1
EXHIBIT 10.1
[PRIMARY CREDIT FACILITY]
================================================================================
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
PIONEER NATURAL RESOURCES COMPANY,
as BORROWER,
and
NATIONSBANK OF TEXAS, N.A.,
as ADMINISTRATIVE AGENT,
and
CIBC INC.,
as DOCUMENTATION AGENT,
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as DOCUMENTATION AGENT,
and
THE CHASE MANHATTAN BANK,
as SYNDICATION AGENT,
THE CO-AGENTS SIGNATORY HERETO,
and
THE OTHER LENDERS SIGNATORY HERETO
as of December 18, 1997 $1,075,000,000
================================================================================
2
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Exhibits and Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.3 Amendment of Defined Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.4 References and Titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.5 Calculations and Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 2 LOANS AND LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.1 Making the Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.2 Requests for Revolving Loan Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.3 Rate Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.4 Swing Line Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.5 Procedure for Swing Line Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.6 Special Provisions for Swing Line Advances . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.7 Facility Fee; Amendment Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.8 Managing Agents' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.9 Termination and Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.10 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.11 Payments to Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.12 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.13 Requesting Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.14 Reimbursement of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.15 Letter of Credit Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.16 Capital Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.17 Increased Cost of Eurodollar Portions . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.18 Availability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.19 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.20 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.21 Make-Whole Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.22 Competitive Bid Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 3 CONDITIONS PRECEDENT TO LENDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 3.1 Initial Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 3.2 Additional Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 4 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.1 Borrower's Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.2 Representation by Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
i
3
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
ARTICLE 5 COVENANTS OF BORROWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 5.1 Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 5.2 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 5.3 Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 6 EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 6.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 6.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.3 Annulment of Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.4 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE 7 AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.1 Appointment and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.2 Agent's Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.3 Lenders' Credit Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.5 Rights as Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.6 Sharing of Set-Offs and Other Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.7 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 7.8 Benefit of Article 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 7.9 Resignation and Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE 8 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 8.1 Waivers and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 8.2 Survival of Agreements; Cumulative Nature . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 8.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 8.4 Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 8.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 8.6 Limitation on Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 8.7 Termination; Limited Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 8.8 Assignments; Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 8.9 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 8.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 8.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.12 Waiver of Jury Trial, Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.13 Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.14 Nonliability of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.15 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.16 Release of Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 8.17 Forum Selection and Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 8.18 Assumption of Prior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 8.19 Renewal, Extension or Rearrangement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 8.20 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ii
4
EXHIBITS AND SCHEDULES
Exhibits:
Exhibit A-1 - Form of Loan Note
Exhibit A-2 - Form of Swing Line Note
Exhibit A-3 - Form of Competitive Bid Note
Exhibit B - Form of Guaranty
Exhibit C - Form of Request for Advance
Exhibit D - Form of Rate Election
Exhibit E - Form of Request for Swing Line Advance
Exhibit F - Form of Swing Line Participation Certificate
Exhibit G - [Intentionally omitted]
Exhibit H - Forms of Opinion of Borrower's and Restricted
Subsidiaries' Counsel
Exhibit I - Organization Chart of Borrower and its Subsidiaries
Exhibit J - Form of Designated Officer's Certificate
Exhibit K-1 - Form of Election to Convert
Exhibit K-2 - Form of Release
Exhibit L - Form of Agreement to be Bound
Exhibit M - Form of Pledge Agreement
Exhibit N - Form of Request for Competitive Bid Offer
Exhibit O - Form of Competitive Bid Offer
Exhibit P - Form of Bid Acceptance
Schedules:
Schedule 1 - Schedule of Lenders' Commitments and Percentage Share
Schedule 2 - Disclosure Schedule
Schedule 3 - Schedule of Restricted Subsidiaries
Schedule 4 - Schedule of Insurance
Schedule 5 - Schedule of Security Instruments
Schedule 6 - Continuing Letters of Credit
iii
5
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
THIS AMENDED AND RESTATED CREDIT FACILITY AGREEMENT is made as of
December 18, 1997 (together with all amendments, renewals, extensions and other
modifications, if any, from time to time hereafter made hereto, the "Agreement"
or "Credit Facility Agreement"), by and among PIONEER NATURAL RESOURCES
COMPANY, a Delaware corporation (the "Borrower"), and NATIONSBANK OF TEXAS,
N.A., CIBC INC., ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, THE CHASE MANHATTAN
BANK, in the capacities herein identified, the Co-Agents party hereto, and the
other Lenders from time to time parties hereto.
RECITALS:
A. Reference is here made to that certain Credit Facility
Agreement - Primary Credit Facility, dated as of August 7, 1997, by and among
Pioneer USA, NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as
Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"Existing Credit Agreement") and the notes issued thereunder.
B. Borrower has assumed effective as of the Effective Date (as
hereinafter defined) and hereby assumes, and Pioneer USA has assigned and
hereby assigns to Borrower, all of the indebtedness, obligations and
liabilities of Pioneer USA, evidenced by and outstanding under the Existing
Credit Agreement and all related instruments and documents (all such
indebtedness, obligations and liabilities under the Existing Credit Agreement
and/or such instruments and documents collectively, the "Prior Indebtedness").
C. Borrower has determined that it is in its best interests to
assume the Prior Indebtedness and has voluntarily requested that Lenders, and
Lenders have agreed to, restructure, rearrange and renew the Prior Indebtedness
and the respective commitments of the Lenders and Agents party to the Existing
Credit Agreement into obligations and commitments hereunder.
D. As a part of the restructuring and rearranging of the Prior
Indebtedness, Lenders shall modify their respective commitments under the
Credit Agreement such that on the Effective Date each Lender shall be obligated
hereunder, subject to the terms hereof, to the Loan Commitment stated on
Schedule 1 for such Lender.
E. Any Loans outstanding under the Existing Credit Agreement on
the Effective Date bearing interest at a Eurodollar Rate shall be deemed
continued as a Loan under this Agreement at such Eurodollar Rate and for the
Eurodollar Interest Period with respect thereto under the Existing Credit
Agreement.
6
F. Any Competitive Bid Advances outstanding under the Existing
Credit Agreement on the Effective Date shall be deemed continued as a
Competitive Bid Advance under this Agreement at the rate and for the term with
respect thereto under the Existing Credit Agreement.
G. The Letters of Credit (hereinafter defined) outstanding under
the Existing Credit Agreement on the Effective Date described in Schedule 6
hereto shall be deemed continued as Letters of Credit under this Agreement with
the Lenders having on the Effective Date a participation therein equal to their
Percentage Share (hereinafter defined).
H. Lenders and Borrower intend and have agreed to amend and
restate the Existing Credit Agreement in its entirety as and pursuant to this
Agreement.
NOW, THEREFORE, in consideration of the Recitals hereof and the mutual
covenants contained herein, the parties hereby agree to amend and restate the
Existing Credit Agreement in its entirety as follows:
ARTICLE 1
DEFINITIONS AND REFERENCES
Section 1.1 Defined Terms. As used in this Agreement, each of
the following terms has the meaning given it in this Section or in the sections
and subsections referred to below:
"Acquisition Agreement" has the meaning given it in Section 3.1(e).
"Acquisition" has the meaning given it in Section 3.1(e).
"Adjusted Eurodollar Rate" means, with respect to each particular
Eurodollar Portion and the associated Eurodollar Rate and Reserve Percentage,
the rate per annum determined hereunder by Administrative Agent on a daily
basis pursuant to the following formula:
AER = ER + EM
---------
1.00 - RP
AER = Adjusted Eurodollar Rate
ER = Eurodollar Rate
RP = Reserve Percentage
EM = Eurodollar Margin
The Adjusted Eurodollar Rate shall change as and when the associated Reserve
Percentage and Eurodollar Margin change.
"Administrative Agent" means NationsBank of Texas, N.A., as
Administrative Agent hereunder and its successors and assigns in such capacity.
2
7
"Advance" means any Revolving Loan Advance, Competitive Bid Advance or
Swing Line Advance.
"Affiliate" means, as to any Person, each other Person that directly
or indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person.
"Agent" means any of the Managing Agents or the Collateral Agent
hereunder, solely in such capacities and not in their respective capacities as
Lenders.
"Agreement" means this Amended and Restated Credit Facility Agreement,
as this Amended and Restated Credit Facility Agreement may be amended, modified
or restated from time to time hereafter.
"Amendment Fee Rate" means 2.5 basis points.
"Applicable Rating Level" means the level set forth below that
corresponds to the highest of ratings issued from time to time by ▇▇▇▇▇'▇ and
S&P, as applicable to Borrower's senior unsecured long-term debt:
▇▇▇▇▇'▇ S&P
------- ---
Level I greater than Baa1 greater than BBB+
Level II Baa1 BBB+
Level III Baa2 BBB
Level IV Baa3 BBB-
Level V less than Baa3 less than BBB-
For example, if the ▇▇▇▇▇'▇ rating is Baa1 and the S&P rating is BBB, Level II
shall apply.
For purposes of the foregoing, (i) ")" means a rating more favorable
than; "(" means a rating less favorable than; (ii) if ratings for Borrower's
senior unsecured long-term debt shall not be available from S&P or ▇▇▇▇▇'▇,
Level V shall be deemed applicable; (iii) if any of the Rating Agencies shall
change its ratings nomenclature prior to the date all Obligations have been
paid and the Commitments canceled, Borrower and the Lenders shall negotiate in
good faith to amend the references to specific ratings in this definition to
reflect such change, and pending such amendment, if an appropriate Applicable
Rating Level is otherwise not determinable based upon the foregoing grid, the
last Applicable Rating Level in effect at the time of such change shall
continue to apply.
"Base Rate" means the fluctuating per annum rate of interest from time
to time in effect equal to the higher of (a) the rate of interest as publicly
announced by Administrative Agent as its "Prime Rate" or (b) the Federal Funds
Rate plus one-half of one percent (1/2 of 1%), whether or
3
8
not Borrower has notice thereof. Such rate is set by Administrative Agent as a
general rate of interest, taking into account such factors as Administrative
Agent may deem appropriate, it being understood that many of Administrative
Agent'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 Administrative Agent may make various commercial or other loans at rates
of interest having no relationship to such rate. If Administrative Agent's
Prime Rate or the Federal Funds Rate changes after the date hereof, the Base
Rate shall be automatically increased or decreased, as the case may be, without
prior notice to Borrower from time to time as of the effective time of each
change in Administrative Agent's Prime Rate or the Federal Funds Rate. The
Administrative Agent shall promptly thereafter notify Borrower of such change
in the Base Rate.
"Base Rate Portion" means that portion of the unpaid principal balance
of a Loan which is not made up of Eurodollar Portions, Swing Line Advances or
Competitive Bid Advances.
"Bid Acceptance" means a Bid Acceptance substantially in the form of
Exhibit P hereto with appropriate insertions.
"Borrower" is defined in the Preamble hereto.
"Business Day" means a day on which commercial banks are open for
business with the public in the State of Texas. Any Business Day in any way
relating to Eurodollar Portions (such as the day on which a Eurodollar Interest
Period begins or ends) must also be a day on which, in the reasonable, good
faith judgment of Administrative Agent, significant transactions in dollars are
carried out in the interbank eurocurrency market.
"Canadian Credit Facility" means that certain Credit Facility
Agreement, dated as of December 18, 1997, among Chauvco, as Borrower, Canadian
Imperial Bank of Commerce, as Arranger and Administrative Agent, Bank of Nova
Scotia, as Co-Syndication Agent, Royal Bank of Canada, as Co-Syndication Agent,
The Chase Manhattan Bank of Canada, as Co-Agent, ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Co-Agent, NationsBank of Texas, N.A., as Co-Agent, The
Toronto-Dominion Bank, as Co-Agent, and the Lenders party thereto, as such
agreement may be amended, modified or restated from time to time.
"Cash Collateral" has the meaning given it in Section 2.14(d).
"Chauvco" means Chauvco Resources Ltd., a corporation organized under
the laws of the Province of Alberta, Canada.
"Co-Agent" means each of Bank of America National Trust and Savings
Association, The Bank of New York, The Bank of Nova Scotia, Royal Bank of
Canada, Union Bank of California, N.A., The Fuji Bank, Limited - Houston
Agency, and ▇▇▇▇▇ Fargo Bank, N.A., as Co-Agents, and their respective
successors and assigns in such capacity.
"Collateral Agent" means NationsBank of Texas, N.A., as collateral
agent under the Security Instruments and its successors and assigns in such
capacity.
4
9
"Commitment" means, with respect to each Lender, such Lender's Loan
Commitment.
"Competitive Bid Advances" has the meaning given it in Section 2.22.
"Competitive Bid Note" has the meaning given it in Section 2.22.
"Competitive Bid Obligations" means, at the particular time in
question, the sum of all outstanding Competitive Bid Advances.
"Competitive Bid Offer" has the meaning given it in Section 2.22.
"Competitive Bid Rate" has the meaning given it in Section 2.22.
"Consolidated" refers to the consolidation of any Person, in
accordance with GAAP, with its properly consolidated Subsidiaries. References
herein to a Person's Consolidated financial statements, financial position,
financial condition, or liabilities refer to the consolidated financial
statements, financial position, financial condition or liabilities, as the case
may be, of such Person and its properly consolidated Subsidiaries.
"Consolidated Interest Expense" is defined in Section 5.3(a).
"Credit Facility Agreement" means this Amended and Restated Credit
Facility Agreement, as this Amended and Restated Credit Facility Agreement may
be amended, modified or restated from time to time hereafter.
"Debt" of any Person means, without duplication:
(a) indebtedness of such Person for borrowed money;
(b) indebtedness of such Person constituting an obligation to pay
the deferred purchase price of property or services (other
than customary payment terms taken in the ordinary course of
such Person's business);
(c) indebtedness of such Person evidenced by a bond, debenture,
note or similar instrument;
(d) principal obligations under leases capitalized in accordance
with GAAP under which such Person is the lessee;
(e) indebtedness, contingent or otherwise, of such Person with
respect to bankers' acceptances or the face amount of letters
of credit or applications or reimbursement agreements
therefor;
(f) guaranties of such Person of indebtedness or obligations of
the type described in clauses (a), (b), (c), (d) or (e) above
of any other Person or obligations to purchase
5
10
or acquire or to otherwise protect or insure a creditor
against loss in respect of indebtedness or obligations of the
type described in clauses (a), (b), (c), (d) or (e) above of
any other Person, but excluding endorsements in the ordinary
course of business of negotiable instruments in the course of
collection;
(g) indebtedness or obligations of the type described in clauses
(a), (b), (c), (d) or (e) above, which are secured by a Lien
on any property owned by such Person, whether or not such
indebtedness or obligations have been assumed by such Person
(limited however to the lesser of (1) the amount of its
liability or (2) the value of such property); and
(h) the undischarged balance of any production payment created by
such Person or for the creation of which such Person directly
or indirectly received payment;
provided, however, Debt shall not include (1) accounts payable incurred in the
ordinary course of such Person's business, or (2) any obligations in respect of
(i) exchange, forward, future, swap, hedging or similar agreements and (ii)
prepayments for gas or oil production or gas or oil imbalances.
"Default" means any Event of Default and any default, event or
condition which would, with the giving of any requisite notices and the passage
of any requisite periods of time, constitute an Event of Default.
"Default Rate" means, at the particular time in question, two percent
(2%) per annum plus the Base Rate then in effect; provided, that, with respect
to any Eurodollar Portion with an Eurodollar Interest Period extending beyond
the date such Eurodollar Portion becomes due and payable, "Default Rate" shall
mean, during such Eurodollar Interest Period, two percent (2%) per annum plus
the related Eurodollar Rate and plus the applicable Eurodollar Margin.
"Designated Entity" means Borrower and each of the Restricted
Subsidiaries.
"Designated Officer" means any Executive Officer or any other
individual duly elected to and holding one or more of the offices of vice
president, managing director, executive director, secretary or assistant
secretary of a Designated Entity, or any other Person authorized in writing by
any Designated Entity to execute any Loan Document, in each case designated by
a Designated Entity and acceptable to Required Lenders.
"Disclosure Schedule" means (a) Schedule 2 hereto and (b) any
documents listed on such schedule and expressly incorporated therein by
reference, true and correct copies of which shall have been delivered to
Managing Agents and each other Lender prior to the date hereof. Insofar as any
representations and warranties made herein are incorporated by reference or
otherwise remade in Loan Documents delivered as of a date after the date
hereof, the term "Disclosure Schedule" shall in such representations and
warranties be deemed to refer as well to all other documents indicated by
Borrower to be part of the Disclosure Schedule and which Borrower has at the
6
11
particular time in question delivered to the Managing Agents, the Co-Agents and
each other Lender and which have not been promptly objected to in writing by or
on behalf of the Required Lenders.
"Documentation Agent" means each of CIBC Inc. and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Documentation Agents, and their respective
successors and assigns in such capacity.
"EBITDAX" is defined in Section 5.3(a).
"Effective Date" means the date the parties hereto shall have executed
and delivered counterparts hereof to Administrative Agent and Administrative
Agent shall have notified the parties hereto that the Effective Date shall have
occurred.
"Environmental Law" means any federal, state, or local statute, or
rule or regulation promulgated thereunder, any judicial or administrative order
or judgment to which Borrower, or any of its Subsidiaries is a party or which
are applicable to Borrower or any of its Subsidiaries or its or their
respective properties (whether or not by consent), and any provision or
condition of any permit, license or other governmental operating authorization,
relating to protection of the environment, persons or the public welfare from
actual or potential exposure or the effects of exposure to any actual or
potential release, discharge, spill or emission (whether past or present) of,
or regarding the manufacture, processing, production, gathering,
transportation, importation, use, treatment, storage or disposal of, any
chemical, raw material, pollutant, contaminant or toxic or hazardous substance
or waste.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations promulgated
with respect thereto.
"ERISA Plan" means any pension benefit plan subject to Title IV of
ERISA maintained by any Designated Entity or any Affiliate thereof with respect
to which any Designated Entity has a fixed or contingent liability.
"Eurodollar Interest Period" means, with respect to each particular
Eurodollar Portion, a period of one (1), two (2), three (3) or six (6) months,
or, subject to Section 2.3, a period of nine (9) or twelve (12) months, as
specified in the Rate Election applicable thereto, beginning on and including
the date specified in such Rate Election (which must be a Business Day), and
ending on but not including the same day of the relevant month as the day on
which it began (e.g., a period beginning on the third day of one month shall
end on but not include the third day of another month), or if such month has no
numerically corresponding day, on the last Business Day of such month, and
provided that each Eurodollar Interest Period which would otherwise end on a
day which is not a Business Day shall end on the next succeeding Business Day
(unless such next succeeding Business Day is the first Business Day of a
calendar month, in which case such Eurodollar Interest Period shall end on the
immediately preceding Business Day). No Eurodollar Interest Period may be
elected for any Eurodollar Portion which would extend past the Maturity Date of
the Loan of which the Eurodollar Portion is a part.
7
12
"Eurodollar Margin" means, on any date, with respect to each
Eurodollar Portion of a Revolving Loan, the number of basis points per annum
set forth below based on the Applicable Rating Level on such date:
Applicable Eurodollar
Rating Level Margin
------------ ----------
Level I 18.0 b.p.
Level II 20.0 b.p.
Level III 23.0 b.p.
Level IV 28.0 b.p.
Level V 45.0 b.p.
Changes in the Eurodollar Margin will occur automatically without prior notice.
Administrative Agent will give notice promptly to Borrower and the Lenders of
changes in the Eurodollar Margin.
"Eurodollar Portion" means the unpaid principal balance of a Loan
which Borrower designates as such in a Rate Election.
"Eurodollar Rate" means, with respect to each particular Eurodollar
Portion within a Tranche and with respect to the related Eurodollar Interest
Period, the rate of interest per annum (stated to the nearest 10,000ths of 1%)
determined by Administrative Agent in accordance with its customary general
practices to be representative of the rates (stated to the nearest 10,000ths of
1%) at which deposits of dollars are offered to Administrative Agent at
approximately 10:00 a.m., Dallas, Texas time, two Business Days prior to the
first day of such Eurodollar Interest Period by prime banks in the interbank
eurocurrency market which have been selected by Administrative Agent in
accordance with its customary general practices for delivery on the first day
of such Eurodollar Interest Period in an amount equal or comparable to the
amount of Administrative Agent's Eurodollar Portion within such Tranche and for
a period of time equal or comparable to the length of such Eurodollar Interest
Period. The Eurodollar Rate determined by Administrative Agent with respect to
a particular Eurodollar Portion shall be fixed at such rate for the duration of
the associated Eurodollar Interest Period. If Administrative Agent is unable
so to determine the Eurodollar Rate for any Eurodollar Portion, Borrower shall
be deemed not to have elected such Eurodollar Portion.
"Eurodollars" is defined in Section 2.18.
"Event of Default" has the meaning given it in Section 6.1.
"Exchangeable Shares" has the meaning set forth in the Proxy.
8
13
"Executive Officer" means any individual duly elected to and holding
one or more of the following offices of Borrower: President, Chief Executive
Officer, Chief Financial Officer, Executive Vice President or Senior Vice
President.
"Existing Credit Agreement" has the meaning given it in Recital A.
"Facility Amount" means the aggregate amount of the Commitments (which
amount shall initially be $1,075,000,000), as such amount may be reduced from
time to time pursuant to the terms of this Agreement.
"Facility Fee Rate" means, on any date that a facility fee is due
pursuant to Section 2.7, the number of basis points per annum set forth below
based on the Applicable Rating Level on such date:
Applicable Facility Fee Rate
Rating Level Margin
------------ ------
Level I 9.0 b.p.
Level II 10.0 b.p.
Level III 12.0 b.p.
Level IV 14.0 b.p.
Level V 20.0 b.p.
Changes in the Facility Fee Rate will occur automatically without prior notice.
Administrative Agent will give notice promptly to Borrower and the Lenders of
changes in the Facility Fee Rate.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 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 Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day, as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to
Administrative Agent on such day on such transactions as determined by
Administrative Agent.
"Fiscal Quarter" means a three-month period ending on March 31, June
30, September 30 or December 31 of each year.
"Fiscal Year" means a twelve-month period ending on December 31 of
each year.
9
14
"Foreign Restricted Subsidiary" means any Restricted Subsidiary of the
Borrower organized under the laws of any jurisdiction other than the United
States or any state thereof.
"GAAP" means those generally accepted accounting principles and
practices which are recognized as such by the Financial Accounting Standards
Board (or any generally recognized successor) and which, in the case of
Borrower and its Consolidated Subsidiaries, are applied for all periods after
the date hereof in a manner consistent with the manner in which such principles
and practices were applied to the Updated Financial Statements (except for
changes concurred with by Borrower's independent public accountants). If any
change in any accounting principle or practice is required by the Financial
Accounting Standards Board (or any such successor) in order for such principle
or practice to continue as a generally accepted accounting principle or
practice, all reports and financial statements required hereunder with respect
to Borrower or with respect to Borrower and its Consolidated Subsidiaries must
be prepared in accordance with such change. In the event any changes in GAAP
materially affect the calculation of Borrower's EBITDAX to Consolidated
Interest Expense Ratio or Consolidated Total Funded Debt to Total
Capitalization as defined and described in Sections 5.3 (a) and (b),
respectively, Borrower and Lenders agree to enter into good faith negotiations
for an agreement to revise such tests to take into account such changes in
GAAP; until Borrower and Majority Lenders have entered into such an agreement,
such financial calculation shall continue to be made in accordance with GAAP as
in effect immediately preceding the date of such change.
"Governmental Authority" means any national, state, county or
municipal government, domestic or foreign, any agency, board, bureau,
commission, court, department or other instrumentality of any such government,
or any arbitrator in any case which has jurisdiction over any of the Lenders,
Borrower, its Subsidiaries or any properties of Borrower or its Subsidiaries.
"Guaranty" means (i) any guaranty substantially in the form of Exhibit
B, with appropriate insertions and deletions, executed or to be executed by any
Restricted Subsidiary, as from time to time amended, modified, or supplemented,
or (ii) any Guaranty delivered pursuant to Section 3.1(a)(1) of the Agreement
as from time to time amended, modified, or supplemented, as the case may be.
"Incumbent Directors" has the meaning given in Section 6.1(i).
"Issuing Bank" means any Lender which in its sole discretion agrees to
be and is designated by Borrower and accepted by the Administrative Agent to
issue one or more Letters of Credit in its capacity as an issuer of Letters of
Credit hereunder, and its successors and assigns in such capacity.
"LC Application" means any application for a Letter of Credit
hereafter made by Borrower to an Issuing Bank.
"LC Conditions" has the meaning given it in Section 2.12.
10
15
"LC Obligations" means, at the particular time in question, the sum of
the Matured LC Obligations plus the aggregate amounts which any Issuing Bank or
Lender might be called upon to advance under all then outstanding Letters of
Credit.
"Letter of Credit" means (i) any letter of credit issued by an Issuing
Bank upon the application of Borrower and (ii) each letter of credit
outstanding on the Effective Date listed on Schedule 6 hereto which letters of
credit will be deemed to be issued and outstanding under this Agreement as of
the Effective Date. Each Letter of Credit shall be classified by Issuing Bank
as a "Commercial" Letter of Credit or a "Standby" Letter of Credit, in
accordance with the laws and regulations applicable to Issuing Bank from time
to time and in accordance with Issuing Bank's customary practices at such times
for reporting to regulatory authorities.
"Lenders" means each party hereto (other than Borrower), including,
without limitation, NationsBank of Texas, N.A. in its capacity as a Lender
hereunder rather than as Administrative Agent or Collateral Agent, CIBC Inc. in
its capacity as a Lender hereunder rather than as Documentation Agent, ▇▇▇▇▇▇
Guaranty Trust Company of New York in its capacity as a Lender hereunder rather
than as Documentation Agent, The Chase Manhattan Bank in its capacity as a
Lender hereunder rather than as Syndication Agent, the Co-Agents in their
capacity as Lenders hereunder rather than as Co- Agents, and the successors and
assigns of each as holder of a Note.
"Lien" means, any lien, mortgage, security interest, pledge, deposit,
production payment, encumbrance, rights of a vendor under any title retention
or conditional sale agreement or lease or other arrangement substantially
equivalent thereto.
"Loan" means any of a Revolving Loan, Competitive Bid Advance or Swing
Line Advance, as the context requires.
"Loan Commitment" means, with respect to each Lender, the amount set
forth as such Lender's Loan Commitment opposite the name of such Lender in the
column headed "New Commitment" or otherwise indicated on Schedule 1 attached
hereto (or, if such Lender is an assignee, the amount of its Loan Commitment
set forth in the assignment pursuant to which it became a Lender) as such
amount may be reduced or increased from time to time pursuant to any assignment
to which it is a party or otherwise pursuant to the terms of this Agreement.
"Loan Commitment Period" means the period from and including the date
hereof until and including the Maturity Date (or, if earlier, the day on which
the Loan Notes first become due and payable in full or the Loan Commitments are
terminated upon notice by Administrative Agent to Borrower pursuant to Section
6.1).
"Loan Documents" means this Credit Facility Agreement, as the same may
have been or may be amended from time to time hereafter, the Notes, the LC
Applications, the Letters of Credit, the Swing Line Participation Certificate,
the Guaranties, the Disclosure Schedule, the
11
16
Security Instruments, the agreements with the Managing Agents referred to in
Section 2.8, any amendments to any of the foregoing, and all other agreements,
certificates, notices and disclosures at any time executed or certified by a
Designated Officer of and on behalf of a Designated Entity and delivered by
such Designated Entity or such Designated Officer in connection herewith or
therewith (exclusive of term sheets, commitment letters, correspondence and
similar documents used in the negotiation hereof or thereof).
"Loan Note" has the meaning given it in Section 2.1(c).
"Majority Lenders" means Lenders whose aggregate Percentage Shares
exceed 50%.
"Managing Agents" means Administrative Agent, each Documentation Agent
and the Syndication Agent hereunder and their successors and assigns in such
capacities.
"Margin Regulations" means, as applicable, Regulations G, U and X of
the Board of Governors of the Federal Reserve System, as from time to time in
effect.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the financial condition of Borrower and its Subsidiaries taken as a whole, (b)
the ability of Borrower and its Subsidiaries taken as a whole to operate their
respective businesses, (c) the ability of Borrower to meet its obligations
under the Loan Documents on a timely basis or (d) the ability of Designated
Entities taken as a whole to meet their obligations under the Loan Documents on
a timely basis; provided, however, that a material adverse effect that is
limited to an Unrestricted Subsidiary shall not (i) be a Material Adverse
Effect or (ii) be included in the determination of whether a Material Adverse
Effect shall have occurred or shall be expected to occur.
"Matured LC Obligations" means all amounts paid by Issuing Bank or any
Lender on drafts or demands for payment drawn or made under any Letter of
Credit (or under or in connection with any LC Application) which have not been
repaid to the Issuing Bank or Lender (with the proceeds of a Revolving Loan
Advance or otherwise).
"Maturity Date" means the earlier of (a) August 7, 2002 and (b) the
date on which the Loan Commitment of each Lender is reduced to zero or
terminated.
"Maximum Lawful Rate" has the meaning given it in Section 8.6.
"Mesa" means Mesa, Inc., a Delaware corporation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto that is a nationally-recognized rating agency.
"Section 956" has the meaning given it in Section 6.1(k).
12
17
"Note" means any Loan Note, Swing Line Note or Competitive Bid Note.
"Notice Period" has the meaning given it in Section 6.4.
"Obligations" means all Debt from time to time owing by any of
Designated Entities to any Agent or any Lender under or pursuant to any of the
Loan Documents, including, without limitation, all LC Obligations, Swing Line
Obligations and Competitive Bid Obligations. "Obligation" means any part of
the Obligations.
"Outside Debt" means (i) Pioneer USA's $150,000,000 8 7/8% Senior
Notes due 2005 which obligations thereunder will be transferred to Borrower
pursuant to the Restructuring, (ii) Pioneer USA's $150,000,000 8 1/4% Senior
Notes due 2007 which obligations thereunder will be transferred to Borrower
pursuant to the Restructuring, (iii) Mesa's 10 5/8% Senior Subordinated Notes
due 2006 which obligations thereunder will be transferred to Borrower pursuant
to the Restructuring, and (iv) Mesa's 11 5/8% Senior Subordinated Discount
Notes due 2006 which obligations thereunder will be transferred to Borrower
pursuant to the Restructuring..
"P&P Petroleum" means ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Petroleum Company, a Delaware
corporation.
"Percentage Share" means, with respect to any Lender (a) when used in
Section 2.1 or 2.3, in any Request for Advance or when no Loans (other than
Swing Line Advances or Competitive Bid Advances, if applicable) are outstanding
hereunder, the percentage set forth opposite such Lender's name on Schedule 1
to this Agreement, or in documents of assignment delivered pursuant to Section
8.8, as such percentage may be adjusted from time to time by such assignment
documents, and (b) when used otherwise, the percentage equal to the unpaid
principal balance of such Lender's Loans, other than Swing Line Advances and
Competitive Bid Advances, at the particular time in question divided by the
aggregate unpaid principal balance of all Loans of all Lenders, other than
Swing Line Advances and Competitive Bid Advances, at such time.
"Permitted Liens" means (a) Liens for taxes, assessments or other
governmental charges or levies if the same shall not at the particular time in
question be due and delinquent or (if foreclosure, distraint, sale or other
similar proceedings shall not have been commenced or, if commenced, shall have
been stayed) are being contested in good faith and by appropriate proceedings,
and if the subject Borrower shall have set aside on its books such reserves
(segregated to the extent required by sound accounting practices) as may be
required by GAAP or otherwise determined by the Board of Directors of Borrower
to be adequate with respect thereto; (b) Liens of carriers, warehousemen,
mechanics, laborers, materialmen, landlords, vendors, workmen, and operators
arising in the ordinary course of business or incident to the exploration,
development, operations and maintenance of oil, gas and other hydrocarbon
13
18
properties and related facilities and assets, for sums not yet due or being
contested in good faith and by appropriate proceedings, if Borrower shall have
set aside on its books such reserves (segregated to the extent required by
sound accounting practices) as may be required by GAAP or otherwise determined
by the Board of Directors of Borrower to be adequate with respect thereto; (c)
Liens incurred in the ordinary course of Designated Entities' respective
businesses in connection with worker's compensation, unemployment insurance and
other social security legislation (other than ERISA); (d) Liens incurred in the
ordinary course of Designated Entities' businesses to secure the performance of
bids, tenders, trade contracts, leases (statutory only), statutory obligations,
surety and appeal bonds, performance and return-of-money bonds and other
obligations of a like nature; (e) Liens, easements, rights-of-way restrictions,
servitudes, permits, conditions, covenants, exceptions, reservations and other
similar encumbrances incurred in the ordinary course of Designated Entities'
businesses or existing on property and not in the aggregate materially
interfering with the ordinary conduct of Designated Entities' businesses; (f)
legal or equitable encumbrances deemed to exist by reason of negative pledges
such as in Section 5.2 of this Agreement or the existence of any litigation or
other legal proceeding and any related lis pendens filing (excluding any
attachment prior to judgment, judgment lien or attachment lien in aid of
execution on a judgment); (g) rights of a common owner of any interest in
property held by any Designated Entity as such common owner; (h) farmout,
carried working interest, joint operating, unitization, royalty, overriding
royalty, sales and similar agreements relating to the exploration or
development of, or production from, oil and gas properties incurred in the
ordinary course of business, (i) Liens arising pursuant to Section 9.319 of the
Texas Uniform Commercial Code or other similar statutory provisions of other
states with respect to production purchased from others; (j) Liens represented
by capital leases permitted under this Agreement; (k) any defects,
irregularities, or deficiencies in title to easements, rights-of-way or other
properties which do not in the aggregate have a Material Adverse Effect; (l)
Liens existing pursuant to the Security Instruments; (m) Liens existing in
favor of Agents and Lenders under the Loan Documents; (n) Liens on assets of a
Subsidiary of Borrower in favor of Borrower or another Restricted Subsidiary;
(o) Liens on any property or assets owned or leased by Borrower or any
Subsidiary existing at the time such property or asset was acquired (or at the
time such Person became a Subsidiary); provided that (1) in the case of the
acquisition of a Subsidiary, such lien only encumbers property or assets of
such Subsidiary immediately prior to or at the time of acquisition by Borrower
of such Subsidiary and (2) Borrower will use its best efforts to eliminate such
Liens in a timely manner; (p) purchase money Liens, so long as such Liens only
encumber property or assets (including any improvements thereon, accessions
thereto or proceeds thereof) acquired with the proceeds of purchase money
indebtedness incurred in connection with such Lien; (q) Liens on the stock or
other ownership interest of or in any Unrestricted Subsidiary; (r) Liens in
renewal or extension of any of the foregoing permitted Liens, so long as
limited to the property or assets encumbered and the amount of indebtedness
secured immediately prior to such renewal or extension; and (s) Liens approved
in writing by or on behalf of the Required Lenders.
14
19
"Person" means an individual, corporation, company, partnership,
association, joint stock company, trust or trustee thereof, estate or executor
thereof, unincorporated organization or joint venture, court or governmental
unit or any agency or subdivision thereof, or any other legally recognizable
entity.
"Pioneer Canada" means Pioneer Natural Resources (Canada) Ltd., a
corporation organized under the laws of the Province of Alberta, Canada.
"Pioneer USA" means Pioneer Natural Resources USA, Inc., a Delaware
corporation.
"Pledge Agreement" means a Pledge Agreement substantially in the form
of Exhibit M hereto, or other form of pledge agreement or deed of mortgage, in
form and substance satisfactory to the Managing Agents and the subject
Designated Entity, pledging an interest in the capital shares or stock of,
partnership interests in, or other ownership interest in, a Restricted
Subsidiary as from time to time amended, modified and supplemented.
"Primary Credit Facility" means the facility for loans and the
issuance of Letters of Credit established pursuant to this Agreement.
"Prior Indebtedness" has the meaning given it in Recital B.
"Proxy" has the meaning given it in Section 4.1(f)(ii).
"Rate Election" has the meaning given it in Section 2.3.
"Rating Agencies" means any or all of S&P or Moody's.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as from time to time in effect.
"Request for Advance" means a written or telephonic request, or a
written confirmation, made by a Borrower which meets the requirements of
Section 2.2.
"Request for Competitive Bid Offer" has the meaning given it in
Section 2.22.
"Request for Swing Line Bid" has the meaning given it in Section
2.5(a).
"Required Lenders" means Lenders whose aggregate Percentage Shares
exceed 66 2/3%.
"Reserve Percentage" means, on any day with respect to each particular
Eurodollar Portion in a Tranche, the maximum reserve requirement, as determined
by Administrative
15
20
Agent (including without limitation any basic, supplemental, marginal,
emergency or similar reserves), expressed as a percentage and rounded to the
nearest 1/100th of 1%, which would then apply to Administrative Agent under
Regulation D or successor regulations issued from time to time by the Board of
Governors of the Federal Reserve System with respect to "Eurocurrency
liabilities" (as such term is defined in Regulation D) equal in amount to
Administrative Agent's Eurodollar Portion in such Tranche, were Administrative
Agent to have any such Eurocurrency liabilities. If such reserve requirement
shall change after the date hereof, the Reserve Percentage shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each such change in such reserve requirement.
"Restricted Payment" means any investment, contribution, loan or
advance of cash to a Person (other than (i) Borrower or (ii) a Subsidiary that
is not an Unrestricted Subsidiary), other than:
(a) prudent short-term investments;
(b) investments, contributions, loans or advances disclosed in the
Updated Financial Statements or in the Disclosure Schedule or
in disclosures made subsequent to the date hereof and
consented to in writing by or on behalf of the Majority
Lenders or otherwise made to effect the Acquisition and the
subsequent restructuring of certain of the Restricted
Subsidiaries, as described in the Acquisition Agreement;
(c) investments, contributions, loans or advances made by any
Designated Entity in the ordinary course of its business; or
(d) contributions made by Borrower to any of its Subsidiaries
arising out of or in respect of Letters of Credit issued
hereunder and used for the general corporate purposes of such
Subsidiary (i) so long as no amounts have been drawn under any
such Letter of Credit or (ii) to the extent that Borrower has
been reimbursed by such Subsidiary for amounts drawn under any
such Letter of Credit.
"Restricted Subsidiary" means each Subsidiary of Borrower that, at the
particular time in question, (i) owns directly or indirectly any material
assets or any interest in any other Restricted Subsidiary and (ii) either (a)
has not been designated as an Unrestricted Subsidiary or (b) has been
redesignated as a Restricted Subsidiary. The Restricted Subsidiaries on the
Effective Date are listed on Schedule 3 attached hereto and each other
Subsidiary of Borrower as of the Effective Date shall be an Unrestricted
Subsidiary. A Restricted Subsidiary shall remain such (even if it no longer
owns directly or indirectly any interest in any of the material assets) until
designated as an Unrestricted Subsidiary pursuant to Section 5.2(i). An
Unrestricted Subsidiary shall remain an Unrestricted Subsidiary unless
redesignated as a Restricted Subsidiary pursuant to the provisions of Section
5.2(i).
16
21
"Restructuring" has the meaning given it in Section 5.2(l).
"Revolving Loan" has the meaning given it in Section 2.1(c).
"Revolving Loan Advance" has the meaning given it in Section 2.1(a).
"S&P" means Standard & Poor's Ratings Group and any successor thereto
that is a nationally-recognized rating agency.
"Security Instruments" shall mean the agreements or instruments
described or referred to in Schedule 5, the Guaranties, the Pledge Agreement,
and any and all other agreements or instruments now or hereafter executed and
delivered by any Designated Entity or any other Person in connection with, or
as security for the payment or performance of, the Notes, LC Obligations, this
Agreement or the Guaranties, as any such instrument or agreement may be
supplemented, amended, renewed, extended or restated from time to time.
"Stock Pledge Release Date" has the meaning given to it in Section
8.16.
"Subsidiary" means, with respect to any Person, any corporation, which
is directly or indirectly (through one or more intermediaries) controlled by or
with respect to which fifty percent (50%) or more of the stock having ordinary
voting power to elect the board of directors is owned by such Person, or any
association, partnership, joint venture, or other non-corporate business
entity, enterprise or organization which is directly or indirectly (through one
or more intermediaries) controlled by, or owned one hundred percent (100%) by,
such Person, provided that associations, joint ventures or other relationships
(a) which are established pursuant to an operating agreement or similar
agreement or which are partnerships for purposes of federal income taxation
only, (b) which are not partnerships (or subject to the Uniform Partnership
Act) under applicable state law, and (c) whose businesses are limited to the
exploration, development and operation of oil, gas or mineral properties and
interests owned directly by the parties in such associations, joint ventures or
relationships, shall not be deemed to be "Subsidiaries" of such Person.
"Swing Line Advances" has the meaning given it in Section 2.4.
"Swing Line Lender" means NationsBank of Texas, N.A., its successors
and assigns.
"Swing Line Note" has the meaning given it in Section 2.5(e).
"Swing Line Obligations" means, at the particular time in question,
the sum of all outstanding Swing Line Advances.
17
22
"Swing Line Participation Certificate" means a Swing Line
Participation Certificate substantially in the form of Exhibit "F".
"Swing Line Rate" has the meaning given it in Section 2.5(a).
"Syndication Agent" means The Chase Manhattan Bank, as Syndication
Agent hereunder and its successors and assigns in such capacity.
"Taxes" has the meaning given it in Section 2.20.
"Termination Event" means (a) the occurrence with respect to any ERISA
Plan of (1) a reportable event described in Sections 4043(b)(5) or (6) of ERISA
or (2) any other reportable event described in Section 4043(b) of ERISA other
than a reportable event not subject to the provision for 30-day notice to the
Pension Benefit Guaranty Corporation pursuant to a waiver by such corporation
under Section 4043(a) of ERISA, or (b) the withdrawal of any Designated Entity
or of any Affiliate of any Designated Entity from an ERISA Plan during a plan
year in which it was a "substantial employer" as defined in Section 4001(a)(2)
of ERISA, or (c) the filing of a notice of intent to terminate any ERISA Plan
or the treatment of any ERISA Plan amendment as a termination under Section
4041 of ERISA, or (d) the institution of proceedings to terminate any ERISA
Plan by the Pension Benefit Guaranty Corporation under Section 4042 of ERISA,
or (e) any other event or condition which might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any ERISA Plan.
"364 Day Credit Facility" means that certain Amended and Restated
Credit Facility Agreement, dated as of December 18, 1997, among Pioneer Natural
Resources Company, as Borrower, NationsBank of Texas, N.A., as Administrative
Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Documentation Agent, The Chase Manhattan Bank, as Syndication Agent,
the Co-Agents party thereto, and the Lenders party thereto, as such agreement
may be amended, modified or restated from time to time.
"Total Capitalization" means the sum (without duplication) of (i)
Consolidated Total Funded Debt of Borrower and its Subsidiaries, plus (ii)
Consolidated shareholder's equity of Borrower and its Subsidiaries.
"Total Funded Debt" means all Debt of the type referred to in clauses
(a), (b), (c), (d), (g) (excluding Debt of the type referred to in clause (e)
of the definition of "Debt") and (h) of the definition of "Debt".
"Tranche" has the meaning given it in Section 2.3.
18
23
"Unrestricted Subsidiary" means each Subsidiary of Borrower which is
not designated as a Restricted Subsidiary on Schedule 3 attached hereto or is
designated by Borrower as an Unrestricted Subsidiary pursuant to Section
5.2(i).
"Updated Financial Statements" means (a) the audited annual
Consolidated financial statements of P&P Petroleum and its Consolidated
Subsidiaries dated as of December 31, 1996, (b) the audited annual Consolidated
financial statements of Mesa and its Consolidated Subsidiaries dated as of
December 31, 1996, and (c) the unaudited Consolidated financial statements and
unaudited consolidating balance sheets and statements of operations of Borrower
and its Consolidated Subsidiaries prepared in reasonable detail in accordance
with GAAP and dated as of September 30, 1997.
Section 1.2 Exhibits and Schedules. All Exhibits and Schedules
attached to this Agreement are a part hereof for all purposes.
Section 1.3 Amendment of Defined Instruments. Unless the context
otherwise requires or unless otherwise provided herein, the terms defined in
this Agreement which refer to a particular agreement, instrument or document
also refer to and include all renewals, extensions, modifications, amendments
and restatements of such agreement, instrument or document, provided that
nothing contained in this Section shall be construed to authorize or require
any such renewal, extension, modification, amendment or restatement.
Section 1.4 References and Titles. All references in this
Agreement to Exhibits, Schedules, articles, sections, subsections and other
subdivisions refer to the Exhibits, Schedules, articles, sections, subsections
and other subdivisions of this Agreement unless expressly provided otherwise.
Titles appearing at the beginning of any subdivisions are for convenience only
and do not constitute any part of such subdivisions and shall be disregarded in
construing the language contained in such subdivisions. The words "this
Agreement", "this Primary Credit Facility", "Primary Credit Facility", "this
instrument", "herein", "hereof", "hereby", "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The phrases "this section" and "this subsection"
and similar phrases refer only to the sections or subsections hereof in which
such phrases occur. The word "or" is not exclusive, and the word "including"
(in its various forms) means "including without limitation". Pronouns in
masculine, feminine and neuter genders shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa, unless the context otherwise requires.
Section 1.5 Calculations and Determinations. All calculations
under the Loan Documents of interest chargeable with respect to Eurodollar
Portions and Competitive Bid Advances shall be made on the basis of actual days
elapsed (including the first day but excluding the last) and a year of 360
days, subject, however, to the limitations set forth in Section 8.6 hereof.
All other calculations of interest and fees made under the Loan Documents
19
24
shall be made on the basis of actual days elapsed (including the first day but
excluding the last) and a year of 365 or 366 days, as appropriate. Unless
otherwise expressly provided herein or unless Required Lenders otherwise
consent, all financial statements and reports furnished to Administrative Agent
or any other Lender hereunder shall be prepared and all financial computations
and determinations pursuant hereto shall be made in accordance with GAAP.
ARTICLE 2
LOANS AND LETTERS OF CREDIT
Section 2.1 Making the Loans.
(a) Subject to the terms and conditions hereof, each Lender agrees
to make advances on a revolving basis (herein a "Revolving
Loan Advance") to Borrower from time to time on any Business
Day during the Loan Commitment Period, equal to such Lender's
Percentage Share of the aggregate amount of Revolving Loan
Advances requested by Borrower to be made on such day, so long
as the aggregate amount of (i) all Lenders' Revolving Loan
Advances (including any Revolving Loan Advances to be made but
not yet made pursuant to a Request for Advance) outstanding at
any time plus (ii) the LC Obligations of all Lenders at such
time plus (iii) all Swing Line Advances to Borrower plus (iv)
all Lenders' Competitive Bid Advances outstanding at such
time, does not exceed the Facility Amount. Subject to the
terms and conditions hereof, Borrower may borrow, repay and
reborrow Revolving Loan Advances.
(b) No Lender shall be permitted or required to make any Revolving
Loan Advance under this Agreement unless the aggregate of (1)
such Lender's Revolving Loan Advances under this Agreement
(including any Revolving Loan Advances to be made but not yet
made pursuant to a Request for Advance) outstanding at any
time plus (2) such Lender's share of LC Obligations at such
time is less than or equal to the least of (i) such Lender's
Loan Commitment or (ii) such Lender's Percentage Share of the
Facility Amount plus (3) such Lender's participation pursuant
to a Swing Line Participation Certificate in any Swing Line
Advances, if any.
(c) The aggregate amount of all Revolving Loan Advances requested
of all Lenders in any Request for Advance must be an integral
multiple of $1,000,000 which equals or exceeds $10,000,000 or
must equal the least of the unadvanced portion of the
aggregate Loan Commitments of all Lenders or the unadvanced
portion of the Facility Amount. The obligation of Borrower to
repay to each Lender the aggregate amount of all Revolving
Loan Advances made by such Lender to
20
25
Borrower (herein called such Lender's "Revolving Loan"),
together with interest accruing in connection therewith, shall
be evidenced by a single promissory note (herein called such
Lender's "Loan Note") made by Borrower payable to the order of
such Lender in the form of Exhibit A-1 with appropriate
insertions. The amount of principal owing on any Lender's
Loan Note at any given time shall be the aggregate amount of
all Revolving Loan Advances theretofore made by such Lender
minus all payments of principal theretofore received by such
Lender on such Loan Note. Interest on each Loan Note shall
accrue and be due and payable as provided herein and therein.
Section 2.2 Requests for Revolving Loan Advances. Borrower must
give to Administrative Agent not later than 11:00 a.m., Dallas, Texas time, for
same day funding, and not later than 1:00 p.m., Dallas, Texas time, for next
Business Day funding, written notice, or telephonic notice promptly confirmed
in writing, of any requested Revolving Loan Advances, after which
Administrative Agent shall give each other Lender prompt notice thereof. Each
such written request or confirmation must be made in the form and substance of
Exhibit C attached hereto, duly completed (herein called a "Request for
Advance"). Each such telephonic request shall be deemed a representation,
warranty, acknowledgment and agreement by Borrower as to the matters which are
required to be set out in such written confirmation. If all conditions
precedent to a Revolving Loan Advance have been met, each Lender will on the
date requested remit, not later than 1:00 p.m., Dallas, Texas time, for same
day funding, and not later than 11:00 a.m., Dallas, Texas time, the following
Business Day for next Business Day funding, to Administrative Agent at
Administrative Agent's office in Dallas, Texas, or to such other office as
Administrative Agent may specify from time to time by notice to Lenders, the
amount of such Lender's Revolving Loan Advance in immediately available funds,
and upon receipt of such funds, unless to its actual knowledge any conditions
precedent to such Revolving Loan Advances have been neither met nor waived as
provided herein, Administrative Agent shall promptly make the Revolving Loan
Advances available to Borrower. Each Request for Advance shall be irrevocable
and binding on Borrower. Unless Administrative Agent shall have received
prompt notice from a Lender that such Lender will not make available to
Administrative Agent such Lender's Revolving Loan Advance, Administrative Agent
may in its discretion assume that such Lender has made such Revolving Loan
Advance available to Administrative Agent in accordance with this Section and
Administrative Agent may if it chooses, in reliance upon such assumption, make
such Revolving Loan Advance available to Borrower. If and to the extent such
Lender shall not so make its Revolving Loan Advance available to Administrative
Agent, such Lender and Borrower severally agree to pay or repay to
Administrative Agent on demand the amount of such Revolving Loan Advance
together with interest thereon, for each day from the date such amount is made
available to Borrower until the date such amount is paid or repaid to
Administrative Agent, (i) if paid or repaid by Borrower at the interest rate
applicable at the time to the other Revolving Loan Advances made on such date
of such Revolving Loan Advance and (ii) if paid or repaid by such Lender, at
the Federal Funds Rate. The failure of
21
26
any Lender to make any Revolving Loan Advance to be made by it hereunder shall
not relieve any other Lender of its obligation hereunder, if any, to make its
Revolving Loan Advance, but no Lender shall be responsible for the failure of
any other Lender to make any Revolving Loan Advance to be made by such other
Lender.
Section 2.3 Rate Elections. Borrower may from time to time
designate all or any portions of the Loans (including any yet to be made
Revolving Loan Advances which are to be made prior to or at the beginning of
the designated Eurodollar Interest Period but excluding any portions of the
Loans which are required to be repaid prior to the end of the designated
Eurodollar Interest Period and excluding any Competitive Bid Advance and any
Swing Line Advance) as a "Tranche", which term refers to a set of Eurodollar
Portions of the same type with identical Eurodollar Interest Periods and with
each Lender participating in such Tranche in accordance with its Percentage
Share. Without the consent of Required Lenders, Borrower may not make such
election, and Administrative Agent and Lenders shall not be required to give
effect to such election, during the continuance of a Default and Borrower may
make such an election with respect to already existing Eurodollar Portions only
if such election will take effect at or after the termination of the Eurodollar
Interest Period applicable thereto. Each election by Borrower of a Tranche
shall:
(a) Be made in writing in the form and substance of Exhibit D
attached hereto, duly completed, herein called a "Rate
Election";
(b) Specify the aggregate amount of the Loans which Borrower
desires to designate as such Tranche, the first day of the
Eurodollar Interest Period which is to apply thereto, and the
length of such Eurodollar Interest Period; and
(c) Be received by Administrative Agent not later than 10:00 a.m.,
Dallas, Texas time, on the third Business Day preceding the
first day of the specified Eurodollar Interest Period.
Promptly after receiving any such Rate Election which meets the
requirements of this Section, Administrative Agent shall notify each Lender
thereof. Each Rate Election shall be irrevocable. Borrower may not make any
Rate Election which does not specify an Eurodollar Interest Period complying
with the definition of "Eurodollar Interest Period" in Section 1.1, and the
aggregate amount of the Tranche elected in any Rate Election must be
$10,000,000 or a higher integral multiple of $1,000,000. Upon the termination
of each Eurodollar Interest Period the portion of each Loan within the related
Tranche shall, unless the subject of a new Rate Election then taking effect,
automatically become a part of the Base Rate Portion of such Loan and become
subject to all provisions of the Loan Documents governing such Base Rate
Portion. Borrower shall have no more than fifteen (15) Tranches in effect at
any time.
If requested to do so by Borrower through Administrative Agent at
least two (2)
22
27
Business Days before the delivery date of any proposed Rate Election, each
Lender will advise Administrative Agent before 10:00 a.m., Dallas, Texas time,
on the Business Day following receipt of such request as to whether, if
Borrower selects a specified duration of nine (9) or twelve (12) months for the
Eurodollar Interest Period applicable to such proposed Rate Election, such
Lender expects that deposits in dollars with a corresponding term will be
available to it in the relevant market on the first day of such Eurodollar
Interest Period in the amount required to fund the Eurodollar Portion of its
Loan to which such Eurodollar Interest Period would apply. Unless a Lender
responds by such time to the effect that it expects such deposits will be
available to it, Borrower shall not be entitled to select such proposed
duration for such Eurodollar Interest Period.
Each Lender may, if it so elects, fulfill its obligation to fund any
Eurodollar Portion by causing one of its foreign branches or Affiliates (or an
international banking facility created by such Lender) to fund or continue such
Eurodollar Portion; provided, however, that such Eurodollar Portion shall be
deemed to have been made and held by such Lender, and the obligations of the
subject Borrower to repay such Eurodollar Portion shall nevertheless be to such
Lender for the account of such branch, or Affiliate (or international banking
facility). In addition, Borrower hereby consents and agrees that, for purposes
of any determination to be made for purposes of Sections 2.17, 2.18, 2.19 and
2.20, it shall be conclusively assumed that such Lender elected to fund all
Eurodollar Portions by purchasing Dollar deposits in the interbank eurodollar
market of its designated office.
Section 2.4 Swing Line Advances. In addition to borrowings
pursuant to Section 2.1(a) or Section 2.22, Borrower may request Swing Line
Lender to make advances to Borrower on any Business Day (unless Borrower and
Swing Line Lender agree otherwise) during the Loan Commitment Period as
provided in Sections 2.5 and 2.6 (herein called "Swing Line Advances");
provided, however, that (a) at no time shall the outstanding aggregate
principal amount of all Swing Line Advances under this Agreement plus all
"Swing Line Advances" (as defined in the 364 Day Credit Facility), if any,
outstanding under the 364 Day Credit Facility exceed $50,000,000, and (b) at no
time shall the sum of (1) the outstanding aggregate principal amount of all
Swing Line Advances to Borrower, (2) the outstanding aggregate principal amount
of the Revolving Loans, (3) the outstanding aggregate principal amount of LC
Obligations and (4) the outstanding aggregate principal amount of all
Competitive Bid Advances, exceed the Facility Amount.
Section 2.5 Procedure for Swing Line Advances.
(a) No later than 11:00 a.m., Dallas, Texas time, on a Business
Day on which Borrower desires a Swing Line Advance, Borrower
shall transmit to Swing Line Lender and to Administrative
Agent by telecopy a notice in substantially the form of
Exhibit E attached hereto (herein called a "Request for Swing
Line Loan"). Swing Line Lender will specify the rate of
interest per annum which
23
28
will be the fixed rate of interest to be charged for such
Swing Line Advance until maturity (herein called the "Swing
Line Rate").
(b) Swing Line Lender shall wire the Swing Line Advance in
immediately available funds by no later than 1:00 p.m.,
Dallas, Texas time on the date of request for Swing Line
Advance, on such day to Administrative Agent, which shall
deposit such funds to an account designated by Borrower by no
later than 1:15 p.m. on the same day.
(c) Borrower shall repay each such Swing Line Advance on or before
1:00 p.m., Dallas, Texas time, on the following Business Day
or at such other maturity (such date of maturity being no more
than fourteen (14) days after the date of the Swing Line
Advance and no later than the Maturity Date) as is agreed to
by Borrower, Administrative Agent and the Swing Line Lender.
The repayment shall be paid on such date by Borrower (which
payment may be in the form of a Swing Line Advance advanced to
Borrower on that day) to Administrative Agent in immediately
available funds with instructions to Administrative Agent to
forward such proceeds to the Swing Line Lender. Any accrued
and unpaid interest pursuant to Swing Line Advances shall be
paid by Borrower (which payment may be in the form of a Swing
Line Advance advanced to Borrower on that day) to
Administrative Agent in immediately available funds on the
first Business Day of each calendar month with instructions to
Administrative Agent to forward such proceeds to the Swing
Line Lender.
(d) Interest on the Swing Line Advances shall be computed on the
basis of a year of 365 or 366 days and actual days elapsed
(including the first day, but excluding the last day)
occurring in the period for which payable and shall not exceed
Maximum Lawful Rate. Past due principal and interest (to the
extent allowed by law) shall bear interest at the lesser of
the Default Rate or the Maximum Lawful Rate and shall be
payable on demand.
(e) The Swing Line Advances made by the Swing Line Lender shall be
evidenced by a single promissory note of Borrower payable to
the order of the Swing Line Lender in the amount of
$50,000,000 and in substantially the form of Exhibit A-2
attached hereto, with appropriate insertions (herein called a
"Swing Line Note"). The date, amount, Swing Line Rate and
maturity of each Swing Line Advance made by a Lender to
Borrower, and each payment made on account of the principal
thereof, shall be recorded by such Lender on its books.
(f) The Swing Line Advances will be used by Borrower to provide
working capital for the operations of Borrower and its
Subsidiaries and for general business purposes. No Swing Line
Advances shall be used for the purpose of purchasing
24
29
or carrying any Margin Stock in violation of the Margin
Regulations.
(g) The obligation of the Swing Line Lender to make each Swing
Line Advance after timely acceptance by Borrower is further
subject to the conditions contained in Article 3.
Section 2.6 Special Provisions for Swing Line Advances.
(a) Lenders to Make Revolving Loan Advances.
(i) Swing Line Lender, at any time in its discretion,
upon written request to Lenders through Administrative Agent (with a
copy to Borrower), may require each Lender (including the Swing Line
Lender) to make a Revolving Loan Advance, subject to the provisions of
Section 2.1 hereof, in an amount equal to such Lender's Percentage
Share of the outstanding Swing Line Advances. Swing Line Lender shall
deliver such request to Administrative Agent prior to 11:00 a.m.,
Dallas, Texas time, on the Business Day next preceding the date (which
shall be a Business Day) on which such Revolving Loan Advances are to
be made. Promptly upon receipt of any such request, Administrative
Agent shall give notice thereof to Lenders. Each Lender shall make
available its Percentage Share of such Revolving Loans to
Administrative Agent by 11:00 a.m., Dallas, Texas time, on the
requested date for such Revolving Loan Advances. Administrative Agent
shall apply the proceeds of such Revolving Loan Advances to prepay the
Swing Line Advances of the Swing Line Lender; provided, however, that
Administrative Agent shall be obligated to make the proceeds of such
Revolving Loans available only to the extent received by it from
Lenders. All Revolving Loans made pursuant to this subsection shall be
Base Rate Loans.
(ii) In the event Administrative Agent advances proceeds
of any Revolving Loan to Swing Line Lender and one or more of the
Lenders (other than Swing Line Lender) fail to fund all or any portion
of such Revolving Loan Advance immediately upon receipt of notice from
Administrative Agent, then (I) such Lender shall pay directly to
Administrative Agent the amount thereof together with interest thereon
at the Federal Funds Rate, and (II) if not paid by such Bank, the
Swing Line Lender will repay directly to Administrative Agent such
amount as will equal the amount such other Lender(s) failed to fund,
together with interest at the Federal Funds Rate.
(b) Participations in Swing Line Advances.
(i) If, at any time prior to the making of Revolving
Loans pursuant to subsection 2.6(a)(i) hereof, any Event of Default
described in Sections 6.1(h) hereof shall have occurred, each Lender,
on the date such Revolving Loan Advance was to have been made or, if
no request for Revolving Loan Advances had been made
25
30
pursuant to Section 2.6(a)(i) hereof, promptly upon request by the
Swing Line Lender delivered to Administrative Agent, shall purchase an
undivided participation interest in all outstanding Swing Line
Advances in an amount equal to its Percentage Share times the
outstanding amount of such Swing Line Advances. Each Lender (other
than the Swing Line Lender) will transfer immediately to
Administrative Agent for credit to Swing Line Lender, in immediately
available funds, the amount of its participation. Upon receipt
thereof, the Swing Line Lender will deliver to such other Lender a
Swing Line Advance Participation Certificate, dated the date of
receipt of such funds and in the amount of such Lender's
participation.
(ii) Whenever, at any time after the Swing Line Lender has
received from any other Lender such other Lender's participating
interest in a Swing Line Advance, the Swing Line Lender receives any
payment on account thereof, Administrative Agent will distribute to
such other Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's participating interest
was outstanding and funded); provided, however, that in the event that
any payment received by Swing Line Lender is required to be returned,
such other Lender will return to Swing Line Lender any portion thereof
previously distributed to it.
(c) Acknowledged Privity. Borrower expressly agrees that, in
respect of each Lender's funded participation interest in any Swing Line
Advance, such Lender shall be deemed to be in privity of contract with Borrower
and have the same rights and remedies against Borrower under the Loan Documents
as if such funded participation interest in such Swing Line Advance were a
Revolving Loan.
(d) Unconditional Obligation. Each Lender's obligation to make
Revolving Loan Advances or to purchase participation interests in Swing Line
Advances as provided in this Section shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (A)
any set-off, counterclaim, recoupment, defense or other right which such Lender
may have against Swing Line Lender, Borrower or any other Person for any reason
whatsoever, (B) the existence of any Default or Event of Default at any time,
(C) the occurrence of any event or existence of any condition that might have a
Material Adverse Effect, or (D) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
Section 2.7 Facility Fee; Amendment Fee. In consideration of
each Lender's commitment to make Revolving Loan Advances and Competitive Bid
Advances, Borrower will pay, or cause the payment, to Administrative Agent for
the account of each Lender an annual facility fee payable to each Lender
determined by applying the Facility Fee Rate to such Lender's Percentage Share
of the Facility Amount as of the date of such payment, payable in arrears
quarterly until the Maturity Date, with the first payment thereof to be January
1, 1998,
26
31
subsequent payments on the first day following each successive calendar quarter
ending on each March, June, September and December, and the final payment
thereof on the Maturity Date. Borrower will pay, or cause the payment, to
Administrative Agent for the account of each Lender a non-refundable amendment
fee payable to each Lender determined by applying the Amendment Fee Rate to
such Lender's Percentage Share of the Facility Amount as of the Effective Date.
Section 2.8 Managing Agents' Fees. In addition to all other
amounts due to the Managing Agents under the Loan Documents, Borrower will pay
the non-refundable annual fees set forth in those certain Fee Letters dated
June 25, 1997.
Section 2.9 Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate
on the Maturity Date.
(b) Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 and (ii) Borrower shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.10, the sum of (i) all Lenders' Revolving Loan Advances
(including any Revolving Loan Advances to be made but not yet made pursuant to
a Request for Advance) outstanding at any time plus (ii) the LC Obligations of
all Lenders at such time plus (iii) all Swing Line Advances to Borrower plus
(iv) all Lenders' Competitive Bid Advances outstanding at such time, would
exceed the total Commitments.
(c) Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least two Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by Borrower pursuant to
this Section shall be irrevocable; provided that a notice of termination of the
Commitments delivered by Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice
may be revoked by Borrower (by notice to the Administrative Agent on or prior
to the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent. Each reduction
of the Commitments shall be made ratably among the Lenders in accordance with
their respective Commitments.
Section 2.10 Optional Prepayments. Borrower may, upon notice to
each Lender identical to that required for related borrowings under this
Agreement, from time to time and without premium or penalty, prepay its Notes,
in whole or in part, so long as the aggregate
27
32
amounts of all partial prepayments of principal concurrently paid on such Notes
equals $5,000,000 or any higher integral multiple of $1,000,000 or the
aggregate outstanding balance of the Loans, and so long as Borrower does not
prepay any Revolving Loan Advance, Competitive Bid Advance or Swing Line
Advance except in accordance herewith. Any amounts prepaid pursuant to this
Section shall be in addition to, and not in lieu of, all payments otherwise
required to be paid under the Loan Documents at the time of such prepayment.
Section 2.11 Payments to Lenders. Except as expressly set forth
in Section 2.5(c) with respect to repayment of Swing Line Advances and Section
2.22(b) with respect to repayment of Competitive Bid Advances, Borrower will
make each payment which it owes under the Loan Documents to Administrative
Agent at its principal banking office in Dallas, Texas, or to such other office
as Administrative Agent may specify from time to time by notice to Borrower for
the account of each Lender to whom such payment is owed, without the
application of any setoff, deduction or counterclaim. Each such payment must
be received by Administrative Agent not later than 1:00 p.m., Dallas, Texas
time, on the date such payment becomes due and payable, in lawful money of the
United States of America and in immediately available funds. Any payment
received by Administrative Agent after such time will be deemed to have been
made on the next Business Day. Should any such payment become due and payable
on a day other than a Business Day, the maturity of such payment shall be
extended to the next succeeding Business Day (except, with respect to any
Eurodollar Portion, as may be otherwise required by the definition of
Eurodollar Interest Period), and, in the case of a payment of principal or past
due interest, interest shall accrue and be payable thereon for the period of
such extension as provided in the Loan Document under which such payment is
due.
All payments applied to principal or interest on any Note shall be
applied first to any interest then due and payable, then to principal then due
and payable, and last to any prepayment of principal and interest in compliance
with Section 2.10. Unless otherwise expressly provided, all payments by any
Designated Entity pursuant to this Agreement or any other Loan Document shall
be made by such Designated Entity to Administrative Agent for account of Agents
and Lenders pro rata among Obligations of the same type and, if applicable,
having the same Eurodollar Interest Period or, in the case of Swing Line
Advances or Competitive Bid Advances, the same maturity date.
Section 2.12 Letters of Credit. Subject to the terms and
conditions hereof, Borrower may request Issuing Bank to issue one or more
Letters of Credit, provided that, after taking such Letter of Credit into
account:
(a) the sum of (1) the aggregate principal amount of Revolving
Loans outstanding at such time, (2) the aggregate principal
amount of LC Obligations outstanding at such time, (3) the
aggregate principal amount of outstanding Swing Line Advances
to Borrower and (4) the aggregate principal amount of
outstanding
28
33
Competitive Bid Advances to Borrower, does not exceed the
least of (i) the aggregate of all Lenders' Loan Commitments at
such time or (ii) the Facility Amount;
(b) the aggregate amount of LC Obligations outstanding at such
time after giving effect to such request does not exceed
$50,000,000;
(c) the expiration date of such Letter of Credit is prior to the
Maturity Date, unless otherwise agreed to by all of the
Lenders and the Issuing Bank;
(d) such Letter of Credit is to be used for general corporate
purposes of Borrower or any of its Subsidiaries, subject to
paragraph (e) of this Section;
(e) the terms of such Letter of Credit are acceptable to Issuing
Bank in the reasonable exercise of its discretion; and
(f) all other conditions in this Agreement to the issuance of such
Letter of Credit have been satisfied.
Issuing Bank will honor any such request if the foregoing conditions (a)
through (g) (herein called the "LC Conditions") have been met as of the date of
issuance of such Letter of Credit. Nothing herein shall be interpreted or
deemed to obligate any Agent, other than Administrative Agent, or any Lender to
issue any Letter of Credit hereunder, and the obligation of Administrative
Agent to act as Issuing Bank is subject to paragraphs (a) through (g) of this
Section and to satisfaction of the conditions set forth in Article 3.
Section 2.13 Requesting Letters of Credit. Borrower must make
written application pursuant to an LC Application for any Letter of Credit at
least three (3) Business Days before the date on which Issuing Bank is
requested to issue such Letter of Credit. By making any such written
application Borrower shall be deemed to have represented and warranted that the
LC Conditions and the conditions precedent set forth in Section 3.2 will be met
as of the date of issuance of such Letter of Credit. Each such LC Application
must be made in such form as may mutually be agreed upon by Issuing Bank and
Borrower. No more than two (2) Business Days after the LC Conditions for a
Letter of Credit have been met as described in Section 2.12, Issuing Bank will
issue such Letter of Credit at Issuing Bank's office in Dallas, Texas or at
such other office of which Issuing Bank shall give Borrower written notice. In
the event of a conflict between any provision contained in this Agreement and
any provision contained in any LC Application, the provision contained in this
Agreement shall control.
29
34
Section 2.14 Reimbursement of Letters of Credit.
(a) Reimbursement by Borrower. Each payment of a draft or demand
for payment honored by Issuing Bank under a Letter of Credit
shall constitute a loan to and obligation of Borrower.
Promptly upon receipt of written notice of Issuing Bank's
honoring of a Letter of Credit, Borrower promises to pay to
Issuing Bank, or to Issuing Bank's order at such Issuing
Bank's office or at such other office of which Issuing Bank
shall give Borrower written notice, on demand, in legal tender
of the United States of America, any and all amounts paid by
Issuing Bank under any Letter of Credit, together with
interest on any such amounts from the date payment is made by
Issuing Bank under such Letter of Credit until but not
including the date of the repayment of such amounts to Issuing
Bank, at the Base Rate; provided that if any such payment or
reimbursement shall be reimbursed to Issuing Bank on the date
Issuing Bank makes such payment or disbursement, interest
shall be payable on the reimbursable amount at such rate for
one (1) day. In the event that Borrower fails to pay when due
any Matured LC Obligation owed by it to Issuing Bank,
Administrative Agent may, at its option, and without any
notice or further authorization from Borrower, make, pro rata
on behalf of the Lenders, a Revolving Loan Advance under this
Agreement to Borrower in the amount of such unpaid Matured LC
Obligation (whether or not such amount is less than the
minimum Revolving Loan Advance or would result in the
outstanding Obligations being greater than or equal to the
Facility Amount), and apply the proceeds of such Revolving
Loan Advance to the payment of such Matured LC Obligation.
Borrower hereby expressly requests and irrevocably authorizes
Administrative Agent to do all of the foregoing. Revolving
Loan Advances used to refinance Matured LC Obligations shall
bear interest as provided in this Agreement and in the Loan
Notes. Borrower hereby promises to pay, when and as due, all
present and future levies, costs and charges whatsoever
imposed, assessed, levied or collected on, under or in respect
of this Agreement with respect to any Letter of Credit and any
payments of principal, interest or other amounts made on or in
respect of any thereof (excluding, however, any such levies,
costs and charges imposed on or measured by the net income or
receipts of Issuing Bank). Borrower promises to indemnify
Issuing Bank against, and to reimburse Issuing Bank on demand
for, any of the foregoing levies, costs or charges paid by
Issuing Bank and any loss, liability, claim or expense,
including interest, penalties and legal fees, that Issuing
Bank may incur because of or in connection with the failure of
Borrower to make any such payment of levies, costs or charges
when and as due or any payment of Matured LC Obligations when
and as due.
Borrower's obligation to reimburse Issuing Bank under this
paragraph (a) of this
30
35
Section for payments and disbursements made by Issuing Bank
under any Letter of Credit issued pursuant to this Section
shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or
defense to payment which Borrower may have or have had against
Issuing Bank or any Lender, including, without limitation, any
defense based on the failure of the demand for payment under
such Letter of Credit to conform to the terms of such Letter
of Credit or the legality, validity, regularity or
enforceability of such Letter of Credit; provided, however,
that Borrower shall not be obligated to reimburse Issuing Bank
for any wrongful payment or disbursement made by Issuing Bank
under any Letter of Credit as a result of acts or omissions
constituting gross negligence or willful misconduct on the
part of Issuing Bank or any of its officers, employees or
agents.
(b) Reimbursement by Lenders. Issuing Bank irrevocably agrees to
grant and hereby grants to each Lender, and, each Lender
irrevocably agrees to accept and purchase and hereby accepts
and purchases from Issuing Bank, on the terms and conditions
hereinafter stated, for such Lender's own account and risk an
undivided interest equal to such Lender's Percentage Share of
Issuing Bank's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by
Issuing Bank thereunder. In the event that Borrower should
fail to pay Issuing Bank on demand the amount of any draft or
other request for payment drawn under a Letter of Credit as
provided in paragraph (a) of this Section, each Lender shall,
before 2:00 p.m., Dallas, Texas time, on the Business Day
Issuing Bank shall have given notice to Lenders of Borrower's
failure to so pay Issuing Bank, if such notice is given by
10:00 a.m., Dallas, Texas time (or on the Business Day
immediately succeeding the day such notice is given after
10:00 a.m., Dallas, Texas time), pay to Issuing Bank at
Issuing Bank's offices, or at such other office of which
Issuing Bank shall have given Lenders written notice, in legal
tender of the United States of America, in same day funds,
such Lender's Percentage Share of the amount of such draft or
other request for payment from Borrower plus interest on such
amount from the date Issuing Bank shall have paid such draft
or request for payment to the date of such payment by such
Lender at the Federal Funds Rate. Each Lender's obligation to
reimburse Issuing Bank pursuant to the terms of this Section
is irrevocable and unconditional; provided, however, that
Lenders shall not be obligated to reimburse Issuing Bank for
any wrongful payment or disbursement made by Issuing Bank
under any Letter of Credit as a result of acts or omissions
constituting gross negligence or willful misconduct on the
part of Issuing Bank or any of its officers, employees,
Affiliates or agents. Whenever, at any time after Issuing
Bank has made payment under any Letter of Credit, and has
received from any Lender its Percentage Share of such payment
in accordance with this subsection, Issuing Bank receives any
payment
31
36
related to such Letter of Credit (whether directly from
Borrower or otherwise, including proceeds of collateral
applied thereto by Issuing Bank), or any payment of interest
on account thereof, Issuing Bank will distribute to such
Lender its Percentage Share thereof; provided, however, that
in the event that any such payment received by Issuing Bank
shall be required to be returned by Issuing Bank, such Lender
shall return to Issuing Bank the portion thereof previously
distributed by Issuing Bank to it. Each Lender shall
indemnify and hold Issuing Bank harmless from and against any
and all losses, liabilities (including, without limitation,
liabilities for penalties), actions, suits, judgments,
demands, damages, costs and expenses (including, without
limitation, attorneys' fees and expenses) resulting from any
failure on the part of such Lender to provide, or from any
delay in providing, in accordance with this paragraph to
Issuing Bank such Lender's Percentage Share of the amount of
any payment or disbursement made by Issuing Bank to settle its
obligations under any draft drawn under any Letter of Credit.
(c) Cash Collateral Upon Event of Default. Upon the occurrence of
any Default or Event of Default and the acceleration of the
maturity of the Loans, an amount equal to the amount of the
aggregate contingent liability of Issuing Bank and Lenders in
connection with each Letter of Credit then in effect shall be
deemed (as between Lenders and Borrower) to have been paid or
disbursed by Issuing Bank and Lenders under such Letter of
Credit (notwithstanding that such amount may not in fact have
been so paid or disbursed), and Borrower shall be immediately
obligated to pay to Administrative Agent for the pro rata
benefit of Lenders in accordance with their respective
Percentage Shares, the amount so deemed to have been so paid
or disbursed, which payment shall be made by depositing Cash
Collateral with Administrative Agent in accordance with the
provisions of paragraph (d) of this Section.
(d) Procedures for Depositing and Returning of Cash Collateral.
Any cash collateral amounts received by Administrative Agent
pursuant to the provisions of paragraph (c) of this Section
(the "Cash Collateral") shall be deposited in a separate
interest bearing cash collateral account maintained at the
offices of Administrative Agent or another Lender designated
by Administrative Agent under the sole dominion and control of
Administrative Agent and shall be retained by Administrative
Agent for the pro rata benefit of Lenders in accordance with
their respective Loans and LC Obligations as collateral
security for, and Borrower hereby grants to Administrative
Agent for the benefit of the Lenders a security interest in
such Cash Collateral including all interest accruing thereon
and the proceeds thereof to secure, first the payment of the
Obligations of Borrower under or in connection with its
Letters of Credit, and then the other Obligations of Borrower
under and in connection with this Agreement and the
32
37
other Loan Documents, including all Obligations of Borrower
under its Notes pro rata to each Lender in accordance with its
Loans and Percentage Share of all LC Obligations. All Cash
Collateral delivered to Administrative Agent may be applied by
Administrative Agent from time to time against any of
Borrower's reimbursement Obligations with respect to any
Letter of Credit as to which a draw is made. If and to the
extent that the Default or Event of Default giving rise to the
Required Lenders' demand for Cash Collateral has been cured to
the reasonable satisfaction of Required Lenders and the
acceleration of the Loans has been rescinded and annulled
pursuant to Section 6.3 or (a) all Obligations of Borrower
have been fully paid and satisfied, (b) no Letters of Credit
remain outstanding and (c) Lenders' Commitments have
terminated, Administrative Agent shall promptly return to
Borrower, upon Borrower's request therefor, all amounts
previously paid to Administrative Agent pursuant to paragraph
(c) of this Section and not theretofore returned by
Administrative Agent to Borrower or applied by Administrative
Agent to reduce amounts payable by Borrower to Lenders under
or with respect to the Letters of Credit or other amounts due
to Lenders or Agents hereunder or under the other Loan
Documents.
Section 2.15 Letter of Credit Fees. In consideration of Issuing
Bank's issuance of any Letter of Credit and each other Lender's agreement to
purchase a risk participation therein, Borrower agrees to pay to Administrative
Agent:
(a) a letter of credit fronting fee for the account of the Issuing
Bank with respect to such Letter of Credit upon issuance of
each Letter of Credit in an amount equal to the greater of (x)
$500 or (y) one- eighth of one percent (1/8 of 1%) per annum
calculated on the face amount thereof; and
(b) a letter of credit fee for the account of Lenders, to be
distributed to Lenders ratably in accordance with their
Percentage Shares, calculated on the face amount of each
Letter of Credit in the amount of the applicable Eurodollar
Margin, payable quarterly in arrears and at the expiration or
termination of each Letter of Credit.
Section 2.16 Capital Reimbursement. If either (a) the
introduction or implementation of, or the compliance with, or any change in, or
in the interpretation of, any law, rule or regulation, or (b) the introduction
or implementation of or the compliance with any request, directive or guideline
from any central bank or Governmental Authority (whether or not having the
force of law) affects or would affect the amount of capital required to be
maintained by any Lender or any corporation controlling any Lender, then, upon
demand by such Lender, Borrower will immediately pay to Administrative Agent
for the benefit of such Lender, from time to time as specified by such Lender,
such additional amount which such Lender shall determine to be appropriate to
compensate such Lender or any corporation controlling such
33
38
Lender in light of such circumstances, to the extent that such Lender
reasonably determines that, because of the existence of such circumstances, the
amount of any such capital would be increased or the rate of return on any such
capital would be reduced, in whole or in part, by or as a consequence of the
existence of such Lender's Commitments, its Loans, its Percentage Share of LC
Obligations, and its other commitments under this Agreement to Borrower,
subject to the provisions of Section 2.21.
Section 2.17 Increased Cost of Eurodollar Portions. If any
applicable domestic or foreign law, treaty, rule, directive or regulation
(whether now in effect or hereinafter enacted or promulgated, including
Regulation D) or any interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law):
(a) shall change the basis of taxation of payments to any Lender
of any principal, interest, or other amounts attributable to
any Eurodollar Portion of its Loans, its Percentage Share of
LC Obligations or its participation in any Swing Line Advances
or its Competitive Bid Advances or otherwise due under this
Agreement in respect of any Eurodollar Portion of its Loans or
its participation in any Swing Line Advances or Competitive
Bid Advances (other than taxes imposed on the overall net
income of such Lender or any lending office of such Lender by
any jurisdiction in which such Lender or any such lending
office is located);
(b) shall change, impose, modify, apply or deem applicable any
reserve, special deposit or similar requirements in respect of
any Eurodollar Portion of any Lender (excluding those for
which such Lender is fully compensated pursuant to adjustments
made in the definition of Adjusted Eurodollar Rate) or against
assets of, deposits with or for the account of, or credit
extended by, such Lender; or
(c) shall impose on any Lender, the certificate of deposit market
or the interbank eurocurrency deposit market any other
condition affecting any Eurodollar Portion;
and the result of any of the foregoing (a) through (c) is to (1) increase the
cost to any Lender of funding or maintaining any Eurodollar Portion, any
participation in any Swing Line Advance or any Competitive Bid Advance, as the
case may be, or (2) to reduce the amount of any sum receivable by any Lender in
respect of any Eurodollar Portion, Swing Line Advance or Competitive Bid
Advance, as the case may be, by an amount reasonably deemed by such Lender to
be material; then (i) such Lender shall promptly notify Administrative Agent
and Borrower in writing of the happening of such event, (ii) Borrower shall
thereafter upon demand pay to Administrative Agent for the account of such
Lender such additional amount or amounts as will compensate such Lender for
such additional cost or reduction, subject to the
34
39
provisions of Sections 2.21 and 2.19, and (iii) Borrower may elect, by giving
to Administrative Agent and Lender not less than three (3) Business Days'
notice, to convert all (but not less than all) of any such Eurodollar Portion
into a part of the Base Rate Portion.
Section 2.18 Availability. If (a) any change in applicable laws,
treaties, rules or regulations or in the interpretation or administration
thereof in any jurisdiction whatsoever, domestic or foreign, shall make it
unlawful or impracticable for any Lender to fund or maintain Eurodollar
Portions, or shall materially restrict the authority of any Lender to purchase
or take offshore deposits of dollars ("Eurodollars"), or to issue Letters of
Credit or fund its Percentage Share of LC Obligations, or (b) any Lender
determines that matching deposits appropriate to fund or maintain any
Eurodollar Portion are not available to it, or (c) any Lender determines that
the formula for calculating the Adjusted Eurodollar Rate does not fairly
reflect the cost to such Lender of making or maintaining loans based on such
rates, then, upon notice by such Lender to Administrative Agent and to
Borrower, Borrower's right to elect Eurodollar Portions or to apply for Letters
of Credit shall be suspended to the extent and for the duration of such
illegality, impracticability, restriction or condition, and all Eurodollar
Portions (or portions thereof) which are then outstanding or are then the
subject of any Rate Election and which cannot lawfully or practicably be
maintained or funded shall immediately become or remain part of the Base Rate
Portions of such Lender's Loan, subject to the provisions of Sections 2.21 and
2.19. Borrower agrees to indemnify Administrative Agent and each Lender and
hold Administrative Agent and each Lender harmless against all costs, expenses,
claims, penalties, liabilities and damages which may result from any such
change in law, treaty, rule, regulation, interpretation or administration,
subject to the provisions of Section 2.21.
Section 2.19 Funding Losses. In addition to its other obligations
hereunder, subject to the provisions of Section 2.21, Borrower shall indemnify
each Lender against, and reimburse each Lender on demand for, any loss or
expense incurred or sustained by such Lender, determined as provided in this
Section, as a result of (a) any payment or prepayment (whether authorized or
required hereunder or otherwise) of all or a portion of a Eurodollar Portion of
Borrower on a day other than the day on which the applicable Eurodollar
Interest Period ends, (b) any payment or prepayment, whether required hereunder
or otherwise, of a Loan of Borrower made after the delivery, but before the
effective date, of a Rate Election, if such payment or prepayment prevents such
Rate Election from becoming fully effective, (c) the failure of any Revolving
Loan Advance or Swing Line Advance or Competitive Bid Advance to be made to
Borrower or of any Rate Election of Borrower to become effective due to any
condition precedent to a Revolving Loan Advance or Swing Line Advance or
Competitive Bid Advance not being satisfied, due to the inability of
Administrative Agent (acting reasonably and in accordance with Section 2.18) to
determine a Eurodollar Rate for a Eurodollar Portion of Borrower or due to any
other action or inaction of any Designated Entity, (d) any conversion (whether
authorized or required hereunder or otherwise) of all or any portion of any
Eurodollar Portion of Borrower into a Base Rate Portion or into a different
Eurodollar
35
40
Portion on a day other than the day on which the applicable Eurodollar Interest
Period ends, (e) any payment or prepayment of all or a portion of a Swing Line
Advance to Borrower on a day other than the maturity date for such Swing Line
Advance or (f) any payment or prepayment of all or a portion of a Competitive
Bid Advance on a day other than the maturity date for such Competitive Bid
Advance.
Upon the occurrence of an event as described in subsections (a)
through (f) of this Section, the method to be used by each Lender to calculate
the loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds required by such Lender to fund or maintain Eurodollar
Portions of Revolving Loan Advances, Swing Line Advances or Competitive Bid
Advances, as the case may be, is as follows:
Funding Loss = P x (F-R) x D/360
P = principal amount of payment, prepayment,
conversion, non-borrowing or non-effective
Rate Election
F = Eurodollar Rate or Swing Line Rate or
Competitive Bid Rate, as the case may be
(adjusted for Reserve Percentage), utilized
in the calculations of the Eurodollar Rate or
Swing Line Rate or Competitive Bid Rate, as
the case may be, on the Eurodollar Portion or
Swing Line Advance or Competitive Bid Advance
which is being paid, prepaid, converted, not
borrowed or not subject to effective Rate
Election
R = reinvestment rate (as hereinafter defined)
D = number of days from the date of the payment,
prepayment, conversion, non-borrowing or
non-effectiveness until the day on which the
Eurodollar Interest Period of the Eurodollar
Portion ends or the Swing Line Advance or
Competitive Bid Advance matures
Reinvestment rate as it is used herein will be equal to the Eurodollar Rate,
adjusted for the Reserve Percentage quoted to such Lender, or the Swing Line
Rate or Competitive Bid Rate that would be quoted by such Lender, as the case
may be, effective for the date on which the payment, prepayment, conversion,
non-borrowing or non-effectiveness occurs. For purposes of determining the
reinvestment rate for purposes of this Section, the Eurodollar Rate will be the
quote for either one (1) month, two (2) months, three (3) months, six (6)
months, nine (9) months or twelve (12) months, the Competitive Bid Rate will be
the quote for a number of days between seven (7) and 360, and the Swing Line
Rate will be the quote for a number of days between one (1) and fourteen (14),
whichever most closely approximates (but which may contain more or fewer days
than) the number of days from the date of the payment, prepayment, conversion,
non-borrowing or non-effectiveness until the last day of the relevant
Eurodollar Interest Period or the scheduled maturity, as the case may be, of
the Eurodollar
36
41
Portion, Competitive Bid Advance or Swing Line Advance, as the case may be, in
respect of which the payment, prepayment, conversion, non-borrowing or
non-effectiveness occurs; provided that if such number of days in respect of a
Eurodollar Rate is the midpoint between two such periods, such rate will be the
lower of the two rates for such periods.
Section 2.20 Taxes. All payments by Borrower of principal of,
and interest on, the Loans, the LC Obligations and all other amounts payable
hereunder shall be made free and clear of and without deduction for any present
or future income, excise, stamp, or franchise taxes and other taxes, fees,
duties, withholdings or other charges of any nature whatsoever imposed by any
taxing authority, but excluding franchise taxes and taxes imposed on or
measured by any Lender's net income or receipts (such non-excluded items being
called "Taxes"). In the event that any withholding or deduction from any
payment to be made by Borrower hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then, subject to the
provisions of Section 2.21, Borrower will:
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to Administrative Agent an official receipt
or other documentation satisfactory to Administrative Agent
evidencing such payment to such authority; and
(c) pay to Administrative Agent for the account of the applicable
Lender(s) such additional amount(s) as is necessary to ensure
that the net amount actually received by each Lender will
equal the full amount such Lender would have received had no
such withholding or deduction been required and Borrower
hereby acknowledges that it is not entitled to and will not
seek recovery or restitution of any amount due to any of the
Lenders or Agents and paid by Borrower pursuant to this clause
(c) or pursuant to the next sentence.
If any Taxes are directly asserted against any Agent or any Lender with respect
to any payment received by such Agent or such Lender hereunder, such Agent or
such Lender may pay such Taxes and, if paid in good faith, Borrower will
promptly pay such additional amounts to Administrative Agent for the account of
such Lender or Agent (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such person after the
payment of such Taxes (including any taxes on such additional amount) shall
equal the amount such person would have received had no such Taxes been
asserted, subject to the provisions of Section 2.21.
Borrower shall pay all stamp, transaction, registration and similar
taxes (including financial institutions' duties, debit taxes or other taxes
payable by return and taxes passed on to any Lender or Agent by a bank or
financial institution (collectively "Stamp Taxes") and, if
37
42
Borrower fails to pay any such charges or taxes after reasonable notice from
any such Lender or Agent, fines and penalties) which may be payable or
determined to be payable in relation to the execution, delivery, performance or
enforcement of this Agreement or any Loan Document or any other transaction
contemplated by any Loan Document to which Borrower is a party. Borrower
hereby indemnifies each Lender and Agent against any liability resulting from
delay or omission to pay such charges or taxes except to the extent the
liability results from failure by the relevant Lender or Agent to pay any such
tax after having been delivered funds to do so by Borrower or to the extent
such liability is for fines and penalties resulting from such Lender's or
Agent's failure to provide reasonable notice to Borrower as provided herein.
If Borrower fails to pay any Taxes or Stamp Taxes when due to the
appropriate taxing authority or fails to remit to Administrative Agent, for the
account of the respective Lenders, the required receipts or other required
documentary evidence, Borrower shall indemnify Lenders for any Taxes, interest
or penalties that may become payable by any Lender as a result of any such
failure, subject to the provisions of Section 2.21. For purposes of this
Section, a distribution hereunder by Administrative Agent or any Lender to or
for the account of any Lender or Agent shall be deemed a payment by the subject
Borrower.
Borrower waives any statutory right to recover from any Agent or any
Lender any amount due to any such Agent or Lender and paid by Borrower under
this Section.
On or prior to the first date on which interest or fees are payable
hereunder for the account of any Lender, each Lender that is organized under
the laws of a jurisdiction other than the United States shall execute and
deliver to Administrative Agent, three (3) or more (as Administrative Agent may
reasonably request) United States Internal Revenue Service Forms 1001 or 4224
or such other forms or documents (or successor forms or documents),
appropriately completed, as may be applicable to establish the extent, if any,
to which a payment to such Lender is exempt from withholding or deduction of
Taxes. Each Lender which so delivers a Form 1001 or 4224 further undertakes to
deliver to Administrative Agent three (3) 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 Administrative Agent, in
each case certifying that such Lender is entitled to receive payments from
Borrower 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 of the type previously delivered inapplicable or which would prevent
such Lender from duly completing and delivering such form with respect to it
and such Lender advises Administrative Agent that it is not capable of
receiving such payments on the basis reflected in such previously delivered
form without any deduction or withholding of United States federal income tax.
Administrative Agent shall provide one (1) copy of each
38
43
of such forms or documents so provided to Borrower and Documentation Agent.
Section 2.21 Make-Whole Qualifications. Each Lender's claims for
reimbursements, payments, indemnities or otherwise under Sections 2.16, 2.17,
2.18, 2.19 and 2.20 and Borrower's obligation with respect thereto, shall be
limited and qualified by and subject to the following:
(a) Borrower's obligation to pay, satisfy or recognize such claim
shall be limited to costs or losses incurred within one (1)
year immediately prior to any demand or request therefor upon
Borrower;
(b) each Lender's demand for reimbursement, payment or indemnity
from Borrower must be limited to that which is being generally
applied at the time by such Lender for comparable borrowers
and credits subject to credit agreements similar to this
Agreement, but without regard to provisions similar to this
Section;
(c) each Lender which asserts its rights with respect thereto or
which is seeking or imposing such reimbursement, payment or
indemnity shall provide evidence regarding the basis of such
claim and the calculation and application thereof in
reasonable detail and, in determining such amount, each Lender
may use reasonable methods of attribution and averaging;
(d) each Lender which is seeking payment or reimbursement pursuant
to Section 2.20 shall, if so requested by Borrower, use
reasonable efforts (subject to the overall policy
considerations of such Lender) to designate a different
lending office hereunder if to do so will avoid the need for,
or reduce the amount of, any such payment or reimbursement;
provided that, Lender would, in its sole but reasonable
determination, suffer no material economic, legal or
regulatory disadvantage or burden;
(e) Borrower may, in its sole discretion, elect, unless and until
the applicable Lender notifies Borrower that the circumstances
giving rise thereto no longer apply to such Lender, that, to
the extent that a Lender's claims for such reimbursements,
payments or indemnities would be reduced thereby, that subject
to Section 2.19, (1) all Loans to Borrower which would
otherwise be made by such Lender as Eurodollar Portions shall
be made instead as Base Rate Portions (all of which interest
and principal shall be payable as provided herein with respect
to the related Eurodollar Portions of the Lenders), and (2)
after each Eurodollar Portion has been repaid, all payments of
principal which would otherwise would be applied to repay such
Eurodollar Portion shall be applied to repay Base Rate
Portions instead; and
39
44
(f) Borrower may designate a replacement Lender (which may be one
(1) or more of the then existing Lenders hereunder and which
shall be reasonably satisfactory to Administrative Agent) to
purchase the Notes and Percentage Share of LC Obligations, in
each case without recourse, and assume the Commitments and all
other obligations hereunder of any Lender that has suspended
the availability of Eurodollar Portions pursuant to Section
2.18 or that has demanded reimbursement, payment or indemnity
under Sections 2.16, 2.17, 2.18, 2.19 or 2.20, and such Lender
shall be obligated to sell, transfer and deliver all of its
Notes, and Percentage Share of LC Obligations to such
replacement Lender for the outstanding principal amount of
such Notes, plus Lender's Percentage Share of LC Obligations,
plus in each case, accrued interest thereon and such Lender's
portion of accrued but unpaid fees through the date of such
purchase, and permit such replacement lender to assume its
Commitments. Borrower shall be obligated to pay all
additional amounts due to the Lender being replaced pursuant
to Sections 2.16, 2.17, 2.18, 2.19 and 2.20 through the date
of such purchase and assumption; provided, that if the
replacement Lender fails to purchase all such rights and
interests and assume all such Commitments on the specified
date in accordance herewith, Borrower shall continue to be
obligated to pay such amounts to such Lender which was to have
been replaced and provided further that Borrower shall pay any
Taxes or Stamp Taxes, if any, as a result of such transfer.
Section 2.22 Competitive Bid Advances.
(a) In addition to borrowings pursuant to Section 2.1(a) or
Section 2.4, Borrower may request each Lender severally to submit offers
(herein called a "Competitive Bid Offer") to make advances to Borrower on any
Business Day during the Loan Commitment Period as provided in this Section
(herein called "Competitive Bid Advances"); provided, however, that each Lender
may in its sole discretion, but shall have no obligation whatsoever to submit
such offers, and Borrower may, but shall have no obligation to, accept any such
offers.
(b) Procedure for Competitive Bid Advances.
(i) Borrower may request Competitive Bid Advances by
delivering a request for a Competitive Bid Advance to
each Lender (which has indicated to Borrower its
interest in making a Competitive Bid Advance) and
Administrative Agent not later than 9:00 a.m.,
Dallas, Texas time, one (1) Business Day prior to the
proposed borrowing date. Each request for a
Competitive Bid Advance shall be in substantially the
form of Exhibit N hereto (herein called a "Request
for Competitive Bid Offer") and may solicit bids for
Competitive Bid Advances having not more than three
(3) alternative maturity dates and for Competitive
Bid Advances in any
40
45
respective principal amount equal to $10,000,000 or
an integral multiple of $1,000,000 in excess thereof
for each maturity date requested. The maturity date
for each Competitive Bid Advance shall be not less
than fifteen (15) days nor more than 360 days after
the borrowing date therefor (and in any event not
after the Maturity Date).
(ii) Upon receipt of a Request for Competitive Bid Offer,
any Lender that elects, in its sole discretion, to do
so, shall irrevocably offer to make one (1) or more
Competitive Bid Advances at a fixed rate of interest
determined by such Lender in its sole discretion for
each such Competitive Bid Advance. Any such
irrevocable offer shall be made by delivering a
Competitive Bid Offer to Administrative Agent and to
Borrower, before 9:00 a.m., Dallas, Texas time (or,
in the case of a Competitive Bid Offer by
Administrative Agent, before 8:45 a.m., Dallas, Texas
time), on the proposed borrowing date, setting forth
the maximum amount of Competitive Bid Advances for
each maturity date, and the aggregate maximum amount
for all maturity dates, which such Lender would be
willing to make (which amounts may exceed such
Lender's Percentage Share of the Commitments) and the
fixed rate of interest at which such Lender is
willing to make each such Competitive Bid Advance,
which fixed rate of interest may or may not be, in
such Lender's discretion, different for each
Competitive Bid Advance (respectively herein a
"Competitive Bid Rate"). Borrower shall pay to
Administrative Agent a fee of $500 on each day that
Borrower accepts a Competitive Bid Offer.
(iii) The Competitive Bid Offer delivered by each Lender in
response to a Request for Competitive Bid Offer shall
set forth an amount proposed to be loaned by such
Lender for each maturity date requested by Borrower
that is equal to $10,000,000 or an integral multiple
of $1,000,000 in excess thereof. Any Competitive Bid
Offer by any Lender that: (A) does not substantially
conform to the form of Exhibit O hereto, (B) contains
qualifying, conditional or similar language, (C)
proposes terms other than or in addition to those set
forth in the applicable Request for Competitive Bid
Offer or (D) is received by Borrower after the
applicable time specified in this subsection, shall
be rejected by Borrower and Administrative Agent (and
Administrative Agent shall notify the relevant Lender
of such rejection for one or more of the matters
described in the foregoing (A) through (D) by
telephone and telecopy as soon as practicable
thereafter).
(iv) Borrower shall before 10:00 a.m., Dallas, Texas time,
on the proposed
41
46
borrowing date either, in its absolute discretion:
(A) withdraw such Request for Competitive Bid
Offer by giving telephonic notice to that
effect;
(B) accept one (1) or more of the Competitive Bid
Offers by giving telephonic notice to
Administrative Agent (immediately confirmed
by delivery to Administrative Agent by
facsimile transmission of a Bid Acceptance)
of the amount of Competitive Bid Advance(s)
for each relevant maturity date to be made by
the relevant Lender(s) (which amount for each
such maturity date shall be equal to or less
than the maximum amount for such maturity
date specified in the Competitive Bid Offer
of such Lender(s), and for all maturity dates
included in such Competitive Bid Offer shall
be equal to or less than the aggregate
maximum amount specified in such Request for
Competitive Bid Offer for all such maturity
dates) and reject any Competitive Bid Offers
not accepted by Borrower by giving telephonic
notice to Administrative Agent of such
rejection; provided, however, that (1)
Borrower may not accept Competitive Bid
Offers for any maturity date in an aggregate
principal amount in excess of the maximum
principal amount requested in the related
Request for Competitive Bid Offer (and
Competitive Bid Advances allocated to a
Lender on a borrowing date for each relevant
maturity date shall be in a principal amount
equal to $10,000,000 or an integral multiple
of $1,000,000 in excess thereof); and (2)
Administrative Agent shall notify the Lender
that submitted a Competitive Bid Offer for
such Business Day of Borrower's decision by
telecopying to each such Lender a copy of the
Bid Acceptance by no later than 12:00 noon,
Dallas, Texas time, on the borrowing date
specified in the Request for Competitive Bid
Offer; or
(C) Borrower may accept or reject any Competitive
Bid Offer(s) in whole or in part; provided
that after giving effect to any such accepted
Competitive Bid Offer(s), the sum of (i) the
aggregate principal amount of the Revolving
Loans and Swing Line Advances outstanding at
such time, (ii) the aggregate principal
amount of LC Obligations outstanding at such
time, and (iii) the aggregate principal
amount of Competitive Bid Advances
outstanding at such time, does not exceed the
Facility Amount.
(v) If Borrower notifies Administrative Agent that a
Request for Competitive
42
47
Bid Offer is withdrawn pursuant to clause (iv) above,
the Competitive Bid Advance requested thereby shall
not be made.
(vi) Each Lender which is to make a Competitive Bid
Advance shall, before 1:00 p.m., Dallas, Texas time,
on the borrowing date specified in the Request for
Competitive Bid Offer applicable thereto, make
available to Administrative Agent in immediately
available funds the amount of each Competitive Bid
Advance to be made by such Lender. Administrative
Agent shall deposit such funds to an account
designated by Borrower by no later than 1:15 p.m.,
Dallas, Texas time, on such date.
(vii) Borrower shall repay to Administrative Agent, for the
account of each Lender which has made a Competitive
Bid Advance, on the maturity date of each Competitive
Bid Advance (such maturity date being that specified
by Borrower for repayment of such Competitive Bid
Advance in the related Request for Competitive Bid
Offer) the then unpaid principal amount of such
Competitive Bid Advance. Borrower shall not have the
right to prepay any principal amount of any
Competitive Bid Advance. If any Lender makes a
Competitive Bid Advance on a day on which Borrower is
to repay all or any part of an outstanding
Competitive Bid Advance from such Lender, if
requested by Borrower, such Lender shall apply the
proceeds of its new Competitive Bid Advance to make
such repayment and, in such instance, only an amount
equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be
made available by such Lender to Administrative Agent
as provided in Section 2.22(b)(vi), or remitted by
Borrower to Administrative Agent as provided in this
Section 2.22(b)(vii), as the case may be.
(viii) Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the
borrowing date to the stated maturity date thereof,
at the rate of interest determined pursuant to clause
(b) (ii) above (calculated on the basis of a 360 day
year for actual days elapsed including the first but
excluding the last), but not in excess of the Maximum
Lawful Rate, payable on the maturity date with
respect to such Competitive Bid Advance and, if such
maturity date is more than 90 days after the date of
making such Competitive Bid Advance, on such
ninetieth day and each ninetieth day occurring after
such ninetieth day until the maturity date. If all
or a portion of the principal of or interest on any
Competitive Bid Advance shall not be paid when due
(whether at the stated maturity, by acceleration or
otherwise), without limiting any rights of any Lender
under this Agreement, (i) such overdue principal
43
48
amount shall bear interest from the date on which
such payment was due (other than on the scheduled
maturity date with respect thereto) at the Default
Rate, but not in excess of the Maximum Lawful Rate,
until paid in full (as well as after as before
judgment) and (ii) such overdue interest shall bear
interest from the date on which payment was due at
the Default Rate, but not in excess of the Maximum
Lawful Rate, until paid in full (as well as after as
before judgment).
(c) The Competitive Bid Advances made by each Lender shall be
evidenced by a single promissory note of Borrower payable to
the order of such Lender substantially in the form of Exhibit
A-3 attached hereto, with appropriate insertions (herein
called a "Competitive Bid Note"). The date, amount,
Competitive Bid Rate and maturity date of each Competitive Bid
Advance made by a Lender to Borrower, and each payment made on
account of the principal thereof, shall be recorded by such
Lender on its books.
(d) The Competitive Bid Advances will be used by Borrower to
provide working capital and for the general business purposes
of Borrower and its Subsidiaries. No Competitive Bid Advances
shall be used for the purpose of purchasing or carrying any
Margin Stock in violation of the Margin Regulations.
(e) The obligation of Lenders to make each Competitive Bid Advance
after timely acceptance by Borrower is further subject to the
conditions contained in Article 3.
(f) Borrower shall not be required to accept Competitive Bid
Offers on the basis of the lowest Competitive Bid Rate
offered, but may in its sole discretion accept any Competitive
Bid Offer regardless of the Competitive Bid Rate(s) offered.
ARTICLE 3
CONDITIONS PRECEDENT TO LENDING
Section 3.1 Initial Conditions Precedent. No Lender has any
obligation to make its first Revolving Loan Advance, Swing Line Advance or
Competitive Bid Advance and Issuing Bank has no obligation to issue the first
Letter of Credit (whether or not otherwise agreed to by Issuing Bank) unless:
(a) Administrative Agent shall have received all of the following
with copies for each Lender, at Administrative Agent's office
in Midland, Texas:
(1) This Agreement, the Notes, those Security Instruments
and Guaranties
44
49
listed on Schedule 5 hereto, any other documents
required in connection herewith, each duly executed
and delivered and in form, substance and date
satisfactory to Managing Agents.
(2) The following certificates:
(i) an "Omnibus Certificate" of the Secretary or
an Assistant Secretary and of a Designated
Officer, which shall contain the names and
signatures of the officers of Borrower
authorized to execute Loan Documents and
which shall certify to the truth, correctness
and completeness of the following exhibits
attached thereto: (A) a copy of resolutions
duly adopted by the Board of Directors of
Borrower and in full force and effect at the
time this Agreement is entered into,
authorizing the execution of this Agreement
and the other Loan Documents delivered or to
be delivered in connection herewith and the
consummation of the transactions contemplated
herein and therein, (B) a copy of the charter
documents of Borrower and all amendments
thereto, certified by the appropriate
official of Borrower's jurisdiction of
organization, and (C) a copy of the bylaws or
similar governing documents of Borrower
(provided that, to the extent Borrower has
previously provided Administrative Agent
certified copies of the documents described
in (B) and (C) above, such Omnibus
Certificate may omit such documents, but
shall include a statement that such documents
have not been modified in any respect since
the date last so provided to Administrative
Agent, except as may be specifically noted in
such Omnibus Certificate with appropriate
attachments); and
(ii) a "Compliance Certificate" of a Designated
Officer of Borrower, of even date with such
Revolving Loan Advance, Swing Line Advance or
Competitive Bid Advance or issuance of a
Letter of Credit, in which such officer
certifies to the satisfaction of the
conditions set out in Section 3.2(a) and (b)
and that all conditions hereunder have been
satisfied.
(3) A certificate (or certificates) of the due formation,
valid existence and good standing of Borrower in its
jurisdiction of organization, issued by the
appropriate authorities of such jurisdiction.
(4) The favorable opinions of the counsel for Borrower
and the Restricted Subsidiaries, given upon their
express instructions substantially in the
45
50
form set forth as Exhibit H attached hereto.
(5) Documents similar to those specified in Section
3.1(a)(2)(i) and 3.1(a)(3) with respect to each
Restricted Subsidiary which is or will be party to a
Security Instrument on the date hereof.
(6) A certificate of a Designated Officer of Borrower as
to insurance concerning the material assets of
Designated Entities. Lenders agree that Designated
Entities' insurance coverage disclosed on Schedule 4
is acceptable at the date hereof.
(b) Except as disclosed to the Lenders in the Disclosure Schedule
or otherwise in writing prior to the execution hereof and not
objected to by Required Lenders, there shall be no pending or
threatened litigation, action or proceeding against Borrower
or any of its Subsidiaries which, if adversely determined,
could reasonably be expected to have a Material Adverse
Effect.
(c) No event or condition shall have occurred (i) with respect to
Borrower and its Restricted Subsidiaries (other than Chauvco
and its Subsidiaries) since August 8, 1997 and (ii) with
respect to Chauvco and its Subsidiaries since September 30,
1997, which is reasonably expected to result in a Material
Adverse Effect.
(d) After giving effect to such Revolving Loan Advances,
Competitive Bid Advances and Swing Line Advances and Letters
of Credit, Borrower and Lenders shall be in compliance with
the Margin Regulations.
(e) The acquisition by Borrower or any of its Affiliates of
Chauvco (the "Acquisition") shall have been consummated as
contemplated by and pursuant to that certain Combination
Agreement, dated as of September 3, 1997, as amended (the
"Acquisition Agreement"), between Borrower and Chauvco, and
Administrative Agent shall have received (i) satisfactory
evidence of the consummation of such Acquisition and (ii) a
certificate from a Designated Officer of Borrower certifying
that the Acquisition has been consummated.
(f) A certificate of a Designated Officer of Borrower certifying
that (i) all representations and warranties made by any
Designated Entity in this Agreement or any other Loan Document
are true and correct as of the Effective Date and (ii) that
all conditions precedent to the initial Advance contained in
this Agreement or any other Loan Document have been satisfied
as of the Effective Date.
(g) All requisite Governmental Authorities and third parties shall
have approved or
46
51
consented to the Acquisition and all related transactions,
including, without limitation, the issuance, closing and
funding of this Agreement and the facilities thereunder, to
the extent required. All applicable appeal periods shall have
expired and there shall be, in the judgment of the Managing
Agents, in their sole discretion, no governmental or judicial
action, actual or threatened, restraining, preventing or
imposing burdensome conditions on the Acquisition and all
related transactions, including, without limitation, the
issuance, closing and funding of this Agreement and the
facilities thereunder.
(h) Managing Agents shall have received copies of all financial
statements, reports, notices and proxy statements sent by
Borrower to its stockholders and all SEC filings concerning
the Acquisition.
(i) No litigation or administrative proceeding or other legal or
regulatory developments prohibiting or enjoining the
consummation of the Acquisition shall exist.
(j) Exclusive of the Acquisition, no "Event of Default" (as
defined in the Existing Credit Agreement) shall have occurred
and be continuing.
(k) Administrative Agent shall have received copies of (i) the
executed documentation for the 364 Day Credit Facility and
(ii) the executed documentation for the Canadian Credit
Facility.
Section 3.2 Additional Conditions Precedent. No Lender has any
obligation to make any Revolving Loan Advance, Competitive Bid Advance or Swing
Line Advance (including its initial Advance) and Issuing Bank has no obligation
to issue any Letter of Credit (including the first) unless the following
conditions precedent have been satisfied:
(a) All representations and warranties made by any Designated
Entity in any Loan Document shall be true on and as of the
date of such Revolving Loan Advance, Swing Line Advance,
Competitive Bid Advance or issuance of Letter of Credit as if
such representations and warranties had been made as of the
date of such Revolving Loan Advance, Swing Line Advance or
Competitive Bid Advance or issuance of such Letter of Credit
(unless stated to relate solely to an earlier date, in which
case such representations and warranties shall be true and
correct as of such earlier date).
(b) In the case of the first Revolving Loan Advance, Swing Line
Advance or Competitive Bid Advance or issuance of the first
Letter of Credit, no Event of Default, and in the case of any
other Revolving Loan Advance, Swing Line Advance or
Competitive Bid Advance or issuance of a Letter of Credit, no
47
52
Default shall exist at the date of such Revolving Loan
Advance, Swing Line Advance or Competitive Bid Advance or
issuance of Letter of Credit or will occur as a result of the
making of the requested Revolving Loan Advance, Swing Line
Advance or Competitive Bid Advance or the issuance of the
requested Letter of Credit.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Borrower's Representations and Warranties. To
confirm each Lender's understanding concerning Borrower and its businesses,
properties and obligations, and to induce Managing Agents, Co-Agents and each
Lender to enter into this Agreement and to make the Loans to Borrower, except
as to matters disclosed herein or in the Disclosure Schedule, Borrower
represents and warrants to Managing Agents, Co-Agents and each Lender that:
(a) No Default. No Designated Entity is in default in the
performance of any of the covenants and agreements contained
herein or under any other Loan Document. No event or
circumstance has occurred and is continuing which constitutes
a Default.
(b) Organization, Existence and Good Standing. Each Designated
Entity is duly organized or incorporated, validly existing and
in good standing under the laws of its jurisdiction of
organization or incorporation, having all corporate or
partnership powers required to enter into and carry out the
transactions contemplated hereby. Each Designated Entity is
duly qualified, in good standing, and authorized to do
business in all other jurisdictions wherein the character of
the properties owned or held by it or the nature of the
business transacted by it makes such qualification necessary,
except for any lack of qualification, good standing or
authorization that could not reasonably be expected to have a
Material Adverse Effect. Each Designated Entity has taken all
actions customarily taken in order to enter, for the purpose
of conducting business or owning property, each jurisdiction
outside the United States wherein the character of the
properties owned or held by it or the nature of the business
transacted by it makes such actions desirable, except for any
failure or other matter that could not reasonably be expected
to have a Material Adverse Effect.
(c) Authorization. Each Designated Entity has duly taken all
corporate or partnership action necessary to authorize the
execution and delivery by it of the Loan Documents to which it
is a party and to authorize the consummation of the
48
53
transactions contemplated thereby and the performance of its
obligations thereunder. Borrower is duly authorized to borrow
funds hereunder.
(d) No Conflicts or Consents. The execution and delivery by each
Designated Entity of the Loan Documents to which it is a
party, the performance by each Designated Entity of its
obligations under such Loan Documents, and the consummation of
the transactions contemplated by the various Loan Documents,
including, without limitation, the consummation of the
Acquisition, do not and will not (1) conflict with any
provision of the articles or certificate of incorporation,
bylaws, charter, partnership agreement or certificate or other
governing document of such Designated Entity, or (2) except as
to matters that could not reasonably be expected to have a
Material Adverse Effect, result in the acceleration of any
Debt owed by such Designated Entity, or conflict with any law,
statute, rule, regulation, or material agreement, judgment,
license, order or permit applicable to or binding upon such
Designated Entity, or require the consent, approval,
authorization or order of, or notice to or filing with, any
Governmental Authority or third party, or result in or require
the creation of any Lien upon any material assets or
properties of such Designated Entity, except (i) as permitted
in the Loan Documents and (ii) for filings and recordings of
the Security Instruments.
(e) Enforceable Obligations. This Agreement is, and the other
Loan Documents when duly executed and delivered will be,
legal, valid and binding obligations of each Designated Entity
which is a party hereto or thereto, enforceable in accordance
with their terms except as such enforcement may be limited by
bankruptcy, insolvency or similar laws of general application
relating to the enforcement of creditors' rights generally and
by general principles of equity.
(f) Financial Statements. (i) The Updated Financial Statements
fairly present Borrower's, Mesa's and P&P Petroleum's and each
of their Consolidated subsidiaries' financial position at the
respective dates thereof and the results of Borrower's, Mesa's
and P&P Petroleum's and each of their Consolidated
subsidiaries' operations and cash flows for the respective
periods thereof. From the date of the audited Updated
Financial Statements to the Effective Date, no change has
occurred in Borrower's, Mesa's or P&P Petroleum's Consolidated
financial condition which could reasonably be expected to
result in a Material Adverse Effect, except as reflected in
the Disclosure Schedule. From September 30, 1997 to the
Effective Date, no change has occurred in Chauvco's
Consolidated financial condition which could reasonably be
expected to result in a Material Adverse Effect, except as
reflected in the Disclosure Schedule. All Updated Financial
Statements were prepared in accordance with GAAP as in effect
on the date thereof.
49
54
(ii) The Unaudited Pro Forma Financial Statements
of Borrower for the periods ending December 31, 1996 and
September 30, 1997 contained in the Joint Management
Information Circular and Proxy Statement, dated November 17,
1997 (the "Proxy"), and the Unaudited Pro Forma Financial
Statements of Borrower for the period ending September 30,
1997, fairly present Borrower's pro forma financial position
at the respective dates thereof and the results of Borrower's
pro forma operations and cash flows for the respective periods
thereof. From the date of such financial statements to the
Effective Date no change has occurred in Borrower's
Consolidated financial condition which could reasonably be
expected to result in a Material Adverse Effect on Borrower's
Pro Forma Consolidated Financial Condition, except as
reflected in the Disclosure Schedule. All such financial
statements were prepared in accordance with GAAP as in effect
on the date thereof.
(g) Other Obligations. Except as disclosed in the Disclosure
Schedule, as of the Effective Date, neither Borrower nor any
of its Consolidated Subsidiaries has any outstanding Debt
which is, in the aggregate, material to Borrower and its
Consolidated Subsidiaries and not shown in the Updated
Financial Statements.
(h) Full Disclosure. No certificate, statement or other
information delivered herewith or heretofore by any Designated
Officer of any Designated Entity to either of Managing Agents,
Co-Agents or any Lender in connection with the negotiation of
this Agreement or in connection with any transaction
contemplated hereby contains any untrue statement of a fact or
omits to state any fact known to Borrower, P&P Petroleum, Mesa
or any Designated Entity (other than industry-wide risks
normally associated with the types of businesses conducted by
Borrower, P&P Petroleum, Mesa or any Designated Entity)
necessary to make the statements contained herein or therein
not misleading as of the date made or deemed made, except to
the extent that any untrue statement or omission could not
reasonably be expected to have a Material Adverse Effect.
(i) Litigation. Except as disclosed in the Updated Financial
Statements or in the Disclosure Schedule: (1) there are no
actions, suits or legal, equitable, arbitrative or
administrative proceedings pending, or, to the knowledge of
Borrower, threatened, against any Designated Entity before any
Governmental Authority that could reasonably be expected to
have a Material Adverse Effect, and (2) there are no
outstanding judgments, injunctions, writs, rulings or orders
by any such Governmental Authority against Borrower, P&P
Petroleum, Mesa or any of their respective Consolidated
Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
(j) Environmental Matters. The liabilities and costs of Borrower
and its
50
55
Consolidated Subsidiaries related to compliance with
applicable Environmental Laws (as in effect on the date on
which this representation is made or deemed made) could not
reasonably be expected to have a Material Adverse Effect.
(k) Title to Properties. Each Designated Entity has good and
defensible title to all of its material properties and assets,
except any failure, defect or other matter that could not, in
the aggregate, reasonably be expected to have a Material
Adverse Effect.
(l) Investment Company Act. Neither Borrower nor any of its
Subsidiaries is an "investment company" or a "company
controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
(m) Public Utility Holding Company Act. Neither Borrower nor any
of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding
company", or a "public utility" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(n) Principal Business Offices. As of the Effective Date, each
Designated Entity's principal place of business and chief
executive office is located at the place described in the
Disclosure Schedule.
(o) Solvency. Each Designated Entity is solvent and will continue
to be solvent after the making and guarantying of the Loans
and the issuance of the Letters of Credit.
(p) Organization. As of the Effective Date, the organization
chart of Borrower and its Subsidiaries with material assets
set forth on Exhibit I is true and correct in all material
respects. Except for the Exchangeable Shares, as of the
Effective Date, Borrower or a Restricted Subsidiary owns all
of the issued and outstanding capital stock of each Restricted
Subsidiary. As of the Effective Date, no Restricted
Subsidiary has issued any securities convertible into shares
of its stock or any options (except as set forth in the
Disclosure Schedule), warrants or other rights to acquire such
shares or securities convertible into such shares and the
outstanding capital stock and securities of each Restricted
Subsidiary is owned by Borrower or another Restricted
Subsidiary free and clear of all Liens, warrants, options or
rights of others of any kind whatsoever, except for Permitted
Liens.
(q) Use of Proceeds; Margin Stock. Borrower and its Subsidiaries
shall use (i) the
51
56
initial Revolving Loan Advance to discharge all outstanding
obligations under the Existing Credit Agreement, and (ii) all
Revolving Loan Advances, Letters of Credit, Competitive Bid
Advances and Swing Line Advances for its and their respective
general corporate purposes. In no event shall the funds from
any Revolving Loan Advance, Swing Line Advance, Competitive
Bid Advance or Letter of Credit be used directly or indirectly
by any Persons for personal, family, household or agricultural
purposes or for the purpose, whether immediate, incidental or
ultimate, of purchasing, acquiring or carrying any "margin
stock" or any "margin securities" (as such terms are defined
in the Margin Regulations) in violation of the Margin
Regulations, or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or
carry "margin stock" or "margin securities" in violation of
the Margin Regulations, or to extend credit to others directly
or indirectly for the purpose of purchasing or carrying any
such margin stock or margin securities in violation of the
Margin Regulations. Borrower is not engaged principally, or as
one of Borrower's important activities, in the business of
extending credit to others for the purpose of purchasing or
carrying such margin stock or margin securities. Neither any
Designated Entity nor any Person acting on behalf of any
Designated Entity has taken or will take any action which
might cause this Agreement, the Notes, or any Guaranty, any
Loan Document or any Loan or Letter of Credit to violate the
Margin Regulations or to violate Section 7 of the Securities
Exchange Act of 1934, or any rule or regulation thereunder, in
each case as now or hereafter in effect.
(r) Liens Under the Security Instruments. Upon the execution and
delivery of the Security Instruments in accordance herewith,
and where appropriate the filing and recordation thereof with
the appropriate filing or recording officers in each of the
necessary jurisdictions, the Liens granted and to be granted
by any Designated Entity to Lenders or the Trustee (as defined
in any of the Security Instruments) on behalf of Lenders in
such Designated Entity's assets pursuant to the Security
Instruments will be validly created, perfected and first
priority Liens, subject only to Permitted Liens.
Section 4.2 Representation by Lenders. Each Lender hereby
represents that it will acquire its Notes for its own account in the ordinary
course of its commercial lending business; however, such Lender may sell or
otherwise transfer its Notes, any participation interest or other interest in
its Notes, or any of its other rights and obligations under the Loan Documents
as permitted by Section 8.8.
52
57
ARTICLE 5
COVENANTS OF BORROWER
Section 5.1 Affirmative Covenants. To conform with the terms and
conditions under which each Lender is willing to have credit outstanding to
Borrower, and to induce Managing Agents, Co-Agents and each Lender to enter
into this Agreement and make the Loans to Borrower and to issue Letters of
Credit, unless Required Lenders shall have previously agreed otherwise in
writing, Borrower, severally for itself and its Subsidiaries, covenants and
agrees that:
(a) Payment and Performance. Borrower will pay all amounts due
from it under the Loan Documents in accordance with the terms
thereof and will observe, perform and comply with every
covenant, term and condition expressed in the Loan Documents,
and will cause each Designated Entity which is a Subsidiary of
Borrower to perform and comply with every covenant, term and
condition expressed in the Loan Documents and applicable to
such Designated Entity.
(b) Books, Financial Statements and Reports. Borrower will at all
times maintain full and materially accurate books of account
and records. Borrower will maintain and will cause its
Subsidiaries to maintain a standard system of accounting and
will cause the following statements and reports to be
delivered to Managing Agents and each Lender at Borrower's
expense:
(1) As soon as available, and in any event within 120
days after the end of each Fiscal Year, complete
audited Consolidated financial statements of Borrower
and its Subsidiaries and unaudited consolidating
balance sheets and statements of operations of
Borrower and its Subsidiaries, prepared in reasonable
detail in accordance with GAAP; such audited
statements to be accompanied by an opinion, by KPMG
Peat Marwick, or such other independent certified
public accountants of nationally recognized standing
selected by Borrower, stating that such Consolidated
financial statements have been so prepared. Borrower
will, together with each set of such financial
statements delivered pursuant to this Section,
furnish a certificate in the form of Exhibit J signed
by a Designated Officer of Borrower stating that, to
the best of his knowledge, (i) such financial
statements are accurate and complete, and (ii) no
Default or Event of Default exists at the end of such
Fiscal Quarter or at the time of such certificate or
specifying the nature and period of existence of any
such Default or Event of Default. Such certificate
shall contain calculations showing compliance (or
noncompliance) at the end of such Fiscal Quarter with
the requirements of Sections 5.3(a) and (b).
53
58
(2) As soon as available, and in any event within 60 days
after the end of the first three Fiscal Quarters in
each Fiscal Year, unaudited Consolidated financial
statements of Borrower and its Subsidiaries and
unaudited consolidating balance sheet and statements
of operations of Borrower and its Subsidiaries as of
the end of such Fiscal Quarter, all in reasonable
detail and prepared in accordance with GAAP, subject
to changes resulting from year-end adjustments.
Borrower will, together with each set of such
financial statements delivered pursuant to this
Section, furnish a certificate in the form of Exhibit
J signed by a Designated Officer of Borrower stating
that, to the best of his knowledge, (i) such
financial statements are accurate and complete, and
(ii) no Default or Event of Default exists at the end
of such Fiscal Quarter or at the time of such
certificate or specifying the nature and period of
existence of any such Default or Event of Default.
Such certificate shall contain calculations showing
compliance (or noncompliance) at the end of such
Fiscal Quarter with the requirements of Sections
5.3(a) and (b).
(3) Promptly after transmittal or filing, copies of all
financial statements, reports, notices and proxy
statements sent by Borrower to its stockholders and
all registration statements, periodic reports and
other statements and schedules filed by Borrower or
any of its Subsidiaries with any securities exchange,
the Securities and Exchange Commission or any similar
Governmental Authority.
(c) Other Information and Inspections. Borrower will furnish to
Managing Agents and each Lender any information which
Administrative Agent, on behalf of any Lender, may from time
to time reasonably request in writing concerning any covenant,
provision or condition of the Loan Documents or any matter in
connection with Borrower's and its Subsidiaries' businesses
and operations. Borrower will permit and will cause each of
its Subsidiaries to permit representatives of Agents and
Lenders (including independent accountants, agents and
attorneys), at the expense and risk of the applicable Lender,
to visit and inspect, during normal business hours and upon
reasonable notice any of Borrower's or such Subsidiaries'
property, including its books of account, other books and
records, and any facilities or other business assets, and to
make extra copies therefrom and photocopies and photographs
thereof, and to write down and record any information such
representatives obtain, and Borrower shall permit and will
cause each of its Subsidiaries to permit Agents and the
Lenders or their representatives, to investigate and verify
the accuracy of the information furnished to Administrative
Agent or any Lender in connection with the Loan Documents and
to discuss all such matters with its officers, employees and
54
59
representatives; provided, however, that any such visit,
inspection, investigation or verification or discussion with
respect to Borrower taking place at a time when Borrower has
been notified in writing by Administrative Agent of the
existence of a Default or an Event of Default applicable to
Borrower which has occurred and is continuing shall be at the
cost and expense of Borrower, and that neither Managing
Agents, Co-Agents nor Lenders shall have any obligation to pay
any costs or expenses of Borrower or any other Designated
Entity or any of their officers, employees or representatives
in respect thereof irrespective of the existence of any
Default or Event of Default.
(d) Notice of Material Events. Borrower will promptly upon its
awareness thereof notify Administrative Agent and each Lender
(1) of the occurrence of any Default or any other event, which
has or may reasonably be expected to have, a Material Adverse
Effect, (2) of the acceleration of the maturity of any Debt
owed by any Designated Entity or any default by any Designated
Entity under any instrument evidencing or governing Debt, if
such acceleration or default has a Material Adverse Effect,
(3) of the occurrence of any Termination Event which may
reasonably be expected to have a Material Adverse Effect, and
(4) of the filing of any litigation or proceeding in which any
Designated Entity is a party or of any material developments
in existing litigation in which any Designated Entity is a
party in which an adverse decision may reasonably be expected
to have a Material Adverse Effect.
(e) Maintenance of Existence and Qualifications. Borrower will,
and will cause each Restricted Subsidiary to, maintain and
preserve its existence as a corporation or partnership, as the
case may be. Borrower will, and will cause each Restricted
Subsidiary to, maintain and preserve its good standing and its
rights and franchises in full force and effect and qualify to
do business as a foreign corporation in all states or
jurisdictions where required by applicable law, except for any
failure to maintain, preserve and qualify that could not
reasonably be expected to have a Material Adverse Effect.
Nothing in this Section shall prohibit (i) a merger or
consolidation permitted by Section 5.2(c) or (ii) a
termination of such existence, good standing, rights or
franchises of any Restricted Subsidiary if Borrower determines
in good faith that such termination is in the best interest of
Borrower and could not reasonably be expected to have a
Material Adverse Effect.
(f) Payment of Taxes and Trade Debt. Borrower will, and will
cause each of its Subsidiaries to, except for any failure or
other matter that could not reasonably be expected to have a
Material Adverse Effect, (1) timely file all required tax
returns, (2) timely pay all taxes, assessments, and other
governmental charges or levies imposed upon it or upon its
income, profits or property, and (3) timely
55
60
pay all trade debt. Borrower and its respective Subsidiaries
may, however, delay paying or discharging any such taxes,
assessments, charges, debts or levies so long as the validity
thereof is contested in good faith by appropriate proceedings
and adequate reserves therefor in accordance with GAAP have
been set aside and reflected among the books and records of
Borrower and its Subsidiaries.
(g) Insurance. Borrower will, and will cause each of its
Subsidiaries to, at all times maintain insurance in such
amounts and covering such risks as are in accordance with
normal industry practice for companies engaged in similar
businesses and owning similar properties in the same general
area in which Borrower and its Subsidiaries conduct business,
which insurance (other than prudent self-insurance programs)
shall be by financially sound and reputable insurers.
(h) Payment of Expenses. Whether or not the transactions
contemplated by this Agreement are consummated, Borrower will
promptly pay all reasonable costs and expenses (including
reasonable attorneys' fees) incurred by or on behalf of (1)
the Documentation Agents in connection with the negotiation,
preparation, execution and delivery of the Loan Documents and
any amendment, modification or restatement thereof, and any
and all consents, waivers or other documents or instruments,
including commitment letters, term sheets and any memorandum
relating thereto (provided that Borrower shall be obligated to
pay only the attorneys' fees of a common counsel for the
Documentation Agents, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇), (2) Agents in
connection with due diligence, syndication, travel and
advertising related to this Agreement and the transactions
contemplated thereby, and (3) Administrative Agent or any
Lender in connection with enforcement of the Loan Documents or
the defense of Administrative Agent's or any Lender's exercise
of its rights thereunder. The selection of Managing Agents'
counsel and consultants in connection with the matters
described in the preceding sentence shall be subject to the
approval of Borrower, which approval shall not be unreasonably
withheld. Attorneys' fees reimbursed by Borrower for any
amendment, modification or restatement of any Loan Document
shall be estimated and approved by Borrower prior to
incurrence, such approval not to be unreasonably withheld.
Attorneys' fees reimbursed by Borrower in connection with the
enforcement of the Loan Documents or the defense of
Administrative Agent's or any Lenders' exercise of its rights
hereunder shall be for a single law firm per country (unless
conflicts (including conflicts between Managing Agents and the
other Lenders as determined in the reasonable discretion of
the Required Lenders) otherwise prohibit the engagement of a
single law firm).
56
61
(i) Compliance with Agreements and Law. Borrower will, and will
cause each of its Subsidiaries to (1) perform all material
obligations it is required to perform under the terms of each
material agreement, contract or other instrument or obligation
to which it is a party or by which it or any of its material
properties is bound, except for any non-performance that will
not have or reasonably be expected to have a Material Adverse
Effect; and (2) conduct its business and affairs in material
compliance with all laws, regulations, and orders applicable
thereto (including without limitation Environmental Laws)
except for any non-compliance that could not reasonably be
expected to have a Material Adverse Effect.
(j) Maintenance of Business. Borrower will, and will cause each
Restricted Subsidiary to, maintain as its primary business the
exploration, production and development of oil, natural gas
and other liquid and gaseous hydrocarbons and the gathering,
processing, transmission and marketing of hydrocarbons and
activities related or ancillary thereto.
(k) Operations. Borrower will, and will cause each Restricted
Subsidiary to, cause all material properties to be regularly
operated, maintained and developed in a good and workmanlike
manner, as would a prudent operator and in accordance with all
applicable federal, state and local laws, rules and
regulations, except for any failure to so operate, maintain
and develop that could not reasonably be expected to have a
Material Adverse Effect.
(l) Restructuring. No later than 30 days after the Effective
Date, Borrower shall cause the Outside Debt to be assumed by
Borrower through a Restructuring. In connection with such
Restructuring, Pioneer USA shall guarantee the repayment of
the Outside Debt being assumed by Borrower. Contemporaneously
with such Restructuring, Borrower shall cause the Subsidiary
or Subsidiaries who are the surviving entities of such
Restructuring to execute new Guaranties. As used herein,
"Restructuring" shall mean the formation of one or more
wholly-owned Subsidiaries of Borrower and/or Pioneer USA and
the occurrence of one or more mergers, to take place on a
single day, among Borrower, Pioneer USA and any such
Subsidiaries, in each case as determined by Borrower to be
appropriate to bring about the assumption, by merger, of the
Outside Debt from Pioneer USA to Borrower as contemplated by
this Section.
Section 5.2 Negative Covenants. To conform with the terms and
conditions under which each Lender is willing to have credit outstanding to
Borrower, and to induce Managing Agents and each Lender to enter into this
Agreement and make the Loans to Borrower and to issue Letters of Credit, unless
Required Lenders shall have previously agreed otherwise in writing, Borrower,
severally for itself and its Subsidiaries, covenants and agrees that:
57
62
(a) Limitation on Debt. Borrower will not, and will not permit any
Restricted Subsidiary to, in any manner owe or be liable for
Debt except:
(1) the Obligations;
(2) Debt pursuant to the 364 Day Credit Facility and Debt
pursuant to the Canadian Credit Facility in a maximum
aggregate amount of $300,000,000;
(3) unsecured Debt among Designated Entities;
(4) Debt arising under capital leases which does not in
the aggregate for Borrower and all Restricted
Subsidiaries exceed $20,000,000 at any one time
outstanding;
(5) Debt, other than Debt otherwise permitted by another
subparagraph of this Section 5.2(a), which, at the
time incurred, is at prevailing market rates of
interest and contains covenants and conditions and
events of default no more onerous to Designated
Entities than the terms of this Agreement; provided,
that no Default or Event of Default will result from
the incurrence of such Debt and be continuing;
(6) guaranties of Debt which is the primary obligation of
a Designated Entity and permitted under this Section
5.2(a);
(7) Debt arising (whether by contract or as a result of
statutory liability of a general partner) by virtue
of any Designated Entity being a general partner of a
general or limited partnership pursuant to agreements
in effect on the Effective Date not in excess of the
aggregate amounts permitted to be incurred pursuant
to such agreements on the Effective Date for all such
Debt and other such Debt otherwise permitted pursuant
to the other subparagraphs of this Section 5.2(a);
and
(8) Debt existing on the Effective Date which is
disclosed (i) in the Updated Financial Statements or
(ii) in the Disclosure Schedule and any extensions,
renewals or replacements thereof upon terms no more
onerous to Borrower than the terms of this Agreement
or the terms of the instruments evidencing such Debt
as of the date of this Agreement.
(b) Negative Pledge. Borrower will not, and will not permit any
of its Restricted Subsidiaries to, create, assume or permit to
exist any Lien upon any of their respective material property,
except Permitted Liens.
58
63
(c) Limitation on Mergers. Except as expressly provided in this
paragraph, Borrower will not, and will not permit any of its
Restricted Subsidiaries to, merge or consolidate with or into
any other business entity, except (1) Borrower may be party to
a merger or consolidation so long as the surviving entity is
Borrower and no Default will exist and the Obligations do not
exceed the Facility Amount after giving effect thereto and (2)
any Restricted Subsidiary may be a party to any merger or
consolidation so long as the surviving entity is a Restricted
Subsidiary and any Guaranty of, or Pledge Agreement by, such
Restricted Subsidiary continues as to such surviving entity,
no Default will exist, and the Obligations do not exceed the
Facility Amount after giving effect thereto.
(d) Limitation on Disposition of Capital Stock of Restricted
Subsidiaries. Borrower will not, and will not permit any
Restricted Subsidiary to, sell, transfer or otherwise dispose
of capital stock of any Restricted Subsidiary, except that
Borrower and any Restricted Subsidiary may sell, issue,
transfer or otherwise dispose of the capital stock of any
Restricted Subsidiary to Borrower or to another Restricted
Subsidiary.
(e) Limitation on Restricted Payments. Borrower will not, and
will not permit any Restricted Subsidiary to, make Restricted
Payments in excess of $150,000,000 in the aggregate for the
duration of this Agreement for all such Restricted Payments;
provided, however, that in the event that any Unrestricted
Subsidiary of Borrower is redesignated to be a Restricted
Subsidiary of Borrower for purposes of this Agreement, then
for purposes of determining compliance with this Section, all
Restricted Payments made to such Unrestricted Subsidiary shall
be deducted from the aggregate total of all Restricted
Payments made for the duration of this Agreement. No
Restricted Payment may be made (1) if the Obligations shall
exceed the Facility Amount, (2) if any Default or Event of
Default shall have occurred and be continuing, or (3) if as a
result thereof, any Default or Event of Default shall have
occurred and be continuing.
(f) Transactions with Affiliates. Borrower will not, and will not
permit any of its Restricted Subsidiaries to, engage in any
material transaction with any of Borrower's Affiliates on
terms which are less favorable than those which would have
been obtainable at the time in arm's-length dealing with
Persons other than such Affiliates, provided, however that
such restriction shall not apply to transactions (i) among
Borrower and its Restricted Subsidiaries and (ii) among
Restricted Subsidiaries.
(g) Limitations on Restricted Subsidiaries. Borrower will not
permit any Restricted Subsidiary to become subject to
covenants which:
59
64
(1) restrict dividends or dividend capacity;
(2) restrict loans and advances to Borrower;
(3) restrict the ability to make tax payments or
management payments to Borrower; or
(4) restrict the capitalization structure of any
Restricted Subsidiary.
(h) Limitation on Sale/Leasebacks. Designated Entities will not
enter into any arrangement, directly or indirectly, with any
Person whereby any Designated Entity shall sell or transfer
any material asset, and whereby any Designated Entity shall
then or immediately thereafter rent or lease as lessee such
asset or any part thereof.
(i) Conversion between Restricted Subsidiary and Unrestricted
Subsidiary. Borrower may convert any Restricted Subsidiary to
an Unrestricted Subsidiary by giving Administrative Agent at
least five (5) Business Days' notice of such conversion in the
form of Exhibit K-1 attached hereto; provided that (1) no
Restricted Subsidiary shall be so converted so long as it owns
or will thereafter own, directly or indirectly, any interest
in any material asset or in another Restricted Subsidiary
unless the value of such material assets, together with the
aggregate of all Restricted Payments made and the value of any
other material assets determined as aforesaid of any
Restricted Subsidiaries converted to Unrestricted Subsidiaries
do not exceed in the aggregate the limitation on Restricted
Payments contained in Section 5.2(e) hereof, and (2) no such
conversion shall be made if after giving effect to such
conversion, any Default would exist. Upon any such conversion
of a Restricted Subsidiary to an Unrestricted Subsidiary, such
Subsidiary shall be released from its obligations under its
Guaranty, and Managing Agents and Lenders shall execute and
deliver a release substantially in the form of Exhibit K-2
hereto. Borrower may convert any Unrestricted Subsidiary to a
Restricted Subsidiary by giving Administrative Agent at least
five (5) Business Days' notice of such conversion in the form
of Exhibit K-1 attached hereto; provided that no such
conversion may be made if after giving effect to such
conversion, any Default would exist.
(j) Margin Securities. Proceeds of the Loans will not be used to
purchase or carry Margin Stock except in compliance with the
Margin Regulations.
(k) Modification to Canadian Credit Facility. Borrower shall not
make, permit or otherwise consent to any amendment or
modification to, or seek a waiver of, any representation,
warranty or covenant contained in the Canadian Credit
60
65
Facility without the prior consent of the Required Lenders,
such consent not to be unreasonably withheld.
Section 5.3 Financial Covenants. To conform with the terms and
conditions under which each Lender is willing to have credit outstanding to
Borrower, and to induce Managing Agents and each Lender to enter into this
Agreement and make the Loans to Borrower and to issue Letters of Credit, unless
Required Lenders shall have previously agreed otherwise in writing, Borrower,
severally for itself and its Subsidiaries, covenants and agrees that:
(a) EBITDAX to Consolidated Interest Expense Ratio. The ratio of
Borrower's "EBITDAX" to "Consolidated Interest Expense" for
the last four rolling Fiscal Quarters will not be less than
3.75 to 1.0; provided, however, that the EBITDAX to
Consolidated Interest Expense Ratio shall first be calculated
on December 31, 1997; provided further that for the periods
for calculation ending on or before September 30, 1998, each
reference to "for the last four rolling Fiscal Quarters" shall
be deemed to be a reference to the period from October 1, 1997
through the date of such calculation. As used in this
paragraph, the term "Consolidated Interest Expense" means for
any period, total interest expense, whether paid or accrued,
of Borrower and its Subsidiaries on a Consolidated basis,
including, without limitation, all commissions, discounts and
other fees and charges owed with respect to Letters of Credit.
As used in this paragraph, the term "EBITDAX" means for any
period the sum of the amounts for such period of Consolidated
net income, Consolidated Interest Expense, depreciation
expense, depletion expense, amortization expense, federal and
state income taxes, exploration and abandonment expense and
other non-cash charges and expenses, all as determined on a
Consolidated basis for Borrower and its Subsidiaries.
(b) Consolidated Total Funded Debt to Total Capitalization.
Borrower's Consolidated Total Funded Debt to Total
Capitalization will not, as of the last day of any Fiscal
Quarter, be greater than 60%.
ARTICLE 6
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default. Each of the following events
constitutes an "Event of Default" under this Agreement:
(a) Borrower shall default on the payment when due of any
principal on any of its Loans or any of its Notes or any
amount in respect of any LC Obligation;
61
66
(b) Borrower fails to pay any of its Obligations (other than
principal or any amount in respect of its LC Obligations) when
due and payable, whether interest in respect of any Loan or
any fee or any other amounts payable under any of the Loan
Documents and such failure shall continue unremedied for a
period of five (5) Business Days; provided, however, that any
such Default shall not constitute an Event of Default if
subsequently available information indicates that a payment
made when due was insufficient because of a good faith error
in calculation so long as Borrower shall cure such deficiency
within five (5) Business Days after Borrower becomes aware of
such deficiency;
(c) any Designated Entity fails to duly observe, perform or comply
with any covenant, agreement, condition or provision set forth
in Section 5.1(d) or 5.2 of this Agreement;
(d) any Designated Entity fails (other than as referred to in
subsections (a), (b) and (c) above) to duly observe, perform
or comply with any covenant, agreement, condition or provision
of any Loan Document applicable to it (even if all or part of
such agreement or covenant is void or unenforceable), and such
failure is not remedied within thirty (30) Business Days after
written notice thereof shall have been sent to Borrower by
Administrative Agent or any Lender;
(e) any representation or warranty previously, presently or
hereafter made in writing or deemed made by or on behalf of
any Designated Entity in connection with any Loan Document
shall have been false or incorrect in any material respect on
any date on or as of which made and either (1) an Executive
Officer of Borrower had actual knowledge that such
representation or warranty was false or incorrect in a
material respect when made or (2) if no Executive Officer had
such knowledge, such representation or warranty shall continue
to be false or incorrect in any material respect thirty (30)
Business Days after the earlier of an Executive Officer of
Borrower obtaining actual knowledge thereof or written notice
thereof shall have been sent to Borrower by Administrative
Agent;
(f) any Designated Entity (1) fails to pay when due Debt in excess
of $20,000,000 or (2) breaches or defaults in the performance
of any agreement or instrument by which any such Debt in
excess of $20,000,000 is issued, evidenced, governed, or
secured, and any such failure, breach or default continues
beyond any applicable period of grace provided therefor;
(g) either (1) any "accumulated funding deficiency" (as defined in
Section 412(a) of the Internal Revenue Code of 1986, as
amended) in excess of $10,000,000 exists with respect to any
ERISA Plan, whether or not waived by the Secretary of the
Treasury or his delegate, or (2) any Termination Event which
has a Material
62
67
Adverse Effect occurs with respect to any ERISA Plan and the
then current value of such ERISA Plan's benefit liabilities
exceeds the then current value of such ERISA Plan's assets
available for the payment of such benefit liabilities by more
than $10,000,000 (or in the case of a Termination Event
involving the withdrawal of a substantial employer, the
withdrawing employer's proportionate share of such excess
exceeds such amount);
(h) any Designated Entity:
(1) suffers the commencement of any involuntary
bankruptcy, reorganization, debt arrangement, winding
up, dissolution, official management or
administration, or other case or proceeding under any
bankruptcy or insolvency law or the entry against it
of a judgment, decree or order for relief by a court
of competent jurisdiction in such a case or
proceeding, which in either case remains undismissed
for a period of sixty (60) days; provided that each
Designated Entity hereby expressly authorizes each
Agent and each Lender to appear in any court
proceeding during such sixty (60) day period to
preserve, protect and defend their rights under the
Loan Documents;
(2) commences a voluntary case under any applicable
bankruptcy, insolvency or similar law now or
hereafter in effect, including, without limitation,
the United States Bankruptcy Code or the Corporations
Law of Australia, as from time to time amended; or
applies for or consents or acquiesces to the entry of
an order for relief in an involuntary case under any
such law, or becomes insolvent or makes a general
assignment for the benefit of creditors, or fails
generally to pay (or admits in writing its inability
to pay) its debts as such debts become due, or takes
corporate or other action to authorize any of the
foregoing;
(3) suffers the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee,
sequestrator, administrator or similar official of
all or a substantial part of its assets in a
proceeding brought against or initiated by it, and
such appointment is neither made ineffective nor
discharged within sixty (60) days after such event or
such appointment or taking possession is at any time
consented to, requested by, or acquiesced to by such
Designated Entity;
(4) suffers the entry against it of a final judgment for
the payment of money in excess of $20,000,000 (not
covered by insurance satisfactory to Administrative
Agent in its discretion), unless the same is
discharged within thirty (30) days after the date of
entry thereof or an appeal or
63
68
appropriate proceeding for review thereof is taken
within such period and a stay of execution pending
such appeal is obtained and continues; or
(5) suffers a writ or warrant of attachment or any
similar process to be issued by any court against all
or any substantial part of its property, and such
writ or warrant of attachment or any similar process
is not stayed or released within thirty (30) days
after the entry or levy thereof or after any stay is
vacated or set aside;
(i) (a) any person (other than Borrower, a Restricted Subsidiary
of Borrower or any employee benefit plan of Borrower or any of
its Subsidiaries) or group (as such term is used in Section
13(d) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended) shall acquire, directly or indirectly, beneficial
ownership of an aggregate of 35% or more of the issued and
outstanding voting stock of Borrower or (b) during any period
of two consecutive years ending on or after the Effective
Date, as determined as of the last day of each calendar
quarter after the Effective Date, the individuals (the
"Incumbent Directors") who at the beginning of such period
constituted the Board of Directors of Borrower (other than
additions thereto or removals therefrom from time to time
thereafter approved by a vote of at least two-thirds of such
Incumbent Directors) shall cease for any reason to constitute
50% or more of the Board of Directors of Borrower; provided,
however, that for each determination period ending on or
before September 30, 1999, each determination period shall be
deemed to be a period from the Effective Date through the date
of such calculation;
(j) any of the Loan Documents are determined to be invalid or
unenforceable in any material respect;
(k) (1) any Restricted Subsidiary other than any Foreign
Restricted Subsidiary, and any of their respective
Restricted Subsidiaries fails to execute and deliver
to Collateral Agent a Guaranty of the type referred
to in clause (i) of the definition of "Guaranty",
within 30 days of becoming a Restricted Subsidiary;
(2) unless and to the extent that any Foreign Restricted
Subsidiary or any other Restricted Subsidiary is
prohibited from, or subject to adverse tax
consequences as a result of, guaranteeing the
Obligations under this Agreement (a) under Section
956 of the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time
("Section 956") (b) pursuant to contractual
restrictions in existence prior to the Effective Date
or (c) as a matter of corporate law, any Foreign
Restricted
64
69
Subsidiary or any other Restricted Subsidiary fails
to execute and deliver to Collateral Agent, a
Guaranty of the type referred to in clause (i) of the
definition of "Guaranty" together with in the case of
any Foreign Restricted Subsidiary, a notice in
relation to such Guaranty or, in the case of any
Restricted Subsidiary subject to the Corporation Laws
of Australia, a certificate under Section 206(6) of
the Corporations Laws of Australia in relation to
such Guaranty, in each case (1) as soon as
practicable following the termination or
inapplicability of the contractual restrictions,
corporate law prohibitions and adverse tax
consequences referred to in this paragraph or (2) if
no such contractual restrictions, corporate law
prohibitions and adverse tax consequences apply, as
soon as practicable following a determination that
such contractual restrictions, corporate law
prohibitions and adverse tax consequences do not
apply;
(l) unless and to the extent that (a) any such pledge or mortgage
would result in (i) substantial stamp or similar taxes or (ii)
adverse tax consequences pursuant to Section 956, (b) any such
pledge or mortgage is prohibited either (i) pursuant to
contractual restrictions in existence prior to the Effective
Date or (ii) as a matter of corporate law, or (c) a Guaranty
of the type referred to in clause (i) of the definition of
"Guaranty" has been executed and delivered by the Restricted
Subsidiary the capital stock or shares of which would
otherwise be subject to pledge or mortgage under this
paragraph, Borrower, or any Subsidiary of Borrower, owning
capital stock or shares of any Restricted Subsidiary of any
Foreign Restricted Subsidiary, fails (x) to execute and
deliver to Collateral Agent the Pledge Agreements, together
with sixty-five percent (65%) of all issued and outstanding
stock or shares of such Restricted Subsidiary or such Foreign
Restricted Subsidiary and stock powers or share transfers
executed in blank, together with a either a certificate under
Section 206 (6) of the Corporations Law of Australia or a
notice of the type described in Section 6.1(k)(2) hereof, in
each case in relation to such Pledge Agreement, as the case
may be and if applicable, as soon as practicable after the
termination or inapplicability of such contractual
restrictions and corporate law prohibitions and adverse tax
consequences referred to in this paragraph and (y) to repay
all Obligations and other amounts and to cause all outstanding
Letters of Credit to be terminated and the originals thereof
to be returned to the Issuing Bank as soon as practical after
the termination or inapplicability of such contractual
restrictions and corporate law prohibitions and adverse tax
consequences referred to in this paragraph; or
(m) any Designated Entity, to the extent applicable, fails, (x)
promptly upon the reasonable request of the Managing Agents at
any time or from time to time
65
70
prior to the applicable Stock Pledge Release Date, as the case
may be, (1) to execute, acknowledge or deliver, or to cause to
be executed, acknowledged or delivered, or to register, record
or file, or to cause to be registered, recorded or filed, any
document or instrument necessary or advisable or as Required
Lenders may from time to time reasonably deem to be necessary
or advisable in connection with the grant, creation,
preservation, perfection or maintenance, as first, prior and
perfected Liens, the Liens created, or intended to be created,
by the applicable Security Instruments, subject only to
Permitted Liens or (2) to perform or to continue to perform at
all times and from time to time all actions necessary or
advisable or reasonably deemed to be necessary or advisable by
the Required Lenders in connection with such creation,
preservation, perfection and maintenance; and (y) to repay all
Obligations and other amounts and to cause all outstanding
Letters of Credit to be terminated and the originals thereof
to be returned to the Issuing Bank as soon as practical after
receipt of the reasonable request of Managing Agents pursuant
to the foregoing clause (x);
provided, however, that the foregoing events which affect only
Restricted Subsidiaries that (a) are not guarantors of the
Obligations, and (b) are immaterial (as determined by the
Managing Agents), shall not constitute "Events of Default"
under this Agreement. It is agreed by the parties hereto that
so long as Borrower or any Restricted Subsidiary has made
reasonable efforts under the circumstances to obtain the
approvals required by Section 205(10) of the Corporations Law
of Australia (if applicable), the foregoing paragraphs (k)(2),
(l) and (m) shall not require any Restricted Subsidiaries to
provide any pledge or guaranty prohibited by corporate law
unless the requirements of such Section 205(10) of the
Corporations Law of Australia, to the extent applicable, have
been satisfied; and
(k) Any "Event of Default" as defined in the Canadian Credit
Facility or the 364 Day Credit Facility shall occur; provided
that the occurrence of a "Default" as defined in the Canadian
Credit Facility or the 364 Day Credit Facility shall
constitute a Default under this Agreement; provided further
that if such "Default" is cured or waived under the Canadian
Credit Facility or the 364 Day Credit Facility, as applicable,
then such "Default" shall no longer constitute a Default under
this Agreement.
Upon the occurrence of an Event of Default described in Section 6.1(h)(1), (2)
or (3) with respect to Borrower, the Commitments shall automatically terminate
and all of the Obligations shall thereupon be immediately due and payable,
without demand, presentment, notice of demand or of dishonor and nonpayment,
protest, notice of protest, notice of intention to accelerate, declaration or
notice of acceleration, or any other notice or declaration of any kind, all of
which are hereby expressly waived by Borrower and each Designated Entity who at
any
66
71
time ratifies or approves this Agreement. During the continuance of any other
Event of Default, Administrative Agent at any time and from time to time upon
written instructions from Required Lenders (which, for purposes of this
sentence only, shall be determined giving effect to each Lender's outstanding
Swing Line Advances and Competitive Bid Advances) shall, by notice to Borrower
(but otherwise without notice to any other Designated Entity), declare the
Commitments to be terminated, and/or declare any or all of the Obligations
immediately due and payable, and all such Obligations shall thereupon be
immediately due and payable, without demand, presentment, notice of demand or
of dishonor and nonpayment, protest, notice of protest, notice of intention to
accelerate, declaration or notice of acceleration, or any other notice or
declaration of any kind, all of which are hereby expressly waived by Borrower
and each Designated Entity who at any time ratifies, approves or guaranties
this Agreement and/or require Borrower to deposit Cash Collateral with
Administrative Agent in an amount determined in accordance with paragraph (c)
of Section 2.14.
Section 6.2 Remedies. If any Default shall occur and be
continuing, each Lender or Administrative Agent on behalf of Lenders may
protect and enforce its rights under the Loan Documents by any appropriate
proceedings, including, without limitation, proceedings for specific
performance of any covenant or agreement contained in any Loan Document, and
each Lender may enforce the payment of any Obligations due it or enforce any
other legal or equitable rights which it may have. Additionally, under such
circumstances, the Required Lenders or, at the direction of Required Lenders,
the Trustee (or Collateral Agent) may proceed to protect the Lenders' rights
under the Security Instruments. All rights, remedies and powers conferred upon
Administrative Agent and Lenders under the Loan Documents are cumulative and
not exclusive of any other rights, remedies or powers available under the Loan
Documents or at law or in equity.
Section 6.3 Annulment of Acceleration. If a declaration of
acceleration is made pursuant to this Article 6, then Required Lenders, by
written notice to Borrower and Administrative Agent, may collectively rescind
and annul such declaration in its entirety; provided, that at the time such
declaration is annulled and rescinded: (a) no judgment or decree has been
entered for the payment of any moneys due pursuant to any Note or this
Agreement; (b) all arrears of interest upon all the Notes and all other sums
payable under the Notes and this Agreement (other than principal amounts which
may have become due as a result of acceleration), including interest upon
overdue interest, to the extent payment thereof is lawful, shall have been duly
paid; and (c) each and every other Event of Default which has theretofore
occurred shall have been waived pursuant to Section 8.1 or otherwise made good
or cured.
Section 6.4 Indemnity. Borrower hereby indemnifies each Agent and
each Lender, from and against any and all liabilities, obligations, claims,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements (including reasonable fees of attorneys, accountants, experts and
advisors) of any kind or nature whatsoever (in this Section collectively called
"liabilities and costs") which to any extent (in whole or in part) may be
67
72
imposed on, incurred by, or asserted against such Agent or such Lender as a
result of, arising out of, relating to or in connection with:
(a) the Loan Documents to which Borrower or one or more of its
Subsidiaries is a party or the rights provided therein
(including the enforcement or defense thereof);
(b) the direct or indirect application or proposed application of
the proceeds of any Loan or Letter of Credit to or for
Borrower or any of its Subsidiaries;
(c) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan or
Letter of Credit to or for Borrower or any of its
Subsidiaries;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter
(including enforcement) relating to any Environmental Law or
the condition of any facility or property owned, leased or
operated by Borrower or any of its Subsidiaries; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from,
any facility owned or operated by Borrower or any of its
Subsidiaries of any hazardous or toxic substance (including
any liabilities and costs under any Environmental Law),
regardless of whether caused by, or within the control of,
Borrower or any of its Subsidiaries; or any misrepresentation,
inaccuracy or any breach in or of Section 4.1(j) or Section
5.1(i) by or with respect to Borrower or any of its
Subsidiaries.
The foregoing indemnification shall not apply to the extent such liabilities
and costs are determined to have resulted or been caused, in whole or in part,
by the gross negligence or willful misconduct on the part of such Agent or
Lender. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH
LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN
PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND EXCEPT AS PROVIDED BY THE
IMMEDIATELY PRECEDING SENTENCE. In the event that any claim or demand for
which Borrower would be liable to any Agent or any Lender under this Section is
asserted against or sought to be collected from any Agent or any Lender by a
third party, Agent or such Lender shall promptly notify Borrower of such claim
or demand. Borrower shall have the lesser of: (i) thirty (30) Business Days
from receipt of the above notice; or (ii) three (3) Business Days prior to the
expiration of any period after which a default judgment may be entered against
such Agent or Lender (the "Notice Period") to notify such Agent and/or Lender
whether or not Borrower desires, at the sole cost and expense of Borrower, to
defend such Agent and/or Lender against such claim or demand. In the event
68
73
that Borrower notifies such Agent and/or Lender within the Notice Period, that
it desires to defend such Agent and/or Lender against such claim or demand,
Borrower shall have the right to settle or otherwise dispose of such claim or
demand (other than claims alleging criminal violations) on such terms as
Borrower, with the consent of the indemnified party (which consent shall not be
unreasonably withheld) shall deem appropriate; provided that:
(w) counsel designated by Borrower is reasonably
acceptable to the Managing Agents and the affected
Lender;
(x) Borrower will have acknowledged in writing that this
Section will cover any liabilities and costs in any
such claim or demand;
(y) in the sole determination of the Managing Agents and
the affected Lender, Borrower will have the financial
ability to pay such liabilities and costs; and
(z) Borrower shall thereafter consult with the Managing
Agents and the affected Lender with respect to such
claim or demand; and
provided further, that each of Agents and the affected Lender shall have the
right at all times to participate in any proceeding, at their sole cost and
expense, subject, however, to Borrower's right to control the defense of all
proceedings concerning such claim or demand.
In the event that Borrower fails to give such Agent and/or Lender such notice,
such Agent and/or Lender may defend against such claim or demand; provided,
however, that Borrower's obligation to reimburse such Agent and/or Lender shall
be limited to a single law firm of such Agent and/or Lender (unless Borrower
otherwise consents, which consent shall not be unreasonably withheld); provided
further, that Borrower shall have the right at all times to participate in any
such proceeding, at its sole cost and expense, subject, however, to the right
of such Agent and/or Lender to control the defense of all proceedings
concerning such claim or demand. As used in this Section, the terms "Agent"
and "Lender" shall refer not only to the Persons designated as such in Section
1.1 but also to each director, officer, agent, attorney, employee and
representative of such Person.
ARTICLE 7
AGENTS
Section 7.1 Appointment and Authority. NationsBank of Texas,
N.A. is hereby appointed Administrative Agent hereunder and under each other
Loan Document, CIBC Inc. is hereby appointed Documentation Agent hereunder and
under each other Loan Document,
69
74
▇▇▇▇▇▇ Guaranty Trust Company of New York is hereby appointed Documentation
Agent hereunder and under each other Loan Document and The Chase Manhattan Bank
is hereby appointed Syndication Agent hereunder and under each other Loan
Document, each Co-Agent is hereby appointed Co-Agent hereunder and under each
other Loan Document, and each of the Lenders hereby authorizes each such Agent
to act as the agent of such Lender hereunder and each other Loan Document to
the extent provided herein or therein. In addition, each Lender hereby
irrevocably authorizes Administrative Agent, and Administrative Agent hereby
undertakes, to receive payments of principal, interest due hereunder as
specified herein and to act as Collateral Agent under the Security Instruments.
In addition, each Lender hereby authorizes each Agent, and each Agent hereby
undertakes to take all other actions and to exercise such powers under the Loan
Documents as are specifically delegated to such Agent by the terms hereof or
thereof, together with all other powers reasonably incidental thereto. No
Co-Agent has any duties or responsibilities whatsoever as Co-Agent (as opposed
to its capacity as Lender) under or in connection with this Agreement or any of
the Loan Documents. The relationship of each Agent to Lender is only that of
one commercial bank acting as administrative agent for others, and nothing in
the Loan Documents shall be construed to constitute any Agent a trustee or
other fiduciary for any holder of any of the Notes or of any participation
therein or in the LC Obligations, nor to impose on any Agent duties and
obligations other than those expressly provided for in the Loan Documents.
None of the Agents shall have implied duties to Lenders, or any obligations to
Lenders to take any action under the Loan Documents, except any action by an
Agent specifically provided by the Loan Documents to be taken by such Agent.
With respect to any matters not expressly provided for in the Loan Documents
and any matters which the Loan Documents place within the discretion of any
Agent, such Agent shall not be required to exercise any discretion or take any
action, and each such Agent may request instructions from Lenders with respect
to any such matter, in which case such Agent shall be required to act or to
refrain from acting (and shall be fully protected and free from liability to
any and all Lenders and Agents in so acting or refraining from acting) upon the
instructions of Required Lenders (including itself); provided, however, that no
Agent shall be required to take any action which exposes it to a risk of
personal liability that it considers unreasonable or which is contrary to the
Loan Documents or to applicable law unless indemnified to its satisfaction by
Lenders or Borrower. Upon receipt by Administrative Agent from Borrower of any
communication calling for action on the part of Lenders or upon notice from any
Lender to Administrative Agent of any Default or Event of Default,
Administrative Agent shall promptly notify each Lender thereof.
Section 7.2 Agent's Reliance. No Agent or any of their
respective directors, officers, agents, attorneys, or employees shall be liable
for any action taken or omitted to be taken by any of them under or in
connection with the Loan Documents, including their negligence of any kind,
except that each shall be liable for its own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, each Agent:
70
75
(a) may treat the payee of any Note as the holder thereof until
Administrative Agent receives written notice of the assignment
or transfer thereof in accordance with this Agreement, signed
by such payee and in form satisfactory to Administrative
Agent;
(b) may consult with legal counsel (including counsel for
Borrower), independent public accountants and other experts
selected by such Agent and shall not be liable for any action
taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts;
(c) makes no warranty or representation to any Lender or to any
other Agent and shall not be responsible to any Lender or
Agent for any statements, warranties or representations made
in or in connection with the Loan Documents by any other
Person;
(d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of the Loan Documents on the part of any Designated
Entity or to inspect the property (including the books and
records) of any Designated Entity;
(e) shall not be responsible to any Lender or to any other Agent
for the due execution (other than its own due execution and
delivery), legality, validity, enforceability, genuineness,
existence, sufficiency or value of any Loan Document, the
Credit Facility Agreement or any instrument or document
furnished in connection herewith, or any collateral;
(f) may rely upon the representations and warranties of any
Designated Entity and the Lenders in exercising its powers
hereunder;
(g) shall not be responsible for the satisfaction of any condition
specified in Article 3, except receipt by an Agent of items
required to be delivered to such Agent; and
(h) shall incur no liability under or in respect of the Loan
Documents by acting upon any notice, consent, certificate or
other instrument or writing (including any telecopy, telegram,
cable or telex) believed by it to be genuine and signed or
sent by the proper Person or Persons.
Section 7.3 Lenders' Credit Decisions. Each Lender acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender, made its own analysis of Designated Entities and the transactions
contemplated hereby and its own independent decision to enter into this
Agreement and the other Loan Documents. Each Lender also
71
76
acknowledges that it will, independently and without reliance upon any Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents.
Section 7.4 Indemnification. Each Lender agrees to indemnify
each Agent (to the extent not reimbursed by Borrower within ten (10) days after
demand) from and against such Lender's Percentage Share of any and all
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (including reasonable fees
of attorneys, accountants, experts, and advisors) of any kind or nature
whatsoever (in this Section collectively called "liabilities and costs") which
to any extent (in whole or in part) may be imposed on, incurred by, or asserted
against such Agent growing out of, resulting from or in any other way
associated with any of the Loan Documents and the transactions and events
(including, without limitation, the enforcement thereof) at any time associated
therewith or contemplated therein. THE FOREGOING INDEMNIFICATION SHALL APPLY
WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT
CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY
ANY AGENT, PROVIDED ONLY THAT NO LENDER SHALL BE OBLIGATED UNDER THIS SECTION
TO INDEMNIFY AN AGENT FOR THAT PORTION, IF ANY, OF ANY LIABILITIES AND COSTS
WHICH IS THE SOLE RESULT OF SUCH AGENT'S OWN INDIVIDUAL GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT, AS DETERMINED IN A FINAL JUDGMENT OF A COURT OF COMPETENT
JURISDICTION. Cumulative of the foregoing, each Lender agrees to reimburse
Administrative Agent, each Documentation Agent and Syndication Agent promptly
upon demand for such Lender's Percentage Share of any costs and expenses to be
paid to Administrative Agent, the Documentation Agent or the Syndication Agent
by Borrower under Section 5.1(h) to the extent that Administrative Agent, the
Documentation Agent or the Syndication Agent is not timely reimbursed for such
expenses by Borrower as provided in such section. As used in this Section the
term "Agents" shall refer not only to the Person(s) designated as such in
Section 1.1 but also to each director, officer, agent, attorney, employee and
representative of such Person(s).
Section 7.5 Rights as Lender. In their respective capacity as a
Lender, each Agent shall have the same rights and obligations as any Lender and
may exercise such rights as though it were not an Agent. Each Agent may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with any of Designated Entities or their
Affiliates, all as if it were not an Agent hereunder and without any duty to
account therefor to any other Lender.
Section 7.6 Sharing of Set-Offs and Other Payments. Each Agent
and Lender agrees that if it shall, whether through the exercise of rights
under security documents or rights of banker's lien, setoff, or counterclaim
against any Designated Entity or otherwise, obtain
72
77
payment of a portion of the aggregate Obligations owed to it (other than in
respect of its Swing Line Advances and its Competitive Bid Advances) which,
taking into account all distributions made by Administrative Agent under
Section 2.11, causes such Agent or such Lender to have received more than it
would have received had such payment been received by Administrative Agent and
distributed pursuant to Section 2.11 (or, in the case of Swing Line Advances
paid as provided in Section 2.5(c) or in the case of Competitive Bid Advances
paid as provided in Section 2.22(b)), then it shall be deemed to have
simultaneously purchased and shall be obligated to purchase interests in the
Obligations as necessary to cause Administrative Agent and all Lenders to share
all payments (other than in respect of Swing Line Advances and Competitive Bid
Advances) as provided for in Section 2.11, and such other adjustments shall be
made from time to time as shall be equitable to ensure that all Agents and all
Lenders share all payments of Obligations (other than in respect of its Swing
Line Advances and Competitive Bid Advances) as provided in Section 2.11. If
any Agent or any Lender, whether in connection with setoff of amounts which
might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which might be subject to
setoff, such Agent or Lender agrees, promptly upon demand, to take such action
necessary so that all Agents and all Lenders share in the benefits of such
collateral ratably in proportion to the Obligations owing to each of them.
Nothing herein contained shall in any way affect the right of any Agent or any
Lender to obtain payment (whether by exercise of rights of banker's lien,
set-off or counterclaim or otherwise) of indebtedness other than the
Obligations. Borrower expressly consents to the foregoing arrangements and
agrees that any holder of any such interest or other participation in the
Obligations, whether or not acquired pursuant to the foregoing arrangements,
may to the fullest extent permitted by law exercise any and all rights of
banker's lien, set-off, or counterclaim as fully as if such holder were a
holder of the Obligations in the amount of such interest or other
participation. If all or any part of any funds transferred pursuant to this
Section is thereafter recovered from the seller under this Section which
received the same, the purchase provided for in this Section shall be deemed to
have been rescinded to the extent of such recovery, together with interest, if
any, if interest is required pursuant to court order to be paid on account of
the possession of such funds prior to such recovery.
Section 7.7 Investments. Whenever Administrative Agent in good
faith determines that it is uncertain about how to distribute to Lenders any
funds which it has received, or whenever Administrative Agent in good faith
determines that there is any dispute among Lenders about how such funds should
be distributed, Administrative Agent may choose to defer distribution of the
funds which are the subject of such uncertainty or dispute. If Administrative
Agent in good faith believes that the uncertainty or dispute will not be
promptly resolved, or if Administrative Agent is otherwise required to invest
funds pending distribution to Lenders, Administrative Agent may invest such
funds pending distribution (at the risk of the subject Borrower); all interest
on any such investment shall be distributed upon the distribution of such
investment and in the same proportion and to the same Persons as such
investment. All moneys received by Administrative Agent for distribution to
Lenders (other than to the
73
78
Person who is Administrative Agent in its separate capacity as a Lender) shall
be held by Administrative Agent pending such distribution solely as
Administrative Agent for such Lenders, and Administrative Agent shall have no
equitable title to any portion thereof.
Section 7.8 Benefit of Article 7. The provisions of this Article
(other than the following Section 7.9) are intended solely for the benefit of
Agent and Lenders, and no Designated Entity shall be entitled to rely on any
such provision or assert any such provision in a claim or defense against Agent
or any Lender. Agent and Lenders may waive or amend such provisions as they
desire without any notice to or consent of any Designated Entity.
Section 7.9 Resignation and Removal. Any Agent may resign at any
time by giving written notice thereof to Lenders and Borrower. Each such
notice shall set forth the date of such resignation. Majority Lenders or
Borrower, with the consent (which shall not be unreasonably withheld) of
Majority Lenders (other than Agent to be removed) shall be entitled to remove
any Agent. Upon any such resignation or removal, Borrower may, with the
written concurrence (which shall not be unreasonably withheld) of Majority
Lenders (exclusive of any such resigned or removed Agent), designate a
successor Agent. If, within fifteen (15) days after the date of such
resignation or removal, Borrower makes no such designation or such written
concurrence is not given, Majority Lenders (exclusive of any such resigned or
removed Agent) shall, with the consent of Borrower (which consent shall not be
unreasonably withheld or delayed), have the right to appoint a successor Agent.
A successor must be appointed for any retiring Managing Agent, and such
Managing Agent's resignation shall become effective when such successor accepts
such appointment. Upon the acceptance of any appointment as a Managing Agent
hereunder by a successor Managing Agent and the satisfaction of all obligations
on the part of such retiring or removed Managing Agent necessary to facilitate
succession, the retiring or removed Managing Agent, as the case may be, shall
be discharged from its duties and obligations under this Agreement and the
other Loan Documents. After any Agent's resignation or removal hereunder, the
provisions of this Article 7 shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under the Loan
Documents. Any out-going Agent shall promptly execute all assignments and
other documents necessary to effectuate the transfer of the agency in
connection with this Agreement and shall promptly deliver all original
documents and any collateral in its possession to the successor Agents.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Waivers and Amendments. No failure or delay (whether
by course of conduct or otherwise) by any Agent or any Lender in exercising any
right, power or remedy which any Agent or Lender may have under any of the Loan
Documents shall operate as a waiver thereof or of any other right, power or
remedy, nor shall any single or partial exercise
74
79
by any Agent or Lender of any such right, power or remedy preclude any other or
further exercise thereof or of any other right, power or remedy. No waiver of
any provision of any Loan Document and no consent to any departure therefrom
shall ever be effective unless it is in writing and signed as provided below in
this Section, and then such waiver or consent shall be effective only in the
specific instances and for the purposes for which given and to the extent
specified in such writing. No notice to or demand on any Designated Entity
shall in any case of itself entitle any Designated Entity to any other or
further notice or demand in similar or other circumstances. This Agreement and
the other Loan Documents set forth the entire understanding between the parties
hereto with respect to the transactions contemplated herein and therein and
supersede all prior discussions and understandings with respect to the subject
matter hereof and thereof, and no waiver, consent, release, modification or
amendment of or supplement to this Agreement or the other Loan Documents shall
be valid or effective against any party hereto unless the same is in writing
and signed by (a) if such party is a Designated Entity, by such Designated
Entity, (b) if such party is an Agent, by such Agent and (c) if such party is a
Lender, by such Lender or by Administrative Agent on behalf of Lenders with the
written consent of Required Lenders (or without further consent than that
already provided herein in the circumstances provided in Section 8.7).
Notwithstanding the foregoing or anything to the contrary herein or in any
other Loan Document, no Agent shall, without the prior consent of each Lender,
execute and deliver on behalf of any Lender any waiver or amendment which
would:
(i) increase the Commitment of such Lender or subject such Lender
to any additional obligations;
(ii) reduce or forgive any fees hereunder, or the principal of, or
interest on, such Lender's Notes or LC Obligations;
(iii) postpone any date fixed for any payment of any fees hereunder,
or principal of, or interest on, such Lender's Notes or LC
Obligations;
(iv) amend the definitions herein of "Required Lenders" or
"Majority Lenders" or otherwise change the aggregate amount of
Percentage Shares which is required for Administrative Agent,
any other Agent, Lenders or any of them to take any particular
action under the Loan Documents;
(v) release collateral (except as expressly contemplated by this
Agreement) or any Borrower from its obligation to pay such
Lender's Notes or LC Obligations or any Restricted Subsidiary
from its Guaranty (except upon the Restricted Subsidiary
becoming an Unrestricted Subsidiary as specified in this
Agreement);
(vi) amend this Section 8.1;
75
80
(vii) extend the Loan Commitment Period;
(ix) amend, modify or waive any provision applicable to the
indemnification of any Lender;
(x) consent to the assignment or transfer by any Designated Entity
of any of its rights or obligations under this Agreement or
the other Loan Documents; or
(xi) amend, modify or waive the rights and obligations of the
Issuing Bank or the Agents; provided, that no obligation to
any Designated Entity of any Lender or Issuing Bank or any
Agent may be amended, modified or waived without the written
approval of Borrower, which approval shall not be unreasonably
withheld.
Notwithstanding the foregoing or anything to the contrary herein or in
any other Loan Document, no provision of Article 7 may be amended in any way
which impacts or affects any Agent in its capacity as an Agent (as opposed to
its capacity as a Lender) without the prior written consent of such Agent.
Except as provided in the preceding three sentences or as expressly provided in
any Loan Document, the Required Lenders may waive, modify, amend or supplement
this Agreement and each of the other Loan Documents.
Section 8.2 Survival of Agreements; Cumulative Nature. Each
Designated Entity's various representations, warranties, covenants, indemnities
and agreements in the Loan Documents shall survive the execution and delivery
of this Agreement and the other Loan Documents and the performance hereof and
thereof, including the making or granting of the Loans, the issuance of the
Letters of Credit and the delivery of the Notes, and the other Loan Documents,
and shall further survive until all of the Obligations are paid in full to
Agents and Lenders, all Letters of Credit have expired or been canceled and all
of Agents' and Lenders' obligations to Borrower are terminated, provided that,
notwithstanding the foregoing, certain Obligations of certain Designated
Entities under their respective Guaranties shall survive or be reinstated as
provided in such Guaranties. The representations, warranties, indemnities, and
covenants made by any Designated Entity in any Loan Documents, and the rights,
powers, and privileges granted to Agents and Lenders in the Loan Documents, are
cumulative.
Section 8.3 Notices. All notices, requests, consents, demands
and other communications required or permitted under any Loan Document shall be
in writing, unless otherwise specifically provided in such Loan Document
(provided that Administrative Agent may give telephonic notices to the other
Agents and Lenders), and shall be deemed sufficiently given or furnished if
delivered by personal delivery, by telecopy (with telephonic confirmation of
transmission), by delivery service with proof of delivery, or by registered or
certified United States mail, postage prepaid, to Borrower at the address of
Borrower specified on the signature pages hereto and to each Agent and each
Lender at their addresses specified on the
76
81
signature pages hereto (unless changed by similar notice in writing given by
the particular Person whose address is to be changed). Any such notice or
communication shall be deemed to have been given:
(a) in the case of personal delivery or delivery service, as of
the date of first attempted delivery during normal business
hours at the address provided herein;
(b) in the case of telecopy, upon receipt; or
(c) in the case of registered or certified United States mail,
three (3) days after deposit in the mail, postage prepaid;
provided, however, that no Request for Advance or Rate
Election shall become effective until actually received by
Administrative Agent and no request for the issuance of a
Letter of Credit or Letter of Credit Application shall become
effective until actually received by the Issuing Bank.
Section 8.4 Parties in Interest. All grants, covenants and
agreements contained in the Loan Documents shall bind and inure to the benefit
of the parties thereto and their respective successors and assigns; provided,
however, that no Designated Entity may assign or transfer any of its rights or
delegate any of its duties or obligations under any Loan Document without the
prior written consent of all Lenders.
Section 8.5 Governing Law. THE LOAN DOCUMENTS SHALL BE DEEMED
CONTRACTS AND INSTRUMENTS MADE UNDER THE LAWS OF THE STATE OF TEXAS AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. CHAPTER 15 OF TEXAS REVISED CIVIL STATUTES
ANNOTATED ARTICLE 5069 (WHICH REGULATES CERTAIN REVOLVING CREDIT LOAN ACCOUNTS
AND REVOLVING TRI-PARTY ACCOUNTS) DOES NOT APPLY TO THIS AGREEMENT OR TO THE
NOTES.
Section 8.6 Limitation on Interest. It is the intention of the
parties hereto to conform strictly to applicable usury laws and, anything
herein or any other Loan Document to the contrary notwithstanding, the
obligations of Designated Entities to a Lender or an Agent under this Agreement
and the Loan Documents shall be subject to the limitation that payments of
interest shall not be required to the extent that receipt thereof would be
contrary to provisions of law applicable to such Lender or Agent limiting rates
of interest which may be charged or collected by such Lender or Agent.
Accordingly, if the transactions contemplated hereby would be usurious under
laws applicable to a Lender or Agent (including the federal and state laws of
the United States of America or of any other jurisdiction whose laws may be
mandatorily applicable to such Lender or Agent notwithstanding anything to the
contrary in
77
82
this Agreement or any other Loan Document) then, in that event, notwithstanding
anything to the contrary in this Agreement or any other Loan Document, it is
agreed as follows:
(a) the provisions of this Section shall govern and control;
(b) the aggregate of all consideration which constitutes interest
under applicable law that is contracted for, taken, reserved,
charged or received under this Agreement, or under any of the
aforesaid agreements or otherwise in connection with this
Agreement or any other Loan Document by such Lender or Agent
shall under no circumstances exceed the maximum amount of
interest allowed by applicable law (such maximum lawful
interest rate, if any, with respect to each Lender and each
Agent herein called the "Maximum Lawful Rate"), and any excess
shall be canceled automatically and if theretofore paid shall
be credited to the relevant Designated Entity by such Lender
or Agent (or, if such consideration shall have been paid in
full, such excess refunded to the relevant Designated Entity);
(c) all sums paid, or agreed to be paid, to such Lender or Agent
for the use, forbearance and detention of the indebtedness of
the relevant Designated Entity to such Lender or Agent
hereunder or under any other Loan Document shall, to the
extent permitted by laws applicable to such Lender or Agent,
as the case may be, be amortized, prorated, allocated and
spread throughout the full term of such indebtedness until
payment in full so that the actual rate of interest is uniform
throughout the full term thereof;
(d) if at any time the interest provided pursuant to any provision
of this Agreement or any other Loan Document, together with
any other fees payable pursuant to this Agreement or any other
Loan Document and deemed interest under laws applicable to
such Lender or Agent, exceeds the amount which would have
accrued at the Maximum Lawful Rate, the amount of interest and
any such fees to accrue to such Lender or Agent pursuant to
this Agreement or any other Loan Document shall be limited,
notwithstanding anything to the contrary in this Agreement or
any other Loan Document, to that amount which would have
accrued at the Maximum Lawful Rate, but any subsequent
reductions, as applicable, shall not reduce the interest to
accrue to such Lender or Agent pursuant to this Agreement or
any other Loan Document below the Maximum Lawful Rate until
the total amount of interest accrued pursuant to this
Agreement or such other Loan Document, as the case may be, and
such fees deemed to be interest equals the amount of interest
which would have accrued to such Lender or Agent if a varying
rate of interest per annum equal to the interest provided
pursuant to Section 2.3 or any other relevant Section hereof
(other than this Section) and the Notes, as applicable, had at
all times been in
78
83
effect, plus the amount of fees which would have been received
but for the effect of this Section; and
(e) if the total amount of interest paid by or accrued with
respect to the Obligations of Borrower, together with any
other fees payable pursuant to this Agreement and the other
Loan Documents and deemed interest under laws applicable to
such Lender or Agent pursuant to this Agreement or any other
Loan Document under the foregoing provisions of this Section
is less than the total amount of interest which would have
accrued if a varying rate per annum equal to the interest
provided pursuant to Section 2.3 or any other relevant section
hereof (other than this Section), as applicable, had at all
times been in effect and all fees provided for in this
Agreement and the other Loan Documents had been paid, then
Borrower severally agrees to pay to such Lender or Agent an
amount equal to the difference between, (i) the lesser of, (x)
the amount of interest and fees which would have accrued if
the Maximum Lawful Rate had at all times been in effect, and
(y) the amount of interest and fees which would have accrued
if a varying rate per annum equal to the interest provided
pursuant to Section 2.3 or such other relevant section of this
Agreement (other than this Section) and the Notes, as
applicable, had at all times been in effect and all fees had
been paid, and (ii) the amount of interest and fees accrued in
accordance with the other provisions of this Agreement and
other Loan Documents.
For purposes of Chapter 1D of Article 5069 of the Texas Credit Title,
Title 79, Vernon's Texas Civil Statutes, as amended (formerly Article
5069-1.04, Vernon's Texas Civil Statutes, as amended), to the extent, if any,
applicable to any Lender or Agent, Borrower and each other Designated Entity
agrees that the Maximum Lawful Rate shall be the "applicable interest rate
ceiling" as defined in said Chapter, provided that such Lender or Agent, as
applicable, may also rely, to the extent permitted by applicable laws of the
State of Texas and the United States of America, on alternative maximum rates
of interest under other laws applicable to such Lender or Agent from time to
time if greater.
Section 8.7 Termination; Limited Survival. In its sole and
absolute discretion, Borrower may, at any time that no Obligations or other
amounts are owing and no Letters of Credit are outstanding, elect to terminate
this Agreement in a written notice delivered to Administrative Agent. Upon
receipt by Administrative Agent of such a notice, if no Obligations or other
amounts are then owing and no Letters of Credit are outstanding, this Agreement
and all other Loan Documents shall thereupon be terminated and the parties
thereto released from all prospective obligations hereunder or thereunder.
Notwithstanding the foregoing or anything herein to the contrary, any waivers
or admissions made by any Designated Entity in any Loan Document, any
Obligations under Sections 2.16 through 2.20, any obligations which any
Designated Entity may have to indemnify or compensate any Agent, any Issuing
Bank, or any Lender in connection with matters arising upon or prior to the
79
84
termination of this Agreement and any obligations which any Lender may have to
indemnify or compensate any Agent or Issuing Bank in connection with matters
arising upon or prior to the termination of this Agreement shall survive any
termination of this Agreement or any other Loan Document and the release of
Designated Entities. At the request and expense of Borrower, Managing Agents
shall prepare and execute all necessary instruments to reflect and effect such
termination of the Loan Documents including, without limitation, the Security
Instruments. Managing Agents are hereby authorized, jointly and severally, to
execute all such instruments on behalf of all Lenders, without the joinder of
or further action or consent by any Lender.
Section 8.8 Assignments; Participations.
(a) Each Lender shall have the right to sell, assign or transfer
all or any part of such Lender's Notes, Loans, Commitments and
LC Obligations hereunder to one or more Affiliates, Lenders,
financial institutions, pension plans, investment funds, or
similar Persons or to a Federal Reserve Bank; provided, that
in connection with each sale, assignment or transfer (other
than to an Affiliate, a Lender or a Federal Reserve Bank), the
applicable Lender will consider the opinion and recommendation
of Borrower, which opinion and recommendation shall in no way
be binding upon such Lender, and each such sale, assignment,
or transfer (other than to an Affiliate, a Lender or a Federal
Reserve Bank) shall be with the consent of Borrower (unless an
Event of Default has occurred and is continuing), which
consent will not be unreasonably withheld, and with the
consent of Administrative Agent, which consent will not be
unreasonably withheld, and the assignee, transferee or
recipient shall have, to the extent of such sale, assignment,
or transfer, the same rights, benefits and obligations as it
would if it were such Lender and a holder of such Notes,
Commitments and LC Obligations, including, without limitation,
the right to vote on decisions requiring consent or approval
of all Lenders, Majority Lenders or Required Lenders and the
obligation to fund its Loans; provided further, that (1) each
Lender in making each such sale, assignment, or transfer must
sell, assign or transfer a pro rata portion of its Commitments
and each Loan (other than a Swing Line Advance or a
Competitive Bid Advance) and LC Obligation made or held by
such Lender, (2) each such sale, assignment, or transfer
(other than to an Affiliate, a Lender or a Federal Reserve
Bank) shall be in an aggregate principal amount not less than
$10,000,000, (3) each remaining Lender shall at all times
maintain Commitments then outstanding in an aggregate
principal amount at least equal to $10,000,000; (4) no Lender
may offer to sell its Notes, Commitments, LC Obligations or
Loans or interests therein in violation of any securities
laws; and (5) no such assignments (other than to a Federal
Reserve Bank) shall become effective until the assigning
Lender delivers to Administrative Agent and Borrower copies of
all written assignments and other
80
85
documents evidencing any such assignment and an Agreement to
be Bound in the form of Exhibit L, providing for the
assignee's ratification and agreement to be bound by the terms
of this Agreement and the other Loan Documents. An assignment
fee in the amount of $3,500 for each such assignment (other
than to an Affiliate, a Lender or a Federal Reserve Bank) will
be payable to Administrative Agent by assignor or assignee.
Within five (5) Business Days after its receipt of copies of
any assignment and the other documents relating thereto and
the following described Notes, Borrower shall execute and
deliver to Administrative Agent (for delivery to the relevant
assignee) new Notes evidencing such assignee's assigned Loans
and Commitments and if the assignor Lender has retained a
portion of its Loans, replacement Notes in the principal
amount of the Loans and Commitments retained by the assignor
Lender (except as provided in the last sentence of this
paragraph (a) such Notes to be in exchange for, but not in
payment of, the Notes held by such Lender). On and after the
effective date of an assignment hereunder, the assignee shall
for all purposes be a Lender, party to this Agreement and any
other Loan Document executed by the Lenders and shall have all
the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party
thereto, and no further consent or action by Borrower, Lenders
or any Agent shall be required to release the transferor
Lender, with respect to the Commitments, the LC Obligations
and the Loans assigned to such assignee and the transferor
Lender shall henceforth be so released.
(b) Each Lender shall have the right to grant participations in
all or any part of such Lender's Notes, Commitments, LC
Obligations, and Loans hereunder to one or more pension plans,
investment funds, financial institutions or other Persons;
provided, that:
(1) each Lender granting a participation shall retain the
right to vote hereunder, and no participant shall be
entitled to vote hereunder on decisions requiring
consent or approval of Lenders, Majority Lenders or
Required Lenders (except as set forth in (3) below);
(2) in the event any Lender grants a participation
hereunder, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto
for the performance of such obligations, such Lender
shall remain the holder of any such Notes for all
purposes under the Loan Documents, and each Agent,
each Lender and Borrower shall be entitled to deal
with the Lender granting a participation in the same
manner as if no participation had been granted; and
81
86
(3) no participant shall ever have any right by reason of
its participation to exercise any of the rights of
Lenders hereunder, except that any Lender may agree
with any participant that such Lender will not,
without the consent of such participant (which
consent may not be unreasonably withheld), consent to
any amendment or waiver described in Section 8.1
requiring approval of 100% of the Lenders.
(c) It is understood and agreed that any Lender may provide to
assignees and participants and prospective assignees and
participants financial information and reports and data
concerning Borrower's properties and operations which was
provided to such Lender pursuant to this Agreement, subject to
Section 8.9.
(d) Upon the reasonable request of either of the Managing Agents
or Borrower, each Lender will identify those to whom it has
assigned or participated any part of its Notes, LC Obligations
or Loans, and provide the amounts so assigned or participated.
Section 8.9 Confidentiality. Each Agent and each Lender agrees
that it (a) will maintain the confidentiality of all non-public information
from any Designated Entity or any Subsidiary of Borrower obtained pursuant to
the terms of this Agreement or any other Loan Document in accordance with safe
and sound banking practices, and (b) will not use such confidential information
for any purpose other than in connection with this Agreement; provided,
however, that this restriction shall not apply to information which (w) has at
the particular time in question entered the public domain, or been
independently developed without the use or incorporation of any non-public
information provided to such Agent or Lender by any Designated Entity or any
Subsidiary of Borrower by such Agent or such Lender other than through
disclosure by such Agent or such Lender in violation of this Section, (x) is
required to be disclosed by law or by any order, rule, regulation or legal
process (whether valid or invalid) of any court or Governmental Authority, (y)
is furnished to any other Lender or to any purchaser or prospective purchaser
of participations, assignments or other interests in any Loan, Note, LC
Obligation or Commitment that has executed and delivered to Borrower an
agreement containing terms substantially similar to this Section and reasonably
acceptable to Borrower, to keep such information confidential or (z) is
disclosed to such Lender's or Agent's examiners, Affiliates, outside auditors,
counsel and other professional advisors who have a need for such information in
connection with this Agreement and who are advised of the confidential nature
of such information. As used in this Section, the terms "Agent" and "Lender"
shall refer not only to the Persons designated as such in Section 1.1, but also
to each director, Affiliate, officer, agent, attorney, employee and
representative of such Person. Notwithstanding any other provisions of this
Agreement, the terms of this Section shall survive the termination of this
Agreement for a period of three (3) years.
82
87
Section 8.10 Severability. If any term or provision of any Loan
Document shall be determined to be illegal or unenforceable in any
jurisdiction, such term or provision shall, as to such jurisdiction, be illegal
or unenforceable, without affecting the remaining provisions in that
jurisdiction or the legality or enforceability of such terms or conditions in
any other jurisdiction.
Section 8.11 Counterparts. This Agreement may be separately
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to
constitute one and the same Agreement.
Section 8.12 WAIVER OF JURY TRIAL, PUNITIVE DAMAGES. EACH OF THE
BORROWER, AGENTS AND LENDERS HEREBY (I) IRREVOCABLY WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED
THEREBY OR ASSOCIATED THEREWITH, BEFORE OR AFTER MATURITY; (II) IRREVOCABLY
WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES; (III) CERTIFIES THAT NO PARTY HERETO NOR ANY
REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (IV) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
Section 8.13 Several Obligations. The respective obligations of
Lenders hereunder are several and not joint and no Lender shall be the partner
or agent of any other (except to the extent to which an Agent is authorized to
act as such). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its obligations
hereunder. This Agreement is not intended to, and shall not be construed so as
to, confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
Section 8.14 Nonliability of Lenders. The relationship between
Borrower on the one hand and Lenders and Agents on the other hand shall be
solely that of borrower and lender. None of the Agents nor any Lender shall
have any fiduciary responsibilities to Borrower or any of its respective
Subsidiaries. None of the Agents nor any Lender undertakes
83
88
any responsibility to Borrower or any of their respective Subsidiaries to
review or inform Borrower of any matter in connection with any phase of
Borrower's or such Subsidiary's business or operations.
Section 8.15 Setoff. In addition to, and without any limitation
of, any rights of the Lenders under applicable law, if Borrower becomes
insolvent, however evidenced, or any Event of Default or Default occurs and the
maturity of the Obligations has been accelerated, any indebtedness from any
Lender to Borrower (including all account balances, whether provisional or
final and whether or not collected or available) may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or not the
Obligations, or any part thereof, shall then be due and payable.
Section 8.16 Release of Liens. Upon the date of execution and
delivery of a Guaranty of the type referred to in clause (i) of the definition
of "Guaranty" by a Restricted Subsidiary the capital stock of which has been
pledged (each such date, a "Stock Pledge Release Date"), the Collateral Agent
shall release and discharge, at the cost or expense of Borrower, the Pledge
Agreement covering such Subsidiary's capital stock, all of Lenders' and
Collateral Agent's rights and interests in such Pledge Agreement and all liens,
security interests, pledges and encumbrances created or existing under or
pursuant to such Pledge Agreement.
SECTION 8.17 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
LENDERS OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
COLLATERAL AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
TEXAS. FOR THE PURPOSE OF ANY ACTION OR PROCEEDING INSTITUTED IN THE FEDERAL
OR STATE COURTS OF TEXAS, HOLDINGS HEREBY IRREVOCABLY DESIGNATES BORROWER WITH
OFFICES
84
89
ON THE DATE HEREOF AT ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ TO
RECEIVE FOR AND ON BEHALF OF HOLDINGS, SERVICES OF PROCESS IN TEXAS. BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND
ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
TO THE EXTENT THAT BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, BORROWER HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
Section 8.18 Assumption of Prior Indebtedness. Borrower hereby
assumes effective on the Effective Date, and Pioneer USA has assigned and
hereby assigns to Borrower, all of the Prior Indebtedness under the Existing
Credit Agreement (including any and all outstanding LC Obligations).
Section 8.19 Renewal, Extension or Rearrangement. All provisions
of this Agreement and any other Loan Document relating to the Notes or the
other Obligations (including LC Obligations) shall apply with equal force and
effect to each and all promissory notes or other agreements or instruments
hereafter executed which in whole or in part represent a renewal, extension,
increase or rearrangement of any part of the original Notes or Obligations.
Section 8.20 Entire Agreement. THIS WRITTEN AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
85
90
IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
BORROWER:
PIONEER NATURAL RESOURCES COMPANY
By:
--------------------------------------
Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
P.O. Box 3178
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 1
91
LENDERS:
NATIONSBANK OF TEXAS, N.A., individually
and as Administrative Agent and as
Collateral Agent
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇. ▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with further notice to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇. ▇▇▇▇▇▇ Markham IV
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 2
92
CIBC INC., individually and as Documentation
Agent
By:
------------------------------------------
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
----------------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with further notice to:
2 Houston Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 3
93
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Documentation Agent
By:
--------------------------------------
Name:
Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with further notice to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 4
94
THE CHASE MANHATTAN BANK, individually
and as Syndication Agent
By:
------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 5
95
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, individually and as
Co-Agent
By:
-------------------------------------
Name:
Title:
Address: 3 ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 6
96
THE BANK OF NEW YORK, individually and
as Co-Agent
By:
-------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 7
97
THE BANK OF NOVA SCOTIA, individually
and as Co-Agent
By:
------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with further notice to:
▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 8
98
ROYAL BANK OF CANADA, individually and as
Co-Agent
By:
----------------------------------------
Name:
Title:
Address: Financial Square
▇▇ ▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Attention: Loan Administrator
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
W/copy to:
Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 9
99
UNION BANK OF CALIFORNIA, N.A.,
individually and as Co-Agent
By:
-----------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 10
100
▇▇▇▇▇ FARGO BANK, N.A.,
individually and as Co-Agent
By:
----------------------------------
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 11
101
THE FUJI BANK, LIMITED-HOUSTON AGENCY,
individually and as Co-Agent
By:
-----------------------------------
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 12
102
DEN NORSKE BANK ASA, individually and
as Lead Manager
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 13
103
BANQUE PARIBAS, individually and as
Lead Manager
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Two ▇▇▇▇▇ Center
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 14
104
FIRST UNION NATIONAL BANK, individually
and as Lead Manager
By:
--------------------------------------
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 15
105
BANKERS TRUST COMPANY, as a Lender
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
M.S. ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 16
106
CREDIT AGRICOLE INDOSUEZ, as a Lender
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with further notice to:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 17
107
NATEXIS BANQUE, as a Lender BFCE
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 18
108
TORONTO DOMINION (TEXAS), INC., as
a Lender
By:
----------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 19
109
THE TOYO TRUST & BANKING CO., LTD.,
as a Lender
By:
-------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 20
110
WACHOVIA BANK, N.A., as a Lender
By:
-----------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 21
111
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH, as a Lender
By:
---------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Further notice to:
DKB-Houston LPO
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 22
112
THE SANWA BANK, LIMITED, as a Lender
By:
-------------------------------------
Name:
Title:
Address: 4100W Texas Commerce
Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 23
113
KREDIETBANK N.V., as a Lender
By:
-----------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Kredietbank N.V., Atlanta
Representative Office
Two Midtown Plaza, Suite 1750
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 24
114
For purposes of selling, assigning, transferring and conveying its
respective indebtedness, obligations and liabilities under the Existing Credit
Agreement to Borrower, the undersigned has caused this Agreement to be executed
by its officer thereunto duly authorized as of the date and year first above
written.
PIONEER NATURAL RESOURCES USA, INC.
By:
--------------------------------------
Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
[SIGNATURE PAGE TO PRIMARY CREDIT FACILITY]
S - 25
115
Exhibit A-1
[Form of]
Loan Note - Primary Credit Facility
$________________ ___________, 199___
FOR VALUE RECEIVED, the undersigned, PIONEER NATURAL RESOURCES
COMPANY, a Delaware corporation, with offices at ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ (herein called "Borrower"), hereby promises to pay to the order
of ________________________________ (herein called "Lender"), the principal sum
of _______________________________ and No/100 Dollars ($___________________),
or, if greater or less, the aggregate unpaid principal amount of each Loan made
under this Note by Lender to Borrower pursuant to the terms of the Credit
Agreement (as defined herein), together with interest on the unpaid principal
balance thereof as hereinafter set forth, both principal and interest payable
as herein provided in lawful money of the United States of America at the
principal banking offices of the Administrative Agent under the Credit
Agreement, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such other place as
from time to time may be designated by the holder of this Note, with the
concurrence of Borrower and Administrative Agent. Subject to the terms and
conditions of the Credit Agreement and hereof, Borrower may borrow, repay and
reborrow hereunder.
This Note (a) is issued and delivered under that certain Amended and
Restated Credit Facility Agreement dated as of December 18, 1997 by and among
Borrower, NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as
Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"Credit Agreement"), and is a "Loan Note" as defined therein, and (b) is
subject to the terms and provisions of the Credit Agreement, which contains
provisions for payment and prepayment hereunder and acceleration of the
maturity hereof upon the happening of certain events. Payments on this Note
shall be made and applied as provided herein and in the Credit Agreement.
Reference is hereby made to the Credit Agreement for a description of certain
rights, limitations of rights, obligations and duties of the parties hereto and
for the meanings assigned to terms used and not otherwise defined herein.
Exhibit A-1 - 1
116
Interest accrued on each Loan evidenced by this Note shall be payable,
without duplication: (a) on the Maturity Date; (b) with respect to any Base
Rate Portion of the Loans evidenced by this Note, on the third Business Day of
each Fiscal Quarter occurring after the date of the initial borrowing of a Base
Rate Portion hereunder; (c) with respect to any Eurodollar Portion of the Loans
evidenced by this Note, on the last day of each applicable Interest Period
(and, if such Interest Period shall exceed 90 days, on the 90th day of such
Interest Period and every 90 days thereafter until the end of such Interest
Period); (d) with respect to any Base Rate Portion converted into a Eurodollar
Portion of the Loans evidenced by this Note pursuant to a Rate Election on a
day when interest would not otherwise have been payable pursuant to clause (b),
on the third Business Day of each Fiscal Quarter occurring after the date of
such conversion; and (e) on any portion of the Loans evidenced by this Note,
the Maturity Date of which is accelerated pursuant to Section 6.1 of the Credit
Agreement, on the date to which the Maturity Date of such portion has been
accelerated. Interest accrued on the Loans evidenced by this Note or other
monetary Obligations arising under this Note, the Credit Agreement or any other
Loan Document after the date such amount is due and payable (whether on the
Maturity Date, upon acceleration or otherwise) shall be payable upon demand.
The principal amount of this Note, together with all interest accrued
hereon and unpaid, shall be due and payable in full on the Maturity Date.
The Base Rate Portion of the Loans evidenced by this Note (exclusive
of any past due principal or interest) from time to time outstanding shall bear
interest on each day outstanding at the Base Rate, plus the applicable Base
Rate Margin. Each Eurodollar Portion of the Loans evidenced by this Note
(exclusive of any past due principal or interest) shall bear interest on each
day during the related Interest Period at the applicable Eurodollar Rate, plus
the applicable Eurodollar Margin. All past due principal of the Loans
evidenced by this Note or other Obligations arising under the Credit Agreement
or any other Loan Document (whether payable on the Maturity Date or otherwise)
shall bear interest on each day outstanding after its due date at the
applicable Default Rate in effect on such day.
Notwithstanding the other provisions of this Note or the Credit
Agreement, in no event shall the interest payable hereon, whether before or
after maturity, exceed the Maximum Lawful Rate and this Note is expressly made
subject to the provisions of the Credit Agreement which more fully set out the
limitations on how interest accrues hereon. In the event applicable law
provides for a ceiling under Chapter 1D of Article 5069 of the Texas Credit
Title, Title 79, Vernon's Texas Civil Statutes, as amended
Exhibit A-1 - 2
117
(formerly Article 5069-1.04, Vernon's Texas Civil Statutes, as amended), that
ceiling shall be the "applicable interest rate ceiling" as defined in said
Chapter. The term "applicable law" as used in this Note shall mean the laws of
the State of Texas or the laws of the United States, whichever laws allow the
greater interest as such laws now exist or may be enacted, changed or amended
or come into effect in the future.
If this Note is placed in the hands of an attorney for collection
after a Default, or if all or any part of the indebtedness represented hereby
is proved, established or collected in any court or in any bankruptcy,
receivership, debtor relief, probate or other court proceedings, the
undersigned Borrower and all endorsers, sureties and guarantors of this Note
jointly and severally agree to pay reasonable attorneys' fees and collection
costs to the holder hereof in addition to the principal and interest payable
hereunder.
The undersigned Borrower and all endorsers, sureties and guarantors of
this Note hereby severally waive demand, presentment, notice of demand and of
dishonor and nonpayment of this Note, protest, notice of protest, notice of
intention to accelerate the maturity of this Note, declaration or notice of
acceleration of the maturity of this Note, diligence in collecting, the
bringing of any suit against any party and any notice of or defense on account
of any extensions, renewals, partial payments or changes in any manner of or in
this Note or in any of its terms, provisions and covenants, or any releases or
substitutions of any security, or any delay, indulgence or other act of any
trustee or any holder hereof, whether before or after maturity.
It is contemplated that by reason of prepayment hereon there may be
times when no indebtedness is owing hereunder; notwithstanding such
occurrences, this Note shall remain valid and shall be in full force and effect
as to Loans made pursuant to the Credit Agreement subsequent to each
occurrence.
Except as permitted by Section 8.8 of the Credit Agreement, this Note
may not be assigned by Lender to any other Person.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE UNDERSIGNED BORROWER AND LENDER WITH
RESPECT HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE SAME ARE
GOVERNED BY APPLICABLE FEDERAL LAW.
PIONEER NATURAL RESOURCES COMPANY
By:
---------------------------------------
Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Exhibit ▇-▇ - ▇
▇▇▇
▇▇▇▇▇▇▇ ▇-▇
[Form of]
Swing Line Note - Primary Credit Facility
$50,000,000 _________, 199___
FOR VALUE RECEIVED, the undersigned, PIONEER NATURAL RESOURCES
COMPANY, a Delaware corporation with offices at ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ (herein called "Borrower"), hereby promises to pay to the order
of NATIONSBANK OF TEXAS, N.A. (herein called "Lender"), the principal sum of
FIFTY MILLION AND NO/100 Dollars ($50,000,000), or, if less, the aggregate
unpaid principal amount of the Swing Line Advances made under this Note by
Lender to Borrower pursuant to the terms of the Credit Agreement (as defined
herein), together with interest on the unpaid principal balance thereof as
hereinafter set forth, both principal and interest payable as herein provided
in lawful money of the United States of America at the principal banking
offices of Administrative Agent under the Credit Agreement, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such other place as from time to time may be
designated by the holder of this Note, with the concurrence of Borrower and
Administrative Agent.
This Note (a) is issued and delivered under that certain Amended and
Restated Credit Facility Agreement dated as of December 18, 1997 by and among
Borrower, NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as
Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"Credit Agreement"), and is a "Swing Line Note" as defined therein, and (b) is
subject to the terms and provisions of the Credit Agreement, which contains
provisions for payment and prepayment hereunder and acceleration of the
maturity hereof upon the happening of certain events. Payments on this Note
shall be made and applied as provided herein and in the Credit Agreement.
Reference is hereby made to the Credit Agreement for a description of certain
rights, limitations of rights, obligations and duties of the parties hereto and
for the meanings assigned to terms used and not otherwise defined herein.
The unpaid principal amount of this Note, together with all interest
accrued hereon and unpaid, shall be due and payable in full as provided in the
Credit Agreement and not later than the Maturity Date. Interest accrued on the
Swing Line Advances evidenced by this Note shall be payable as provided in the
Credit Agreement.
Exhibit A-2 - 1
119
Notwithstanding other provisions of this Note or the Credit Agreement,
in no event shall the interest payable hereon, whether before or after
maturity, exceed the Maximum Lawful Rate and this Note is expressly made
subject to the provisions of the Credit Agreement which more fully set out the
limitations on how interest accrues hereon. In the event applicable law
provides for a ceiling under Chapter 1D of Article 5069 of the Texas Credit
Title, Title 79, Vernon's Texas Civil Statutes, as amended (formerly Article
5069-1.04, Vernon's Texas Civil Statutes, as amended), that ceiling shall be
the "applicable interest rate ceiling" as defined in said Chapter. The term
"applicable law" as used in this Note shall mean the laws of the State of Texas
or the laws of the United States, whichever laws allow the greater interest as
such laws now exist or may be enacted, changed or amended or come into effect
in the future.
If this Note is placed in the hands of an attorney for collection
after a Default, or if all or any part of the indebtedness represented hereby
is proved, established or collected in any court or in any bankruptcy,
receivership, debtor relief, probate or other court proceedings, the
undersigned Borrower and all endorsers, sureties and guarantors of this Note
jointly and severally agree to pay reasonable attorneys' fees and collection
costs to the holder hereof in addition to the principal and interest payable
hereunder.
The undersigned Borrower and all endorsers, sureties and guarantors of
this Note hereby severally waive demand, presentment, notice of demand and of
dishonor and nonpayment of this Note, protest, notice of protest, notice of
intention to accelerate the maturity of this Note, declaration or notice of
acceleration of the maturity of this Note, diligence in collecting, the
bringing of any suit against any party and any notice of or defense on account
of any extensions, renewals, partial payments or changes in any manner of or in
this Note or in any of its terms, provisions and covenants, or any releases or
substitutions of any security, or any delay, indulgence or other act of any
trustee or any holder hereof, whether before or after maturity.
It is contemplated that by reason of prepayment hereon there may be
times when no indebtedness is owing hereunder; notwithstanding such
occurrences, this Note shall remain valid and shall be in full force and effect
as to Loans made pursuant to the Credit Agreement subsequent to each
occurrence.
Except as permitted by Section 8.8 of the Credit Agreement, this Note
may not be assigned by Lender to any other Person.
Exhibit A-2 - 2
120
THIS NOTE AND THE RIGHTS AND DUTIES OF THE UNDERSIGNED BORROWER AND
LENDER WITH RESPECT HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE
SAME ARE GOVERNED BY APPLICABLE FEDERAL LAW.
PIONEER NATURAL RESOURCES COMPANY
By:
---------------------------------------
Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Exhibit ▇-▇ - ▇
▇▇▇
▇▇▇▇▇▇▇ ▇-▇
[Form of]
Competitive Bid Note - Primary Credit Facility
$1,075,000,000 __________, 199___
FOR VALUE RECEIVED, the undersigned, PIONEER NATURAL RESOURCES
COMPANY, a Delaware corporation, with offices at ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ (herein called "Borrower"), hereby promises to pay to the order
of __________________________________ (herein called "Lender"), the principal
sum of ONE BILLION SEVENTY-FIVE MILLION AND NO/100 DOLLARS ($1,075,000,000),
or, if less, the aggregate unpaid principal amount of all Competitive Bid
Advances shown on the schedule attached hereto (and any continuation thereof),
if so shown, made by the Lender to Borrower, together with interest on the
unpaid principal balance thereof as hereinafter set forth, both principal and
interest payable as herein provided in lawful money of the United States of
America at the principal banking offices of Administrative Agent under the
Credit Agreement (as defined herein), ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or
at such other place as from time to time may be designated by the holder of
this Note, with the concurrence of Borrower and Administrative Agent.
This Note (a) is issued and delivered under that certain Amended and
Restated Credit Facility Agreement dated as of December 18, 1997 by and among
Borrower, NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as
Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"Credit Agreement"), and is a "Competitive Bid Note" as defined therein, and
(b) is subject to the terms and provisions of the Credit Agreement, which
contains provisions for payment and prepayment hereunder and acceleration of
the maturity hereof upon the happening of certain events. Payments on this
Note shall be made and applied as provided herein and in the Credit Agreement.
Reference is hereby made to the Credit Agreement for a description of certain
rights, limitations of rights, obligations and duties of the parties hereto and
for the meanings assigned to terms used and not otherwise defined herein.
The unpaid principal amount of this Note, together with all interest
accrued hereon and unpaid, shall be due and payable in full as provided in the
Credit Agreement and not later than the Maturity Date.
Exhibit A-3 - 1
122
Interest accrued on the Competitive Bid Advances evidenced by this
Note shall be payable as provided in the Credit Agreement.
Notwithstanding other provisions of this Note or the Credit Agreement,
in no event shall the interest payable hereon, whether before or after
maturity, exceed the Maximum Lawful Rate and this Note is expressly made
subject to the provisions of the Credit Agreement which more fully set out the
limitations on how interest accrues hereon. In the event applicable law
provides for a ceiling under Chapter 1D of Article 5069 of the Texas Credit
Title, Title 79, Vernon's Texas Civil Statutes, as amended (formerly Article
5069-1.04, Vernon's Texas Civil Statutes, as amended), that ceiling shall be
the "applicable interest rate ceiling" as defined in said Chapter. The term
"applicable law" as used in this Note shall mean the laws of the State of Texas
or the laws of the United States, whichever laws allow the greater interest as
such laws now exist or may be enacted, changed or amended or come into effect
in the future.
If this Note is placed in the hands of an attorney for collection
after a Default, or if all or any part of the indebtedness represented hereby
is proved, established or collected in any court or in any bankruptcy,
receivership, debtor relief, probate or other court proceedings, the
undersigned Borrower and all endorsers, sureties and guarantors of this Note
jointly and severally agree to pay reasonable attorneys' fees and collection
costs to the holder hereof in addition to the principal and interest payable
hereunder.
The undersigned Borrower and all endorsers, sureties and guarantors of
this Note hereby severally waive demand, presentment, notice of demand and of
dishonor and nonpayment of this Note, protest, notice of protest, notice of
intention to accelerate the maturity of this Note, declaration or notice of
acceleration of the maturity of this Note, diligence in collecting, the
bringing of any suit against any party and any notice of or defense on account
of any extensions, renewals, partial payments or changes in any manner of or in
this Note or in any of its terms, provisions and covenants, or any releases or
substitutions of any security, or any delay, indulgence or other act of any
trustee or any holder hereof, whether before or after maturity.
It is contemplated that by reason of prepayment hereon there may be
times when no indebtedness is owing hereunder; notwithstanding such
occurrences, this Note shall remain valid and shall be in full force and effect
as to Competitive Bid Advances made pursuant to the Credit Agreement subsequent
to each occurrence.
Exhibit A-3 - 2
123
Except as permitted by Section 8.8 of the Credit Agreement, this Note
may not be assigned by Lender to any other Person.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE UNDERSIGNED BORROWER AND
LENDER WITH RESPECT HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE
SAME ARE GOVERNED BY APPLICABLE FEDERAL LAW.
PIONEER NATURAL RESOURCES COMPANY
By:
---------------------------------------
Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Exhibit ▇-▇ - ▇
▇▇▇
▇▇▇▇▇▇▇ ▇
[Note: Language in brackets will not be included in every Guaranty to the
extent that, at the time of execution and delivery of the Guaranty, such
execution and delivery would result in adverse tax consequences under Section
956 or substantial stamp tax or similar taxes, are prohibited pursuant to
contractual restrictions or are prohibited as a matter of corporate law.]
[Form of]
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of _______________, 199___,
made by _________________________ [(A.C.N. _____________)], a ________________
("Guarantor"), in favor of each of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Credit Facility
Agreement dated as of December 18, 1997 by and among Pioneer Natural Resources
Company, a Delaware corporation ("Borrower"), NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (together with all amendments, supplements, restatements
and other modifications, if any, thereafter made thereto, the "Primary Credit
Agreement"), the Lenders have extended Commitments (as defined in the Primary
Credit Agreement) to make Loans to Borrower and to issue or participate in
Letters of Credit on behalf of Borrower; and
WHEREAS, pursuant to that certain Amended and Restated Credit Facility
Agreement dated as of December 18, 1997 by and among Borrower, NationsBank of
Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Documentation Agent, The Chase Manhattan
Bank, as Syndication Agent, the Co- Agents party thereto, and the Lenders from
time to time parties thereto (together with all amendments, supplements,
restatements and other modifications, if any, thereafter made thereto, the "364
Day Credit Agreement", and together with the Primary Credit Agreement, the
"Credit Agreements"), the Lenders have extended Commitments (as defined in the
364 Day Credit Agreement) to make Loans to Borrower; and
WHEREAS, as a condition precedent to the making of the initial Loans
or issuing of the initial Letters of Credit under
Exhibit B - 1
125
the Credit Agreements, Guarantor is required to execute and deliver this
Guaranty; and
WHEREAS, Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of Guarantor to execute this
Guaranty inasmuch as Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to Borrower and Letters of
Credit issued on behalf of Borrower pursuant to the Credit Agreements;
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to Borrower pursuant to the Credit Agreements and
for the Issuing Bank to issue Letters of Credit on behalf of Borrower and for
the Lenders to acquire participations in such Letters of Credit pursuant to the
Primary Credit Agreement, Guarantor agrees, for the benefit of each Lender
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Borrower" is defined in the first recital.
"Commitments" means "Commitments" as defined in the Primary Credit
Agreement and "Commitments" as defined in the 364 Day Credit Agreement.
"Credit Agreements" is defined in the second recital.
"Debtor" is defined in Section 2.1(a)(i).
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender Party" means, as the context may require, any Lender, any
Issuing Bank or any Agent and each of its respective successors, transferees
and assigns under the Credit Agreements.
Exhibit B - 2
126
"Lenders" means "Lenders" as defined in the Primary Credit Agreement
and "Lenders" as defined in the 364 Day Credit Agreement.
"Loan Documents" means "Loan Documents" as defined in the Primary
Credit Agreement and "Loan Documents" as defined in the 364 Day Credit
Agreement.
"Notes" means "Notes" as defined in the Primary Credit Agreement and
"Notes" as defined in the 364 Day Credit Agreement.
"Obligations" means "Obligations" as defined in the Primary Credit
Agreement and "Obligations" as defined in the 364 Day Credit Agreement.
"Primary Credit Agreement" is defined in the first recital.
"364 Day Credit Agreement" is defined in the second recital.
SECTION 1.2. Primary Credit Agreement Definitions. Unless
otherwise defined herein or the context otherwise requires, terms used in this
Guaranty, including its preamble and recitals, have the meanings provided in
the Primary Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. Guarantor hereby absolutely,
unconditionally and irrevocably
(a) guarantees
(i) the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of
Borrower now or hereafter existing under the Credit
Agreements, the Notes, the LC Applications and each other Loan
Document to which Borrower is or may become a party, whether
for principal, interest, fees, expenses or otherwise;
(ii) the payment and performance of any and all
present or future obligations of Borrower according to the
terms of any present or future rate swap, rate cap, rate
floor, rate collar, currency exchange transaction, forward
rate agreement, or other exchange or rate protection
agreements or any option with respect to any such transaction
now existing or hereafter entered into between Borrower or any
of its Subsidiaries and one or more of the Lenders or their
Affiliates ("interest rate swap agreement");
Exhibit B - 3
127
(iii) the payment and performance of any and all
present or future obligations of Borrower according to the
terms of any present or future crude oil, natural gas or other
hydrocarbons swap agreements, crude oil, natural gas or other
hydrocarbons cap, crude oil, natural gas or other hydrocarbons
floor, crude oil, natural gas or other hydrocarbons collar,
crude oil, natural gas or other hydrocarbons exchange
transaction, forward crude oil, natural gas or other
hydrocarbons agreement, or other exchange or crude oil,
natural gas or other hydrocarbons protection agreements or any
option with respect to any such transaction now existing or
hereafter entered into between Borrower or any of its
Subsidiaries and one or more of the Lenders or their
Affiliates; and
(iv) all renewals, rearrangements, increases,
extensions for any period, substitutions, modification,
amendments or supplements in whole or in part of any of the
above loan documents or obligations,
(including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. Section 362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. Section 502(b) and Section 506(b)), and (b) indemnifies and
holds harmless strictly in accordance with the terms of the Credit
Agreements each Lender Party and each holder of a Note from Borrower,
an LC Application or any interest in an LC Obligation for any and all
costs and expenses (including reasonable attorney's fees and expenses)
incurred by such Lender Party or such holder, as the case may be, in
enforcing any rights under this Guaranty; provided, however, that
Guarantor shall only be liable under this Guaranty for the maximum
amount of such liability that can be hereby incurred without rendering
this Guaranty, as it relates to Guarantor, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. This Guaranty constitutes a guaranty of
payment when due and not of collection, and Guarantor specifically
agrees that it shall not be necessary or required that any Lender
Party or any holder of any Note exercise any right, assert any claim
or demand or enforce any remedy whatsoever against Borrower or any
other Designated Entity (or any other Person) before or as a condition
to the obligations of Guarantor hereunder. All payments hereunder are
to be made in the currency in which they are due under the Credit
Agreements.
SECTION 2.2. Acceleration of Guaranty. Guarantor agrees that, in
the event of the dissolution or insolvency of Borrower
Exhibit B - 4
128
or Guarantor, or the inability or failure of Borrower or Guarantor to pay debts
as they become due, or an assignment by Borrower or Guarantor for the benefit
of creditors, or the commencement of any case or proceeding in respect of
Borrower or Guarantor under any bankruptcy, insolvency or similar laws, and if
such event shall occur at a time when any of the Obligations of Borrower may
not then be due and payable, Guarantor will pay to the Lenders forthwith the
full amount which would be payable hereunder by Guarantor if all such
Obligations were then due and payable.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of
Borrower have been paid in full, all obligations of Guarantor hereunder shall
have been paid in full and all Commitments shall have terminated. Guarantor
guarantees that the Obligations of Borrower will be paid strictly in accordance
with the terms of the Credit Agreements and each other Loan Document under
which they arise, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of any
Lender Party or any holder of any Note with respect thereto. The liability of
Guarantor under this Guaranty shall be absolute, unconditional and irrevocable
irrespective of:
(a) (i) any lack of validity, legality or enforceability
of the Credit Agreements, any Note, any LC Application or any other
Loan Document or any portion of any thereof or (ii) the Credit
Agreements, any Note, any LC Application or any other Loan Document or
any portion of any thereof being void or voidable;
(b) the failure of any Lender Party or any holder of any
Note, any LC Application, Letter of Credit or any interest therein
(i) to assert any claim or demand or to enforce any
right or remedy against Borrower, any other Designated Entity
or any other Person (including any other guarantor) under the
provisions of the Credit Agreements, any Note, any LC
Application, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Obligations of
Borrower or any other Designated Entity;
(c) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations of Borrower
or any other Designated Entity, or any other
Exhibit B - 5
129
extension, compromise or renewal of any Obligation of Borrower or any
other Designated Entity;
(d) any reduction, limitation, impairment or termination
of any Obligations of Borrower or any other Designated Entity for any
reason, including any claim of waiver, release, surrender, alteration
or compromise, and shall not be subject to (and Guarantor hereby
waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Obligations of
Borrower, any other Designated Entity or otherwise;
(e) any amendment to, extensions of, rescission, waiver,
or other modification of, or any consent to departure from, any of the
terms of the Credit Agreements, any Note, any LC Application, any
Letter of Credit or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Lender Party or any holder of any Note, any LC
Application, any Letter of Credit or interest therein securing any of
the Obligations of Borrower or any other Designated Entity; or
(g) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable discharge
of, Borrower, any other Designated Entity, any surety or any
guarantor.
SECTION 2.4. Reinstatement. Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations guaranteed
hereby is rescinded or must otherwise be restored by any Lender Party or any
holder of any Note, any LC Application or any interest in an LC Obligation,
upon the insolvency, bankruptcy or reorganization of Borrower, or any other
Designated Entity or otherwise, all as though such payment had not been made.
SECTION 2.5. Waiver. Guarantor hereby waives promptness,
diligence, presentment, notice of acceptance and any other notice with respect
to any of the Obligations of Borrower or any other Designated Entity and this
Guaranty and any requirement that any Agent, any other Lender Party or any
holder of any Note, any LC Application, any Letter of Credit or any interest
therein protect, secure, perfect or insure any security interest or Lien,
Exhibit B - 6
130
or any property subject thereto, or exhaust any right or take any action
against Borrower, any other Designated Entity or any other Person (including
any other guarantor) or entity or any collateral securing the Obligations of
Borrower or any other Designated Entity, as the case may be.
SECTION 2.6. Waiver of Subrogation. Guarantor hereby irrevocably
waives any claim or other rights which it may now or hereafter acquire against
Borrower or any other Designated Entity that arise from the existence, payment,
performance or enforcement of Guarantor's obligations under this Guaranty or
any other Loan Document, including any right of subrogation, reimbursement,
contribution, exoneration, or indemnification, any right to participate in any
claim or remedy of the Lender Parties against Borrower or any other Designated
Entity or any collateral which the Collateral Agent now has or hereafter
acquires, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including the right to take or receive from
Borrower or any other Designated Entity, directly or indirectly, in cash or
other property or by set-off or in any manner, payment or security on account
of such claim or other rights. If any amount shall be paid to Guarantor in
violation of the preceding sentence and the Obligations shall not have been
paid in cash in full and the Commitments have not been terminated, such amount
shall be deemed to have been paid to Guarantor for the benefit of, and held in
trust for, the Lender Parties, and shall forthwith be paid to the Lender
Parties to be credited and applied upon the Obligations, whether matured or
unmatured; otherwise it shall be returned to remitter. Guarantor acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated by the Credit Agreements and that the waiver set
forth in this Section is knowingly made in contemplation of such benefits.
SECTION 2.7. Successors, Transferees and Assigns; Transfers of
Notes. This Guaranty shall:
(a) be binding upon Guarantor, and its successors,
transferees and assigns (provided, however, that Guarantor may not
assign any of its obligations hereunder without the prior written
consent of all Lenders); and
(b) inure to the benefit of and be enforceable by each
Agent and each other Lender Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note, Loan, LC
Application, Letter of Credit or interest therein held by it to any other
Person or entity, and such other Person or entity shall thereupon become vested
with all rights and benefits in respect thereof granted to such Lender under
any Loan
Exhibit B - 7
131
Document (including this Guaranty) or otherwise, subject, however, to any
contrary provisions in such assignment or transfer, and to the provisions of
Section 8.8 of the Credit Agreements.
SECTION 2.8. Taxes. All payments by the undersigned hereunder
shall be made free and clear of and without deduction for any present or future
income, excise, stamp, or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding franchise taxes and taxes imposed on or measured by
any Lender's net income or receipts (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any payment to
be made hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then, subject to the provisions of Section
2.9, the undersigned will:
(a) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(b) promptly forward to Administrative Agent an official
receipt or other documentation satisfactory to Administrative Agent
evidencing such payment to such authority; and
(c) pay to Administrative Agent for the account of the
applicable Lender(s) such additional amount(s) as is necessary to
ensure that the net amount actually received by each Lender will equal
the full amount such Lender would have received had no such
withholding or deduction been required and the undersigned hereby
acknowledges that it is not entitled to and will not seek recovery or
restitution of any amount due to any of the Lenders or Agents and paid
by it pursuant to this clause (c) or pursuant to the next sentence.
If any Taxes are directly asserted against any Agent or any Lender with respect
to any payment received by such Agent or such Lender hereunder, such Agent or
such Lender may pay such Taxes and, if paid in good faith, the undersigned will
promptly pay such additional amounts to the Administrative Agent for the
account of such Lender or Agent (including any penalties, interest or expenses)
as is necessary in order that the net amount received by such person after the
payment of such Taxes (including any taxes on such additional amount) shall
equal the amount such person would have received had no such Taxes been
asserted, subject to the provisions of Section 2.9.
The undersigned shall pay all stamp, transaction, registration and
similar taxes (including financial institutions
Exhibit B - 8
132
duties, debit taxes or other taxes payable by return and taxes passed on to any
Lender or Agent by a bank or financial institution (collectively "Stamp Taxes")
and, if the undersigned fails to pay any such charges or taxes after reasonable
notice from any such Lender or Agent, fines and penalties) which may be payable
or determined to be payable in relation to the execution, delivery, performance
or enforcement of this Guaranty or any Loan Document or any other transaction
contemplated by any Loan Document to which the undersigned is a party. The
undersigned hereby indemnifies each Lender and Agent against any liability
resulting from delay or omission to pay such charges or taxes except to the
extent the liability results from failure by the relevant Lender or Agent to
pay any such tax after having been delivered funds to do so by the undersigned
or to the extent such liability is for fines and penalties resulting from such
Lender's or Agent's failure to provide reasonable notice to the undersigned as
provided herein.
If the undersigned fails to pay any Taxes or Stamp Taxes when due to
the appropriate taxing authority or fails to remit to Administrative Agent, for
the account of the respective Lenders, the required receipts or other required
documentary evidence, the undersigned shall indemnify Lenders for any Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure, subject to the provisions of Section 2.9.
The undersigned waives any statutory right to recover from any Agent
or any Lender any amount due to any such Agent or Lender and paid by the
undersigned under this Section.
SECTION 2.9. Make-Whole Qualifications. Each Lender's claims for
reimbursements, payments, indemnities or otherwise under Section 2.8 and the
undersigned's obligations with respect thereto, shall be limited and qualified
by and subject to the following:
(a) the undersigned's obligation to pay, satisfy or
recognize such claim shall be limited to costs or losses incurred
within one (1) year immediately prior to any demand or request
therefor upon the undersigned;
(b) each Lender's demand for reimbursement, payment or
indemnity must be limited to that which is being generally applied at
the time by such Lender for comparable guarantors and guaranties
subject to similar provisions;
(c) each Lender which asserts its rights with respect
thereto or which is seeking or imposing such reimbursement, payment or
indemnity shall provide evidence regarding the basis of such claim and
the calculation and application thereof in reasonable detail and, in
determining such
Exhibit B - 9
133
amount, each Lender may use reasonable methods of attribution and
averaging; and
(d) each Lender which is seeking payment, indemnity or
reimbursement pursuant to Section 2.8 shall, if so requested by the
undersigned use reasonable efforts (subject to the overall policy
considerations of such Lender) to designate a different lending office
hereunder if to do so will avoid the need for, or reduce the amount
of, any such payment, indemnity or reimbursement; provided that,
Lender would, in its sole but reasonable determination, suffer no
material economic, legal or regulatory disadvantage or burden.
[SECTION 2.10. Judgment. Guarantor hereby agrees that:
(a) If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder in United States
Dollars into another currency, Guarantor agrees, to the fullest extent
permitted by law, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative
Agent could purchase United States Dollars with such other currency on
the Business Day preceding that on which final judgment is given.
(b) The obligation of Guarantor in respect of any sum due
from it to any Lender Party or any holder of a Note hereunder shall,
notwithstanding any judgment in a currency other than United States
Dollars, be discharged only to the extent that on the Business Day
following receipt by such Lender Party or such holder, as the case may
be, of any sum adjudged to be so due in such other currency such
Lender Party or such holder, as the case may be, may, in accordance
with normal banking procedures, purchase United States Dollars with
such other currency; in the event that the United States Dollars so
purchased are less than the sum originally due to such Lender Party in
United States Dollars, Guarantor, as a separate obligation and
notwithstanding any such judgment, hereby indemnifies and holds
harmless such Lender Party and such holder against such loss, and if
the United States Dollars so purchased exceed the sum originally due
to such Lender Party or such holder in United States Dollars, such
Lender Party or such holder, as the case may be, shall remit to
Guarantor such excess.]
Exhibit B - 10
134
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. Guarantor hereby
represents and warrants unto each Lender Party as set forth in this Article.
SECTION 3.1.1. Organization, Existence and Good Standing. Guarantor
is duly organized or incorporated, validly existing and in good standing under
the laws of its jurisdiction of organization or incorporation, having all
corporate or partnership powers required to enter into and carry out the
transactions contemplated hereby. Guarantor is duly qualified, in good
standing, and authorized to do business in all other jurisdictions within the
United States wherein the character of the properties owned or held by it or
the nature of the business transacted by it makes such qualification necessary,
except for any lack of qualification, good standing or authorization that is
not reasonably expected to result in a Material Adverse Effect. Guarantor has
taken all actions customarily taken in order to enter, for the purpose of
conducting business or owning property, each jurisdiction outside the United
States wherein the character of the properties owned or held by it or the
nature of the business transacted by it makes such actions desirable, except
any failure to take such action that is not reasonably expected to result in a
Material Adverse Effect.
SECTION 3.1.2. Authorization. Guarantor has duly taken all
corporate, partnership or shareholder action necessary to authorize the
execution and delivery by it of this Guaranty and to authorize the consummation
of the transactions contemplated hereby and the performance of its obligations
hereunder.
SECTION 3.1.3. No Conflicts or Consents. The execution and delivery
by Guarantor of this Guaranty, the performance by it of its obligations
hereunder, and the consummation of the transactions contemplated by the various
Loan Documents, do not and will not (i) conflict with any provision of the
articles or certificate of incorporation, bylaws, charter, or partnership
agreement or certificate of such Guarantor, or (ii) except as to matters that
could not reasonably be expected to result in a Material Adverse Effect, result
in the acceleration of any Debt owed by such Guarantor, or conflict with any
law, statute, rule, regulation, or agreement, judgment, license, order or
permit applicable to or binding upon such Guarantor, or require the consent,
approval, authorization or order of, or notice to or filing with, any court or
Governmental Authority or third party, or result in or require the creation of
any Lien upon any material assets or properties of such Guarantor, except as
permitted in the Loan Documents.
SECTION 3.1.4. Enforceable Obligations. This Guaranty is the legal,
valid and binding obligation of Guarantor, enforceable in accordance with its
terms, except as such enforcement may be
Exhibit B - 11
135
limited by bankruptcy, insolvency or similar laws of general application
relating to the enforcement of creditors' rights and by general principles of
equity.
ARTICLE IV
COVENANTS
SECTION 4.1. Covenants. Guarantor covenants and agrees that, so
long as any portion of the Obligations of Borrower shall remain unpaid or any
Lender shall have any outstanding Commitment, Guarantor will, unless the
Required Lenders shall otherwise consent in writing, perform or comply with the
obligations of a Restricted Subsidiary of Borrower set forth in Sections 5.1
and 5.2 of the Credit Agreements, subject to any limitations on performance or
compliance contained in such sections, including, without limitation, the
limitation, when applicable, that the failure to perform or comply could not
reasonably be expected to have a Material Adverse Effect.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Loan Document. This Guaranty is a Loan Document
executed pursuant to the Credit Agreements and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof.
SECTION 5.2. Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.7, this
Guaranty shall be binding upon Guarantor and its successors, transferees and
assigns and shall inure to the benefit of and be enforceable by each Lender
Party and each holder of a Note, an LC Application, or an interest in an LC
Obligation and their respective successors, transferees and assigns (to the
full extent provided pursuant to Section 2.7); provided, however, that
Guarantor may not assign any of its obligations hereunder without the prior
written consent of all Lenders.
SECTION 5.3. Amendments. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by Guarantor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 5.4. Notices. All notices, requests, consents, demands
and other communications required or permitted hereunder shall be in writing,
unless otherwise specifically provided herein and shall be deemed sufficiently
given or furnished if
Exhibit B - 12
136
delivered by personal delivery, by telecopy (with telephonic confirmation of
transmission, by delivery service with proof of delivery, or by registered or
certified United States mail, postage prepaid, to Guarantor at the address of
Guarantor specified on the signature pages hereto and to each Agent and each
Lender at their addresses specified on the signature pages to the Credit
Agreements (unless changed by similar notice in writing given by the particular
Person whose address is to be changed). Any such notice or communication shall
be deemed to have been given:
(a) in the case of personal delivery or delivery service,
as of the date of first attempted delivery at the address provided
herein;
(b) in the case of telecopy, upon receipt; or
(c) in the case of registered or certified United States
mail, three days after deposit in the mail, postage prepaid.
SECTION 5.5. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part of any
Lender Party or any holder of a Note, an LC Application, or an interest in an
LC Obligation to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION 5.6. Section Captions. Section captions used in this
Guaranty are for convenience of reference only, and shall not affect the
construction of this Guaranty.
SECTION 5.7. Severability. Wherever possible each provision of
this Guaranty shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Guaranty shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.8. Governing Law, Entire Agreement. THIS GUARANTY SHALL
BE DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE STATE OF TEXAS
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THIS GUARANTY AND THE OTHER LOAN
DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES
Exhibit B - 13
137
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 5.9. Waiver of Jury Trial. EACH OF GUARANTOR, AGENTS AND
LENDERS HEREBY (a) IRREVOCABLY WAIVES, THE MAXIMUM EXTENT NOT PROHIBITED BY
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED THEREWITH,
BEFORE OR AFTER MATURITY; (b) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (c) CERTIFIES THAT
NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (d)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO AND ACCEPT THIS GUARANTY,
THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS
SECTION.
SECTION 5.10. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER
PARTIES OR GUARANTOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST
ANY PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT'S OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. GUARANTOR HEREBY EXPRESSLY
AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS
AND THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
TEXAS. FOR PURPOSES OF ANY ACTION OR PROCEEDING INSTITUTED IN THE FEDERAL OR
STATE COURTS OF TEXAS, THE UNDERSIGNED HEREBY IRREVOCABLY DESIGNATES BORROWER
WITH OFFICES ON THE DATE HEREOF AT ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ TO RECEIVE FOR AND ON BEHALF OF THE UNDERSIGNED SERVICE OF PROCESS
IN TEXAS. GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT
Exhibit B - 14
138
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY.
THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
Exhibit B - 15
139
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written but effective as of the Effective Date.
[Name of Guarantor]
By
------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit B - 16
140
Exhibit C
Form of Request for Advance
_____________, ________
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Re: Request for Advance - Primary Credit Facility
Gentlemen:
Reference is made to that certain Amended and Restated Credit Facility
Agreement dated as of December 18, 1997 by and among Borrower, NationsBank of
Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Documentation Agent, The Chase Manhattan
Bank, as Syndication Agent, the Co- Agents party thereto, and the Lenders from
time to time parties thereto (the "Credit Agreement"). Terms which are defined
in the Credit Agreement and which are used but not defined herein are used
herein with the meanings ascribed to them in the Credit Agreement. Pursuant to
the terms of the Credit Agreement, the undersigned Borrower hereby requests
that Lenders make Advances to the undersigned Borrower in the aggregate
principal amount of $__________________, specifies _______________, _______, as
the date the undersigned Borrower desires for Lenders to make such Advances and
requests that Administrative Agent deliver to the undersigned Borrower the
proceeds thereof on such date.
To induce Lenders to make such Advances, the undersigned Borrower
hereby represents, warrants, acknowledges, and agrees to and with each Agent
and each Lender that:
(a) The Designated Officer of Borrower signing this instrument is
a duly elected, qualified and acting officer of the undersigned Borrower,
holding the office indicated below such officer's signature hereto and having
all necessary authority to act for the undersigned Borrower in making and
delivering this Request for Advance.
(b) The representations and warranties of the undersigned Borrower
and each other Designated Entity set forth in the Credit Agreement and the
other Loan Documents are true and correct on and as of the date hereof, with
the same effect as though such
Exhibit C - 1
141
representations and warranties had been made on and as of the date hereof.
(c) There does not exist on the date hereof any condition or event
which constitutes a Default which has not been waived in writing as provided in
Section 6.1 of the Credit Agreement; nor will any such Default exist upon the
undersigned Borrower's receipt and application of the Advances requested
hereby. The undersigned Borrower will use the Advances hereby requested in
compliance with the Credit Agreement.
(d) Except to the extent waived in writing as provided in Section
6.1 of the Credit Agreement, the undersigned Borrower has performed and
complied with all agreements and conditions in the Credit Agreement required to
be performed or complied with by the undersigned Borrower on or prior to the
date hereof, and each of the conditions precedent to Advances contained in the
Credit Agreement remains satisfied.
(e) The aggregate unpaid principal balance of the Advances under
the Facility after the making of such Advance requested hereby, plus the
aggregate outstanding amount of LC Obligations and Swing Line Advances and
Competitive Bid Advances at the date hereof will not be in excess of the
Facility Amount on the date requested for the making of such Advances.
(g) The Loan Documents have not been modified, amended or
supplemented by any unwritten representations or promises, by any course of
dealing, or by any other means not provided for in Section 8.1 of the Credit
Agreement. The Credit Agreement and the other Loan Documents are hereby
ratified, approved, and confirmed in all respects.
The undersigned Borrower agrees that if, prior to the time of the
Advances requested hereby, any matter certified to herein by it will not be
true and correct at such time as if then made, it will immediately so notify
Administrative Agent. Except to the extent, if any, that, prior to the time of
the Advances requested hereby, Administrative Agent shall have received written
notice from the undersigned Borrower to the contrary, each matter certified
herein shall be deemed once again to be certified as true and correct as of the
date of such Advances as if then made.
The Designated Officer of the undersigned Borrower signing this
instrument hereby certifies that, to the best of his
Exhibit C - 2
142
knowledge, the above representations, warranties, acknowledgments and
agreements of the undersigned Borrower are true, correct and complete.
PIONEER NATURAL RESOURCES COMPANY
By:
---------------------------------
Name:
Title:
Exhibit C - 3
143
Exhibit D
Form of Rate Election
____________________, ________
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Re: Rate Election - Primary Credit Facility
Gentlemen:
Reference is made to that certain Amended and Restated Credit Facility
Agreement dated as of December 18, 1997 by and among Borrower, NationsBank of
Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Documentation Agent, The Chase Manhattan
Bank, as Syndication Agent, the Co- Agents party thereto, and the Lenders from
time to time parties thereto (the "Credit Agreement"). Terms which are defined
in the Credit Agreement and which are used but not defined herein are used
herein with the meanings ascribed to them in the Credit Agreement. Pursuant to
the terms of the Credit Agreement, the undersigned Borrower hereby elects a
Tranche of Eurodollar Portions in the aggregate amount of $___________ with an
Interest Period beginning on __________ and continuing for a period of
___________________.
To satisfy the conditions set out in the Credit Agreement for the
making of such election, the undersigned Borrower hereby represents, warrants,
acknowledges and agrees that:
(a) The Designated Officer of the undersigned Borrower signing
this instrument is a duly elected, qualified and acting officer of such
Borrower, holding the office indicated below such officer's signature hereto
and having all necessary authority to act for such Borrower in making and
delivering this Rate Election.
(b) There does not exist on the date hereof any condition or event
which constitutes a Default which has not been waived in writing as provided in
Section 6.1 of the Credit Agreement.
(c) The Loan Documents have not been modified, amended or
supplemented by any unwritten representations or promises, by any course of
dealing, or by any other means not provided for in
Exhibit D - 1
144
Section 8.1 of the Credit Agreement. The Credit Agreement and the other Loan
Documents are hereby ratified, approved, and confirmed in all respects.
(d) The undersigned Borrower further agrees that if, on or prior
to the date of the commencement of the Interest Period designated herein, any
matter certified herein by it will not be true and correct at such time as if
such certification were then made, it will immediately so notify Administrative
Agent. Except to the extent, if any, that prior to the commencement of the
Interest Period designated herein Administrative Agent shall receive written
notice to the contrary from the undersigned Borrower, each matter certified
herein shall be deemed to be certified as of the date of the commencement of
such Interest Period as if then made.
The Designated Officer of the undersigned Borrower signing this
instrument hereby certifies that, to the best of his knowledge, the above
representations, warranties, acknowledgments and agreements of the undersigned
Borrower are true, correct and complete.
PIONEER NATURAL RESOURCES COMPANY
By:
----------------------------------
Name:
Title:
Exhibit D - 2
145
Exhibit E
Form of Request for Swing Line Advance
VIA FACSIMILE # (▇▇▇)▇▇▇-▇▇▇▇
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Reference is made to the Primary Credit Facility pursuant to that
certain Amended and Restated Credit Facility Agreement dated as of December 18,
1997 by and among Borrower, NationsBank of Texas, N.A., as Administrative
Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Documentation Agent, The Chase Manhattan Bank, as Syndication Agent,
the Co-Agents party thereto, and the Lenders from time to time parties thereto
(the "Credit Agreement"),. Capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned in the Credit Agreement.
In accordance with Section 2.5, the undersigned hereby requests a
Swing Line Advance in an amount of $__________________ to be advanced today,
__________________________. We request this advance be for a period of
________ day(s), maturing on ___________________.
If you have any questions regarding this request, please contact the
undersigned at (915) _____________.
PIONEER NATURAL RESOURCES COMPANY
By:
----------------------------------
Name:
Title:
Exhibit E - 1
146
Exhibit F
Form of Swing Line Participation Certificate
__________________ ,199__
[Name of Bank]
__________________________
__________________________
__________________________
Gentlemen:
Reference is made to the Primary Credit Facility pursuant to that
certain Amended and Restated Credit Facility Agreement dated as of December 18,
1997 by and among Borrower, NationsBank of Texas, N.A., as Administrative
Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Documentation Agent, The Chase Manhattan Bank, as Syndication Agent,
the Co-Agents party thereto, and the Lenders from time to time parties thereto
(the "Credit Agreement"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned in the Credit Agreement.
Pursuant to subsection 2.6(b)(i) of the Credit Agreement, the
undersigned hereby acknowledges receipt from you on the date hereof of
_______________________ DOLLARS ($______________) as payment for a
participating interest in the following Swing Line Advance(s):
Date(s) of Swing Line Advance(s): ______________, 199__
Principal Amount of Swing Line Advance(s): $____________________
Very truly yours,
NATIONSBANK OF TEXAS, N.A., as Swing
Line Lender
By:
----------------------------------
Name:
Title:
Exhibit F - 1
147
Exhibit G
[INTENTIONALLY OMITTED]
Exhibit G - 1
148
Exhibit H
Forms of Opinion of Borrower's and Restricted Subsidiaries' Counsel
Exhibit H - 1
149
Exhibit I
Organization Chart of Borrower and its Subsidiaries
Exhibit I has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been
disclosed elsewhere if disclosure of such information is required. Pioneer
Natural Resources Company agrees to furnish supplementally a copy of any
omitted schedule to the Securities and Exchange Commission upon request.
Exhibit I - 1
150
Exhibit J
Form of Designated Officer's Certificate
Reference is made to (i) the Primary Credit Facility pursuant to that
certain Amended and Restated Credit Facility Agreement dated as of December 18,
1997 by and among Borrower, NationsBank of Texas, N.A., as Administrative
Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Documentation Agent, The Chase Manhattan Bank, as Syndication Agent,
the Co-Agents party thereto, and the Lenders from time to time parties thereto
(the "Primary Credit Agreement") and (ii) the 364 Day Credit Facility pursuant
to that certain Amended and Restated Credit Facility Agreement dated as of
December 18, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "364 Day Credit Agreement" and, together with the
Primary Credit Facility, the "Credit Agreements"). Terms which are defined in
the Credit Agreements and which are used but not defined herein are used herein
with the meanings given them in the Credit Agreements.
This Certificate is furnished pursuant to Section 5.1(b)(2) of the
Credit Agreements. Together herewith the Borrower is furnishing to Managing
Agents, the Co-Agents and each Lender the Borrower's [FINANCIAL STATEMENTS]
(the "Financial Statements") as of ______________(the "Reporting Date"). The
Borrower hereby represents, warrants, and acknowledges to Agents and each
Lender that:
(a) the Designated Officer of the Borrower signing this instrument
is a duly elected, qualified and acting officer of the
Borrower;
(b) the Financial Statements are accurate and complete and satisfy
the requirements of the Credit Agreements;
(c) attached as Schedule I hereto is a schedule of calculations
showing compliance (or noncompliance, as the case may be) as
of the Reporting Date with the requirements of Section 5.3 of
the Credit Agreements; and
(d) on the Reporting Date, each Borrower was, and on the date
hereof the Borrower is, in full compliance with the disclosure
requirements of Section 5.1(d) of the Credit Agreements, and
no Default otherwise existed on the Reporting Date or
otherwise exists on the date of
Exhibit J - 1
151
this Certificate [except for Default(s) under Section(s)
________________ of the Credit Agreements, which [is/are] more
fully described on a schedule attached hereto].
The Designated Officer of the Borrower signing this instrument hereby
certifies that he has reviewed the Loan Documents and the Financial Statements
and has otherwise undertaken such inquiry as is in his opinion necessary to
enable him to express an informed opinion with respect to the above
representations, warranties and acknowledgments of the Borrower and, to the
best of his knowledge, such representations, warranties, and acknowledgments
are true, correct and complete.
PIONEER NATURAL RESOURCES COMPANY
By:
----------------------------------
Name:
Title:
Date:
---------------------------------
Exhibit J - 2
152
Schedule I
================================================================================
COMPLIANCE WITH FINANCIAL COVENANTS AS OF _____________. ($ in 000's)
================================================================================
A. EBITDAX TO CONSOLIDATED INTEREST EXPENSE RATIO
Minimum ratio allowed 3.75
============
B. CONSOLIDATED TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION
Maximum ratio allowed 60%
============
================================================================================
COMPUTATION OF FINANCIAL REQUIREMENTS AND RATIOS AS OF _____________
================================================================================
A. EBITDAX TO CONSOLIDATED INTEREST EXPENSE RATIO
(Section 5.3(a)) ($ in 000's)
(i) EBITDAX (as defined in Section 5.3(a))
For the period ended __________, the sums
of the amounts for such period of
Consolidated net income, Consolidated
Interest Expense, depreciation expense,
depletion expense, amortization expense,
federal and state income taxes,
exploration and abandonment expense and
other non-cash charges and expenses, all
as determined on a Consolidated basis for
Borrower and its Consolidated
Subsidiaries; $______________
(ii) CONSOLIDATED INTEREST EXPENSE
(as defined in Section 5.3(a))
For the period ended ___________________,
total interest expense,
Exhibit J - 3
153
whether paid or accrued, of Borrower and
its Consolidated Subsidiaries on a
Consolidated basis, including, without
limitation, all commissions, discounts
and other fees and charges owed with
respect to Letters of Credit. $______________
CONSOLIDATED INTEREST EXPENSE
$
==============
EBITDAX TO CONSOLIDATED INTEREST EXPENSE RATIO ((i)(ii))
$
==============
Minimum ratio allowed $ 3.75:1
==============
B. CONSOLIDATED TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION (Section 5.3(b)) ($ in 000's)
(i) CONSOLIDATED TOTAL FUNDED DEBT
(as defined in Section 1.1)
(a) All indebtedness of Borrower and
its Consolidated Subsidiaries for
borrowed money $_____________
(b) Plus indebtedness of Borrower and
its Consolidated Subsidiaries
constituting an obligation to pay
the deferred purchase price of
property or services (other than
customary payment terms taken in
the ordinary course of the
business) $_____________
(c) Plus indebtedness of Borrower and
its Consolidated Subsidiaries
evidenced by a bond, debenture,
note or similar instrument $_____________
(d) Plus principal obligations under
leases capitalized in accordance
with GAAP under which either
Borrower or any of its
Consolidated Subsidiaries is the
lessee $_____________
(e) Plus indebtedness or obligations
of the type described in clauses
(a), (b), (c) or (d) of the
definition of Debt, which are
secured by a Lien on any property
owned by Borrower or any of its
Consolidated Subsidiaries, whether
or not such indebtedness or
obligations have been assumed by
Borrower or any of its
Consolidated Subsidiaries (limited
however to the lesser of (1) the
amount of its liability or (2) the
value
Exhibit J - 4
154
of such property) (excluding Debt
of the type referred to in clause
(e) of the definition of "Debt") $_____________
(f) Plus the undischarged balance of
any production payment created by
Borrower or any of its
Consolidated Subsidiaries or for
the creation of which Borrower or
its Consolidated Subsidiaries
directly or indirectly received
payment. $_____________
CONSOLIDATED TOTAL FUNDED DEBT $
=============
(ii) TOTAL CAPITALIZATION (as defined in Section 1.1)
(a) Consolidated Total Funded Debt of
the Borrower and its Consolidated
Subsidiaries (See B(i) above) $_____________
(b) Plus Consolidated shareholders'
equity of the Borrower and its
Consolidated Subsidiaries $_____________
TOTAL CAPITALIZATION
$
=============
CONSOLIDATED TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION((i)/(ii)) %
=============
Maximum ratio 60%
=============
Exhibit J - 5
155
Exhibit K-1
Form of Election to Convert
___________________, _______
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Re: Conversion of Restricted Subsidiary
Gentlemen:
Reference is made to (i) that certain Amended and Restated Credit
Facility Agreement dated as of December 18, 1997 by and among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as
Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"Primary Credit Agreement") and (ii) that certain Amended and Restated Credit
Facility Agreement dated as of December 18, 1997 by and among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as
Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"364 Day Credit Agreement" and, together with the Primary Credit Agreement, the
"Credit Agreements"). Terms not defined herein which are defined in the Credit
Agreement shall have for the purposes hereof the meanings provided therein.
The Borrower hereby elects, pursuant and subject to Section 5.2(i) of
the Credit Agreements, to convert, effective as of ________________, ________,
[NAME OF RESTRICTED SUBSIDIARY], a [JURISDICTION] [CORPORATION] [PARTNERSHIP],
("Subject Subsidiary"), from a Restricted Subsidiary to an Unrestricted
Subsidiary. The Borrower hereby certifies that all requirements for the
conversion of the Subject Subsidiary to an Unrestricted Subsidiary, as
specified in the Credit Agreements, have been and will be met, both as of the
date hereof and after giving effect to such conversion. After giving effect to
such conversion, no Default will exist. The Borrower hereby agrees that the
election to convert contained herein shall not be effective if the foregoing
certifications are not true and correct in all respects as of the date hereof
or are not true and correct in all respects as of the date of such conversion.
This election to convert
Exhibit K-1 - 1
156
shall not affect any obligation of the Borrower under the Credit Agreements or
under any Note under any Credit Agreement.
This instrument shall be construed in accordance with and governed by
the laws of the State of Texas.
PIONEER NATURAL RESOURCES COMPANY
By:
------------------------------
Name:
Title:
Receipt of the above Election to Convert is hereby acknowledged on
______________, ________.
NATIONSBANK OF TEXAS, N.A., as
Administrative Agent
By:
------------------------------
Name:
Title:
Exhibit K-1 - 2
157
Exhibit K-2
Form of Release
This Release is delivered to [NAME OF SUBSIDIARY] in connection with
(i) the Primary Credit Facility pursuant to Section 5.2(i) of that certain
Amended and Restated Credit Facility Agreement dated as of December 18, 1997 by
and among Borrower, NationsBank of Texas, N.A., as Administrative Agent, CIBC
Inc., as Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"Primary Credit Agreement"), and (ii) the 364 Day Credit Facility pursuant to
Section 5.2(i) of that certain Amended and Restated Credit Facility Agreement
dated as of December 18, 1997 by and among Borrower, NationsBank of Texas,
N.A., as Administrative Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Documentation Agent, The Chase Manhattan
Bank, as Syndication Agent, the Co-Agents party thereto, and the Lenders from
time to time parties thereto (the "364 Day Credit Agreement" and, together with
the Primary Credit Agreement, the "Credit Agreements"). Defined terms used in
this Release shall be used with the same meanings set forth in the Credit
Agreements.
Pursuant to the election to convert in the form of Exhibit K-1 to the
Credit Agreements delivered to Administrative Agent on ______________________,
19 _____, the Borrower has notified the Lenders that it has converted ___
______________ [NAME OF SUBSIDIARY] from a Restricted Subsidiary to an
Unrestricted Subsidiary. Subject to the accuracy of the information contained
in such notice of conversion, the undersigned Managing Agents and Lenders
hereby release __ _______________________________ [NAME OF FORMER RESTRICTED
SUBSIDIARY] from its obligations as Guarantor under its Guaranty dated as of
________, 199__, as from time to time amended, modified and supplemented, other
than obligations if any, pursuant to Section _____ thereof.
This Release may be separately executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which when so
executed shall be deemed to constitute one and the same release.
[Add signature lines for Lenders
and Managing Agents]
Agreed and Accepted
this ___ day of __________, 199__ :
-------------------------------------
[Name of Restricted Subsidiary]
By:
---------------------------------
Name:
Title:
Exhibit K-2 - 1
158
Exhibit L
Form of Agreement to be Bound
_____________, 199____
PIONEER NATURAL RESOURCES COMPANY
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CIBC Inc.
2 Houston Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Re: Assignment to ______________________________of
________________________________ the Loans of
_____________________ - Primary Credit Facility
Gentlemen:
We refer to Section 8.8(a) of that certain Amended and Restated Credit
Facility Agreement dated as of December 18, 1997 by and among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as
Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"Credit Agreement"). Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Credit Agreement.
This Credit Agreement to be Bound constitutes notice to each of you,
pursuant to Section 8.8(a) of the Credit Agreement, of the assignment to
_______________________ ("Assignee") of (i) an undivided _____ (the "Designated
Percentage"), ($____________________________), of the Loans, LC Obligations and
Commitments of [NAME OF LENDER] ("Assignor") in effect on the date hereof.
Exhibit L - 1
159
After giving effect to the foregoing assignment, the Loan Commitment
and Percentage Share of each of the Assignor and Assignee is as set forth
beneath the signatures of each such Person below.
Assignee hereby acknowledges and confirms that it has received a copy
of the Credit Agreement and the exhibits related thereto, together with a copy
of all documents which were required to be delivered under the Credit Agreement
as a condition to the making of the Loans and issuing Letters of Credit
thereunder. Assignee further confirms and agrees that in becoming a Lender and
in making its Loans and participating in Letters of Credit under the Credit
Agreement, such actions have and will be made without recourse to, or
representation or warranty by, Assignor, except as expressly set forth in the
Assignment and Assumption of even date herewith between Assignor and Assignee.
Assignor and Assignee hereby agree that [ASSIGNOR/ASSIGNEE] will pay
the processing fee referred to in Section 8.8(a) of the Credit Agreement to
Administrative Agent upon the delivery thereof. It is understood and agreed
that all fees accrued under the Credit Agreement to the date hereof are for
Assignor's account and those accruing from and after the date hereof are for
Assignee's account to the extent specified in the second paragraph hereof.
Each of Assignor and Assignee hereby agree that if it receives any amount under
the Credit Agreement which is for the account of the other, it shall receive
and hold the same for the account of the other and shall promptly pay the same
to the other.
The assignment shall become effective upon (i) the receipt by the
Borrower and Administrative Agent of this document, (ii) the receipt by
Administrative Agent of the processing fee referred to in the preceding
paragraph, and (iii) in accordance with Section 8.8(a) of the Credit Agreement,
the consent of the Borrower and Administrative Agent.
Upon the effective date of this Credit Agreement the Assignee:
(a) shall have all rights and benefits of a "Lender" under the
Credit Agreement as if it were an original signatory thereto to the extent
specified in the second paragraph hereof; and
(b) agrees to be bound by the terms and conditions of each of the
Credit Agreement, and be obligated thereunder, and hereby makes each of the
representations and warranties and acknowledgments contained in such documents
as if it were an original signatory thereto.
Exhibit L - 2
160
Upon the effective date of this Agreement, the Assignor shall be
released from its obligations under the Credit Agreement and the other Loan
Documents to the extent specified in the second paragraph.
Assignee hereby advises each of you of the following matters with
respect to the assigned Loans:
(A) Addresses for Notice:______________________
Telephone:_________________________________
Telecopy:__________________________________
Institution Name:__________________________
Attention:_________________________________
(B) Payment Instructions:_______________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
This Credit Agreement may be executed by Assignor and Assignee in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
The execution below by the Borrower and Administrative Agent shall
evidence their consent to this Agreement in accordance with Section 8.8(a) of
the Credit Agreement.
Exhibit L - 3
161
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be executed by its official, officer or agent thereunto duly authorized,
effective as of ______________, ________.
---------------------------------- --------------------------------
As Assignor As Assignee
By: By:
------------------------------- -----------------------------
Name: Name:
Title: Title:
Percentage Share: % Percentage Share: %
---------------- -------------
Loan Commitment: Loan Commitment:
---------------- --------------
APPROVED:
PIONEER NATURAL RESOURCES NATIONSBANK OF TEXAS, N.A.
COMPANY
By: By:
------------------------------- -----------------------------
Name: Name:
Title: Title:
Exhibit L - 4
162
Exhibit M
[Form of]
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of ______,
199___, made by ______________________, a __________________ corporation
("Pledgor"), in favor of NATIONSBANK OF TEXAS, N.A., as collateral agent
(together with any successor(s) thereto in such capacity, the "Collateral
Agent") for each of Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Credit Facility
Agreement dated as of December 18, 1997 by and among Pioneer Natural Resources
Company, a Delaware corporation ("Borrower"), NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (together with all amendments, supplements, restatements
and other modifications, if any, thereafter made thereto, the "Primary Credit
Agreement"), the Lenders have extended Commitments (as defined in the Primary
Credit Agreement) to make Loans to Borrower and to issue or participate in
Letters of Credit on behalf of Borrower; and
WHEREAS, pursuant to that certain Amended and Restated Credit Facility
Agreement dated as of December 18, 1997 by and among Borrower, NationsBank of
Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Documentation Agent, The Chase Manhattan
Bank, as Syndication Agent, the Co- Agents party thereto, and the Lenders from
time to time parties thereto (together with all amendments, supplements,
restatements and other modifications, if any, thereafter made thereto, the "364
Day Credit Agreement", and together with the Primary Credit Agreement, the
"Credit Agreements"), the Lenders have extended Commitments (as defined in the
364 Day Credit Agreement) to make Loans to Borrower; and
WHEREAS, pursuant to the Credit Agreements, Pledgor is required to
execute and deliver this Pledge Agreement; and
WHEREAS, Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement; and
WHEREAS, it is in the best interests of Pledgor to execute this Pledge
Agreement inasmuch as Pledgor will derive substantial direct and indirect
benefits from the Loans made from time to
Exhibit M - 1
163
time to Borrower and Letters of Credit issued on behalf of Borrower pursuant to
the Credit Agreements;
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to Borrower pursuant to the Credit Agreements and
for the Issuing Bank to issue Letters of Credit on behalf of Borrower and for
the Lenders to acquire participations in such Letters of Credit pursuant to the
Primary Credit Agreement, Pledgor agrees, for the benefit of each Lender Party,
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Collateral Agent" is defined in the preamble.
"Commitments" means "Commitments" as defined in the Primary Credit
Agreement and "Commitments" as defined in the 364 Day Credit Agreement.
"Credit Agreements" is defined in the second recital.
"Debtor" is defined in Section 2.1(a)(i).
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock or security entitlements constituting Collateral, but shall not
include Dividends.
"Dividends" means cash dividends and cash distributions with respect
to any Pledged Shares made in the ordinary course of business and not a
liquidating dividend.
Exhibit M - 2
164
"Lender Party" means, as the context may require, any Lender, any
Issuing Bank or any Agent and each of its respective successors, transferees
and assigns under the Credit Agreements.
"Lenders" means "Lenders" as defined in the Primary Credit Agreement
and "Lenders" as defined in the 364 Day Credit Agreement.
"Loan Documents" means "Loan Documents" as defined in the Primary
Credit Agreement and "Loan Documents" as defined in the 364 Day Credit
Agreement.
"1994 Amendments" means the 1994 Amendments to Articles 8 and 9 of the
Uniform Commercial Code promulgated by the American Law Institute and the
National Conference of Commissions for Uniform State Laws.
"Notes" means "Notes" as defined in the Primary Credit Agreement and
"Notes" as defined in the 364 Day Credit Agreement.
"Obligations" means "Obligations" as defined in the Primary Credit
Agreement and "Obligations" as defined in the 364 Day Credit Agreement.
"Pledge Agreement" is defined in the preamble.
"Pledged Share Issuer" means each Person identified in Attachment 1
hereto as the issuer of the Pledged Shares identified opposite the name of such
Person.
"Pledged Shares" means all shares of capital stock of any Pledged
Share Issuer which are delivered by Pledgor to Collateral Agent hereunder and
all other pledged shares of capital stock from time to time hereafter delivered
by Pledgor to Collateral Agent for the purpose of pledge under this Pledge
Agreement or any other Loan Document, and all proceeds of any of the foregoing.
"Pledgor" is defined in the preamble.
"Primary Credit Agreement" is defined in the first recital.
"Secured Obligations" is defined in Section 2.2.
"Securities Act" is defined in Section 6.2.
"364 Day Credit Agreement" is defined in the second recital.
"U.C.C." means the Uniform Commercial Code as in effect in the State
of Texas.
Exhibit M - 3
165
SECTION 1.2. Primary Credit Agreement Definitions. Unless
otherwise defined herein or the context otherwise requires, terms used in this
Pledge Agreement, including its preamble and recitals, have the meanings
provided in the Primary Credit Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein
or the context otherwise requires, terms for which meanings are provided in the
U.C.C. are used in this Pledge Agreement, including its preamble and recitals,
with such meanings.
ARTICLE II
PLEDGE
SECTION 2.1. Grant of Security Interest. Pledgor hereby pledges,
hypothecates, assigns, charges, mortgages, delivers, and transfers to
Collateral Agent, for its benefit and the ratable benefit of each of Lender
Parties, and hereby grants to Collateral Agent, for its benefit and the ratable
benefit of Lender Parties, a continuing security interest in, all of the
following property (the "Collateral"):
(a) 65% of the issued and outstanding shares of capital
stock of each Pledged Share Issuer identified in Item B of Attachment
1 hereto;
(b) 65% of all other Pledged Shares issued from time to
time;
(c) all Dividends, Distributions, interest, and other
payments and rights with respect to any Pledged Shares; and
(d) all proceeds of any of the foregoing.
SECTION 2.2. Security for Obligations. This Pledge Agreement
secures:
(a) the payment in full of all Obligations of Borrower
now or hereafter existing under the Credit Agreements, the Notes, the
LC Applications and each other Loan Document to which Borrower is or
may become a party, whether for principal, interest, costs, fees,
expenses, or otherwise, and all obligations of Pledgor and each other
Designated Entity now or hereafter existing under this Pledge
Agreement and each other Loan Document to which it is or may become a
party
(b) the payment and performance of any and all present or
future obligations of Borrower according to the terms of any present
or future rate swap, rate cap, rate floor, rate
Exhibit M - 4
166
collar, currency exchange transaction, forward rate agreement, or
other exchange or rate protection agreements or any option with
respect to any such transaction now existing or hereafter entered into
between Borrower or any of its Subsidiaries and one or more of the
Lenders or their Affiliates ("interest rate swap agreement");
(c) the payment and performance of any and all present or
future obligations of Borrower according to the terms of any present
or future crude oil, natural gas or other hydrocarbons swap
agreements, crude oil, natural gas or other hydrocarbons cap, crude
oil, natural gas or other hydrocarbons floor, crude oil, natural gas
or other hydrocarbons collar, crude oil, natural gas or other
hydrocarbons exchange transaction, forward crude oil, natural gas or
other hydrocarbons agreement, or other exchange or crude oil, natural
gas or other hydrocarbons protection agreements or any option with
respect to any such transaction now existing or hereafter entered into
between Borrower or any of its Subsidiaries and one or more of the
Lenders or their Affiliates; and
(d) all renewals, rearrangements, increases, extensions
for any period, substitutions, modification, amendments or supplements
in whole or in part of any of the above loan documents or obligations
(all such obligations of Borrower and Pledgor being the "Secured Obligations").
SECTION 2.3. Delivery of Pledged Shares. (a) All certificates or
instruments representing or evidencing any Collateral, including all Pledged
Shares shall be delivered to and held by or on behalf of Collateral Agent
pursuant hereto, shall be in suitable form for transfer by delivery, and shall
be accompanied by all necessary indorsements or instruments of transfer or
assignment, duly executed in blank.
(b) (i) To the extent any of the Collateral constitutes
"uncertificated securities" (as defined in Section 8-102(a)(18) of the
U.C.C. or Section 8-102 of the Uniform Commercial Code as in effect in
any jurisdiction that has not adopted the 1994 Amendments) and the
issuer of which is organized in a jurisdiction, or has selected a
jurisdiction (in circumstances permitted by Section 8-110(d) of the
U.C.C.), that has not enacted the 1994 Amendments, Pledgor shall cause
the issuer thereof to acknowledge to Collateral Agent the registration
on the books of such issuer of the pledge and security interest hereby
created in the manner required by Section 8-408(d) of the Uniform
Commercial Code of its jurisdiction of organization.
Exhibit M - 5
167
(ii) To the extent any of the Collateral constitutes
"uncertificated securities" (as defined in Section 8-102(a)(18) of the
U.C.C.) and the issuer of which is organized in a jurisdiction, or has
selected a jurisdiction (in circumstances permitted by Section
8-110(d) of the U.C.C.), that has enacted the 1994 Amendments, Pledgor
shall cause the issuer thereof to acknowledge to Collateral Agent the
registration on the books of such issuer of the pledge and security
interest hereby created in the manner required by Section 8- 301(1)(b)
of the U.C.C.
(c) (i) To the extent any of the Collateral constitutes a
"security entitlement" or a "securities account" (as such terms are
defined in Sections 8-102(a)(17) and 8-501, respectively, of the
U.C.C.) and the jurisdiction of the securities intermediary (as
described in Section 8-110(e) of the U.C.C.) against which such
securities entitlement is established or at which such securities
account is maintained is not a jurisdiction that has adopted the 1994
Amendments, Pledgor shall cause such Collateral to be transferred to
Collateral Agent pursuant to Section 8-313(1) of the Uniform
Commercial Code as in effect in such jurisdiction in a manner
satisfactory to Collateral Agent.
(ii) To the extent any of the Collateral constitutes a
"security entitlement" or a "securities account" (as such terms are
defined in Sections 8-102(a)(17) and 8-501, respectively, of the
U.C.C.) and the jurisdiction of the securities intermediary (as
described in Section 8-110(e) of the U.C.C.) against which such
securities entitlement is established or at which such securities
account is maintained is a jurisdiction that has adopted the 1994
Amendments, Pledgor shall cause to be delivered to Collateral Agent an
agreement, in form and substance satisfactory to Collateral Agent,
executed by such securities intermediary whereby such securities
intermediary agrees (i) that it will comply with entitlement orders
originated by Collateral Agent without further consent by Pledgor with
respect to all such Collateral (it being understood that such
agreement may provide that at all times when such securities
intermediary has not been notified that a Default is in existence, the
securities intermediary may comply with entitlement orders of
Pledgor), (ii) to subordinate any security interest it may have in and
to all such Collateral to the security interest of Collateral Agent
therein and (iii) that it will not agree with any Person other than
Collateral Agent in any manner that would grant such Person "control"
over any such Collateral.
SECTION 2.4. Dividends on Pledged Shares. In the event that any
Dividend is to be paid on any Pledged Share or securities
Exhibit M - 6
168
entitlement at a time when (x) no Default has occurred and is continuing, and
no (y) Event of Default has occurred and is continuing, such Dividend or
payment may be paid directly to Pledgor. If any such Default or Event of
Default has occurred and is continuing, then any such Dividend or payment shall
be paid directly to Collateral Agent.
SECTION 2.5. Continuing Security Interest; Transfer of Note. This
Pledge Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full
of all Secured Obligations and the termination of all Commitments,
(b) be binding upon Pledgor and its successors,
transferees and assigns, and
(c) inure, together with the rights and remedies of
Collateral Agent hereunder, to the benefit of Collateral Agent and
each other Lender Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the
provisions of Section 8.8 of the Credit Agreements and Article VII of the
Credit Agreements. Upon the payment in full of all Secured Obligations and the
termination of all Commitments, the security interest granted herein shall
terminate and all rights to the Collateral shall revert to Pledgor. Upon any
such termination, Collateral Agent will, at Pledgor's sole expense, deliver to
Pledgor, without any representations, warranties or recourse of any kind
whatsoever, all certificates and instruments representing or evidencing all
Pledged Shares, together with all other Collateral held by Collateral Agent
hereunder, and execute and deliver to Pledgor such documents as Pledgor shall
reasonably request to evidence such termination.
SECTION 2.6. Security Interest Absolute. All rights of Collateral
Agent and the security interests granted to Collateral Agent hereunder, and all
obligations of Pledgor hereunder, shall be absolute and unconditional,
irrespective of (a) any lack of validity or enforceability of the Credit
Agreements, any Note or any other Loan Document, (b) the failure of any Lender
Party or any holder of any Note, (i) to assert any claim or demand or to
enforce any right or remedy against Borrower, any other
Exhibit M - 7
169
Designated Entity or any other Person under the provisions of the Credit
Agreements, any Note, any other Loan Document or otherwise, or (ii) to exercise
any right or remedy against any other guarantor of, or collateral securing, any
Obligations of Borrower or any other Designated Entity, (c) any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Obligations or any other extension, compromise or renewal of any Obligation of
Borrower or any other Designated Entity, (d) any reduction, limitation,
impairment or termination of any Obligations of Borrower or any other
Designated Entity for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and Pledgor
hereby waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any other
event or occurrence affecting, any Obligations of Borrower, any other
Designated Entity or otherwise, (e) any amendment to, rescission, waiver, or
other modification of, or any consent to departure from, any of the terms of
the Credit Agreements, any Note or any other Loan Document, (f) any addition,
exchange, release, surrender or non-perfection of any collateral (including the
Collateral), or any amendment to or waiver or release of or addition to or
consent to departure from any guaranty, for any of the Obligations, or (g) any
other circumstances which might otherwise constitute a defense available to, or
a legal or equitable discharge of, Borrower, any other Designated Entity, any
surety or any guarantor.
SECTION 2.7. Waiver of Subrogation. Pledgor hereby irrevocably
waives any claim or other rights which it may now or hereafter acquire against
Borrower or any other Designated Entity that arise from the existence, payment,
performance or enforcement of Pledgor's obligations under this Pledge Agreement
or any other Loan Document, including any right of subrogation, reimbursement,
exoneration, or indemnification, any right to participate in any claim or
remedy of Lender Parties against Borrower or any other Designated Entity or any
collateral which Collateral Agent now has or hereafter acquires, whether or not
such claim, remedy or right arises in equity, or under contract, statute or
common law, including the right to take or receive from Borrower or any other
Designated Entity, directly or indirectly, in cash or other property or by
set-off or in any manner, payment or security on account of such claim or other
rights. If any amount shall be paid to Pledgor in violation of the preceding
sentence and the Obligations shall not have been paid in cash in full and the
Commitments have not been terminated, such amount shall be deemed to have been
paid to Pledgor for the benefit of, and held in trust for, Lender Parties, and
shall forthwith be paid to Lender Parties to be credited and applied upon the
Obligations, whether matured or
Exhibit M - 8
170
unmatured. Pledgor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Credit Agreements
and that the waiver set forth in this Section is knowingly made in
contemplation of such benefits.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Warranties, etc. Pledgor represents and warrants
unto each Lender Party, as at the date of each pledge and delivery hereunder
(including each pledge and delivery of Pledged Shares) by Pledgor to Collateral
Agent of any Collateral, as set forth in this Article.
SECTION 3.1.1. Representations in Credit Agreement. Pledgor hereby
incorporates by reference, mutatis mutandi, each of the representations and
warranties made in Sections 4.1(a), (b), (c), (d) and (e) of the Credit
Agreement.
SECTION 3.1.2. Ownership, No Liens, etc. Pledgor is the legal and
beneficial owner of, and has good title to (and has full right and authority to
pledge and assign) such Collateral, free and clear of all liens, security
interests, options, or other charges or encumbrances, except any lien or
security interest granted pursuant hereto in favor of Collateral Agent.
SECTION 3.1.3. Valid Security Interest. The delivery of such
Collateral to Collateral Agent is effective to create a valid, perfected, first
priority security interest in such Collateral and all proceeds thereof,
securing the Secured Obligations. No filing or other action will be necessary
to perfect or protect such security interest.
SECTION 3.1.4. As to Pledged Shares. In the case of any Pledged
Shares constituting such Collateral, all of such Pledged Shares are duly
authorized and validly issued, fully paid, and non-assessable, and constitute
65% of the issued and outstanding shares of capital stock of each Pledged Share
Issuer owned by Pledgor set forth across from the name of such Pledged Share
Issuer on Attachment 1 hereto. Pledgor has no Restricted Subsidiary other than
the Pledged Share Issuers.
SECTION 3.1.5. Authorization, Approval, etc. Except as contemplated
by Section 2.3(b) and (c), no authorization, approval, or other action by, and
no notice to or filing with, any governmental authority, regulatory body or any
other Person is required either (a) for the pledge by Pledgor of any Collateral
pursuant to this Pledge Agreement or for the execution, delivery, and
performance of this Pledge Agreement by Pledgor, or (b) for the exercise by
Collateral Agent of the rights provided for in this Pledge Agreement, or,
except with
Exhibit M - 9
171
respect to any Pledged Shares, as may be required in connection with a
disposition of such Pledged Shares by laws affecting the offering and sale of
securities generally, the remedies in respect of the Collateral pursuant to
this Pledge Agreement.
ARTICLE IV
COVENANTS
SECTION 4.1. Protect Collateral; Further Assurances, etc. Pledgor
will not sell, assign, transfer, pledge, or encumber in any other manner the
Collateral (except in favor of Collateral Agent hereunder). Pledgor will
warrant and defend the right and title herein granted unto Collateral Agent in
and to the Collateral (and all right, title and interest represented by the
Collateral) against the claims and demands of all Persons whomsoever. Pledgor
agrees that at any time, and from time to time, at the expense of Pledgor,
Pledgor will promptly execute and deliver all further instruments, and take all
further action, that may be necessary or desirable, or that Collateral Agent
may reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable Collateral Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral. Pledgor shall provide Collateral Agent with copies of all written
information received from any securities intermediary of Pledgor with respect
to any Collateral.
SECTION 4.2. Stock Powers, etc. Pledgor agrees that all Pledged
Shares (and all other shares of capital stock constituting Collateral)
delivered by Pledgor pursuant to this Pledge Agreement will be accompanied by
duly indorsed undated blank stock powers, in substantially the form of
Attachment 2 hereto, or other equivalent instruments of transfer acceptable to
Collateral Agent. Pledgor will, from time to time upon the request of
Collateral Agent, promptly deliver to Collateral Agent such stock powers, in
substantially the form of Attachment 2, instruments and similar documents,
satisfactory in form and substance to Collateral Agent, with respect to the
Collateral as Collateral Agent may reasonably request and will, from time to
time upon the request of Collateral Agent after the occurrence of any Event of
Default, promptly transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated by Collateral
Agent.
SECTION 4.3. Continuous Pledge. Subject to Section 2.4, the
Pledgor will, at all times, keep pledged to Collateral Agent pursuant hereto
all Pledged Shares, all other shares of capital stock constituting Collateral,
and all securities, security entitlements and securities accounts constituting
Collateral and all other Collateral and other securities, instruments, security
entitlements, financial assets, investment property, proceeds,
Exhibit M - 10
172
and rights from time to time received by or distributable to Pledgor in respect
of any Collateral.
SECTION 4.4. Dividends, etc. Pledgor agrees after any
acceleration under the Credit Agreements or Default occurring on the Maturity
Date, promptly upon receipt thereof by Pledgor and without any request therefor
by Collateral Agent, to deliver (properly endorsed where required hereby or
requested by Collateral Agent) to Collateral Agent all Dividends,
Distributions, all interest, all principal, all other cash payments, and all
proceeds of the Collateral, all of which shall be held by Collateral Agent as
additional Collateral for use in accordance with Section 6.3. All Dividends,
Distributions, interest, principal, cash payments, and proceeds which may at
any time and from time to time be held by Pledgor but which Pledgor is then
obligated to deliver to Collateral Agent, shall, until delivery to Collateral
Agent, be held by Pledgor separate and apart from its other property in trust
for Collateral Agent.
SECTION 4.5. Additional Undertakings. Pledgor will not, without
the prior written consent of Collateral Agent, take or omit to take any action
the taking or the omission of which would result in any impairment or
alteration of the security interest in the Pledged Shares.
ARTICLE V
COLLATERAL AGENT
SECTION 5.1. Agent Appointed Attorney-in-Fact. Pledgor hereby
irrevocably appoints Collateral Agent Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor or
otherwise, from time to time in Collateral Agent's discretion, to take any
action and to execute any writing or paper which Collateral Agent may deem
necessary or advisable to accomplish the purposes of this Pledge Agreement,
including without limitation: (a) after the occurrence and continuance of an
Event of Default, to ask, demand, collect, ▇▇▇ for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral; (b) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (a) above; and (c) to file any claims or take any action
or institute any proceedings which Collateral Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to enforce
the rights of Collateral Agent with respect to any of the Collateral. Pledgor
hereby acknowledges, consents and agrees that the power of attorney granted
pursuant to this Section is irrevocable and coupled with an interest.
Exhibit M - 11
173
SECTION 5.2. Agent May Perform. If Pledgor fails to perform any
agreement contained herein, Collateral Agent may itself perform, or cause
performance of, such agreement, and the expenses of Collateral Agent incurred
in connection therewith shall be payable by Pledgor pursuant to Section 6.4.
SECTION 5.3. Agent Has No Duty. The powers conferred on
Collateral Agent hereunder are solely to protect its interest (on behalf of
Lender Parties) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it hereunder,
Collateral Agent shall have no duty as to any Collateral or responsibility for
(a) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Pledged Shares,
whether or not Collateral Agent has or is deemed to have knowledge of such
matters or (b) taking any necessary steps to preserve rights against prior
parties or any other rights pertaining to any Collateral.
SECTION 5.4. Reasonable Care. Collateral Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of any
of the Collateral, if it takes such action for that purpose as Pledgor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of Collateral Agent
to comply with any such request at any time shall not in itself be deemed a
failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. On or after any acceleration under
the Credit Agreements or Default occurring on the Maturity Date:
(a) Collateral Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party on default under the U.C.C. (whether or not the U.C.C.
applies to the affected Collateral) and also may, without notice
except as specified below, sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any of Collateral
Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as Collateral Agent may deem
commercially reasonable. Pledgor agrees that, to the extent notice of
sale shall be required by law,
Exhibit M - 12
174
at least ten days' prior notice to Pledgor of the time and place of
any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. Collateral Agent shall not
be obligated to make any sale of Collateral regardless of notice of
sale having been given. Collateral Agent may adjourn any public or
private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(b) Collateral Agent may (i) transfer all or any part of
the Collateral into the name of Collateral Agent or its nominee, with
or without disclosing that such Collateral is subject to the lien and
security interest hereunder, (ii) notify the parties obligated on any
of the Collateral to make payment to Collateral Agent of any amount
due or to become due thereunder, (iii) enforce collection of any of
the Collateral by suit or otherwise, and surrender, release or
exchange all or any part thereof, or compromise or extend or renew for
any period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto, (iv)
endorse any checks, drafts, or other writings in Pledgor's name to
allow collection of the Collateral, (v) take control of any proceeds
of the Collateral, and (vi) execute (in the name, place and stead of
Pledgor) endorsements, assignments, stock powers and other instruments
of conveyance or transfer with respect to all or any of the
Collateral.
SECTION 6.2. Compliance with Restrictions. Pledgor agrees that in
any sale of any of the Collateral whenever an Event of Default shall have
occurred and be continuing, Collateral Agent is hereby authorized to comply
with any limitation or restriction in connection with such sale as it may be
advised by counsel is necessary in order to avoid any violation of applicable
law (including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and Pledgor further agrees that such compliance shall not result in such sale
being considered or deemed not to have been made in a commercially reasonable
manner, nor shall Collateral Agent be liable nor accountable to Pledgor for any
discount allowed by the reason of the fact that such Collateral is sold in
compliance with any such limitation or restriction.
Exhibit M - 13
175
SECTION 6.3. Application of Proceeds. All cash proceeds received
by Collateral Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
Collateral Agent, be held by Collateral Agent as additional collateral security
for, or then or at any time thereafter be applied (after payment of any amounts
payable to Collateral Agent pursuant to Sections 6.4 of the Credit Agreements)
in whole or in part by Collateral Agent against, all or any part of the Secured
Obligations in such order as Collateral Agent shall elect.
Any surplus of such cash or cash proceeds held by Collateral Agent and
remaining after payment in full of all the Secured Obligations, and the
termination of all Commitments, shall be paid over to Pledgor or to whomsoever
may be lawfully entitled to receive such surplus.
SECTION 6.4. Indemnity and Expenses. Pledgor hereby indemnifies
and holds harmless Collateral Agent in accordance with Sections 6.4 of the
Credit Agreements.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Pledge Agreement is a Loan
Document executed pursuant to the Credit Agreement and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof.
SECTION 7.2. Amendments. No amendment to or waiver of any
provision of this Pledge Agreement, nor consent to any departure by Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
SECTION 7.3. Protection of Collateral. Collateral Agent may from
time to time, at its option, perform any act which Pledgor agrees hereunder to
perform and which Pledgor shall fail to perform after being requested in
writing so to perform after the occurrence and continuance of an Event of
Default and Collateral Agent may from time to time take any other action which
Collateral Agent reasonably deems necessary for the maintenance, preservation
or protection of any of the Collateral or of its security interest therein.
SECTION 7.4. Obligations Not Affected. The obligations of Pledgor
under this Pledge Agreement shall remain in full force and effect without
regard to, and shall not be impaired or affected by:
Exhibit M - 14
176
(a) any amendment or modification or addition or
supplement to the Credit Agreements, any Note, any other Loan
Documents, any instrument delivered in connection therewith, or any
assignment or transfer thereof;
(b) any exercise, non-exercise, or waiver by Collateral
Agent or any Lender of any right, remedy, power, or privilege under or
in respect of, or any release of any guaranty or collateral provided
pursuant to, this Pledge Agreement, the Credit Agreements, Pledgor's
Guaranty or any other Loan Document;
(c) any waiver, consent, extension, indulgence, or other
action or inaction in respect of this Pledge Agreement, the Credit
Agreements, Pledgor's Guaranty or any other Loan Document or any
assignment or transfer of any thereof; or
(d) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation, or the like, of
Pledgor or any other Person, whether or not Pledgor shall have notice
or knowledge of any of the foregoing.
SECTION 7.5. Notices. All notices, requests, consents, demands
and other communications required or permitted hereunder shall be in writing,
unless otherwise specifically provided herein and shall be deemed sufficiently
given or furnished if delivered by personal delivery, by telecopy (with
telephonic confirmation of transmission, by delivery service with proof of
delivery, or by registered or certified United States mail, postage prepaid, to
Pledgor at the address of Pledgor specified on the signature pages hereto and
to each Agent and each Lender at their addresses specified on the signature
pages to the Credit Agreements (unless changed by similar notice in writing
given by the particular Person whose address is to be changed). Any such
notice or communication shall be deemed to have been given: (a) in the case of
personal delivery service, as of the date of first attempted delivery at the
address provided herein; (b) in the case of telecopy, upon receipt; or (c) in
the case of registered or certified United States mail, three days after
deposit in the mail, postage prepaid.
SECTION 7.6. No Waiver; Remedies. No failure on the part of any
Lender Party or any holder of a Note, an LC Application, or an interest in an
LC Obligation to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Exhibit M - 15
177
SECTION 7.7. Section Captions. Section captions used in this
Pledge Agreement are for convenience of reference only, and shall not affect
the construction of this Pledge Agreement.
SECTION 7.8. Severability. Wherever possible each provision of
this Pledge Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Pledge Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Pledge Agreement.
SECTION 7.9. Governing Law, Entire Agreement. THIS PLEDGE
AGREEMENT SHALL BE DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE
STATE OF TEXAS AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF
AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THIS PLEDGE
AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING
AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 7.10. Waiver of Jury Trial. EACH OF PLEDGOR, AGENTS AND
LENDERS HEREBY (a) IRREVOCABLY WAIVES, THE MAXIMUM EXTENT NOT PROHIBITED BY
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS PLEDGE AGREEMENT OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED
THEREWITH, BEFORE OR AFTER MATURITY; (b) IRREVOCABLY WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
SUCH LITIGATION ANY EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (c) CERTIFIES
THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY
HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS;
AND (d) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO AND ACCEPT THIS
PLEDGE AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION.
SECTION 7.11. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
Exhibit M - 16
178
CONNECTION WITH, THIS PLEDGE AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF LENDER PARTIES OR PLEDGOR SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF TEXAS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS; PROVIDED, HOWEVER, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE BROUGHT, AT COLLATERAL
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH PROPERTY MAY BE
FOUND. PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF
THE COURTS OF THE STATE OF TEXAS AND THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF TEXAS. FOR PURPOSES OF ANY ACTION OR PROCEEDING
INSTITUTED IN THE FEDERAL OR STATE COURTS OF TEXAS, THE UNDERSIGNED HEREBY
IRREVOCABLY DESIGNATES BORROWER WITH OFFICES ON THE DATE HEREOF AT ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ TO RECEIVE FOR AND ON BEHALF OF
THE UNDERSIGNED SERVICE OF PROCESS IN TEXAS. PLEDGOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
PLEDGOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, PLEDGOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS PLEDGE AGREEMENT.
THIS WRITTEN PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
Exhibit M - 17
179
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
[Pledgor]
---------------------------------------
By:
------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit M - 18
180
NATIONSBANK OF TEXAS, N.A.
By
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇. ▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Exhibit M - 19
181
ACKNOWLEDGMENT
The undersigned hereby agrees and consents to the terms and provisions
of the foregoing Pledge Agreement, including, without limitation, Section 2.3
and Article IV of the Pledge Agreement. The undersigned hereby acknowledges
the registration on its books of the pledge and security interest created by
the Pledge Agreement in the manner required by Section 8-301(1)(b) of the
U.C.C. and that undersigned will not permit any sale, transfer, pledge or other
encumbrance of the Pledged Interests without the prior written consent of the
Agent.
------------------------------
By:
---------------------------
Name:
Title:
Exhibit M - 20
182
ATTACHMENT 1
to
Pledge Agreement
Pledged Shares
Pledged Share Issuer
Outstanding Shares
Shares Delivered
------------- -------------
------------- -------------
Exhibit M - 21
183
ATTACHMENT 2
to
Pledge Agreement
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________________________________________________
(_______________________) shares of common stock in __________________________,
a _______________ corporation, represented by the attached Certificate No._____
herewith and do hereby irrevocably constitute and appoint _____________________
attorney to transfer the said stock on the books of ___________________________
with full power of substitution in the premises.
DATED ___________________________
[PLEDGOR]
------------------------------
By:
---------------------------
Name:
Title:
IN PRESENCE OF
-------------------------
Exhibit M - 22
184
Exhibit N
Request for Competitive Bid Offer
_____________, ________
To: The Lenders party to the Credit Agreement, NationsBank of Texas, N.A.,
as agent (the "Administrative Agent")
From: _________________________ (the "Borrower")
Re: Primary Credit Facility - Amended and Restated Credit Facility
Agreement dated as of December 18, 1997 by and among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as
Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent,
the Co-Agents party thereto, and the Lenders from time to time
parties thereto (the "Credit Agreement")
Pursuant to Section 2.22 of the Credit Agreement, we hereby request
Competitive Bid Offers for the following proposed Competitive Bid Advance(s):
Borrowing Date: _________________, ______
Principal Amount(1) Requested Maturity Date(2)
------------------- --------------------------
$
Upon acceptance by the undersigned of any or all of the Competitive
Bid Offers tendered by Lenders in response to this request, the undersigned
shall be deemed to affirm as of the borrowing date thereof the representations
and warranties made by the Designated Entities in the Credit Agreement and the
other Loan Documents to the extent specified in Section 3.2 thereof (except to
the extent such representations and warranties relate solely to an earlier
date).
------------------------------
(1) Amount must be at least $10,000,000 and an integral multiple of
$1,000,000.
(2) At least 15 and up to 360 days.
Exhibit N - 1
185
Capitalized terms used herein have the meanings assigned to
them in the Credit Agreement.
PIONEER NATURAL RESOURCES COMPANY
By:
---------------------------
Name:
Title:
Exhibit N - 2
186
Exhibit O
Competitive Bid Offer
______________, ____
To: ____________________________
Attn: ___________________
Re: Primary Credit Facility - Competitive Bid Offer to Pioneer Natural
Resources Company (the "Borrower")
In response to the Borrower's Request for Competitive Bid Offer dated
________, 199_, we hereby make the following Competitive Bid Offer pursuant to
Section 2.22 of the Credit Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender: _________________________________________
2. Person to contact at Lender: ____________________________
3. Borrowing Date: ____________, ______(1)
4. We hereby offer to make Competitive Bid Advance(s) in the following
principal amounts, for the following periods and at the following
rates:
Principal Maturity Competitive
Amount(2) Date(3) Bid Rate(4)
--------- ------- -----------
$
------------------------------
(1) As specified in the related Request for Competitive Bid Offer.
(2) Principal amount bid for each maturity date may not exceed the
principal amount requested. Bids must be made for at least
$10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(3) At least 15 and up to 360 days, as specified in the related Request
for Competitive Bid Offer.
(4) Specify rate of interest per annum (rounded to the nearest 1/10,000
of 1%).
Exhibit O - 1
187
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in that certain Amended
and Restated Credit Facility Agreement dated as of December 18, 1997 by and
among Borrower, NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc.,
as Documentation Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"Credit Agreement"), irrevocably obligates us to make the Competitive Bid
Advance(s) for which any offer(s) are accepted, in whole or in part.
Capitalized terms used herein and not otherwise defined herein shall have their
meanings as defined in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated: , By:
-------------- ----- ----------------------------
Authorized Officer
Exhibit O - 2
188
Exhibit P
Bid Acceptance
___________________, _____
To: [Name of Lender]
Re: Primary Credit Facility - Request for Competitive Bid Offer from
Pioneer Natural Resources Company (the "Borrower")
Pursuant to that certain Amended and Restated Credit Facility
Agreement dated as of December 18, 1997 by and among Borrower, NationsBank of
Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Documentation Agent, The Chase Manhattan
Bank, as Syndication Agent, the Co-Agents party thereto, and the Lenders from
time to time parties thereto (the "Credit Agreement"), we accept your
Competitive Bid Offer for the following proposed Competitive Bid Advance(s) and
reject any Competitive Bid Offer to the Competitive Bid Borrower not described
below:
Borrowing Date: ______________, ______
Principal Amount Maturity Date Competitive Bid Rate
---------------- ------------- --------------------
$
Capitalized terms used herein have the meanings assigned to them in the
Credit Agreement.
PIONEER NATURAL RESOURCES COMPANY
By:
------------------------------
Authorized Officer
Exhibit P - 1
189
Schedule 1
Schedule of Lenders' Commitments and Percentage Share
Schedule 1 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been
disclosed elsewhere if disclosure of such information is required. Pioneer
Natural Resources Company agrees to furnish supplementally a copy of any
omitted schedule to the Securities and Exchange Commission upon request.
Schedule 1 - 1
190
Schedule 2
Disclosure Schedule
Schedule 2 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been
disclosed elsewhere if disclosure of such information is required. Pioneer
Natural Resources Company agrees to furnish supplementally a copy of any
omitted schedule to the Securities and Exchange Commission upon request.
Schedule 2 - 1
191
Schedule 3
Schedule of Restricted Subsidiaries
Schedule 3 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been
disclosed elsewhere if disclosure of such information is required. Pioneer
Natural Resources Company agrees to furnish supplementally a copy of any
omitted schedule to the Securities and Exchange Commission upon request.
Schedule 3 - 1
192
Schedule 4
Schedule of Insurance
Schedule 4 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been
disclosed elsewhere if disclosure of such information is required. Pioneer
Natural Resources Company agrees to furnish supplementally a copy of any
omitted schedule to the Securities and Exchange Commission upon request.
Schedule 4 - 1
193
Schedule 5
Schedule of Security Instruments
Schedule 5 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been
disclosed elsewhere if disclosure of such information is required. Pioneer
Natural Resources Company agrees to furnish supplementally a copy of any
omitted schedule to the Securities and Exchange Commission upon request.
Schedule 5 - 1
194
Schedule 6
Continuing Letters of Credit
Schedule 6 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been
disclosed elsewhere if disclosure of such information is required. Pioneer
Natural Resources Company agrees to furnish supplementally a copy of any
omitted schedule to the Securities and Exchange Commission upon request.
Schedule 6 - 1