentage
in a manner consistent with the obligations of the Company and the Subsidiaries
under the Financing Documents and (b) any representative of the Company sitting
on any management board or board of directors of Unimar or any of the Unimar
Subsidiaries votes, as a member of such management board or board of directors,
in a manner consistent with the obligations of the Company and the Subsidiaries
under the Financing Documents.
SECTION 1.06. Ratings. A rating, whether public or private, by S&P
or Xxxxx'x shall be deemed to be in effect on the date of announcement or
publication by S&P or Xxxxx'x, as the case may be, of such rating or, in the
absence of such announcement or publication, on the effective date of such
rating and will remain in effect until the effective date of any change in such
rating. In the event the standards for any rating by S&P or Xxxxx'x are
revised, or such rating is designated differently (such as by changing letter
designations to numerical designations), then the references herein to such
rating shall be changed to the revised or redesignated rating for which the
standards are closest to, but not lower than, the standards at the date hereof
for the rating which has been revised or redesignated, all as determined by the
Agent in good faith. Long-term debt supported by a letter of credit, guaranty
(other than guaranties of Subsidiaries) or other similar credit enhancement
mechanism shall not be considered as senior unsecured long-term debt.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. During the Revolving Credit
Period each Bank severally agrees, on the terms and conditions set forth in
this Agreement, to make loans to the Company pursuant to this Section from time
to time in amounts such that the aggregate principal amount of Loans by such
Bank at any one time outstanding to the Company shall not exceed the amount of
such Bank's Commitment at such time. Each Borrowing under this Section shall
be in an aggregate principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be, subject to the other terms
hereof, in the aggregate amount of the remaining unused Commitments) and shall
be made from the several Banks ratably in proportion to their respective
Commitments. Within the foregoing limits, the Company may borrow under this
Section, repay (whether pursuant to Section 2.10 or otherwise), or to the
extent permitted by Section 2.11, prepay Loans and reborrow at any time during
the Revolving Credit Period under this Section.
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SECTION 2.02. Notice of Borrowings. (a) The Company shall give the
Agent notice (a "Notice of Borrowing") not later than 10:00 A.M. (Houston time)
on (x) the date of each Base Rate Borrowing, and (y) the third Euro-Dollar
Business Day before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
Notwithstanding the foregoing, not more than ten Euro-Dollar Borrowings shall
be outstanding at any one time, and any Borrowing which would exceed such
limitation shall be made as a Base Rate Borrowing.
(b) If requested to do so by the Company through the Agent at least
ten Euro-Dollar Business Days before the first day of a proposed Interest
Period for Euro-Dollar Loans, each Bank will advise the Agent before 10:00 A.M.
(Houston time) on the sixth Euro-Dollar Business Day preceding the date of such
proposed Interest Period as to whether, if the Company selects a specified
duration of nine or twelve months for such Interest Period, such Bank expects
that deposits in dollars with a corresponding term will be available to it in
the relevant market on the first day of such Interest Period in the amount
required to fund its Loan to which such Interest Period would apply. Unless a
Bank responds by such time to the effect that it expects such deposits will not
be available to it, the Company shall be entitled to select such proposed
duration for such Interest Period.
SECTION 2.03. Conversions. (a) The Company may on any Euro-Dollar
Business Day, upon notice given to the Agent no later than 10:00 A.M. (Houston
time) on the third Euro-Dollar Business Day prior to the date of the proposed
Conversion and subject to the provisions of Section 2.02 and Article VIII and
the other provisions hereof, Convert all Loans comprising one or more
Borrowings; provided that (i) Loans comprising a Borrowing may not be Converted
if after giving effect to such Conversion, such Borrowing would be a Euro-
Dollar Borrowing and the outstanding principal amount of such Borrowing would
be less than $10,000,000 and (ii) no Conversion (other than changing Euro-
Dollar Loans into Base Rate Loans) may be made if any Event of Default is then
existing. Each
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such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Loans to be Converted, (iii)
if after giving effect to such Conversion, such Borrowing would be a
Euro-Dollar Borrowing, the commencement date and duration of the proposed
Interest Period for each Loan comprising such Borrowing, and (iv) the nature of
such Conversion (i.e., whether such Conversion is a change of Loans of one Type
into another Type, a continuation of Euro-Dollar Loans as such for an
additional Interest Period or an election to change an Interest Period). Each
such notice shall be irrevocable.
(b) If the aggregate unpaid principal amount of Euro-Dollar Loans
comprising any Borrowing shall be reduced by payment or prepayment or
otherwise, to less than $10,000,000, such Loans shall automatically, on the
last day of the then existing Interest Period therefor, Convert into Base Rate
Loans.
(c) If the Company shall fail to select the duration of any Interest
Period for any Euro-Dollar Loans in accordance with the provisions contained in
the definition of "Interest Period" in Section 1.01, or if there shall be any
Event of Default, such Loans will automatically on the last day of the then
existing Interest Period therefor, Convert into Base Rate Loans.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly,
(by no later than 10:30 A.M. (Houston time) by telephone or facsimile
transmission) notify each Bank of the contents thereof and of such Bank's share
of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Company.
(b) Not later than 12:00 Noon (Houston time) on the date of each
Borrowing, each Bank shall (except as provided in subsection (c) of this
Section) make available its share of such Borrowing, in Federal or other funds
immediately available in Houston, to the Agent at its address specified in or
pursuant to Section 9.01. Unless the Agent determines that any applicable
condition specified in Article III has not been satisfied, the Agent will make
the funds so received from the Banks available to the Company at the Agent's
aforesaid address.
(c) If any Bank makes a new Loan hereunder to the Company on a day on
which the Company is to repay all or any part of an outstanding Loan from such
Bank, such Bank shall apply the proceeds of its new Loan to make such repayment
and only an amount equal to the difference (if any) between the amount being
borrowed by the Company and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (b), or remitted by the
Company to the Agent as provided in Section 2.12, as the case may be.
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(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section 2.04 and the Agent may,
in reliance upon such assumption, make available to the Company on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Agent, such Bank and the Company severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Company until the date such amount is repaid to the Agent, at
(i) in the case of the Company, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto pursuant to Section
2.07 and (ii) in the case of such Bank, the Federal Funds Rate. If such Bank
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.05. Notes.
(a) The Loans of each Bank to the Company shall be evidenced by a single Note
of the Company payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans to the Company.
(b) Each Bank may, by notice to the Company and the Agent, request
that its Loans of a particular Type payable to such Bank (or such lending
office, agency or branch of such Bank as such Bank may specify in such request)
be evidenced by a separate Note of the Company in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such Note shall be in
substantially the form of Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant Type. Any Bank
that receives multiple Notes pursuant to this Section 2.05(b) agrees that: (1)
the aggregate principal amount payable by the Company under such Notes shall
never exceed the aggregate principal amount of the Loans owed to such Bank
(including, if applicable, the separate lending offices, agencies or branches
of such Bank) and (2) the payees of the Notes issued at the request of such
Bank shall enjoy no greater rights (voting or otherwise) than such Bank would
enjoy in the absence of such request and such payees (including, if applicable,
the separate lending offices, agencies or branches of such Bank) shall be
considered a single Bank for purposes of this Agreement. Each reference in
this Agreement to the "Note" of such Bank shall be deemed to refer to and
include any or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(b), the
Agent shall mail or send by private delivery service such Note to such Bank.
Each Bank shall record the date, amount and Type of each Loan made by it to the
Company and the date and amount of each payment of principal made with respect
thereto, and prior to any transfer
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of its Note shall endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each such Loan
then outstanding; provided that the failure of any Bank to make any such
recordation or endorsement shall not affect the obligations of the Company
under any of the Financing Documents. Each Bank is hereby irrevocably
authorized by the Company so to endorse any Note and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan shall mature, and the
principal amount thereof shall be due and payable, on March 9, 1999.
SECTION 2.07. Interest Rates. The Company shall pay interest on the
unpaid principal amount of each Loan from the date of such Loan until such
principal amount shall be paid in full, at the following rates per annum:
(a) If such Loan is a Base Rate Loan, for each day that such Loan is
a Base Rate Loan, at a rate per annum equal to the sum of (i) the Base Rate for
such day plus (ii) at such times as any Event of Default exists, 1%. Such
interest shall be payable quarterly on each March 31, June 30, September 30 and
December 31 and on the date such Base Rate Loan is Converted or paid in full.
Any overdue interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 1% plus
the otherwise applicable rate for such day.
(b) If such Loan is a Euro-Dollar Loan, at a rate per annum equal at
all times during any Interest Period for such Loan to the sum of (i) the
applicable London Interbank Offered Rate plus (ii) the Applicable Margin for
such Interest Period plus (iii) at such times as any Event of Default exists,
1%; provided that any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the
date payment thereof was due to but excluding the date of actual payment, at a
rate per annum equal to the sum of 1% plus the higher of (x) the sum of the
London Interbank Offered Rate applicable to such Loan plus the Applicable
Margin applicable to an Interest Period of a Euro-Dollar Loan if such Euro-
Dollar Loan were to commence on such day and (y) the sum of (1) the average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which one day (or, if such amount due remains unpaid more
than three Euro-Dollar Business Days, then for such other period of time not
longer than three months as the Agent may select) deposits in dollars in an
amount approximately equal to such overdue payment due to each of the Reference
Banks are offered to such Reference Bank in the London interbank market for the
applicable period determined as provided above plus (2) the Applicable Margin
applicable to an Interest Period of a Euro-Dollar Loan if such Euro-Dollar Loan
were to commence on such day (or, if the circumstances described in clause (a)
or (b) of Section 8.01 shall exist, at a rate per annum equal to the sum of 1%
plus the rate applicable to Base Rate Loans for such day). Such
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interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
The "London Interbank Offered Rate" applicable to any Interest Period
means the arithmetic average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Reference Bank to which such
Interest Period is to apply and for a period of time comparable to such
Interest Period.
(c) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Company and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
Upon request of the Company, the Agent shall furnish to it such information as
to its determinations hereunder as the Company may reasonably request.
(d) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is available
on a timely basis, the provisions of Section 8.01 shall apply.
(e) This Section 2.07 and each other provision in any of the Financing
Documents or in any other agreement executed in connection herewith are
specifically made subject to Section 2.16.
SECTION 2.08. Facility Fees.
(a) The Company shall pay to the Agent for the account of the Banks
ratably a facility fee at the rate per annum for each calendar quarter
determined as provided in Schedule I based on the Rating Level in effect on the
first day of such quarter. Such facility fee shall accrue (i) from and
including the date of this Agreement to but excluding the earlier of the
Termination Date or the date the Commitments are otherwise terminated, on the
daily average aggregate amount of the Commitments (whether used or unused) and
(ii) from and including the earlier of the Termination Date or the date the
Commitments are otherwise terminated to but excluding the date the Loans shall
be repaid in their entirety, on the daily average aggregate outstanding
principal amount of the Loans.
(b) Payments. Accrued fees under this Section 2.08 shall be payable
quarterly on each March 31, June 30, September 30 and December 31 and upon the
date of
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termination of the Commitments in their entirety (and, if later, the date the
Loans shall be repaid in their entirety).
SECTION 2.09. Optional Termination or Reduction of Commitments. The
Company may, upon at least three Domestic Business Days' notice to the Agent,
(i) terminate the Commitments at any time, if no Loans are outstanding at such
time, or (ii) ratably reduce from time to time by an aggregate amount of
$10,000,000 or any larger multiple of $5,000,000 the aggregate amount of the
Commitments in excess of the aggregate outstanding principal amount of the
Loans.
SECTION 2.10. Mandatory Termination or Reduction of Commitments.
(a) The Commitments shall terminate on the Termination Date.
(b) On the fifth Domestic Business Day following any Asset Sale that
results in positive Excess Net Sales Proceeds, (i) the Company will deliver to
each of the Banks a certificate of the chief financial officer, the chief
accounting officer or the treasurer of the Company certifying the amount of
such Excess Net Sales Proceeds from such Asset Sale, (ii) the Commitments shall
be automatically reduced ratably by an amount equal to (a) 100% of the amount
of such Excess Net Sales Proceeds minus (b) the amount, if any, by which the
Other Credit Agreement Commitments are reduced pursuant to Section 2.10(d)(ii)
of the Other Credit Agreement as a result of such Excess Net Sales Proceeds
from such Asset Sale, and (iii) the Company shall be obligated to repay such
principal amount (together with accrued interest thereon) of each Bank's
outstanding Loans, if any, as may be necessary so that after such repayment the
aggregate outstanding principal amount of such Bank's Loans does not exceed the
amount of such Bank's Commitment as then reduced.
SECTION 2.11. Optional Prepayments.
(a) The Company may, upon at least one Domestic Business Day's notice
to the Agent, prepay any Borrowing in whole at any time, or from time to time in
part in amounts aggregating $10,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment; provided that no partial prepayment of a Euro-Dollar
Borrowing shall be made if after giving effect thereto the principal amount of
such Borrowing would be less than $10,000,000. Each such optional prepayment
shall be applied to prepay ratably the Loans of the several Banks included in
such Borrowing.
(b) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Company.
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SECTION 2.12. General Provisions as to Payments.
(a) The Company shall make each payment of principal of, and interest
on, the Loans and of fees hereunder, not later than 12:00 Noon (Houston time)
on the date when due, in Federal or other funds immediately available in
Houston, to the Agent at its address referred to in Section 9.01. The Agent
will promptly distribute to each Bank its ratable share of each such payment
received by the Agent for the account of the Banks. Whenever any payment of
principal of, or interest on, the Base Rate Loans or of fees shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-
Dollar Business Day falls in another calendar month, in which case the date for
payment thereof shall be the next preceding Euro-Dollar Business Day. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Company prior
to the date on which any payment is due from the Company to the Banks hereunder
that the Company will not make such payment in full, the Agent may assume that
the Company has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent that the Company shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Company makes any payment of
principal with respect to any Euro-Dollar Loan (pursuant to Article II, VI or
VIII or otherwise) on any day other than the last day of an Interest Period
applicable thereto, or the end of an applicable period fixed pursuant to the
proviso to Section 2.07(b), or if the Company fails to borrow any Euro-Dollar
Loan after notice has been given to any Bank in accordance with Section
2.04(a), or if any Conversion of any Euro-Dollar Loan occurs on any day other
than the last day of an Interest Period applicable thereto, the Company shall
reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin from the period after any such payment or failure to borrow; provided
that such Bank shall have delivered to the Company a certificate as to the
amount of such loss or expense, which certificate shall be conclusive in the
absence of manifest error.
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SECTION 2.14. Computation of Interest and Fees. Interest based on
the Base Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.15. Chapter 15. In no event shall the provisions of
Article 5069, Chapter 15 of the Revised Civil Statutes of Texas (which
regulates certain revolving credit loan accounts and revolving tri-party
accounts) apply to any Loan made hereunder.
SECTION 2.16. Maximum Interest Rate.
(a) Nothing contained in this Agreement or the Notes shall require the
Company to pay interest at a rate exceeding the maximum rate permitted without
penalty by applicable law. Each provision in the Financing Documents and any
other agreement executed in connection herewith is expressly limited so that in
no event whatsoever shall the amount paid thereunder, or otherwise paid, by the
Company for the use, forbearance or detention of the money to be loaned under
this Agreement, exceed that amount of money which would cause the effective
rate of interest thereon to exceed the maximum rate of interest permitted
without penalty under applicable law, and all amounts payable under the
Financing Documents or any other agreement executed in connection herewith, or
otherwise payable in connection therewith, shall be subject to reduction so
that such amounts paid or payable for the use, forbearance or detention of
money to be loaned under this Agreement shall not exceed that amount of money
which would cause the effective rate of interest thereon to exceed the maximum
rate of interest permitted without penalty under applicable law.
(b) If the amount of interest payable for the account of any Bank on
any interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to Section 2.07, would exceed the maximum
amount permitted without penalty by applicable law to be charged by such Bank,
the amount of interest payable for its account on such interest payment date
shall be automatically reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of any Bank in
respect of any interest computation period is reduced pursuant to clause (b) of
this Section and the amount of interest payable for its account in respect of
any subsequent interest computation period, computed pursuant to Section 2.07,
would be less than the maximum amount permitted without penalty by applicable
law to be charged by such Bank, then the amount of interest payable for its
account in respect of such subsequent interest computation period shall be
automatically increased to such maximum permissible amount; provided that at no
time shall the aggregate amount by which interest paid for the account of any
Bank has
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been increased pursuant to this clause (c) exceed the aggregate amount by which
interest paid for its account has theretofore been reduced pursuant to clause
(b) of this Section.
(d) In the event that maturity of the Loans is accelerated for any
reason, or in the event of any required or permitted prepayment of the Loans,
then such consideration that constitutes interest payable for the account of
any Bank shall never include more than the maximum amount allowed without
penalty by applicable law to be charged by such Bank and excess interest, if
any, payable for the account of such Bank pursuant to its Note, this Agreement
or otherwise shall be cancelled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited on the
Loans of such Bank (or, to the extent in excess of such Loans, refunded by such
Bank to the Company).
(e) It is further agreed that, without limitation of the foregoing,
all calculations of the rate of interest contracted for, charged or received
for the account of any Bank under the Note held by it, under this Agreement,
under any other agreement executed in connection herewith or otherwise in
connection with the Loans or the Commitment of such Bank for the purpose of
determining whether such rate exceeds the maximum nonusurious interest rate
applicable to such Bank, shall be made, to the extent permitted by usury laws
applicable to such Bank (now or hereafter enacted), by amortizing, prorating
and spreading in equal parts during the period of the full stated terms of the
Loans evidenced by such Note all interest at any time contracted for, charged
or received by such Bank in connection therewith.
(f) To the extent that any Bank may be subject to Texas law limiting
the amount of interest payable for its account, such Bank shall utilize the
indicated (weekly) rate ceiling from time to time in effect as provided in
Article 5069-1.04 of the Revised Civil Statutes of Texas, as amended.
SECTION 2.17. Taxes.
(a) Any and all payments by the Company hereunder or under the Notes
shall be made, in accordance with Section 2.12, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges and withholdings, and all liabilities with respect thereto, excluding
(i) in the case of the Agent, each Co-Agent and each Bank, United States
federal income taxes and, without duplication, any taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
the Agent, such Co-Agent or such Bank, as the case may be, is organized or any
political subdivision thereof and (ii) in the case of each Bank, taxes imposed
on its income, and franchise taxes imposed on it, by the jurisdiction of such
Bank's Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Company shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Bank, any Co-Agent or the Agent, (i) the sum
payable
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shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.17) such Bank, such Co-Agent or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions and (iii) the
Company shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, assessments, charges
or similar levies which arise from any payment made hereunder or under the
Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any of the Notes (hereinafter referred to as
"Other Taxes").
(c) The Company will indemnify each Bank, each Co-Agent and the Agent for
the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.17) paid by such Bank, such Co-Agent or the Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. Payments under any indemnification
provided for in this Section 2.17(c) shall be made within 30 days from the date
such Bank, such Co-Agent or the Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, the Company
will furnish to the Agent, at its address referred to in Section 9.01, the
original or a certified copy of a receipt evidencing payment thereof. Should
any Bank, any Co-Agent or the Agent ever receive any refund, credit or
deduction from any taxing authority to which such Bank, such Co-Agent or the
Agent, as the case may be, would not be entitled but for the payment by the
Company of Taxes as required by this Section 2.17 (it being understood that the
decision as to whether or not to claim, and if claimed, as to the amount of any
such refund, credit or deduction shall be made by such Bank, such Co-Agent or
the Agent, as the case may be, in its sole discretion), such Bank, such
Co-Agent or the Agent, as the case may be, thereupon shall repay to the Company
an amount with respect to such refund, credit or deduction equal to any net
reduction in taxes actually obtained by such Bank, such Co-Agent or the Agent,
as the case may be, and reasonably determined by such Bank, such Co-Agent or
the Agent, as the case may be, to be attributable to such refund, credit or
deduction.
(e) Each Bank represents that it is either (i) a corporation, association
or other entity organized under the laws of the United States or any state
thereof or (ii) entitled to complete exemption from United States withholding
tax imposed on or with respect to any payments, including fees, to be made to
it pursuant to this Agreement or the Notes. Each Bank that is not organized
under the laws of the United States or any state thereof (a "Foreign Bank")
agrees to provide to the Company and the Agent, on or prior to the date of
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this Agreement in the case of each Foreign Bank signatory hereto, and on the
date of the Assignment pursuant to which it became a Bank in the case of each
other Foreign Bank, two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that such Foreign Bank is
entitled to receive payments from the Company under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Foreign Bank which so delivers a Form 1001 or 4224 further
undertakes to deliver to each of the Company and the Agent two additional
copies of such form (or a successor form) on or before the date that such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the Company
or the Agent, in each case certifying that such Foreign Bank is entitled to
receive payments from the Company under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Foreign Bank from duly completing and delivering any such form with respect to
it and such Foreign Bank advises the Company and the Agent that it is not
capable of receiving such payments without any deduction or withholding of
United States federal income tax. Each Bank agrees to indemnify and hold the
Company and the Agent harmless from any United States taxes, penalties,
interest and other expenses, costs and losses incurred or payable by them as a
result of either (a) such Bank's failure to submit any form that it is required
to provide pursuant to this Section 2.17(e) or (b) the Agent's and the
Company's reliance on any such form which such Bank has provided to them, or on
the representation of such Bank made to them pursuant to this Section 2.17(e).
(f) If any Taxes are paid by the Company pursuant to this Section 2.17 in
respect of the Applicable Lending Office of any Bank, such Bank will, if
requested to do so by the Company, designate a different Applicable Lending
Office if such designation will avoid the need to pay, or reduce the amount of,
such Taxes and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank.
ARTICLE III
CONDITIONS
SECTION 3.01. Initial Borrowing. The obligation of any Bank to make
a Loan on the occasion of the initial Borrowing is subject to the satisfaction
(or waiver in accordance with Section 9.05) of each of the following
conditions:
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(a) receipt by the Agent of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation from
such party of execution of a counterpart hereof by such party);
(b) receipt by the Agent for the account of each Bank of a duly
executed Note of the Company dated on the date of this Agreement complying
with the provisions of Section 2.05;
(c) receipt by the Agent of an opinion of Xxxx X. Xxxxx, Xx., Vice
President and General Counsel of the Company, substantially in the form of
Exhibit C hereto;
(d) receipt by the Agent of an opinion of Xxxxxxx & Xxxxx L.L.P.,
special counsel for the Company, substantially in the form of Exhibit D
hereto;
(e) receipt by the Agent of an opinion of Xxxxxxxxx & Xxxxxxxxx,
L.L.P., special counsel for the Agent, substantially in the form of Exhibit
E hereto;
(f) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Company, the corporate authority for and
the validity of each of the Financing Documents, and any other matters
relevant thereto, all in form and substance satisfactory to the Agent;
(g) receipt by the Agent of a certificate of an officer of the Company
stating the rating by S&P and Xxxxx'x of all senior unsecured long-term
debt of the Company as in effect on the date of this Agreement; and
(h) receipt by the Agent of a certificate of the chief financial
officer, the chief accounting officer or the treasurer of the Company
certifying, as of the Effective Date, that no Default exists.
SECTION 3.02. All Borrowings. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions (in addition to the conditions set forth in Section 3.01):
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02;
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(b) the fact that immediately prior to and immediately after such
Borrowing, no Default shall have occurred and be continuing; and
(c) the fact that the representations and warranties of the Company
contained in this Agreement (except, in the case of any Borrowing
subsequent to the first Borrowing, the representations and warranties set
forth in Section 4.04(a) or (c)) shall be true and correct in all material
respects on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Company on the date of such Borrowing as to the facts specified in this
Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to own its assets and to carry on its business as now conducted and is duly
qualified as a foreign corporation in good standing in each jurisdiction where
the nature of its business or the ownership or leasing of its properties
requires such qualification and where the failure so to qualify could have a
material adverse effect on the business, financial position, results of
operations or prospects of the Company and its Subsidiaries, taken as a whole.
Neither the Company nor any Subsidiary or Affiliate is subject to regulation
under the Public Utility Holding Company Act of 1935, the Investment Company
Act of 1940, the Interstate Commerce Act or any other law or regulation which
limits the incurrence by the Company or any Subsidiary of Debt, including, but
not limited to, laws relating to common or contract carriers or the sale of
electricity, gas, steam, water or other public utility services.
SECTION 4.02. Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the Company of each
Financing Document to which it is shown as being a party are within the
Company's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene, or constitute a default under, any
provision of applicable law or regulation (including, without limitation,
Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System) or the certificate of incorporation, by-laws or other charter documents
of the Company or of any instrument or agreement evidencing or governing Debt
or any other material agreement,
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judgment, injunction, order, decree or other instrument binding upon the
Company or result in the creation or imposition of any material Lien on any
asset of the Company or any Subsidiary. All authorizations, consents and
approvals of governmental bodies, agencies or officials required in connection
with the execution, delivery and performance by the Company of the Financing
Documents to which it is shown as being a party have been obtained and are in
full force and effect.
SECTION 4.03. Binding Effect. This Agreement and each of the Notes
have been duly executed and delivered by the Company and constitute legal,
valid and binding agreements of the Company.
SECTION 4.04. Information.
(a) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1996 and the related consolidated statements of
operations, cash flows and common stock and other shareholders' equity for the
fiscal year then ended, reported on by Price Waterhouse LLP and set forth in
the Company's 1996 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) To the best knowledge of the Company, there are no statements or
conclusions in any Engineering Report delivered pursuant hereto which are based
upon or include misleading information or fail to take into account material
information regarding the matters reported therein, it being understood that
such statements and conclusions are necessarily based upon professional
opinions, estimates and forecasts, and the Company does not warrant that such
opinions, estimates and forecasts will ultimately prove to have been accurate.
(c) The Company's 1996 Form 10-K does not contain any untrue statement
of material fact or omit to state a material fact necessary in order to make
the statements contained therein not misleading as of the date thereof. Except
for matters of general public knowledge with respect to the oil and gas
industry, the Company has disclosed to the Banks in writing any and all facts
which materially and adversely affect or may be reasonably expected so to
affect (to the extent the Company can now reasonably foresee) the business,
assets, operations, prospects or condition, financial or otherwise, of the
Company and its Subsidiaries or the ability of the Company to perform its
obligations under the Financing Documents.
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(d) Since December 31, 1996 there has been no material adverse change
in the business, financial position, results of operations or prospects of the
Company and its Subsidiaries, taken as a whole.
(e) No Default exists.
SECTION 4.05. Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of the Company threatened against or
affecting, the Company or any of its Subsidiaries or any of their respective
properties or interests at law or in admiralty or equity, before any court or
arbitrator or any governmental body, agency or official, foreign or domestic,
in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business, financial position or results of
operations of the Company and its Subsidiaries, taken as a whole, or which in
any manner draws into question the validity of any Financing Document.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting
of a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the Company conducts an ongoing review of the effect of existing
Environmental Laws on the business, operations and properties of the Company
and the Subsidiaries, in the course of which it attempts to identify and
evaluate associated liabilities and costs (including, without limitation, any
capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection
standards imposed by law or as a condition of any license, permit or contract,
any related constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or change in
the nature of operations conducted thereat and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Company has reasonably concluded
that existing Environmental Laws are unlikely to have a material adverse effect
on the business, financial condition, results of operations or prospects of the
Company and its Subsidiaries, taken as a whole.
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SECTION 4.08. Subsidiaries. All Restricted Assets are owned as of
the date of this Agreement by the Company and the Persons listed in Part B of
Schedule II hereto or, in the case of Restricted Assets sold since December 31,
1993, by Persons other than Unrestricted Subsidiaries. Part A of Schedule II
hereto contains a true, complete and accurate list of all Unrestricted
Subsidiaries, and Part B of Schedule II hereto contains a true, complete and
accurate list of all Restricted Subsidiaries as of the date of this Agreement.
SECTION 4.09. Ownership of Restricted Subsidiaries. The Company or a
Restricted Subsidiary is the record and beneficial owner, free and clear of all
Liens (other than those permitted by Section 5.07), of (i) all of the issued
and outstanding capital stock (other than directors' qualifying shares and
shares beneficially owned by the Company or a Restricted Subsidiary and held by
nominees of the Company or a Restricted Subsidiary solely to satisfy
requirements of local law) and other ownership interests of each Restricted
Subsidiary (except Unimar and the Unimar Restricted Subsidiaries and any other
Restricted Subsidiary the capital stock of which is sold pursuant to a sale
permitted by Section 5.14) and (ii) except during any period during which
Unimar is an Unrestricted Subsidiary or ceases to be a Subsidiary, at least 50%
of the ownership interest in Unimar and the Unimar Restricted Subsidiaries.
Except as disclosed on Schedule VI, there are no outstanding options, warrants
or other rights to acquire any capital stock or other ownership interest of any
Restricted Subsidiary.
SECTION 4.10. Title to Properties. The Company and each of the
Subsidiaries have good title, free and clear of all Liens, claims, burdens and
title defects, to all of the material assets reflected in the Company's or such
Subsidiary's books and records as being owned by them except Liens permitted by
this Agreement and claims, burdens and title defects not materially adverse in
the aggregate.
SECTION 4.11. Taxes and Other Obligations. Consolidated United
States Federal income tax returns of the Company and the Subsidiaries have been
examined by the Internal Revenue Service, or the statutory period for such
examination has expired, for all years up to and including the year ended
December 31, 1992, and all assessed deficiencies resulting from such
examination have been discharged or reserved against as required by generally
accepted accounting principles. The Company and the Subsidiaries have filed
all United States Federal, state and local income tax returns and all other
material domestic tax returns which are required to be filed by them and have
paid, or provided for the payment before the same became delinquent of, all
taxes due pursuant to such returns or pursuant to any assessment received by
the Company or any Subsidiary, other than those taxes being diligently
contested in good faith by appropriate proceedings. The charges, accruals and
reserves on the books of the Company and the Subsidiaries in respect of taxes
are, in the opinion of the Company, adequate. The Company and the Subsidiaries
have set up such reserves as are required by generally accepted accounting
principles for the payment of additional taxes for years which have not been
audited by the respective tax authorities. The
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Company and the Subsidiaries have paid all other material obligations when due
other than those being contested in good faith by appropriate proceedings.
SECTION 4.12. Regulation U. Neither the Company nor any Subsidiary
is engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation G) or margin stock
(within the meaning of Regulation U). Following the application of the
proceeds of each Loan, not more than 25% of the value of the assets of the
Company, or of the Company and its Subsidiaries, which are subject to any
arrangement with the Agent or any Bank (herein or otherwise) whereby the
Company's or any Subsidiary's right or ability to sell, pledge or otherwise
dispose of assets is in any way restricted will be any such margin stock.
SECTION 4.13. Certain Obligations. Neither the Company nor any
Subsidiary has any obligation to make payments on the Joint Venture Debt other
than those permitted by Section 5.17. The only Non-Recourse Debt existing on
the date of this Agreement is the Existing Pakistan Non-Recourse Debt.
SECTION 4.14. United Kingdom Assets. Substantially all of the
Restricted Assets located in the United Kingdom (including the United Kingdom
Sector of the North Sea) are directly owned by UTPL as of the date of this
Agreement.
ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 100 days after the
end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of operations, cash flows and
common stock and other shareholders' equity for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all reported on in a manner acceptable to the Securities and Exchange
Commission by Price Waterhouse LLP or other independent public accountants
of nationally recognized standing;
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(b) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries
as of the end of such quarter and the related consolidated statements of
operations and cash flows for such quarter and for the portion of the
Company's fiscal year ended at the end of such quarter, setting forth in
each case in comparative form the figures for the corresponding quarter and
the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to preparation in
accordance with generally accepted accounting principles and consistency by
the chief financial officer, the chief accounting officer or the treasurer
of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer, the chief accounting officer or the treasurer of
the Company (i) setting forth in reasonable detail the calculations
required to establish whether the Company was in compliance with the
requirements of Sections 5.05 and 5.15 on the date of such financial
statements and (ii) stating whether any Default exists on the date of such
certificate and, if any Default then exists, setting forth the details
thereof and the action which the Company and its Subsidiaries are taking or
propose to take with respect thereto;
(d) as soon as available and in any event within 60 days after the end
of each fiscal quarter of the Company, a certificate of the chief financial
officer, the chief accounting officer or the treasurer of the Company
certifying (i) the rating (or lack of a rating thereof) by each of S&P and
Xxxxx'x of the senior unsecured long-term debt of the Company on the date
of such certificate, (ii) the Unimar Percentage as of the end of such
quarter and the amounts as of the end of such quarter of Consolidated Debt,
Defeased Debt, Excluded Subordinated Debt, Debt of the Company and its
Consolidated Subsidiaries determined on a consolidated basis, Debt of the
Company and the Restricted Subsidiaries determined on a consolidated basis,
Debt of Unimar, Debt of Unrestricted Subsidiaries, Excess Letter of
Credit/Guarantee Amount, Non-Restricted Asset Non-Recourse Debt, Non-
Recourse Debt of the Company and the Restricted Subsidiaries, and
Restricted Subsidiaries Recourse Debt, and (iii) each Asset Sale that has
been consummated during such quarter, the Fair Market Value of the
Restricted Assets subject thereto, the amount of fees, commissions,
expenses and taxes related thereto, the Net Sales Proceeds therefrom and
the cumulative amount of the Excess Net Sales Proceeds from all Assets
Sales since December 31, 1993;
(e) within five days after the chief financial officer, the chief
accounting officer or treasurer of the Company obtains knowledge of any
Default, if such Default is then continuing, a certificate of the chief
financial officer, the chief
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accounting officer or the treasurer of the Company setting forth the
details thereof and the action which the Company and its Subsidiaries are
taking or propose to take with respect thereto;
(f) immediately upon the filing of, or any material development in,
any litigation or the occurrence of any other event or contingency, if such
development, litigation, event or contingency could reasonably be expected
to have a material adverse effect on the business, assets, operations,
prospects or condition, financial or otherwise, of the Company and its
Subsidiaries, taken as a whole, a certificate of the chief financial
officer, the chief accounting officer or the treasurer of the Company
setting forth the details of such development, litigation, event or
contingency and the action which the Company and its Subsidiaries are
taking or propose to take with respect thereto;
(g) as soon as available and in any event within 100 days after the
end of each fiscal year of each Restricted Subsidiary (other than the
Unimar Restricted Subsidiaries), a consolidated balance sheet of such
Restricted Subsidiary and its consolidated subsidiaries as of the end of
such fiscal year and the related consolidated statements of operations,
cash flows and common stock and other shareholders' equity for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all certified as to preparation in accordance with
generally accepted accounting principles and consistency by the chief
financial officer, the chief accounting officer or the treasurer of such
Restricted Subsidiary;
(h) as soon as available and in any event within 60 days after the end
of the first three quarters of each fiscal year of each Restricted
Subsidiary (other than the Unimar Restricted Subsidiaries, Union Texas
Petroleum Energy Corporation and Union Texas International Corporation), a
consolidated balance sheet of such Restricted Subsidiary and its
consolidated subsidiaries as of the end of such quarter and the related
consolidated statements of operations and cash flows for such quarter and
for the portion of such Restricted Subsidiary's fiscal year ended at the
end of such quarter, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of such
Restricted Subsidiary's previous fiscal year, all certified (subject to
normal year-end adjustments) as to preparation in accordance with generally
accepted accounting principles and consistency by the chief financial
officer, the chief accounting officer or the treasurer of such Restricted
Subsidiary;
(i) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
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(j) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Company shall have filed with the Securities
and Exchange Commission;
(k) at least 45 days prior to the closing of each Asset Sale that will
result in aggregate Net Sales Proceeds (for such sale or, if such sale is
one of a series of related sales, for all sales and contemplated sales in
such series) of $50,000,000 or more, notice of such sale describing the
assets to be sold and the estimated Net Sales Proceeds thereof;
(l) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section
4043 of ERISA) (other than a "reportable event" not subject to the
provisions for 30-day notice to the PBGC under the regulations issued under
Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer, any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a
bond or other security, a certificate of the chief financial officer, the
chief accounting officer or the treasurer of the Company setting forth
details as to such occurrence and action, if any, which the Company or
applicable member of the ERISA Group is required or proposes to take;
(m) within 5 days after the chief financial officer, the treasurer or
the controller of the Company has knowledge of any filing under Rule 13d of
the Securities and Exchange Commission, promulgated under the Securities
Exchange Act of 1934, as amended, a copy thereof;
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(n) within 5 days after receipt by the Company of any written
agreement of the type referred to in Section 6.01(k)(iii)(c), (A) a
copy thereof except that (i) if such written agreement has not been
filed with the Securities and Exchange Commission and is not otherwise
public information, each Bank as a condition to receiving a copy of
such written agreement may be required to sign, prior to receipt
thereof, a confidentiality agreement pursuant to which it agrees that
it will treat such written agreement in a confidential manner until
such written agreement otherwise becomes public, except for disclosure
(a) to counsel for and other advisors, accountants and auditors of
such Bank, (b) as may be required by statute, decision, order, rule,
regulation or other law, (c) to regulatory authorities, (d) in
connection with any litigation involving such written agreement, such
confidentiality agreement or any of the Financing Documents, and (e)
in connection with any assignment, prospective assignment, sale,
prospective sale, participation or prospective participation or other
transfer or prospective transfer of any of such Bank's interests
hereunder; provided that any such assignee, prospective assignee,
purchaser, prospective purchaser, participant, prospective
participant, transferee, or prospective transferee shall have entered
into a confidentiality agreement for the benefit of the Company
substantially upon the terms of this Section 5.01(n), and (ii) if the
Company is contractually prohibited from delivering a copy of such
written agreement to the Banks, the Company shall not be required to
deliver such written agreement unless such prohibition has been
waived, but the Company shall use reasonable efforts to obtain such
waiver or if it is a party to such written agreement to prevent any
such prohibition from being included therein, and (B) if the Company
is a party to such written agreement, but is excused pursuant to
clause (A)(ii) of this Section 5.01(n) from delivering a copy thereof
to the Banks, the Company shall notify the Banks of the existence of
such written agreement (but not the content thereof or other parties
thereto), but as a condition to receiving such notice the Banks may be
required to sign, prior to receipt of such notice, a confidentiality
agreement conforming to clause (A)(i) of this Section 5.01(n);
(o) by May 1 of each year, an Engineering Report as of the last day of
the immediately preceding year;
(p) promptly upon the closing of the sale or other disposition of any
capital stock of UTPC or any option, warrant or other right to acquire any
such capital stock, notice thereof;
(q) promptly after any change in or termination of the rating of any
senior unsecured long-term debt of the Company by S&P or Xxxxx'x, notice
thereof.
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(r) from time to time such additional information regarding the
financial position or business of the Company or any Subsidiary as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Affirmative Covenants. The Company will maintain its
existence and cause each Restricted Subsidiary to maintain its existence except
in the case of (i) a merger of a Restricted Subsidiary into the Company in a
merger permitted by Section 5.08 hereof, (ii) the merger of a Restricted
Subsidiary into another Restricted Subsidiary, if immediately after such merger
(and giving effect thereto), no Default shall have occurred and be continuing,
and (iii) any Asset Sale in the form of the merger of a Restricted Subsidiary
into another Person, if immediately after such merger (and giving effect
thereto), no Event of Default shall have occurred and be continuing. The
Company and each Subsidiary shall:
(a) Conduct of Business; Property. Cause all material property useful
and necessary in its business to be maintained in good working order and
condition and to be operated prudently in accordance with good industry
practice; and to the extent consistent with prudent business practices,
defend its right, title and interest in its material properties against all
adverse claims.
(b) Compliance with Laws. Comply with all applicable laws,
ordinances, rules, regulations and reporting, filing and other requirements
of governmental authorities (including, without limitation, Environmental
Laws and ERISA and the rules and regulations thereunder), except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings or where the failure to so comply would not have a material
adverse effect on the Company and its Subsidiaries, taken as a whole.
(c) Inspection of Property, Books and Records. Keep proper books of
record and account in accordance with sound accounting practices; and
permit representatives of any Bank, at such Bank's sole risk and expense,
to visit and inspect any of its properties (subject to obtaining any
required consent of third-party operators), to examine and make abstracts
and copies from any of its books and records and to discuss its affairs,
finances and accounts with its officers and employees, and use its best
efforts to make its independent public accountants available to discuss the
affairs, finances and accounts of the Company and any of its Subsidiaries,
all at such reasonable times and as often as may reasonably be desired.
SECTION 5.03. Primary Business. The exploration for, and production
and marketing of, Hydrocarbons will continue to be the primary business of the
Company and its Subsidiaries taken as whole.
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SECTION 5.04. Insurance. The Company will maintain, and will cause
each Subsidiary to maintain (either in the name of the Company or in such
Subsidiary's own name) with financially sound and reputable insurance
companies, insurance on their property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies of established repute engaged in the same or similar business; and
will furnish to the Banks, upon written request from the Agent, full
information as to the insurance carried.
SECTION 5.05. Debt.
(a) At no time will Restricted Subsidiaries Recourse Debt exceed
$75,000,000.
(b) Consolidated Debt will not, on the last day of any calendar quarter,
exceed 3.75 times Operating Cash Flow for the four calendar quarters ending on
such day.
(c) Neither the Company nor any Restricted Subsidiary will create, assume
or otherwise incur any Debt if at the time of creation, assumption or
incurrence of such Debt or after giving effect to the creation, assumption or
incurrence of such Debt, any Event of Default would exist; provided that the
Company or any Restricted Subsidiary may renew or extend (but not increase) its
own Debt.
SECTION 5.06. Restricted Payments. Neither the Company nor any
Subsidiary shall declare or make any Restricted Payment unless, immediately
prior thereto and immediately thereafter, no Event of Default shall have
occurred and be continuing. Neither the Company nor any Subsidiary shall make
any Restricted Transfer unless, immediately prior thereto and immediately
thereafter, no Event of Default shall have occurred and be continuing; provided
that the Company or any Subsidiary can make Restricted Transfers in the form of
Investments in an Affiliate, Unrestricted Subsidiary or subsidiary of an
Unrestricted Subsidiary if (i) such Affiliate, Unrestricted Subsidiary or
subsidiary, as the case may be, has no outstanding Debt at the time of such
Investment and does not thereafter create, assume or otherwise incur any Debt
while any Event of Default is continuing and (ii) the Company notifies the
Banks of any such Investment in excess of $5,000,000 at least ten days prior to
such Investment. Nothing in this Section shall prohibit the payment of any
dividend or distribution within 45 days after the declaration thereof if
payment of such dividend or distribution was not prohibited by this Agreement
at the time such declaration was made.
SECTION 5.07. Negative Pledge. Neither the Company nor any
Restricted Subsidiary will create, assume or suffer to exist (i) any Lien on
any capital stock or other ownership interest of any Restricted Subsidiary now
owned or hereafter acquired by it or any Lien on any option, warrant or other
right to acquire any capital stock or other ownership interest of any
Restricted Subsidiary now owned or hereafter acquired by it, other than those
described in Part A of Schedule III or (ii) any Lien on any other asset now
owned or hereafter
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acquired by it, except for the following Liens on assets not referred to in the
foregoing clause (i) of this Section:
(a) Liens existing on the date of this Agreement, securing Debt
outstanding and other obligations (including contractual obligations)
existing on the date of this Agreement and, except in the case of inchoate
operator's Liens, described in Part B of Schedule III hereto;
(b) any Lien (i) on any Non-Restricted Asset securing only Non-
Restricted Asset Non-Recourse Debt of the Company or any Restricted
Subsidiary or (ii) on any asset of Virginia Indonesia Company, Virginia
International Company or Union Texas East Kalimantan Limited securing Joint
Venture Debt;
(c) mechanics', materialmen's, carriers' and other statutory Liens,
but only if arising, and only so long as continuing, in the ordinary course
of business; or deposits or pledges to obtain the release of any such Lien;
or easements, encroachments or other title defects which do not materially
detract from the value of its assets or materially impair the use thereof
in the operation of its business;
(d) Liens arising in the ordinary course of its business which (i) do
not secure Debt, (ii) do not secure any obligation in an amount exceeding
$15,000,000 and (iii) do not in the aggregate materially detract from the
value of its assets or materially impair the use thereof in the operation
of its business;
(e) Liens on any interest in a Partnership arising under any agreement
creating or governing such Partnership (including Unimar) and securing only
obligations of the members of such Partnership to make Investments in such
Partnership;
(f) Liens arising under any customary provision of any joint operating
agreement or similar agreement relating to the exploration, production,
development or transportation of oil and gas;
(g) Liens not otherwise permitted by the foregoing clauses of this
Section on assets (other than any of the Restricted Assets) securing Debt
in an aggregate principal amount at any time outstanding not to exceed
$20,000,000;
(h) any Lien securing the refinancing, extension, renewal or refunding
of any Debt secured by any Lien permitted by the foregoing subsection (a)
of this Section; provided that such Debt is not increased from the lesser
of the amount of such Debt set forth on Schedule III hereto or the amount
of such Debt outstanding immediately prior to such refinancing, extension,
renewal or refunding, and such
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Lien does not cover any property that is not described on Schedule III
hereto as securing such Debt; and
(i) Liens in favor of third parties on cash, treasury securities and
other property deposited in margin accounts relating to, or otherwise
delivered as collateral for any obligation of the Company or any Subsidiary
under, contracts of the Company or any Subsidiary evidencing any Derivative
Transaction or other hedge obligation; provided, that the aggregate Fair
Market Value of all such cash, treasury securities and other property
subject to such Liens shall not exceed from time to time $15,000,000.
SECTION 5.08. Consolidations and Mergers. The Company will not
consolidate or merge with or into any Person; provided that the Company may
merge with another Person if the Company is the surviving corporation and,
immediately after such merger (and giving effect thereto), no Default shall
have occurred and be continuing.
SECTION 5.09. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Company for general corporate purposes;
provided that none of such proceeds will be used in any manner or for any
purpose that results in any violation of any applicable law or regulation
(including, without limitation, Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System).
SECTION 5.10. Addition of Guarantors. If any Subsidiary of the
Company Guarantees (i) Debt (other than Funded Debt) of the Company having an
aggregate outstanding balance less than $25,000,000, and any Guarantee of such
Debt has not been released or terminated within 60 days of the date of the
incurrence of such obligation or (ii) Debt (other than Debt described in clause
(i) above) of the Company, then the Company shall (a) cause all Loans and all
other amounts payable at any time under any of the Financing Documents,
including, without limitation, interest which accrues during a proceeding which
occurs under the U.S. Bankruptcy Code or which would otherwise accrue under the
terms of any of the Financing Documents, but for a proceeding under the U.S.
Bankruptcy Code, to be equally and ratably guaranteed by such Subsidiary, (b)
cause such Subsidiary to execute and deliver a subsidiary guaranty agreement in
form and substance satisfactory to the Banks, and (c) deliver an opinion of
counsel and officers' certificate to the effect that such subsidiary guaranty
agreement has been duly authorized and executed by such Subsidiary and
constitutes the legal, valid, binding and enforceable obligation of such
Subsidiary, all in form and substance satisfactory to the Banks. "Funded Debt"
of any Person means at any date, all Debt (including, without limitation, Debt
incurred under any revolving credit, letter of credit or working capital
facility) of such Person that matures by its terms, or that is renewable at the
option of such Person to a date more than one year after the date on which such
Debt is originally incurred.
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SECTION 5.11. Restrictions on Dividends, Intercompany Loans, or
Investments. The Company will not create or otherwise cause or permit to exist
or become effective, or permit any Subsidiary to create or otherwise cause or
permit to exist or become effective, any consensual encumbrance or restriction
(other than the Financing Documents) on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its capital
stock or other ownership interests or pay any Debt or other obligation owed to
the Company or any Restricted Subsidiary, or (ii) make any loans or advances to
or other Investments in the Company or any Restricted Subsidiary, except any
encumbrance or restriction in effect on the date of this Agreement and
described on Schedule IV hereto.
SECTION 5.12. Loans and Advances. The Company will not make or
permit to remain outstanding any cash loan or advance to any Person, or permit
any Restricted Subsidiary to make or permit to remain outstanding any cash loan
or advance to any Person, except (i) loans and advances to Subsidiaries or
joint ventures, partnerships or other business ventures in which the Company or
any Subsidiary has or is contemporaneously acquiring an interest or
participation; and (ii) other loans and advances not exceeding $10,000,000 at
any time outstanding.
SECTION 5.13. Cross-Default. The Company will not create, assume,
otherwise incur or suffer to exist, or permit any Restricted Subsidiary to
create, assume, otherwise incur or suffer to exist, any Debt if the maturity of
such Debt is or may be accelerated (assuming the giving of notice or lapse of
time or both), in whole or in part, as a result of any default under, or
acceleration of (i) any Non-Recourse Debt of the Company or any Restricted
Subsidiary or (ii) any Debt of any Unrestricted Subsidiary, unless the Required
Banks shall have given their prior written consent to such Debt of the Company
or Restricted Subsidiary to be so created, assumed or otherwise incurred, which
consent will not be unreasonably withheld; provided that this Section 5.13
shall not prohibit a provision in a Guarantee of the Company or a Restricted
Subsidiary Guaranteeing Debt of an Unrestricted Subsidiary that provides that
the payment obligation under such Guarantee may be accelerated upon default
under or acceleration of such Debt.
SECTION 5.14. Subsidiaries. The Company will at all times own,
either directly or through one or more Restricted Subsidiaries, free and clear
of all Liens (other than those permitted by Section 5.07), 100% of all issued
and outstanding capital stock (other than directors' qualifying shares and
shares beneficially owned by the Company or a Restricted Subsidiary and held by
nominees of the Company or a Restricted Subsidiary solely to satisfy
requirements of local law) and other ownership interests of each Restricted
Subsidiary and all options, warrants and other rights to acquire any such
capital stock or any such ownership interest, except for (i) Unimar and the
Unimar Restricted Subsidiaries, (ii) any Restricted Subsidiary sold or
otherwise disposed of pursuant to an Asset Sale, if after giving effect to such
Asset Sale, the Company does not own, directly or indirectly, any
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interest in such Restricted Subsidiary, and (iii) those options described on
Schedule VI. The Company will at all times own, either directly or through one
or more Restricted Subsidiaries, free and clear of all Liens (other than those
permitted by Section 5.07), 50% or more of the ownership interest in Unimar and
the Unimar Restricted Subsidiaries and all options, warrants and other rights
to acquire any such ownership interest (other than those described on Schedule
VI); provided that the Company and the Restricted Subsidiaries may sell all of
their ownership interest in Unimar and the Unimar Restricted Subsidiaries and
such options, warrants and other rights if, after giving effect to such sale,
the Company does not own, directly or indirectly, any interest in Unimar, the
Unimar Restricted Subsidiaries or any such option, warrant or other right. The
Company will not at any time permit any Restricted Subsidiary that is not a
Unimar Restricted Subsidiary to become a Unimar Restricted Subsidiary. The
Company will not permit any Restricted Asset to be sold, leased, transferred or
otherwise disposed of to any Person that was an Unrestricted Subsidiary
immediately prior thereto if any Default then exists or would result. The
Company will not permit any Restricted Subsidiary to issue any preferred stock
unless such preferred stock at all times is owned only by the Company. The
Company will not permit any Restricted Subsidiary to own, directly, both (a)
any UK Asset and (b) any Non-UK Asset.
SECTION 5.15. Adjusted Equity and Interest Coverage. The Company
will at all times maintain Adjusted Equity of $350,000,000 or more. The
Company will cause EBITDA for each period of four consecutive calendar quarters
to exceed 4.00 times Cash Interest Expense for such period.
SECTION 5.16. Excluded Subordinated Debt and Preferred Stock.
Neither the Company nor any Subsidiary will pay, prepay, purchase, redeem,
defease, acquire, exchange or convert any preferred stock (other than
Restricted Preferred Stock) or any Excluded Subordinated Debt, except (a)
exchanges for or conversions to common stock of the Company, (b) payments of
interest when due required by the terms of any such Excluded Subordinated Debt
as such terms are in effect on the date such Excluded Subordinated Debt is
incurred and (c) if no Event of Default exists, payments of ordinary periodic
dividends (excluding liquidating dividends) on such preferred stock in
accordance with the terms thereof as such terms are in effect on the date such
preferred stock is issued.
SECTION 5.17. Certain Obligations. Neither the Company nor any
Subsidiary will create, incur, assume or suffer to exist any obligation on its
part to make any payment on the Joint Venture Debt other than (a) the
obligations set forth in the agreements listed on Schedule V hereto with
respect to Joint Venture Debt in existence on the date of this Agreement and
(b) obligations substantially similar to those referred to in clause (a) with
respect to Joint Venture Debt created, incurred, assumed or arising after the
date of this Agreement.
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SECTION 5.18. Restrictions on Asset Sales. (a) The Company will not
and will not permit any of its Restricted Subsidiaries to enter into any Asset
Sale if after giving effect thereto any Event of Default would exist.
(b) The Company will not permit to occur any Asset Sale involving,
directly or indirectly, any UK Assets if the aggregate Net Sales Proceeds of
all Asset Sales involving, directly or indirectly, UK Assets since December 31,
1993 would exceed $250,000,000.
SECTION 5.19. Conversion to Unrestricted Subsidiary. The Company may
convert a Restricted Subsidiary into an Unrestricted Subsidiary by giving the
Agent notice of such conversion at least 5 Domestic Business Days prior to such
conversion; provided that (i) no Restricted Subsidiary shall be so converted so
long as it owns directly or indirectly any interest in any Restricted Asset and
(ii) no such conversion shall be made if at the time of such notice or after
giving effect to such conversion, any Default would exist.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Company shall fail to pay when due any principal of any Loan,
or shall fail to pay within five days of the due date thereof any interest
on any Loan, any fees or any other amount payable hereunder;
(b) the Company or any Subsidiary shall fail to observe or perform any
covenant contained in Sections 5.05 to 5.18, inclusive;
(c) the Company or any Subsidiary shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered
by clause (a) or (b) above) for 30 days after written notice thereof has
been given to the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
the Company or any Subsidiary in this Agreement or made in any certificate,
financial statement or other document delivered pursuant to this Agreement
shall prove to have been incorrect in any material respect when made (or
deemed made);
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(e) the Company or any Restricted Subsidiary shall fail to make any
payment in respect of any Material Debt (other than the Notes) when due or
within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt of the Company or any
Restricted Subsidiary (other than the Notes) or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of such
Material Debt or any Person acting on such holder's behalf to accelerate
the maturity thereof;
(g) the Company or any Restricted Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against
the Company or any Restricted Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Company or any Restricted Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $5,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate,
to impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or
a default, within the meaning of Section 4219(c)(5) of ERISA, with respect
to, one
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or more Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation in excess of $5,000,000;
(j) a judgment or order for the payment of money in excess of
$15,000,000 (net of applicable insurance coverage which is acknowledged by
the insurer) shall be rendered against the Company or any Restricted
Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days;
(k) any Person or two or more Persons acting in concert, together with
any affiliates thereof, (i) shall have acquired beneficial ownership,
directly or indirectly, (a) within any 12 month period, of (1) more than
25% of the Company's common stock or (2) securities representing more than
25% of the combined voting power of all securities of the Company entitled
to vote in the election of directors (other than securities having such
power only by reason of the happening of a contingency) ("Voting
Securities"), or (b) within any 24 month period, of (1) more than 40% of
the Company's common stock or (2) more than 40% of the Company's Voting
Securities, (ii) owns a higher percentage of the Company's common stock or
Voting Securities than the percentage owned by Kohlberg Kravis Xxxxxxx &
Co. and/or non-operating investment entities it controls, and (iii) either
(a) owns 50% or more of the Company's common stock or Voting Securities,
(b) directly or indirectly elects or causes the election of Persons
constituting in the aggregate a majority of the Board of Directors of the
Company or any Restricted Subsidiary, or (c) exercises, directly or
indirectly, by written agreement, control over the Company or any
Restricted Subsidiary; provided that no Default or Event of Default shall
occur under this subsection (k) until the Agent, following request by the
Required Banks, gives notice to the Company that such an Event of Default
is declared, and such notice may not be given after the date which is 45
days after the Banks actually receive notice from the Company to the effect
that the matters set forth in clauses (i), (ii) and (iii) have occurred
(for purposes of this provision, "beneficial ownership" shall mean
beneficial ownership within the meaning of Rule 13d-3 of the Securities and
Exchange Commission promulgated under the Securities Exchange Act of 1934,
as amended, and the number and percentage of securities beneficially owned
by any Person or Persons shall be calculated in accordance with such Rule);
or
(l) any "Event of Default", as defined in the Other Credit Agreement,
shall occur;
then, and in every such event, the Agent shall (i) if requested by Banks having
at least 51% in the aggregate amount of the Commitments, by notice to the
Company terminate the Commitments and, upon the giving of such notice by the
Agent, they shall thereupon terminate, and (ii) if requested by Banks holding
Notes evidencing at least 51% in aggregate principal amount of the Loans, by
notice to the Company declare the Notes (together with
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accrued interest thereon) to be, and, upon the giving of such notice by the
Agent, the Notes shall thereupon become, immediately due and payable without
notice of intent to accelerate, notice of acceleration, presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Company; provided that in the case of any of the Events of Default specified in
clause (g) or (h) above, without any notice to the Company or any other act by
the Agent or the Banks, the Commitments shall thereupon terminate and the Notes
(together with accrued interest thereon) shall become immediately due and
payable without notice of intent to accelerate, notice of acceleration,
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Company under Section 6.01(c) promptly upon being requested to do so by any
Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under the Financing Documents as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. NationsBank shall have the same
rights and powers under the Financing Documents as any other Bank and may
exercise or refrain from exercising the same as though it were not the Agent,
and NationsBank and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Company or any Subsidiary or
other affiliate of the Company as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent under
the Financing Documents are only those expressly set forth herein. Without
limiting the generality of the foregoing, the Agent shall not be required to
take any action with respect to any Default, except as expressly provided in
Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Company or any Subsidiary),
independent public accountants, independent petroleum engineers and other
experts selected by it and the Agent shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance with the advice of
such counsel, accountants, engineers or experts.
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SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or not taken by it in connection herewith (i) with the consent or at the
request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Company
or any Subsidiary; (iii) the satisfaction of any condition specified in Article
III, except receipt of items required to be delivered to the Agent; (iv) the
validity, effectiveness or genuineness of the Financing Documents or any other
instrument or writing furnished in connection herewith; or (v) the accuracy of
any Engineering Report. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Company) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Agent's gross negligence or willful misconduct) that the Agent
may suffer or incur in connection with the Financing Documents or any action
taken or omitted by the Agent hereunder (IT BEING EXPRESSLY UNDERSTOOD AND
AGREED THAT, EXCEPT FOR SUCH NEGLIGENCE AS IS SO DETERMINED TO CONSTITUTE GROSS
NEGLIGENCE, SUCH INDEMNIFICATION DOES EXTEND TO THE CONSEQUENCES OF THE
ORDINARY NEGLIGENCE, WHETHER SOLE OR CONTRIBUTORY, OF THE AGENT).
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Company and may be removed
at any time with or without cause by the Required Banks. Upon any such
resignation or removal, the Company shall have the right, with the consent of
the Required Banks, to appoint a successor Agent. If no successor Agent shall
have been so appointed with the consent of the Required Banks, and shall have
accepted such appointment, within 30 days after the retiring Agent's
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giving of notice of resignation or the Required Banks' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Banks, appoint a successor
Agent, which shall be a commercial bank organized or licensed under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $50,000,000. Upon the acceptance of its
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under the Financing Documents. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent.
SECTION 7.09. Agent's Fees. The Company shall pay to the Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Company and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period:
(a) the Agent is advised by the Reference Banks that deposits in
dollars (in the applicable amounts) are not being offered to the Reference
Banks in the relevant market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the
Commitments advise the Agent that the London Interbank Offered Rate as
determined by the Agent will not adequately and fairly reflect the cost to
such Banks of funding their Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make Euro-Dollar Loans, or make any Conversion (other than changing Euro-Dollar
Loans into Base Rate Loans), shall be suspended, and (ii) unless the Company
notifies the Agent at least two Domestic Business Days before the date of any
Euro-Dollar Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing.
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SECTION 8.02. Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans, or make any Conversion (other than
changing Euro-Dollar Loans into Base Rate Loans), and such Bank shall so notify
the Agent, the Agent shall forthwith give notice thereof to the other Banks and
the Company, whereupon until such Bank notifies the Company and the Agent that
the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans, or make any Conversion
(other than changing Euro-Dollar Loans into Base Rate Loans), as the case may
be, shall be suspended. Before giving any notice to the Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall determine that it may not lawfully continue to maintain and fund any
of its outstanding Euro-Dollar Loans to maturity and shall so specify in such
notice, each such Euro-Dollar Loan shall be immediately and automatically
Converted into a Base Rate Loan (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks).
SECTION 8.03. Increased Cost and Reduced Return. (a) If after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Euro-Dollar Loans, its Note
or its obligation to make Euro-Dollar Loans, or shall change the basis of
taxation of payments to any Bank (or its Applicable Lending Office) of the
principal of or interest on its Euro-Dollar Loans or any other amounts due
under this Agreement in respect of its Euro-Dollar Loans or its obligation
to make Euro-Dollar Loans (except for changes in the rate of tax on the
overall net income of such Bank or its Applicable Lending Office imposed by
the jurisdiction in which such Bank's principal executive office or
Applicable Lending Office is located); or
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(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System
against assets of, deposits with or for the account of, or credit extended
by, any Bank (or its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank market any other
condition affecting its Euro-Dollar Loans, its Note or its obligation to
make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Euro-Dollar Loan or
making any Conversion (other than changing Euro-Dollar Loans into Base Rate
Loans), or to reduce the amount of any sum received or receivable by such Bank
(or its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after demand by such Bank (with a copy to the Agent), the Company shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction; provided that the Company shall not be
obligated to compensate any Bank for any such reduction attributable to a
period (i) more than 90 days prior to the giving of notice by such Bank to the
Company of its intention to seek compensation under this subsection (a) or (ii)
more than six months prior to the making of demand by such Bank for payment
thereof in accordance herewith.
(b) If any Bank shall have determined that the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or its Parent) as a
consequence of such Bank's obligations hereunder to a level below that which
such Bank (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank (with a copy to the
Agent), the Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction; provided that the
Company shall not be obligated to compensate any Bank for any such reduction
attributable to a period (i) more than 90 days prior to the giving of notice by
such Bank to the Company of its intention to seek compensation under this
subsection (b) or (ii) more than six months prior to the making of demand by
such Bank for payment thereof in accordance therewith.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such
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Bank to compensation pursuant to this Section and will designate a different
Applicable Lending Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans to the
Company has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03(a) and the Company shall, by at least
five Euro-Dollar Business Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section shall apply to such Bank,
then, unless and until such Bank notifies the Company that the circumstances
giving rise to such suspension or demand for compensation no longer apply:
(a) all Loans to the Company which would otherwise be made by such
Bank as, or be Converted by such Bank as or into, Euro-Dollar Loans shall
instead be made as, or Converted into, Base Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Euro-
Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to the Company has been
repaid, all payments of principal which would otherwise be applied to repay
such Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
SECTION 8.05. Substitution of Bank. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.02,
(ii) any Bank has demanded compensation under Section 8.03 or payment of Taxes
or Other Taxes under Section 2.17, or (iii) after satisfaction of all
applicable conditions precedent, any Bank fails to fund when due any Loan it is
obligated to fund under this Agreement, the Company shall have the right, with
the assistance of the Agent, to seek a mutually satisfactory substitute bank or
banks (which may be one or more of the Banks) to purchase the Notes and assume
the Commitment of such Bank (any such Bank is herein called an "Affected
Bank"). Each Affected Bank agrees to sell, without recourse, all of its
Commitment, its interest in this Agreement and its Note to any such bank for an
amount equal to the sum of the outstanding unpaid principal of and accrued
interest on the Loans of such Affected Bank and all commitment fees and other
fees and amounts due such Affected Bank hereunder, calculated, in each case, to
the date such Commitment, interest in this Agreement and Note are purchased.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Company or the Agent, at its address or telex
number set forth on the signature pages hereof, (y) in the case of any Bank, at
its address or telex number set forth in its Administrative Questionnaire or
(z) in the case of any party, such other address or telex number as such party
may hereafter specify for the purpose by notice to the Agent and the Company.
Each such notice, request or other communication shall be effective (i) if
given by telex, when such telex is transmitted to the telex number specified in
this Section and the appropriate answer-back is received, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, (iii) if given by facsimile
transmission, when such facsimile is transmitted and accompanied by a telephone
call to the party receiving such transmission or (iv) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege under any Financing Document
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies provided in the
Financing Documents shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Company shall pay
(i) all reasonable documented out-of-pocket costs and expenses of the Agent and
the Arranger incurred in connection with the syndication of this Agreement or
the preparation of the Financing Documents, any waiver or consent thereunder or
any amendment thereof or any Default or alleged Default hereunder and (ii) if
an Event of Default occurs, all reasonable out-of-pocket costs and expenses
incurred by the Agent or incurred by any Bank, including fees and disbursements
of counsel, in connection with such Event of Default and collection and other
enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent, each Co-Agent, the
Arranger and each Bank and hold the Agent, each Co-Agent, the Arranger and each
Bank harmless from and against any and all liabilities, losses, damages, costs
and expenses of any kind (including, without limitation, the reasonable fees
and disbursements of counsel for the Agent, any Co-Agent, the Arranger or any
Bank in connection with any investigative, administrative or judicial
proceedings, whether or not the Agent, such Co-Agent, the
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Arranger or such Bank, as the case may be, shall be designated a party thereto)
which may be incurred by the Agent, any Co-Agent, the Arranger or any Bank,
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder, including specifically, without limitation, all
liabilities, losses, damages, costs and expenses arising out of a violation of
any Environmental Law; provided that neither the Agent nor any Co-Agent nor the
Arranger nor any Bank shall have the right to be indemnified hereunder for its
own gross negligence or willful misconduct as determined by a court of
competent jurisdiction (IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT, EXCEPT
FOR SUCH NEGLIGENCE AS IS SO DETERMINED TO CONSTITUTE GROSS NEGLIGENCE, SUCH
INDEMNIFICATION DOES EXTEND TO THE CONSEQUENCES OF THE ORDINARY NEGLIGENCE,
WHETHER SOLE OR CONTRIBUTORY, OF THE INDEMNITEE).
(c) Within a reasonable period of time after any Person entitled to
indemnification under Section 9.03(b) (an "Indemnified Person") receives actual
notice of the assertion of any claim or the commencement of any action, or any
threatened claim or action, covered by Section 9.03(b), such Indemnified Person
shall, if indemnification with respect thereof is to be sought from the Company
under Section 9.03(b), notify the Company in writing of such claim or action;
provided that the failure to so notify the Company shall not relieve the
Company from any liability which the Company may have to the Indemnified Person
under Section 9.03(b) unless the obligations of the Company under Section
9.03(b) have been significantly increased as a result of such failure. The
Company and such Indemnified Person shall cooperate in the defense of any such
claim or action and shall take those actions reasonably within their power to
take which are necessary to preserve any legal defenses to such matters. If
any such claim or action shall be brought or threatened against an Indemnified
Person, so long as no Event of Default exists, the Company shall be entitled to
participate in the defense thereof, and, with the consent of such Indemnified
Person, to assume the defense thereof with counsel reasonably satisfactory to
the Indemnified Person. Notwithstanding any provision hereof to the contrary,
no consent order or settlement shall be entered into in any such claim or
action unless both the Company and such Indemnified Person have given their
prior written consent thereto; provided that such consent of the Company shall
not be required if any Event of Default exists.
(d) All obligations of the Company to indemnify or otherwise to make
payments to the Agent, any Co-Agent, the Arranger or any Bank provided in this
Agreement shall survive any termination of the Commitments and the repayment of
the Loans.
SECTION 9.04. Sharing of Set-Offs, Etc. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of principal and
interest due with respect to any Note held by such other
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Bank, the Bank receiving such proportionately greater payment shall purchase
such participations in the Notes held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this Section shall
impair the right of any Bank to exercise any right of set-off or counterclaim
it may have and to apply the amount subject to such exercise to the payment of
indebtedness of the Company other than its indebtedness under the Notes. The
Company agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of the Company in the
amount of such participation.
SECTION 9.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived, if, but only if, such
amendment or waiver is in writing and is signed by the Company and the Required
Banks (and, if the rights or duties of the Agent are affected thereby, by the
Agent); provided that no such amendment or waiver shall, unless signed by all
the Banks, (i) increase or decrease the Commitment of any Bank or subject any
Bank to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the date fixed for
any payment of principal of or interest on any Loan or any fees hereunder or
for any reduction or termination of any Commitment, or (iv) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
the Notes, or the number of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of this
Agreement.
SECTION 9.06. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Company may not assign or otherwise transfer any of its
rights under this Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time and from time to time grant to one or
more banks or other institutions (each a "Participant") participating interests
in its Commitment or any or all of its Loans. In the event of any such grant
by a Bank of a participating interest to a Participant, whether or not upon
notice to the Company and the Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Company and the Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that such
Bank shall retain the sole right and responsibility to enforce the obligations
of the Company hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any
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provision of this Agreement; provided that such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this Agreement described in clause (i), (ii) or (iii) of Section 9.05
without the consent of the Participant. The Company agrees that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article VIII with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") a proportionate part of all of its rights and
obligations under this Agreement and the Notes in an amount which, when added
to the amount of the rights and obligations under the Other Credit Agreement
contemporaneously assigned by such transferor Bank to such Assignee pursuant to
the second proviso to the first sentence of Section 9.06(c) of the Other Credit
Agreement, equals $10,000,000 or more, and such Assignee shall assume such
rights and obligations under this Agreement and the Notes, pursuant to an
Assignment executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Company and the Agent (which such
consents shall not be unreasonably withheld); provided that if an Assignee is
an affiliate of such transferor Bank or is another Bank, no such consent of the
Company shall be required; provided further that each such assignment shall be
of a constant, and not a varying, percentage of all rights and obligations
under this Agreement and the Notes, and the same constant percentage of all
rights and obligations of such transferor Bank under the Other Credit Agreement
and the notes thereunder shall be contemporaneously assigned by such transferor
Bank to such Assignee pursuant to Section 9.06(c) of the Other Credit
Agreement. Upon execution and delivery of such instrument (and delivery to the
Agent of an Administrative Questionnaire with respect to such Assignee, if such
Assignee has not already done so) and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (c), the
transferor Bank, the Agent and the Company shall make appropriate arrangements
so that, if required, a new Note is issued to the Assignee. In connection with
any such assignment, the transferor Bank shall pay to the Agent for its account
an administrative fee for processing such assignment in the amount of $2,500
less any administrative processing fee paid to the Agent on the same date under
Section 9.06(c) of the Other Credit Agreement as a result of the
contemporaneous assignment to such Assignee by such transferor Bank under the
Other Credit Agreement pursuant to the second proviso to the first sentence of
this Section 9.06(c). If the Assignee is not incorporated under the laws of
the United States of America or a state thereof, it shall, prior to the first
date on which
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interest or fees are payable hereunder for its account, deliver to the Company
and the Agent certification as to exemption from deduction or withholding of
any United States federal income taxes in accordance with Section 2.17.
Notwithstanding the first sentence of this subsection (c), a Bank may not make
an assignment pursuant to this subsection (c) if after giving effect thereto
such Bank would hold less than 1.5% (or until March 1, 1999, 3% in the case of
NationsBank, Bank of America National Trust and Savings Association and Union
Bank of Switzerland, Houston Agency) of the Commitments (for this purpose such
Bank shall be deemed to hold any participating interests granted by such Bank
pursuant to subsection (b) above and any rights assigned pursuant to subsection
(d) below).
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 than such
Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02 or 8.03 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 9.07. Collateral. Each of the Banks represents to each Agent
and each of the other Banks that it in good faith is not relying upon any
margin stock (as defined in Regulation G) or any margin stock (as defined in
Regulation U) as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.08. Texas Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of Texas.
SECTION 9.09. CONSENT TO JURISDICTION. THE COMPANY HEREBY
IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF TEXAS AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE OVER IT IN
CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
FINANCING DOCUMENT AND, TO THE FULLEST EXTENT PERMITTED BY LAW, FURTHER AGREES
(AND SHALL NOT CONTEST) THAT THE PROPER VENUE FOR FILING AND MAINTAINING ANY
SUCH ACTION OR PROCEEDING SHALL BE IN THE STATE OF TEXAS. IN ANY SUCH ACTION
OR PROCEEDING, THE COMPANY WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS OR NOTICE AND AGREES THAT SERVICE BY FIRST CLASS MAIL, RETURN
RECEIPT REQUESTED, TO
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THE COMPANY AT ITS ADDRESS FOR NOTICES HEREUNDER, OR ANY FORM OF SERVICE
PROVIDED FOR IN THE TEXAS CIVIL PRACTICE AND REMEDIES CODE THEN IN EFFECT SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE UPON THE COMPANY.
SECTION 9.10. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.11. WAIVER OF JURY TRIAL. THE COMPANY, THE AGENT, THE CO-
AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.12. COMPLETE AGREEMENT. THIS WRITTEN CREDIT AGREEMENT AND
THE OTHER FINANCING DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG 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 AMONG THE PARTIES.
SECTION 9.13. Liability of Co-Agents and Arranger. Neither the
Arranger nor either Co-Agent, in its capacity as Co-Agent hereunder, shall have
any duty or responsibility hereunder.
SECTION 9.14. Termination of 1996 Short-Term Commitments. Each of
the parties hereto agrees that all "Commitments" (as defined in the
$100,000,000 Credit Agreement dated as of March 29, 1996 among the Company,
NationsBank, as agent and the co-agent and lenders parties thereto) are hereby
terminated effective as of the close of business on March 10, 1997 (and the
fees under Section 2.08(a) of such Credit Agreement shall accrue through such
date), and the Company has no further right to borrow thereunder. The Company
represents and warrants that all principal, interest and fees owed thereunder
have been paid in full.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
UNION TEXAS PETROLEUM HOLDINGS, INC.
By: /s/ M.N. XXXXXXXXX
--------------------------------------------------
M.N. Xxxxxxxxx
Vice President and Treasurer
0000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
Telex number: 762255
Commitments
-----------
$7,727,272.69 NATIONSBANK OF TEXAS, N.A.
By: /s/ XXXXXX X. XXXXX
--------------------------------------------------
Xxxxxx X. Xxxxx
Vice President
$5,909,090.91 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ XXXXXXX X. XXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxx
Authorized Officer
$5,909,090.91 UNION BANK OF SWITZERLAND, HOUSTON AGENCY
By: /s/ XXXXX BOOTS
--------------------------------------------------
Xxxxx Boots
Authorized Officer
By: /s/ J. XXXXXX XXXXXX
--------------------------------------------------
J. Xxxxxx Xxxxxx
Authorized Officer
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Commitments
-----------
$4,545,454.55 THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. XXXXX
--------------------------------------------------
Authorized Officer
$4,545,454.55 THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
$4,545,454.55 THE CHASE MANHATTAN BANK
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
$4,545,454.55 CITIBANK, N.A.
By: /s/ XXXXXX XXXXXX
--------------------------------------------------
Authorized Officer
$4,545,454.55 CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ PASCAL POUPELLE
--------------------------------------------------
Authorized Officer
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Commitments
-----------
$4,545,454.55 THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
$4,545,454.55 LTCB TRUST COMPANY
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
$4,545,454.55 MELLON BANK, N.A.
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
$4,545,454.55 XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
$4,545,454.55 NATIONAL WESTMINSTER BANK PLC NEW YORK BRANCH
By: /s/ XXXX X. XXXXXX
--------------------------------------------------
Authorized Officer
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Commitments
-----------
NATIONAL WESTMINSTER BANK PLC NASSAU BRANCH
By: /s/ XXXX X. XXXXXX
--------------------------------------------------
Authorized Officer
$4,545,454.55 SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
$4,090,909.09 BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By: /s/ XXXX X. XXXXXXXXXX
--------------------------------------------------
Authorized Officer
By: /s/ XXXX XXXXXX
--------------------------------------------------
Authorized Officer
$4,090,909.09 THE YASUDA TRUST AND BANKING COMPANY, LIMITED, NEW
YORK BRANCH
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
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Commitments
-----------
$3,181,818.18 BANK OF TAIWAN, NEW YORK AGENCY
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
$3,181,818.18 BANQUE NATIONALE DE PARIS, HOUSTON AGENCY
By: /s/ XXXX XXXXXXX
--------------------------------------------------
Authorized Officer
$3,181,818.18 BANQUE PARIBAS, HOUSTON AGENCY
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
By: /s/ [ILLEGIBLE]
--------------------------------------------------
Authorized Officer
$3,181,818.18 CHRISTIANIA BANK
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------------
Authorized Officer
By: /s/ XXXXXX X. XxXXXXX, III
--------------------------------------------------
Authorized Officer
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Commitments
-----------
$3,181,818.18 DEN NORSKE BANK ASA
By: /s/ X. XXXXXX KREVTZ
--------------------------------------------------
X. Xxxxxx Krevtz
Authorized Officer
By: /s/ XXXXXXX X. XXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxx
Authorized Officer
$3,181,818.18 DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ XXXXXXX X. XXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxx
Authorized Officer
By: /s/ XXXXXXXX X. XXXXX
--------------------------------------------------
Xxxxxxxx X. Xxxxx
Authorized Officer
$3,181,818.18 THE MITSUBISHI TRUST & BANKING CORPORATION
By: /s/ Mr. AAKI YAMAGISHI
--------------------------------------------------
Mr. Aaki Yamagishi
Authorized Officer
Total Commitments: $100,000,000.00
---------------
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NATIONSBANK OF TEXAS, N.A., as Agent
By: /s/ XXXXXX X. XXXXX
--------------------------------------------------
Xxxxxx X. Xxxxx
Vice President
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Telex Number: 163244
Answerback: NCNBTEXDAL
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Co-Agent
By: /s/ XXXXXXX X. XXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxx
Authorized Officer
UNION BANK OF SWITZERLAND, HOUSTON AGENCY, as Co-Agent
By: /s/ XXXXX BOOTS
--------------------------------------------------
Xxxxx Boots
Authorized Officer
By: /s/ J. XXXXXX XXXXXX
--------------------------------------------------
J. Xxxxxx Xxxxxx
Authorized Officer
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$100,000,000 CREDIT AGREEMENT DATED MARCH 11, 1997
SCHEDULE OF EXHIBITS
The following describes the Schedules and Exhibits to the Credit Agreement,
which are omitted herein, but which will be furnished upon request:
Schedule I Sets forth the Facility Fee and Applicable Margin at various
Rating Levels.
Schedule II Part A lists the Existing Unrestricted Subsidiaries and
Existing Unimar Unrestricted Subsidiaries. Part B lists the
Existing Restricted Subsidiaries, Other Restricted Subsidiary
and Existing Unimar Restricted Subsidiaries.
Schedule III Part A describes Liens on ownership interests. Part B
describes other existing Liens.
Schedule IV Describes certain existing restrictions.
Schedule V Sets forth the Joint Venture Debt Agreements.
Schedule VI Describes outstanding options.
Exhibit A Form of Note
Exhibit B Form of Assignment and Assumption Agreement
Exhibit C Form of Opinion of Counsel to the Company
Exhibit D Form of Opinion of Special Counsel to the Company
Exhibit E Form of Opinion of Special Counsel to the Agent
