EXHIBIT 10.33
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BURLINGTON RESOURCES INC.
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$350,000,000
BRIDGE REVOLVING CREDIT AGREEMENT
Dated as of January 2, 2002
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JPMORGAN CHASE BANK,
as Administrative Agent and
Auction Administrative Agent
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Advisor, Lead Arranger
and Sole Bookrunner
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 Definitions and Accounting Terms...........................................................1
Section 1.01 Certain Defined Terms.............................................................1
Section 1.02 Computation of Time Periods......................................................14
Section 1.03 Accounting and Other Terms.......................................................14
Section 1.04 References.......................................................................14
ARTICLE 2 Amounts and Terms of the Advances.........................................................14
Section 2.01 (a) Revolving A Advances........................................................14
Section 2.02 Making the A Advances............................................................15
Section 2.03 Fees.............................................................................16
Section 2.04 Reduction of the Commitments.....................................................17
Section 2.05 Repayment of A Advances..........................................................17
Section 2.06 Interest on A Advances...........................................................17
Section 2.07 Additional Interest on Eurodollar Rate Advances..................................18
Section 2.08 Interest Rate Determination......................................................18
Section 2.09 Voluntary Conversion of A Advances...............................................19
Section 2.10 Prepayments......................................................................20
Section 2.11 Increased Costs..................................................................20
Section 2.12 Increased Capital................................................................21
Section 2.13 Illegality.......................................................................21
Section 2.14 Payments and Computations........................................................22
Section 2.15 Taxes............................................................................23
Section 2.16 Sharing of Payments, Etc.........................................................25
Section 2.17 Evidence of Debt.................................................................26
Section 2.18 Use of Proceeds..................................................................26
Section 2.19 The B Advances...................................................................27
Section 2.20 [ Reserved ].....................................................................30
Section 2.21 Extension of Stated Termination Date.............................................30
Section 2.22 Replacement of Lenders...........................................................31
ARTICLE 3 Conditions of Effectiveness and Lending...................................................32
Section 3.01 Conditions Precedent to Effectiveness of this Agreement..........................32
Section 3.02 Conditions Precedent to Each A Borrowing.........................................32
Section 3.03 Conditions Precedent to Each B Borrowing.........................................33
ARTICLE 4 Representations and Warranties............................................................34
Section 4.01 Representations and Warranties of the Borrower...................................34
ARTICLE 5 Covenants of the Borrower.................................................................36
Section 5.01 Affirmative Covenants............................................................36
Section 5.02 Negative Covenants...............................................................37
Section 5.03 Reporting Requirements...........................................................41
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TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE 6 Events of Default.........................................................................43
Section 6.01 Events of Default................................................................43
ARTICLE 7 The Administrative Agent..................................................................46
Section 7.01 Authorization and Action.........................................................46
Section 7.02 Administrative Agent's Reliance, Etc.............................................46
Section 7.03 JPMorgan and Affiliates..........................................................46
Section 7.04 Lender Credit Decision...........................................................47
Section 7.05 Indemnification..................................................................47
Section 7.06 Successor Administrative Agent...................................................48
Section 7.07 Auction Administrative Agent.....................................................48
ARTICLE 8 Miscellaneous.............................................................................48
Section 8.01 Amendments, Etc..................................................................48
Section 8.02 Notices, Etc.....................................................................49
Section 8.03 No Waiver; Remedies..............................................................49
Section 8.04 Costs and Expenses; Indemnity....................................................49
Section 8.05 Right of Set-off.................................................................50
Section 8.06 Binding Effect...................................................................51
Section 8.07 Assignments and Participations...................................................51
Section 8.08 Confidentiality..................................................................54
Section 8.09 Consent to Jurisdiction..........................................................55
Section 8.10 Governing Law....................................................................55
Section 8.11 Execution in Counterparts........................................................56
Section 8.12 Waiver of Jury Trial.............................................................56
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Schedule I - Material Subsidiaries
Schedule II - Pricing Grid
Exhibit A - Form of Note
Exhibit B - Form of Notice of A Borrowing
Exhibit C - Form of Notice of B Borrowing
Exhibit D - Form of Assignment and Acceptance
Exhibit E - Form of Extension Request
Exhibit F - Form of Opinion of Vice President and General Counsel for Borrower
Exhibit G - Form of Opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇,
New York Counsel for Borrower
Exhibit H - Form of Designation Agreement
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BRIDGE REVOLVING CREDIT AGREEMENT
Dated as of January 2, 2002
BURLINGTON RESOURCES INC., a Delaware corporation (the "Borrower"), the
financial institutions (the "Initial Lenders") listed on the signature pages
hereof, and JPMORGAN CHASE BANK, as administrative agent and auction
administrative agent for the Lenders hereunder (in such capacities, the
"Administrative Agent" and "Auction Administrative Agent," respectively), agree
as follows:
ARTICLE 1
Definitions and Accounting Terms
Section 1.01 Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"A ADVANCE" means an advance by a Lender to the Borrower as
part of an A Borrowing, and refers to a Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be a "TYPE" of A Advance).
"A BORROWING" means a borrowing consisting of A Advances of
the same Type made on the same day by the Lenders pursuant to Section 2.01 and,
in the case of Eurodollar Rate Advances, having Interest Periods of the same
duration, it being understood that there may be more than one A Borrowing on a
particular day.
"ACQUISITION" means the acquisition by the Acquisition Company
pursuant to the Acquisition Agreement of the "Assets," as defined therein.
"ACQUISITION AGREEMENT" means the Agreement of Purchase and
Sale, dated December 22, 2000, between ATCO Gas and Pipelines Ltd., (as
successor to Northwestern Utilities Limited), as vendor, and the Acquisition
Company, as purchaser, as amended by agreements dated June 1,2001, June 28,2001,
July 27, 2001, August 8, 2001, August 31, 2001, and September 5, 2001, and by a
Purchase and Sale Amending Agreement dated as of September 11, 2001, providing
for the purchase and sale of the "Assets," as defined therein.
"ACQUISITION COMPANY" means Burlington Resources Canada Ltd.,
as successor by amalgamation to Burlington Resources Canada Energy Ltd.
"ACQUISITION CONDITIONS" shall include and be limited to the
following:
(i) the Administrative Agent shall have received, with a copy
for each Lender, a copy of the Acquisition Agreement and each other Acquisition
Document, if any; and
(ii) the Administrative Agent shall have received, with a copy
for each Lender, a certificate of the Borrower's Vice President, General Counsel
and Assistant Secretary stating
that, as of the Effective Date (A) the Acquisition, and any Advances in respect
thereof, if consummated on the Effective Date, would be in compliance with all
applicable legal requirements, including without limitation Regulations T, U and
X of the Board of Governors of the Federal Reserve System; (B) all applicable
appeal periods with respect to the Acquisition have expired; (C) all necessary
governmental and third party approvals and consents in connection with such
Advances and the Acquisition have been obtained and remain in effect (other than
approvals or consents the failure to obtain or maintain which would not
reasonably be expected to prevent the consummation of the Acquisition or to have
a material adverse effect on the consolidated financial condition or
consolidated results of operations of the Borrower or any material adverse
effect on the rights of or benefits available to the Lenders under this
Agreement); and (D) there does not exist any actual or overtly threatened
governmental or judicial action that has had or would reasonably be expected to
have a reasonable likelihood of restraining or preventing the Acquisition or
imposing materially burdensome conditions on the Acquisition.
"ACQUISITION DOCUMENTS" means the collective reference to the
Acquisition Agreement and any other agreement providing for the acquisition by
the Acquisition Company of the "Assets," as defined in the Acquisition
Agreement.
"ADMINISTRATIVE AGENT" has the meaning specified in the
introduction hereto.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent (with a copy to
the Borrower) duly completed by such Lender.
"ADVANCE" means an A Advance or a B Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a director or officer of such Person. The term "CONTROL"
(including the terms "CONTROLS," "CONTROLLED BY" or "UNDER COMMON CONTROL WITH")
means, with respect to any Person, the possession, direct or indirect, of the
power to vote 10% or more (or in the case of an "AFFILIATE" of any Lender, 5% or
more) of the securities having ordinary voting power for the election of
directors of such Person or to direct or cause the direction of the management
and policies of such Person, whether through ownership of voting securities or
by contract or otherwise. Neither a director nor an officer of the Borrower, in
such capacity, shall be deemed, for purposes of this Agreement, an Affiliate.
"AGREEMENT" means this
Bridge Revolving Credit Agreement,
together with all exhibits and schedules hereto, as amended or otherwise
modified from time to time pursuant to the terms hereof.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender, (i) in the case of an A Advance, such Lender's Domestic Lending Office
in respect of Base Rate Advances and such Lender's Eurodollar Lending Office in
respect of Eurodollar Rate Advances and (ii) in the case of a B Advance, the
office of such Lender notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such B Advance.
"ARRANGER" means ▇.▇. ▇▇▇▇▇▇ Securities Inc.
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"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender (other than a Designated Bidder) and an Eligible
Assignee, and accepted by the Administrative Agent, in substantially the form of
Exhibit D hereto.
"AUCTION ADMINISTRATIVE AGENT" has the meaning specified in
the introduction hereto.
"AVERAGE AGGREGATE FACILITY ADVANCES" means, for any
Utilization Fee Period, the average daily outstanding amount of all Advances
hereunder.
"AVERAGE AGGREGATE FACILITY COMMITMENTS" means, for any
Utilization Fee Period, the average daily amount of all Commitments hereunder.
"B ADVANCE" means an advance by a Lender to the Borrower as
part of a B Borrowing resulting from the auction bidding procedure described in
Section 2.19.
"B BORROWING" means a borrowing consisting of simultaneous B
Advances to the Borrower from each of the Lenders whose offer to make one or
more B Advances as part of such borrowing has been accepted by the Borrower
under the auction bidding procedure described in Section 2.19, it being
understood that there may be more than one B Borrowing on a particular day.
"B REDUCTION" has the meaning specified in Section 2.01(a).
"BASE RATE" means, for each day in any period, a fluctuating
interest rate per annum as shall be in effect from time to time which rate per
annum shall at all times for such day be equal to the higher of:
(i) The rate of interest announced publicly by the
Administrative Agent in the United States with respect to loans made in the
United States, from time to time, as the Administrative Agent's base or prime
rate as in effect for such day; and
(ii) 0.50% per annum above the Effective Federal Funds Rate
for such day.
"BASE RATE ADVANCE" means an A Advance which bears interest as
provided in Section 2.06(a)(i).
"BORROWER" has the meaning specified in the introduction
hereto.
"BORROWING" means an A Borrowing or a B Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized to close in
New York,
New York and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"BUSINESS ENTITY" means a partnership, corporation (including
a business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity.
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"CANADIAN CREDIT AGREEMENT" means the Credit Agreement dated
as of March 31, 2000, as amended and restated as of December 7, 2001, among
Burlington Resources Canada Ltd., as the borrower,
Burlington Resources Inc., as
parent, the financial institutions party thereto, JPMorgan, as administrative
agent for such financial institutions, Citibank, N.A. and Fleet National Bank,
as co-syndication agents, and Bank of America, N.A. and Toronto Dominion
(Texas), Inc., as co-documentation agents.
"CAPITALIZATION" means the sum (without duplication) of (i)
consolidated Debt of the Borrower and its consolidated Subsidiaries, plus (ii)
the aggregate amount of Guaranties by the Borrower or its consolidated
Subsidiaries, plus (iii) the sum of the preferred stock and common stockholders'
equity of the Borrower, plus (iv) the cumulative amount by which Consolidated
Tangible Net Worth shall have been reduced by reason of non-cash write-downs of
long-term assets subsequent to December 31, 1997 (but excluding any such amount
with respect to assets of Project Finance Subsidiaries), minus (v) to the extent
otherwise included in determining the amounts computed under clause (iii) above,
the aggregate investment (net of any Project Financing) of the Borrower and its
consolidated Subsidiaries in Project Finance Subsidiaries.
"CLAM" means CLAM Petroleum B.V., a Netherlands company, and
CLAM's successors.
"CLAM CREDIT AGREEMENT" means the Amended and Restated Credit
Agreement dated as of July 25, ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Partnership,
CLAM, the banks parties thereto and ▇▇▇▇▇▇, as agent for such banks, as amended
and restated as of August 15, 1997, or any successor credit agreement entered
into for the purpose of refinancing such Amended and Restated Credit Agreement,
in each case, as amended, restated, extended or otherwise modified from time to
time.
"COMMITMENT" has the meaning specified in Section 2.01(a).
"COMMITMENT EXPIRATION DATE" has the meaning specified in
Section 2.21(a).
"COMMITMENT PERCENTAGE" means as to any Lender at any time,
the percentage that such Lender's Commitment then constitutes of the aggregate
Commitments (or, at any time after the Commitments shall have expired or
terminated, the percentage that the aggregate principal amount of such Lender's
Advances then outstanding constitutes of the aggregate principal amount of the
Advances then outstanding).
"CONSOLIDATED TANGIBLE NET WORTH" means, on a consolidated
basis, the excess of (i) the sum of (x) the preferred stock and common
stockholders' equity of the Borrower and (y) the cumulative amount by which
Consolidated Tangible Net Worth shall have been reduced by reason of non-cash
write-downs of long-term assets subsequent to December 31, 1997, over (ii) the
intangible assets of the Borrower and its consolidated Subsidiaries.
"CONTINGENT GUARANTY" has the meaning specified in the
definition of the term "Guaranty" contained in this Section 1.01.
"CONVERT," "CONVERSION" and "CONVERTED" each refers to a
conversion of A Advances of one Type into A Advances of another Type pursuant to
Section 2.08, 2.09 or 2.13.
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"DEBT" of any Person means, without duplication (i)
indebtedness of such Person for borrowed money or in respect of bankers'
acceptances, (ii) obligations of such Person (other than any portion of any
trade payable obligation of such Person which shall not have remained unpaid for
91 days or more from the later of (A) the original due date of such portion and
(B) the customary payment date in the industry and relevant market for such
portion) to pay the deferred purchase price of property or services, (iii)
obligations of such Person as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting principles, recorded
as capital leases, and (iv) Overdue Reimbursement Obligations; provided,
however, that where any such indebtedness or obligation of such Person is made
jointly, or jointly and severally, with any third party or parties, which are
not the Borrower or any of its consolidated Subsidiaries, the amount thereof for
the purposes of this definition only shall be the pro rata portion thereof
payable by such Person, so long as such third party or parties have not
defaulted on its or their joint and several portions thereof, and provided,
further, that the following shall not at any time constitute Debt: (1)
obligations of such Person to reimburse a bank or other Person in respect of
amounts paid under a letter of credit or similar instrument that are not Overdue
Reimbursement Obligations, (2) Project Financing, (3) the ▇▇▇▇▇▇ Gold Loans
unless, at such time, for any reason whatsoever, (A) no royalty income shall
have accrued under the Royalty Agreement dated as of December 5, 1984 between
Copper Range Company, a Michigan corporation, and LL&E during the three
consecutive fiscal quarters of LL&E most recently ended prior to such time or
(B) any payment required to have been made to LL&E under such agreement prior to
such time shall not have been paid on, or within 30 days after, the date such
payment is due and (4) amounts borrowed by the Borrower and its Subsidiaries
under life insurance policies issued to one or more of the foregoing and
covering employees or former employees of one or more of the foregoing not in
excess of the cash surrender value of such policies.
"DESIGNATED BIDDER" means (i) an Affiliate of a Lender or (ii)
a special purpose corporation that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and that
issues (or the parent of which issues) commercial paper rated at least "Prime-1"
by ▇▇▇▇▇'▇ or "A-1" by S&P or a comparable rating from the successor of either
of them, that, in the case of either clause (i) or (ii) above, (1) is organized
under the laws of the United States or any state thereof, (2) shall have become
a party hereto pursuant to Subsections (e), (f) and (g) of Section 8.07, and (3)
is not otherwise a Lender. Notwithstanding the foregoing, each Designated Bidder
shall be subject to the written consent of the Borrower and the Administrative
Agent, such consent not to be unreasonably withheld.
"DESIGNATION AGREEMENT" means a designation agreement entered
into by the Borrower, a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Administrative Agent, in substantially the form of
Exhibit H hereto.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" in its
Administrative Questionnaire, or in the Assignment and Acceptance pursuant to
which it became a Lender, or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Administrative Agent.
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"EFFECTIVE DATE" means the date on which the conditions
precedent set forth in Section 3.01 have been satisfied (or compliance therewith
shall have been waived by the Lenders), which date the Administrative Agent will
promptly confirm to the Borrower and the Lenders in writing.
"EFFECTIVE FEDERAL FUNDS RATE" means, for any day, the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of
New York or, if such rate
is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"ELIGIBLE ASSIGNEE" means, with respect to any particular
assignment under Section 8.07, any bank or other entity approved in writing by
the Borrower expressly with respect to such assignment and, except as to such an
assignment by JPMorgan so long as JPMorgan is the Administrative Agent
hereunder, the Administrative Agent shall be an Eligible Assignee for purposes
of this Agreement, provided that neither the Administrative Agent's nor the
Borrower's approval shall be unreasonably withheld, and provided further that no
such approval shall be necessary if (i) the assignee is a Lender Affiliate, (ii)
the assignee was a Lender immediately prior to such assignment, or (iii) if an
Event of Default shall then be continuing.
"EQUITY INTERESTS" means any capital stock, partnership, joint
venture, member or limited liability or unlimited liability company interest,
beneficial interest in a trust or similar entity or other equity interest or
investment of whatever nature.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued from time to time thereunder.
"ERISA AFFILIATE" means any Person who is a member of the
Borrower's controlled group within the meaning of Section 4001(a)(14)(A) of
ERISA.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to each
Lender, the office of such Lender specified as its "Eurodollar Lending Office"
in its Administrative Questionnaire or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its Domestic
Lending Office) or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing, the interest
rate per annum equal to the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the principal
office of the Reference Bank in London, England, to prime banks in the London
interbank market at 11:00 A.M. (London, England time) two Business Days before
the first day of such Interest Period in an amount comparable to the amount of
such A Borrowing and for a
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period equal to such Interest Period. The Eurodollar Rate for the Interest
Period for each Eurodollar Rate Advance comprising part of the same A Borrowing
shall be determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the Reference Bank
two Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"EURODOLLAR RATE ADVANCE" means an A Advance which bears
interest determined by reference to the Eurodollar Rate, as provided in Section
2.06(a)(ii).
"EURODOLLAR RATE MARGIN" means for any date the percentage per
annum applicable on such date as set forth in the row labeled "LIBOR Applicable
Margin" on Schedule II hereto, which is based on the ratings (or lack thereof)
by ▇▇▇▇▇'▇ or S&P or both of the public long-term senior unsecured debt
securities of the Borrower.
"EURODOLLAR RESERVE PERCENTAGE" of any Lender for any Interest
Period for any Eurodollar Rate Advance means the reserve percentage applicable
during such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or if more than one such
percentage shall be so applicable, the daily average of such percentages for
those days in such Interest Period during which any such percentage shall be so
applicable) for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for such Lender
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXTENSION REQUEST" means each request by the Borrower made
pursuant to Section 2.21 for the Lenders to extend the Stated Termination Date,
which shall contain the information in respect of such extension specified in
Exhibit E and shall be delivered to the Administrative Agent in writing.
"FACILITY FEE PERCENTAGE" means for any date the percentage
per annum applicable on such date as set forth in the row labeled "Facility Fee
Percentage" on Schedule II hereto, which is based on the ratings (or lack
thereof) by ▇▇▇▇▇'▇ or S&P or both of the public long-term senior unsecured debt
securities of the Borrower.
"GUARANTY," "GUARANTEED" and "GUARANTEEING" each means any act
by which a Person assumes, guarantees, endorses or otherwise incurs direct or
contingent liability in connection with, or agrees to purchase or otherwise
acquire or otherwise assures a creditor against loss in respect of, any Debt or
Project Financing of any Person other than the Borrower or any of its
consolidated Subsidiaries (excluding (i) any liability by endorsement of
negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business, (ii) any liability in connection with obligations
of the Borrower or any of its consolidated Subsidiaries, including obligations
under any conditional sales agreement, equipment trust financing or equipment
lease, (iii) any liability or other act of the Borrower or any of its
Subsidiaries under arrangements entered into in connection with the CLAM Credit
Agreement, and (iv) any such act in connection with a Project Financing that
either (A) guarantees to the provider of such Project
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Financing or any other Person performance of the acquisition, improvement,
installation, design, engineering, construction, development, completion,
maintenance or operation of, or otherwise affects any such act in respect of,
all or any portion of the project that is financed by such Project Financing or
performance by a Project Financing Subsidiary of certain obligations to Persons
other than the provider of such Project Financing, except during any period, and
then only to the extent, that such guaranty is a direct guaranty of payment of
such Project Financing (other than a guaranty of payment of the type referred to
in subclause (B) below) or (B) is contingent upon, or the obligation to pay or
perform under which is contingent upon, the occurrence or existence of any event
or condition other than or in addition to (1) the passage of time, (2) any
Project Financing becoming due, (3) the commencement of bankruptcy, insolvency
or similar proceedings by the obligor on any Project Financing or (4) the
failure of the obligor on any Project Financing to satisfy a financial ratio,
covenant or other similar financial measurement test, but only during such
period as such act is not by its terms presently enforceable, or if so
enforceable, there is not a reasonable probability that the guarantor will be
called upon to perform thereunder (or to make capital contributions in lieu of
performance thereunder) (any such act referred to in this clause (iv) being a
"CONTINGENT GUARANTY")); provided, however, that for the purposes of this
definition the liability of the Borrower or any of its Subsidiaries with respect
to any obligation as to which a third party or parties are jointly, or jointly
and severally, liable as a guarantor or otherwise as contemplated hereby and
have not defaulted on its or their portions thereof, shall be only its pro rata
portion of such obligation.
"INDEMNIFIED PARTY" means any or all of the Lenders, the
Arranger and the Administrative Agent.
"INITIAL LENDERS" has the meaning specified in the
introduction hereto.
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18)
of ERISA.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same A Borrowing, the period beginning on the date of
such Advance or the date of the Conversion of any Advance into such Advance and
ending on the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last day of
the period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period for a Eurodollar Rate Advance shall be
one, two, three or six months upon notice received by the Administrative Agent
not later than 12:00 noon (
New York City time) on the third Business Day prior
to the first day of such Interest Period, in each case as the Borrower may
select; provided, however, that:
(A) the duration of any Interest Period which commences before
the Termination Date and would otherwise end after the Termination Date shall
end on the Termination Date;
(B) if the last day of such Interest Period would otherwise
occur on a day which is not a Business Day, such last day shall be extended to
the next succeeding Business Day, except if such extension would cause such last
day to occur in a new calendar month, then such last day shall occur on the next
preceding Business Day;
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(C) Interest Periods commencing on the same date for A
Advances comprising the same A Borrowing shall be of the same duration; and
(D) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall, subject to
clause (A) above, end on the last Business Day of a calendar month.
"JPMORGAN" means JPMorgan Chase Bank, and its successors.
"LENDER AFFILIATE" means, with respect to any Lender, (a) an
Affiliate of such Lender or (b) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender (with such Lender or Affiliate having the sole right and
responsibility with respect to the approval of amendments and waivers to this
Agreement, the Notes and all related agreements and instruments entered into
from time to time).
"LENDERS" means the Initial Lenders, each Eligible Assignee
that shall become a party hereto pursuant to Section 8.07(a), (b) and (d) and,
except when used in reference to an A Advance, an A Borrowing, a Commitment or a
term related to any of the foregoing, each Designated Bidder.
"LIEN" means any lien, security interest or other charge or
encumbrance, or any assignment of the right to receive income, or any other type
of preferential arrangement, in each case to secure any Debt or any Guaranty of
any Person; provided that (i) the creation of interests in property of the
character commonly referred to as a "royalty interest" or "overriding royalty
interest," farmouts, joint operating or unitization agreements, or other similar
transactions in the ordinary course of business and (ii) borrowings under life
insurance policies as described in clause (4) of the proviso to the definition
of "Debt" shall not be deemed to create a Lien.
"LL&E" means The Louisiana Land and Exploration Company, a
Maryland corporation and a wholly-owned Subsidiary of the Borrower.
"LONG-TERM REVOLVING CREDIT AGREEMENT" means the Long-Term
Revolving Credit Agreement dated as of February 25, 1998 as amended and restated
as of December 7, 2001 among the Borrower, the financial institutions party
thereto, JPMorgan, as administrative agent and auction administrative agent for
such financial institutions, Citibank, N.A. and Fleet National Bank, as
co-syndication agents, and Bank of America, N.A. and Toronto Dominion (Texas),
Inc., as co-documentation agents.
"MAJORITY LENDERS" means at any time Lenders holding at least
51% of the then aggregate unpaid principal amount of the Advances held by
Lenders, or, if no such principal amount is then outstanding, Lenders having at
least 51% of the Commitments.
"MARGIN STOCK" means "margin stock" as defined in Regulation U
of the Board of Governors of the Federal Reserve System, as in effect from time
to time.
9
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
the financial condition or operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis.
"MATERIAL PLAN" means any Plan the assets of which exceed
$50,000,000 or the liabilities of which for unfunded vested benefits determined
on a plan termination basis (in accordance with Title IV of ERISA) exceed
$10,000,000.
"MATERIAL SUBSIDIARY" means, from time to time, any Subsidiary
of the Borrower (other than a Project Financing Subsidiary) then owning assets
(determined on a consolidated basis) that equal or exceed 10% of the book value
of the consolidated assets of the Borrower and its consolidated Subsidiaries at
such time.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Guaranty Trust Company of
New York, and
its successors.
"▇▇▇▇▇▇ GOLD LOANS" means the obligations of LL&E under the
respective Credit Agreements dated as of December 23, 1994 and March 31, 1995
between LL&E and ▇▇▇▇▇▇, or under any additional credit agreements on
substantially similar terms, in each case, as amended, restated, extended or
otherwise modified from time to time, provided that the aggregate outstanding
amount borrowed thereunder shall at no time exceed 35,000 ounces of gold.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions,
such plan being maintained pursuant to one or more collective bargaining
agreements.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which (i) is maintained for employees
of the Borrower or an ERISA Affiliate and at least one Person other than the
Borrower and its ERISA Affiliates or (ii) was so maintained and in respect of
which the Borrower or an ERISA Affiliate could have liability under Section 4064
or 4069 of ERISA in the event such plan has been or were to be terminated.
"NOTE" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from the
Advances made by such Lender.
"NOTICE OF A BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF B BORROWING" has the meaning specified in Section
2.19(a).
"OBJECTING LENDERS" has the meaning specified in Section
2.21(a).
"ORIGINAL EFFECTIVE DATE" means February 25, 1998.
"OVERDUE REIMBURSEMENT OBLIGATIONS" means with respect to any
Person non-contingent obligations of such Person to reimburse a bank or other
Person in respect of amounts
10
paid under a letter of credit or similar instrument that are not paid on or
prior to the fifth Business Day after the due date therefor.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED ASSETS" means (i) hydrocarbon or other reserves
(including proved, probable, possible or speculative reserves), (ii) properties,
assets, rights or business related to reserves (including real property,
gathering systems, plants, pipelines, equipment and processing and treatment
facilities), (iii) other fixed or operating assets and (iv) Equity Interests in
any and all Business Entities that are or become Subsidiaries of the Borrower
owning assets referred to in any of the foregoing clauses.
"PERMITTED LIENS" means
(i) inchoate Liens and charges imposed by law and incidental
to construction, maintenance, development or operation of properties, or the
operation of business, in the ordinary course of business if payment of the
obligation secured thereby is not yet overdue or if the validity or amount of
which is being contested in good faith by the Borrower or any Subsidiary of the
Borrower;
(ii) Liens for taxes, assessments, obligations under workers'
compensation or other social security legislation or other governmental
requirements, charges or levies, in each case not yet overdue;
(iii) Liens reserved in any oil, gas or other mineral lease
entered into in the ordinary course of business for rent, royalty or delay
rental under such lease and for compliance with the terms of such lease;
(iv) easements, servitudes, rights-of-way and other rights,
exceptions, reservations, conditions, limitations, covenants and other
restrictions which do not materially interfere with the operation, value or use
of the properties affected thereby;
(v) conventional provisions contained in any contracts or
agreements affecting properties under which the Borrower or a Subsidiary of the
Borrower is required immediately before the expiration, termination or
abandonment of a particular property to reassign to the Borrower's or a
Subsidiary's predecessor in title all or a portion of the Borrower's or such
Subsidiary's rights, titles and interests in and to all or a portion of such
property;
(vi) any Lien reserved in a grant or conveyance in the nature
of a farm-out or conditional assignment to the Borrower or any of its
Subsidiaries entered into in the ordinary course of business on reasonable terms
to secure undertakings of the Borrower or such Subsidiary in such grant or
conveyance;
(vii) any Lien consisting of (A) statutory landlord's liens
under leases to which the Borrower or any Subsidiary of the Borrower is a party
or other Liens on leased property reserved in leases thereof for rent or for
compliance with the terms of such leases, (B) rights reserved to or vested in
any municipality or governmental, statutory or public authority to control or
regulate any property of the Borrower or any of its Subsidiaries or to use such
property in any manner
11
which does not materially impair the use of such property for the purposes for
which it is held by the Borrower or any such Subsidiary, (C) obligations or
duties to any municipality or public authority with respect to any franchise,
grant, license, lease or permit and the rights reserved or vested in any
governmental authority or public utility to terminate any such franchise, grant,
license, lease or permit or to condemn or expropriate any property, and (D)
zoning laws and ordinances and municipal regulations;
(viii) Liens on Equity Interests in, or Debt or other
obligations of, CLAM owned by the Borrower or any of its Subsidiaries, which
Liens secure Debt of CLAM; and
(ix) any Lien on any assets (including Equity Interests and
other obligations) securing Debt incurred or assumed for the purpose of
financing all or any part of the cost of acquiring, improving, installing,
designing, engineering, developing (including drilling), or constructing such
assets, provided that such Lien attaches to such assets concurrently with or
within 360 days after the acquisition or completion of development, construction
or installation thereof or improvement thereto.
"PERSON" means an individual, a Business Entity, or a country
or any political subdivision thereof or any agency or instrumentality of such
country or subdivision.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PROJECT FINANCING" means any Debt incurred to finance or
refinance the acquisition, improvement, installation, design, engineering,
construction, development, completion, maintenance or operation of, or otherwise
in respect of, all or any portion of any project, or any asset related thereto,
and any Guaranty with respect thereto, other than any portion of such Debt or
Guaranty permitting or providing for recourse against the Borrower or any of its
Subsidiaries other than (i) recourse to the Equity Interests in, Debt or other
obligations of, or assets of, one or more Project Financing Subsidiaries, and
(ii) such recourse as exists under any Contingent Guaranty.
"PROJECT FINANCING SUBSIDIARY" means any Subsidiary of the
Borrower whose principal purpose is to incur Project Financing, or to become a
direct or indirect partner, member or other equity participant or owner in a
Business Entity so created, and substantially all the assets of which Subsidiary
or Business Entity are limited to those assets being financed (or to be
financed), or the operation of which is being financed (or to be financed), in
whole or in part by a Project Financing or to Equity Interests in, or Debt or
other obligations of, one or more other such Subsidiaries or Business Entities.
"REFERENCE BANK" means JPMorgan Chase Bank.
"REGISTER" has the meaning specified in Section 8.07(c).
"REQUIRED LENDERS" means Lenders (i) that are not Objecting
Lenders with respect to any previous Extension Request and (ii) that have
Commitment Percentages aggregating at least 51% of the aggregate Commitment
Percentages of such non-Objecting Lenders.
12
"REVOLVING A ADVANCE" means an A Advance made or to be made by
a Lender pursuant to Section 2.01(a).
"S&P" means Standard and Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"SHORT-TERM REVOLVING CREDIT AGREEMENT" means the Short-Term
Revolving Credit Agreement dated as of February 25, 1998 as amended and restated
as of December 7, 2001 among the Borrower, the financial institutions party
thereto, JPMorgan, as administrative agent and auction administrative agent for
such financial institutions, Citibank, N.A. and Fleet National Bank, as
co-syndication agents, and Bank of America, N.A. and Toronto Dominion (Texas),
Inc., as co-documentation agents.
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees of
the Borrower or an ERISA Affiliate and no Person other than the Borrower and its
ERISA Affiliates or (ii) was so maintained and in respect of which the Borrower
or an ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"STATED TERMINATION DATE" means the date that is 180 days
after the Effective Date, or such later date as shall be determined pursuant to
the provisions of Section 2.21 with respect to non-Objecting Lenders, provided
that if such date is not a Business Day, the Stated Termination Date shall be
the next preceding Business Day.
"SUBSIDIARY" means, as to any Person, any Business Entity of
which shares of stock or other Equity Interests having ordinary voting power
(other than stock or such other Equity Interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such Business Entity are at the time owned,
directly or indirectly through one or more Subsidiaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"TERMINATION DATE" means the earlier of (i) the Stated
Termination Date and (ii) the date of termination in whole of the Commitments
pursuant to Section 2.04 or 6.01.
"TERMINATION EVENT" means (i) a "reportable event," as such
term is described in Section 4043 of ERISA (other than a "reportable event" not
subject to the provision for 30-day notice to the PBGC), or an event described
in Section 4062(e) of ERISA, or (ii) the withdrawal of the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it was a
"substantial employer," as such term is defined in Section 4001(a)(2) of ERISA,
or the incurrence of liability by the Borrower or any ERISA Affiliate under
Section 4064 of ERISA upon the termination of a Multiple Employer Plan, or (iii)
the filing of a notice of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, or (iv) the institution
of proceedings to terminate a Plan by the PBGC under Section 4042 of ERISA, or
(v) the conditions set forth in Section 302(f)(1)(A) and (B) of ERISA to the
creation of a lien upon property or rights to property of the Borrower or any
ERISA Affiliate for failure to make a required payment to a Plan are satisfied,
or (vi) the adoption of an amendment to a Plan requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA, or
13
(vii) 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 Plan.
"TYPE" has the meaning specified in the definition of "A
Advance."
"UTILIZATION FEE PERIOD" means any period during the term of
this Agreement commencing on the Effective Date or on a subsequent January 1,
April 1, July 1 or October 1 and ending in each case on the earliest to occur of
the next succeeding March 31, June 30, September 30 or December 31 and the
Termination Date.
"WITHDRAWAL LIABILITY" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
Section 1.02 Computation of Time Periods. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding."
Section 1.03 Accounting and Other Terms. All accounting terms
not specifically defined herein shall be construed in accordance with generally
accepted accounting principles either (i) consistent with those principles
applied in the preparation of the annual financial statements referred to in
Section 4.01(e), or (ii) not so materially inconsistent with such principles
that a covenant contained in Section 5.01 or 5.02 would be calculated or
construed in a materially different manner or with materially different results
than if such covenant were calculated or construed in accordance with clause (i)
of this Section 1.03. "INCLUDE," "INCLUDES" and "INCLUDING" shall be deemed to
be followed by "without limitation" whether or not they are in fact followed by
such words or words of like import. References to any agreement or contract are
to such agreement or contract as amended, modified or supplemented from time to
time in accordance with the terms hereof and thereof.
Section 1.04 References. The words "HEREOF," "HEREIN" and
"HEREUNDER" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
ARTICLE 2
Amounts and Terms of the Advances
Section 2.01 (a) Revolving A Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make A Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date to and including the Termination Date in an aggregate amount not
to exceed at any time outstanding the amount set forth opposite such Lender's
name on the signature pages hereof under the caption "COMMITMENTS," or, if such
Lender has entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to Section
8.07(c), as such amount may be reduced pursuant to Section 2.04 (such Lender's
"COMMITMENT"), provided that the aggregate amount of the Commitments of the
Lenders shall be deemed used from time to time to
14
the extent of the aggregate amount of the B Advances then outstanding and such
deemed use of the aggregate amount of such Commitments shall be applied to all
the Lenders ratably according to their respective Commitments (such deemed use
of the aggregate amount of the Commitments being a "B REDUCTION"). Each A
Borrowing consisting of Revolving A Advances shall be in an aggregate amount of
$10,000,000 in the case of an A Borrowing comprised of Base Rate Advances and
$25,000,000 in the case of an A Borrowing comprised of Eurodollar Rate Advances,
or, in either case an integral multiple of $1,000,000 in excess thereof (or, in
the case of an A Borrowing of Base Rate Advances, the aggregate unused
Commitments, if less) and shall consist of A Advances of the same Type made on
the same day by the Lenders ratably according to their respective Commitments.
Within the limits of each Lender's Commitment, the Borrower may make more than
one Borrowing on any Business Day and may borrow, prepay pursuant to Section
2.10, and reborrow under this Section 2.01(a).
(b) [ Reserved. ]
Section 2.02 Making the A Advances.
(a) Each A Borrowing shall be made on notice by the Borrower
to the Administrative Agent (a "NOTICE OF A BORROWING") received by the
Administrative Agent, (i) in the case of a proposed A Borrowing comprised of
Base Rate Advances, not later than 10:00 A.M. (
New York City time) on the
Business Day of such proposed A Borrowing, and (ii) in the case of a proposed A
Borrowing comprised of Eurodollar Rate Advances, not later than 12:00 noon (
New
York City time) on the third Business Day prior to the date of such proposed A
Borrowing. Each Notice of A Borrowing shall be by telecopy, telefax or other
teletransmission or by telephone (and if by telephone, confirmed promptly by
telecopier, telefax or other teletransmission), in substantially the form of
Exhibit B hereto, specifying therein the requested (w) date of such A Borrowing,
(x) Type of A Advances comprising such A Borrowing, (y) aggregate amount of such
A Borrowing, and (z) in the case of an A Borrowing comprised of Eurodollar Rate
Advances, the initial Interest Period for each such A Advance. Each Lender
shall, before 1:00 p.m. (
New York City time) on the date of such A Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent in care of JPMorgan Chase Bank, Agency Services, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Reference:
Burlington Resources Inc., or at such other location designated by
notice from the Administrative Agent to the Lenders pursuant to Section 8.02, in
same day funds, such Lender's ratable portion of such A Borrowing. Immediately
after the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article 3, the Administrative Agent will
make such funds available to the Borrower at JPMorgan Chase Bank, One Chase
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or at any account of the
Borrower maintained by the Administrative Agent (or any successor Administrative
Agent) designated by the Borrower and agreed to by the Administrative Agent (or
such successor Administrative Agent), in same day funds.
(b) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrower. In the case of any A Borrowing which the related Notice
of A Borrowing specified is to be comprised of Eurodollar Rate Advances, if such
A Advances are not made as a result of any failure to fulfill on or before the
date specified for such A Borrowing the applicable conditions set forth in
Article 3, the Borrower shall indemnify each Lender against any loss, cost or
expense
15
incurred by such Lender as a result of such failure, including any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the A Advance to be made by such
Lender as part of such A Borrowing.
(c) [ Reserved. ]
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any A Borrowing that such Lender will not
make available to the Administrative Agent such Lender's ratable portion of such
A Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such A Borrowing in
accordance with Subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at the Effective Federal Funds
Rate for such day. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's A
Advance to the Borrower as part of such A Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the A Advance to be made
by it as part of any A Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the A Advance to be made by such other Lender on the date of any
A Borrowing.
Section 2.03 Fees.
(a) FACILITY FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender (other than a Designated
Bidder) a facility fee on the average daily amount of such Lender's Commitment,
whether or not used or deemed used, from the Effective Date in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other
Lender, in each case until the Termination Date, payable quarterly in arrears on
the last day of each March, June, September and December during the term of such
Lender's Commitment and on the Termination Date, at a rate per annum equal to
the Facility Fee Percentage in effect from time to time.
(b) UTILIZATION FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender (i) for any Utilization Fee
Period, if during such Utilization Fee Period the Average Aggregate Facility
Advances were greater than 25% and less than or equal to 50% of the Average
Aggregate Facility Commitments, a utilization fee of 0.125% per annum on the
average daily amount of such Lender's Advances during such Utilization Fee
Period; and (ii) for any Utilization Fee Period, if during such Utilization Fee
Period the Average Aggregate Facility Advances were greater than 50% of the
Average Aggregate Facility Commitments, a utilization fee of 0.25% per annum on
the average daily amount of such Lender's Advances during such
16
Utilization Fee Period. If a utilization fee is owing in respect of any
Utilization Fee Period, such fee shall be payable on the last day of such
Utilization Fee Period.
Section 2.04 Reduction of the Commitments. The Borrower shall
have the right, upon at least three Business Days' notice to the Administrative
Agent, to terminate in whole or reduce ratably in part the unused portions of
the Commitments of the Lenders (being the amount by which such Commitments
exceed the aggregate outstanding principal amount of all Advances), provided
that each partial reduction shall be in the aggregate amount of $20,000,000 or
any whole multiple of $1,000,000 in excess thereof.
Section 2.05 Repayment of A Advances. (a) The Borrower shall
repay to each Lender on the Termination Date the aggregate principal amount of
the Revolving A Advances, together with accrued interest thereon, then owing to
such Lender.
(b) [ Reserved. ]
Section 2.06 Interest on A Advances.
(a) ORDINARY INTEREST. The Borrower shall pay interest on the
unpaid principal amount of each A Advance owing to each Lender from the date of
such A Advance until such principal amount is due (whether at stated maturity,
by acceleration or otherwise), at the following rates:
(i) BASE RATE ADVANCES. During such periods as such A
Advance is a Base Rate Advance, a rate per annum equal at all
times to the Base Rate in effect from time to time, payable
quarterly in arrears on the last day of each March, June,
September and December during such periods and on the date
such Base Rate Advance shall be Converted or due (whether at
stated maturity, by acceleration or otherwise).
(ii) EURODOLLAR RATE ADVANCES. During such periods as
such A Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such A
Advance to the sum of the Eurodollar Rate for such Interest
Period plus the Eurodollar Rate Margin in effect from time to
time, payable on the last day of each such Interest Period
and, if any such Interest Period has a duration of more than
three months, on each day which occurs during such Interest
Period every three months from the first day of such Interest
Period and, if such A Advance is Converted into a Base Rate
Advance on any date other than the last day of any Interest
Period for such A Advance, on the date of such Conversion or,
if later, the Business Day on which the Borrower shall have
received at least one Business Day's prior notice from the
Administrative Agent or the applicable Lender of the amount of
unpaid interest accrued on such A Advance to the date of such
Conversion.
(b) DEFAULT INTEREST. The Borrower shall pay interest on the
unpaid principal amount of each Advance that is not paid when due (whether at
stated maturity, by acceleration or otherwise) from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times (i) from such due date to the last day of the then
existing Interest Period therefor, in the case of each Eurodollar Rate Advance,
to 1% per annum above the interest rate per annum required to be paid on such A
Advance immediately
17
prior to the date on which such amount became due and (ii) from and after the
last day of the then existing Interest Period therefor, in the case of each
Eurodollar Rate Advance, and at all times in the case of each Base Rate Advance
or B Advance, to 1% per annum above the Base Rate in effect from time to time.
Section 2.07 Additional Interest on Eurodollar Rate Advances.
If any Lender shall determine in good faith that reserves under regulations of
the Board of Governors of the Federal Reserve System are required to be
maintained by it in respect of, or a portion of its costs of maintaining
reserves under such regulations is properly attributable to, one or more of its
Eurodollar Rate Advances, the Borrower shall pay to such Lender additional
interest on the unpaid principal amount of each such Eurodollar Rate Advance
payable on the same day or days on which interest is payable on such A Advance,
at an interest rate per annum up to but not exceeding at all times during each
Interest Period for such A Advance the excess of (i) the rate obtained by
dividing the Eurodollar Rate for such Interest Period by a percentage equal to
100% minus the Eurodollar Reserve Percentage, if any, for such Lender for such
Interest Period over (ii) the Eurodollar Rate for such Interest Period. Any
Lender wishing to require payment of such additional interest (x) shall so
notify the Borrower and the Administrative Agent, in which case such additional
interest on the Eurodollar Rate Advances of such Lender shall be payable to such
Lender at the place indicated in such notice with respect to each Interest
Period commencing at least five Business Days after the giving of such notice
and (y) shall furnish to the Borrower at least five Business Days prior to each
date on which interest is payable on the Eurodollar Rate Advances an officer's
certificate setting forth the amount to which such Lender is then entitled under
this Section, which certificate shall be conclusive and binding for all
purposes, absent manifest error.
Section 2.08 Interest Rate Determination.
(a) The Reference Bank agrees to furnish to the Administrative
Agent timely information for the purpose of determining each Eurodollar Rate.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.06(a)(i) or (ii), and the
applicable rate, if any, furnished by the Reference Bank for the purpose of
determining the applicable interest rate under Section 2.06(a)(ii).
(c) If the Reference Bank is unable to furnish timely
information to the Administrative Agent for determining the Eurodollar Rate for
any applicable A Advances,
(i) the Administrative Agent shall give the Borrower
and each Lender prompt notice by telephone (confirmed in
writing) that the interest rate cannot be determined for such
applicable A Advances,
(ii) each such A Advance that is a Eurodollar Rate
Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate
Advance (or if such A Advance is then a Base Rate Advance,
will continue as a Base Rate Advance), and
18
(iii) the obligations of the Lenders to make, or to
Convert A Advances into, Eurodollar Rate Advances, as the case
may be, shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders determine and give notice to the Administrative Agent that as a
result of conditions in or generally affecting the relevant market, the rates of
interest determined on the basis of the Eurodollar Rate for any Interest Period
for such A Advances will not adequately reflect the cost to such Majority
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Lenders, whereupon:
(i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to
Convert A Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Eurodollar Rate Advances will automatically, on the last day of the then
existing Interest Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount
of A Advances comprising any A Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $10,000,000, such A Advances shall, if
they are Eurodollar Rate Advances, automatically Convert into Base Rate
Advances, and on and after such date the right of the Borrower to Convert such A
Advances into Eurodollar Rate Advances shall terminate; provided, however, that
if and so long as each such A Advance shall be, or be elected to be Converted
to, Eurodollar Rate Advances having the same Interest Period as Eurodollar Rate
Advances comprising another A Borrowing or other A Borrowings, and the aggregate
unpaid principal amount of all such Eurodollar Rate Advances shall, or upon such
Conversion will, equal or exceed $20,000,000, the Borrower shall have the right
to continue all such Eurodollar Rate Advances as, or to Convert all such A
Advances into, Eurodollar Rate Advances having such Interest Period.
Section 2.09 Voluntary Conversion of A Advances. The Borrower
may on any Business Day, upon notice given to the Administrative Agent, not
later than 12:00 noon (
New York City time) on the third Business Day prior to
the date of the proposed Conversion, and subject to the provisions of Section
2.08, 2.11 and 2.13, Convert all A Advances of one Type comprising the same A
Borrowing into A Advances of the other Type; provided, however, that any
Conversion of any Eurodollar Rate Advances into Base Rate Advances made on any
day other than the last day of an Interest Period for such Eurodollar Rate
Advances shall be subject to the provisions of Section 8.04(b). Each such notice
of a Conversion shall, within the restrictions specified above,
19
specify (i) the date of such Conversion, (ii) the A Advances to be Converted,
and (iii) if such Conversion is into Eurodollar Rate Advances, the duration of
the Interest Period for each such Eurodollar Rate Advance.
Section 2.10 Prepayments. The Borrower may, upon (i) in the
case of Eurodollar Rate Advances, at least three Business Days notice or (ii) in
the case of Base Rate Advances, telephonic notice not later than 12:00 noon (New
York City time) on the date of prepayment, to the Administrative Agent which
specifies the proposed date and aggregate principal amount of the prepayment and
the Type of A Advances to be prepaid, and if such notice is given the Borrower
shall, prepay the outstanding principal amounts of the A Advances comprising the
same A Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the amount prepaid; provided, however, that (x)
each partial prepayment shall be in an aggregate principal amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in
the event of any such prepayment of Eurodollar Rate Advances on any day other
than the last day of an Interest Period for such Eurodollar Rate Advances, the
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to, and to the extent required by, Section 8.04(b); provided, further, however,
that the Borrower will use its best efforts to give notice to the Administrative
Agent of the proposed prepayment of Base Rate Advances on the Business Day prior
to the date of such proposed prepayment.
Section 2.11 Increased Costs.
(a) If, due to either (i) the introduction after the Effective
Date of or any change after the Effective Date (including any change by way of
imposition or increase of reserve requirements or assessments other than those
referred to in the definition of "Eurodollar Reserve Percentage" contained in
Section 1.01) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request issued or made after the Effective Date
from or by any central bank or other governmental authority (whether or not
having the force of law), in each case above other than those referred to in
Section 2.12, there shall be any increase in the cost to any Lender of agreeing
to make, fund or maintain, or of making, funding or maintaining, Eurodollar Rate
Advances funded in the interbank Eurodollar market, then the Borrower shall from
time to time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to reimburse such Lender for all such
increased costs (except those incurred more than 60 days prior to the date of
such demand; for the purposes hereof any cost or expense allocable to a period
prior to the publication or effective date of such an introduction, change,
guideline or request shall be deemed to be incurred on the later of such
publication or effective date). Each Lender agrees to use its best reasonable
efforts promptly to notify the Borrower of any event referred to in clause (i)
or (ii) above, provided that the failure to give such notice shall not affect
the rights of any Lender under this Section 2.11(a) (except as otherwise
expressly provided above in this Section 2.11(a)). A certificate as to the
amount of such increased cost, submitted to the Borrower and the Administrative
Agent by such Lender, shall be conclusive and binding for all purposes, absent
manifest error. After one or more Lenders have notified the Borrower of any
increased costs pursuant to this Section 2.11, the Borrower may specify by
notice to the Administrative Agent and the affected Lenders that, after the date
of such notice whenever the election of a Eurodollar Rate Advance by the
Borrower for an Interest Period or portion thereof would give rise to such
increased costs, such election shall not apply to
20
the A Advances of such Lender or Lenders during such Interest Period or portion
thereof, and, in lieu thereof, such A Advances shall during such Interest Period
or portion thereof be Base Rate Advances. Each Lender agrees to use its best
reasonable efforts (including a reasonable effort to change its Applicable
Lending Office or to transfer its affected A Advances to an Affiliate of such
Lender) to avoid, or minimize the amount of, any demand for payment from the
Borrower under this Section 2.11, provided that such avoidance would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
(b) In the event that any Lender shall change its Eurodollar
Lending Office and such change results (at the time of such change) in increased
costs to such Lender, the Borrower shall not be liable to such Lender for such
increased costs incurred by such Lender to the extent, but only to the extent,
that such increased costs shall exceed the increased costs which such Lender
would have incurred if the Eurodollar Lending Office of such Lender had not been
so changed, but, subject to Subsection (a) of this Section 2.11 and to Section
2.13, nothing herein shall require any Lender to change its Eurodollar Lending
Office for any reason.
Section 2.12 Increased Capital. If either (i) the introduction
of or any change in or in the interpretation of any law or regulation or (ii)
compliance by any Lender with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender (including any determination
after the Effective Date by any such central bank, governmental authority or
comparable agency that, for purposes of capital adequacy requirements, the
Commitments hereunder do not constitute commitments with an original maturity of
one year or less) and such Lender determines that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, within ten days after
demand, and delivery to the Borrower of the certificate referred to in the last
sentence of this Section 2.12 by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder (except any such increase in capital
incurred more than, or compensation attributable to the period before, 90 days
prior to the date of such demand; for the purposes hereof any increase in
capital allocable to, or compensation attributable to, a period prior to the
publication or effective date of such an introduction, change, guideline or
request shall be deemed to be incurred on the later of such publication or
effective date). Each Lender agrees to use its best reasonable efforts promptly
to notify the Borrower of any event referred to in clause (i) or (ii) above,
provided that the failure to give such notice shall not affect the rights of any
Lender under this Section 2.12 (except as otherwise expressly provided above in
this Section 2.12). A certificate in reasonable detail as to the basis for, and
the amount of, such compensation submitted to the Borrower and the
Administrative Agent by such Lender shall, in the absence of manifest error, be
conclusive and binding for all purposes.
Section 2.13 Illegality. Notwithstanding any other provision
of this Agreement, if the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for
21
any Lender or its Applicable Lending Office to perform its obligations hereunder
to make Eurodollar Rate Advances or to continue to fund or maintain such
Advances hereunder, such Lender may, by notice to the Borrower and the
Administrative Agent, suspend the right of the Borrower to elect Eurodollar Rate
Advances from such Lender and, if necessary in the reasonable opinion of such
Lender to comply with such law or regulation, Convert all such Eurodollar Rate
Advances of such Lender to Base Rate Advances at the latest time permitted by
the applicable law or regulation, and such suspension and, if applicable, such
Conversion shall continue until such Lender notifies the Borrower and the
Administrative Agent that the circumstances making it unlawful for such Lender
to perform such obligations no longer exist (which such Lender shall promptly do
when such circumstances no longer exist). So long as the obligation of any
Lender to make Eurodollar Rate Advances has been suspended under this Section
2.13, all Notices of A Borrowing specifying A Advances of such Type shall be
deemed, as to such Lender, to be requests for Base Rate Advances. Each Lender
agrees to use its best reasonable efforts (including a reasonable effort to
change its Applicable Lending Office or to transfer its affected A Advances to
an affiliate) to avoid any such illegality, provided that such avoidance would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender.
Section 2.14 Payments and Computations.
(a) The Borrower shall make each payment hereunder (including
under Section 2.03, 2.05, 2.06 or 2.19) and under the Notes, whether the amount
so paid is owing to any or all of the Lenders or to the Administrative Agent,
not later than 1:00 P.M. (New York City time) without setoff, counterclaim, or
any other deduction whatsoever, on the day when due in U.S. dollars to the
Administrative Agent in care of JPMorgan Chase Bank, Agency Services, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Reference:
Burlington Resources Inc., or at such other location designated by
notice to the Borrower from the Administrative Agent and agreed to by the
Borrower, in same day funds. Each such payment made by the Borrower for the
account of any Lender hereunder, when so made to the Administrative Agent, shall
be deemed duly made for all purposes of this Agreement and the Notes, except
that if at any time any such payment is rescinded or must otherwise be returned
by the Administrative Agent or any Lender upon the bankruptcy, insolvency or
reorganization of the Borrower or otherwise, such payment shall be deemed not to
have been so made. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or fees
ratably (other than amounts payable pursuant to Section 2.07, 2.11, 2.12, 2.13,
2.15, 2.19 or 8.04(b)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and Acceptance,
the Administrative Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
22
(b) All computations of interest based on the Base Rate and of
facility fees and utilization fees shall be made by the Administrative Agent on
the basis of a year of 365 or 366 days, as the case may be, and all computations
of interest based on the Eurodollar Rate, or the Effective Federal Funds Rate
shall be made by the Administrative Agent, and all computations of interest
pursuant to Section 2.07 shall be made by each Lender with respect to its own
Eurodollar Rate Advances, on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable. Each
determination by the Administrative Agent (or, in the case of Section 2.07,
2.11, 2.12, 2.13, 2.15, 2.19 or 8.04(b), by each Lender with respect to its own
Advances) of an interest rate or an increased cost, loss or expense or increased
capital or of illegality or taxes hereunder shall be conclusive and binding for
all purposes if made reasonably and in good faith.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fees, as
the case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at a rate equal to the Effective Federal Funds Rate for such day.
Section 2.15 Taxes.
(a) Any and all payments by the Borrower hereunder or under
the Notes shall be made in accordance with Section 2.14, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding in the case of each Indemnified Party, (i) all taxes, levies, imposts,
deductions, charges, or withholdings, and all liabilities with respect thereto,
imposed on or determined by reference to its income or profits, and all
franchise taxes, and (ii) all other taxes, levies, imposts, deductions, charges,
or withholdings in effect at the time that such Indemnified Party executed this
Agreement or otherwise became an "Indemnified Party" hereunder, and liabilities
with respect thereto, imposed on it by reason of the jurisdiction in which such
Indemnified Party is organized, domiciled, resident or doing business, or any
political subdivision thereof, or by reason of the jurisdiction of its
Applicable Lending Office or any other office from which it makes or maintains
any extension of credit hereunder or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges,
23
withholdings and liabilities in respect of payments under this Agreement or
under the Notes being herein referred to as "TAXES"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Indemnified Party, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.15) such Indemnified Party receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower (or the
Administrative Agent, as applicable) shall make such deductions at the
applicable statutory rate and (iii) the Borrower (or the Administrative Agent,
as applicable) shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, provided that
the Borrower shall not be required to pay any additional amount (and shall be
relieved of any liability with respect thereto) pursuant to this Subsection (a)
(or pursuant to Section 2.15(c), except to the extent Section 2.15(c) relates to
Other Taxes) to any Indemnified Party that either (x) on the date such
Indemnified Party executed this Agreement or otherwise became an "INDEMNIFIED
PARTY" hereunder, both (A) was not entitled to submit a U.S. Internal Revenue
Service form W-8BEN (relating to such Indemnified Party, and entitling it to a
complete exemption from withholding on all amounts to be received by such
Indemnified Party, including fees, pursuant to this Agreement or the Advances)
or a U.S. Internal Revenue Service form W-8ECI (relating to all amounts to be
received by such Indemnified Party, including fees, pursuant to this Agreement
and the Advances) and (B) is not a United States person (as such term is defined
in Section 7701(a)(30) of the Internal Revenue Code), or (y) has failed to
submit any form or certificate that it was required to file or provide pursuant
to Subsection (d) of this Section 2.15 and is entitled to file or give, as
applicable, under applicable law, provided, further, that should an Indemnified
Party become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such administrative steps as such Indemnified
Party shall reasonably request to assist such Indemnified Party to recover such
Taxes, and provided further, that each Indemnified Party, with respect to
itself, agrees to indemnify and hold harmless the Borrower from any taxes,
penalties, interest and other expenses, costs and losses incurred or payable by
the Borrower as a result of the failure of the Borrower to comply with its
obligations under clauses (ii) or (iii) above in reliance on any form or
certificate provided to it by such Indemnified Party pursuant to this Section
2.15. If any Indemnified Party receives a net credit or refund in respect of
such Taxes or amounts so paid by the Borrower, it shall promptly notify the
Borrower of such net credit or refund and shall promptly pay such net credit or
refund to the Borrower, provided that the Borrower agrees to return such net
credit or refund if the Indemnified Party to which such net credit or refund is
applicable, is required to repay it.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes (hereinafter referred to as "OTHER TAXES").
(c) The Borrower will indemnify each Indemnified Party for the
full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 2.15) paid by such
Indemnified Party and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto except as a result of the gross
negligence (which shall in any event include the failure of such Indemnified
Party to
24
provide to the Borrower any form or certificate that it was required to provide
pursuant to Subsection (d) below) or willful misconduct of such Indemnified
Party, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the date such
Indemnified Party makes written demand therefor.
(d) On or prior to the date on which each Indemnified Party
that is not a United States person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code) executes this Agreement or otherwise
becomes an "INDEMNIFIED PARTY" hereunder, such Indemnified Party shall provide
the Borrower and the Administrative Agent with U.S. Internal Revenue Service
form W-8BEN or W-8ECI, as appropriate, or any successor form prescribed by the
U.S. Internal Revenue Service, certifying that such Indemnified Party is fully
exempt from United States withholding taxes with respect to all payments to be
made to such Indemnified Party hereunder, or other documents satisfactory to the
Borrower indicating that all payments to be made to such Indemnified Party
hereunder are fully exempt from such taxes. Thereafter and from time to time,
each such Indemnified Party shall submit to the Borrower and the Administrative
Agent such additional duly completed and signed copies of one or the other of
such forms (or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may be (i) notified by the
Borrower to such Indemnified Party and (ii) required under then-current United
States law or regulations to avoid United States withholding taxes on payments
in respect of all amounts to be received by such Indemnified Party pursuant to
this Agreement or the Notes, including fees. Upon the request of the Borrower
from time to time, each Indemnified Party that is a United States person (as
such term is defined in Section 7701(a)(30) of the Internal Revenue Code) shall
submit to the Borrower a certificate to the effect that it is such a United
States person. If any Indemnified Party determines, as a result of any change in
applicable law, regulation or treaty, or in any official application or
interpretation thereof, that it is unable to submit to the Borrower any form or
certificate that such Indemnified Party is obligated to submit pursuant to this
Subsection (d), or that such Indemnified Party is required to withdraw or cancel
any such form or certificate previously submitted, such Indemnified Party shall
promptly notify the Borrower and the Administrative Agent of such fact.
(e) Any Indemnified Party claiming any additional amounts
payable pursuant to this Section 2.15 shall use its best reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if the making of such a
change would avoid the need for, or reduce the amount of, any such additional
amounts which may thereafter accrue and would not, in the reasonable judgment of
such Indemnified Party, be otherwise disadvantageous to such Indemnified Party.
(f) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower and
each Indemnified Party contained in this Section 2.15 shall survive the payment
in full of principal and interest hereunder and under the Notes.
Section 2.16 Sharing of Payments, Etc.. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the A Advances made by it (other
than pursuant to Section 2.07, 2.11, 2.12, 2.13, 2.15 or 8.04(b)) in excess of
its ratable share of payments on account of the A Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations
25
in the A Advances made by them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them, provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
each Lender shall repay to the purchasing Lender the purchase price to the
extent of such Lender's ratable share (according to the proportion of (i) the
amount of the participation purchased from such Lender as a result of such
excess payment to (ii) the total amount of such excess payment) of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (A) the amount of such Lender's required repayment to (B) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
Section 2.17 Evidence of Debt.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the Borrower to
such Lender resulting from each Advance made by such Lender hereunder, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(b) The Administrative Agent shall maintain accounts and
records in which it shall record (i) the amount of each Advance made hereunder,
the type of Advance and, in the cases of Eurodollar Rate Advances, the relevant
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder, and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to
Sections 2.17(a) and (b) shall be conclusive evidence (absent manifest error) of
the existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Advances in accordance with the terms of this Agreement. In the
event of a conflict between the records maintained by the Administrative Agent
and any Lender, the records maintained by the Lender shall govern. Any Lender
may request that Loans made by it be evidenced by a Note. In such event, the
Borrower shall prepare, execute and deliver to such Lender a Note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and substantially in the form attached as Exhibit A hereto.
Thereafter, the Loans evidenced by such Note and interest thereon shall at all
times (including after assignment pursuant to Section 8.07) be represented by
one or more Notes in such form payable to the order of the payee named therein
(or, if such Note is a registered Note, to such payee and its registered
assigns).
Section 2.18 Use of Proceeds. Proceeds of the Advances shall
be used to finance the Acquisition and for payment of commercial paper issued by
the Borrower to provide liquidity to the Borrower or the Acquisition Company to
permit the financing of the Acquisition, and to pay
26
(or effect reimbursement for) fees and expenses relating to any of the
foregoing, in each case directly or indirectly through debt or equity
investments in Subsidiaries of the Borrower.
Section 2.19 The B Advances. (a) Each Lender severally agrees
that the Borrower may make B Borrowings under this Section 2.19 from time to
time on any Business Day during the period from the Effective Date until the
earlier of (I) the Termination Date or (II) the date falling 30 days prior to
the Stated Termination Date, in the manner set forth below; provided that (x)
each B Borrowing shall be in an aggregate amount of $25,000,000 or an integral
multiple of $5,000,000 in excess thereof and (y) following the making of each B
Borrowing, the aggregate number of outstanding B Borrowings shall not exceed
seven and the aggregate amount of all Advances then outstanding shall not exceed
the aggregate amount of the Commitments of the Lenders (computed without regard
to any B Reduction).
(i) The Borrower may request a B Borrowing under this
Section 2.19 by delivering to the Administrative Agent, by
telecopy, telefax or other teletransmission, a notice of a B
Borrowing (a "NOTICE OF B BORROWING"), in substantially the
form of Exhibit C hereto, specifying the date and aggregate
amount of the proposed B Borrowing, the maturity date for
repayment of each B Advance to be made as part of such B
Borrowing (which maturity date may not be earlier than the
date occurring 30 days after the date of such B Borrowing or
later than the earlier of (x) 180 days after the date of such
B Borrowing or (y) the Stated Termination Date), the interest
payment date or dates relating thereto, and any other terms to
be applicable to such B Borrowing, not later than 10:00 A.M.
(New York City time) (A) at least one Business Day prior to
the date of the proposed B Borrowing, if the Borrower shall
specify in the Notice of B Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per
annum and (B) at least four Business Days prior to the date of
the proposed B Borrowing, if the Borrower shall instead
specify in the Notice of B Borrowing the basis to be used by
the Lenders in determining the rates of interest to be offered
by them. The Administrative Agent shall in turn promptly
notify each Lender of each request for a B Borrowing received
by it from the Borrower by sending such Lender a copy of the
related Notice of B Borrowing.
(ii) Each Lender may, if in its sole and absolute
discretion it elects to do so, irrevocably offer to make one
or more B Advances to the Borrower as part of such proposed B
Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Administrative
Agent (which shall give prompt notice thereof to the
Borrower), before 10:00 A.M. (New York City time) (x) on the
date of such proposed B Borrowing in the case of a Notice of B
Borrowing delivered pursuant to clause (A) of paragraph (i)
above, and (y) three Business Days before the date of such
proposed B Borrowing in the case of a Notice of B Borrowing
delivered pursuant to clause (B) of paragraph (i) above, of
the maximum amount of each B Advance which such Lender would
be willing to make as part of such proposed B Borrowing (which
amount may, subject to clause (y) of the proviso to the first
sentence of this Section 2.19(a), exceed such Lender's
Commitment), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such B
Advance; provided that if the Administrative Agent or an
Affiliate thereof in its capacity as a Lender shall, in its
sole discretion, elect to make any such offer, it shall notify
the Borrower of such offer
27
before 9:45 A.M. (New York City time) on the date on which
notice of such election is to be given to the Administrative
Agent by the other Lenders. If any Lender shall elect not to
make such an offer, such Lender shall so notify the
Administrative Agent, before 10:00 A.M. (New York City time)
on the date on which notice of such election is to be given to
the Administrative Agent by the other Lenders, and such Lender
shall not be obligated to, and shall not, make any B Advance
as part of such B Borrowing; provided that the failure by any
Lender to give such notice shall not cause such Lender to be
obligated to make any B Advance as part of such proposed B
Borrowing.
(iii) The Borrower shall, in turn, before 11:00 A.M.
(New York City time) (x) on the date of such proposed B
Borrowing, in the case of a Notice of B Borrowing delivered
pursuant to clause (A) of paragraph (i) above and (y) three
Business Days before the date of such proposed B Borrowing in
the case of a Notice of B Borrowing delivered pursuant to
clause (B) of paragraph (i) above, either
(A) cancel such B Borrowing by giving the
Administrative Agent notice to that effect, or
(B) accept one or more of the offers made by
any Lender or Lenders pursuant to paragraph (ii)
above, in order of the lowest to highest rates of
interest or margins (or, if two or more Lenders bid
at the same rates of interest, and the amount of
accepted offers is less than the aggregate amount of
such offers, the amount to be borrowed from such
Lenders as part of such B Borrowing shall be
allocated among such Lenders pro rata on the basis of
the maximum amount offered by such Lenders at such
rates or margin in connection with such B Borrowing),
in any aggregate amount up to the aggregate amount
initially requested by the Borrower in the relevant
Notice of B Borrowing, by giving notice to the
Administrative Agent of the amount of each B Advance
(which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the
Administrative Agent on behalf of such Lender for
such B Advance pursuant to paragraph (ii) above) to
be made by each Lender as part of such B Borrowing,
and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the
Administrative Agent notice to that effect.
(iv) If the Borrower notifies the Administrative
Agent that such B Borrowing is cancelled pursuant to paragraph
(iii)(A) above, the Administrative Agent shall give prompt
notice thereof to the Lenders and such B Borrowing shall not
be made.
(v) If the Borrower accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(B)
above, the Administrative Agent shall in turn promptly notify
(A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of such
B Borrowing and whether or not any offer or offers made by
such Lender pursuant to paragraph (ii) above have been
accepted by the Borrower, (B) each Lender that is to make a B
Advance as part of such B Borrowing, of the amount of each B
Advance to be made by such Lender as part of such B Borrowing,
and (C) each Lender that is to make a B Advance as part of
such
28
B Borrowing, upon receipt, that the Administrative Agent has
received forms of documents appearing to fulfill the
applicable conditions set forth in Article 3. Each Lender that
is to make a B Advance as part of such B Borrowing shall,
before 12:00 noon (New York City time) on the date of such B
Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have
received notice from the Administrative Agent pursuant to
clause (C) of the preceding sentence, make available for the
account of its Applicable Lending Office to the Administrative
Agent at its address referred to in Section 8.02 such Lender's
portion of such B Borrowing, in same day funds. Upon
fulfillment of the applicable conditions set forth in Article
3 and after receipt by the Administrative Agent of such funds,
the Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
Promptly after each B Borrowing the Administrative Agent will
notify each Lender of the amount of the B Borrowing, the
consequent B Reduction and the dates upon which such B
Reduction commenced and will terminate.
(b) Within the limits and on the conditions set forth in this
Section 2.19, the Borrower may from time to time borrow under this Section 2.19,
repay or prepay pursuant to Subsection (c) below, and reborrow under this
Section 2.19.
(c) The Borrower shall repay to the Administrative Agent for
the account of each Lender which has made a B Advance, or each other holder of a
Note, on the maturity date of each B Advance (such maturity date being that
specified by the Borrower for repayment in the related Notice of B Borrowing and
provided in the Note, if any, evidencing such B Advance), the then unpaid
principal amount of such B Advance. The Borrower shall have no right to prepay
any B Advance unless, and then only on the terms, specified by the Borrower for
such B Advance in the related Notice of B Borrowing delivered pursuant to
Section 2.19(a)(i) and set forth in the Note, if any, evidencing such B Advance
or unless the holder of such B Advance otherwise consents in writing to such
prepayment.
(d) The Borrower shall pay interest on the unpaid principal
amount of each B Advance from the date of such B Advance to the date the
principal amount of such B Advance is repaid in full at the rate of interest for
such B Advance specified by the Lender making such B Advance in its notice
delivered pursuant to Subsection (a)(ii) above on the interest date or dates
specified by the Borrower for such B Advance in the related Notice of B
Borrowing and set forth in the Note, if any, evidencing such B Advance, subject
to Section 2.06(b).
(e) Each time that the Borrower gives a Notice of B Borrowing,
the Borrower shall pay to the Administrative Agent for its own account such fee
as may be agreed between the Borrower and the Administrative Agent from time to
time, whether or not any B Borrowing is in fact made.
(f) Following the making of each B Borrowing, the Borrower
agrees that it will be in compliance with the limitations set forth in clause
(y) of the proviso to the first sentence of Section 2.19(a).
29
(g) The failure of any Lender to make the B Advance to be made
by it as part of any B Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its B Advance on the date of such B
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the B Advance to be made by such other Lender on the date of any
B Borrowing. If any Designated Bidder fails to make the B Advance to be made by
it as part of any B Borrowing, such Designated Bidder shall not thereafter have
the right to offer to make any B Advance without the prior written consent of
the Borrower and the Administrative Agent.
Section 2.20 [ Reserved ].
Section 2.21 Extension of Stated Termination Date. (a) Not
earlier than 65 days prior to and not later than 45 days prior to the Stated
Termination Date then in effect, provided that no Event of Default shall have
occurred and be continuing, the Borrower may request an extension of such Stated
Termination Date by submitting to the Administrative Agent an Extension Request
containing the information in respect of such extension specified in Exhibit E,
which the Administrative Agent shall promptly furnish to each Lender. Each
Lender shall, by the later of (i) the date 30 days after its receipt from the
Administrative Agent of the applicable Extension Request and (ii) the date 30
days prior to the Stated Termination Date, notify the Borrower and the
Administrative Agent of its election to extend or not extend the Stated
Termination Date as requested in such Extension Request. If the Required Lenders
shall approve in writing the extension of the Stated Termination Date requested
in such Extension Request, the Stated Termination Date shall automatically and
without any further action by any Person be extended to the requested new
"Stated Termination Date" as set forth in the Extension Request provided that
the Commitment of any Lender that does not consent in writing within the period
specified above (an "OBJECTING LENDER") shall, unless earlier terminated in
accordance with this Agreement, expire on the Stated Termination Date in effect
on the date of such Extension Request (such Stated Termination Date, if any,
referred to as the "COMMITMENT EXPIRATION DATE" with respect to such Objecting
Lender). If, within the period specified above, the Required Lenders shall not
approve in writing the extension of the Stated Termination Date requested in an
Extension Request, the Stated Termination Date shall not be extended pursuant to
such Extension Request. The Administrative Agent shall promptly notify (y) the
Lenders and the Borrower of any extension of the Stated Termination Date
pursuant to this Section 2.21 and (z) the Borrower of any Lender that becomes an
Objecting Lender.
(b) A Advances owing to any Objecting Lender on the Commitment
Expiration Date, together with accrued interest thereon, any amounts payable
pursuant to Sections 2.06, 2.07, 2.11, 2.12, 2.15 and 8.04(b) and any accrued
and unpaid facility fee or utilization fee or other amounts payable with respect
to such Lender shall be repaid in full on or before such Commitment Expiration
Date.
(c) The Borrower shall have the right, so long as no Event of
Default has occurred and is then continuing, upon giving notice to the
Administrative Agent and the Objecting Lenders in accordance with Section 2.10,
to prepay in full the A Advances of the Objecting Lenders, together with accrued
interest thereon, any amounts payable pursuant to Sections 2.06, 2.07, 2.11,
2.12, 2.15 and 8.04(b) and any accrued and unpaid facility fee or utilization
fee or other amounts payable to the Objecting Lenders hereunder and, upon giving
not less than three
30
Business Days' notice to the Objecting Lenders and the Administrative Agent, to
cancel the whole or part of the Commitments of the Objecting Lenders.
(d) Notwithstanding the foregoing, if any Lender becomes an
Objecting Lender, the Borrower may, at its own expense and in the sole
discretion and prior to the then Stated Termination Date, require such Lender
(and each related Designated Bidder (as defined herein)) to transfer or assign,
in whole or in part, without recourse (in accordance with Section 8.07), all or
part of its interests, rights and obligations under this Agreement, as the
Borrower may determine in its sole discretion and specify by notice to such
Lender, to an Eligible Assignee (provided that the Borrower, with the full
cooperation of such Lender, can identify an Eligible Assignee that is ready,
willing and able to be an assignee with respect thereto) which shall assume such
assigned obligations (which assignee may be another Lender, if such assignee
Lender accepts such assignment); provided that (A) the assignee or the Borrower,
as the case may be, shall have paid to such Lender in immediately available
funds the principal of and interest accrued to the date of such payment on the
Advances made by it hereunder and all other amounts owed to it hereunder,
including any amounts owing pursuant to Section 8.04(b) and any amounts that
would be owing under such Section if such Advances were prepaid on the date of
such assignment, and (B) such assignment does not conflict with any law, rule or
regulation or order of any governmental authority. Any assignee that becomes a
Lender as a result of such an assignment made pursuant to this paragraph (d)
shall be deemed to have consented to the applicable Extension Request and,
therefore, shall not be an Objecting Lender.
Section 2.22 Replacement of Lenders. If any Lender requests
compensation under Sections 2.07, 2.11 or 2.12 or if the Borrower is required to
pay any additional amount to any Lender or any taxing authority or other
authority for the account of any Lender pursuant to Section 2.15, or if any
Lender suspends the right of the Borrower to elect Eurodollar Rate Advances from
such Lender pursuant to Section 2.13, or if any Lender defaults in its
obligation to fund Advances hereunder, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in Section 8.07), all its interests,
rights and obligations under this Agreement (other than any outstanding B
Advances held by it) to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (i) the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Advances (other than B Advances) hereunder, and all accrued
interest thereon, accrued fees, accrued costs in connection with compensation
under Sections 2.07, 2.11 or 2.12 or payments required to be made pursuant to
Section 2.15, if any, and all other amounts (other than B Advances) payable to
it hereunder from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Sections 2.07, 2.11 or 2.12 or payments required to be made
pursuant to Section 2.15, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
31
ARTICLE 3
CONDITIONS OF EFFECTIVENESS AND LENDING
Section 3.01 Conditions Precedent to Effectiveness of this
Agreement. This Agreement shall become effective as of the Effective Date. The
Effective Date shall occur when:
(a) this Agreement shall have been executed and delivered by
the Borrower and the Administrative Agent;
(b) the Administrative Agent and the Borrower either shall
have been notified by each Initial Lender that such Initial Lender has executed
this Agreement or shall have received a counterpart of this Agreement executed
by such Initial Lender;
(c) the Administrative Agent shall have received the
following, each dated the date of delivery thereof unless otherwise specified
below (which date shall be selected by the Borrower and be the same for all
documents and all Lenders), in form and substance satisfactory to the
Administrative Agent and (except for the Notes, if any) in sufficient copies for
each Lender:
(i) the Notes, to the order of the Lenders requesting
Notes, respectively;
(ii) certified copies of the resolutions of the Board
of Directors of the Borrower approving the Acquisition and the
borrowings contemplated hereby and authorizing the execution
of this Agreement and the Notes, if any, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and the
Notes, if any;
(iii) a certificate of the Secretary or an Assistant
Secretary of the Borrower (A) certifying names and true
signatures of officers of the Borrower authorized to sign this
Agreement and the Notes, if any, and the other documents to be
delivered hereunder and (B) if the Effective Date is other
than the date of this Agreement, certifying that the
representations and warranties contained in Section 4.01 are
true and correct as of the Effective Date;
(iv) a favorable opinion of the Borrower's Vice
President and General Counsel, in substantially the form of
Exhibit F hereto; and
(v) a favorable opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ &
▇▇▇▇▇, New York counsel to the Borrower, in substantially the
form of Exhibit G hereto;
(d) the Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date; and
(e) the Acquisition Conditions shall be, or shall have been,
satisfied.
Section 3.02 Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance (including the initial A Advance)
on the occasion of any A Borrowing shall be subject to the further conditions
precedent that on or before the date of such A Borrowing this Agreement shall
have become effective pursuant to Section 3.01 and that on
32
the date of such A Borrowing, before and immediately after giving effect to such
A Borrowing and to the application of the proceeds therefrom, the following
statements shall be true and correct, and the giving by the Borrower of the
applicable Notice of A Borrowing and the acceptance by the Borrower of the
proceeds of such A Borrowing shall constitute its representation and warranty
that on and as of the date of such A Borrowing, before and immediately after
giving effect thereto and to the application of the proceeds therefrom, the
following statements are true and correct:
(a) each representation and warranty contained in Section 4.01
is correct in all material respects as though made on and as of such date (or,
if such representation and warranty is stated to be made as at a specific date
or for a specific period, as at the original specified date or with respect to
the original specified period);
(b) no event has occurred and is continuing, or would result
from such A Borrowing, which constitutes an Event of Default or would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both; and
(c) the aggregate amount of the borrowings under this
Agreement (including such A Borrowing) and under other agreements or facilities
or evidenced by other instruments or documents is not in excess of the aggregate
amount of such borrowings approved as of such date by the Board of Directors of
the Borrower
Section 3.03 Conditions Precedent to Each B Borrowing. The
obligation of each Lender which is to make a B Advance on the occasion of any B
Borrowing (including the initial B Borrowing) shall be subject to the further
conditions precedent that (i) at or before the time required by paragraph (iii)
of Section 2.19(a), the Administrative Agent shall have received the written
confirmatory notice of such B Borrowing contemplated by such paragraph, (ii) on
or before the date of such B Borrowing this Agreement shall have become
effective pursuant to Section 3.01, and (iii) on the date of such B Borrowing,
before and immediately after giving effect to such B Borrowing and to the
application of the proceeds therefrom, the following statements shall be true
and correct, and the giving by the Borrower of the applicable Notice of B
Borrowing and the acceptance by the Borrower of the proceeds of such B Borrowing
shall constitute its representation and warranty that on and as of the date of
such B Borrowing, before and immediately after giving effect thereto and to the
application of the proceeds therefrom, the following statements are true and
correct:
(a) each representation and warranty contained in Section 4.01
is correct in all material respects as though made on and as of such date (or,
if such representation and warranty is stated to be made as at a specific date
or for a specific period, as at the original specified date or with respect to
the original specified period);
(b) no event has occurred and is continuing, or would result
from such B Borrowing, which constitutes an Event of Default or would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both; and
(c) the aggregate amount of the borrowings under this
Agreement (including such B Borrowing) and under other agreements or facilities
or evidenced by other instruments or
33
documents is not in excess of the aggregate amount of such borrowings approved
as of such date by the Board of Directors of the Borrower.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. Each
Material Subsidiary is duly incorporated, validly existing and in good standing
in the jurisdiction of its incorporation. The Borrower and each Material
Subsidiary possess all corporate powers and all other authorizations and
licenses necessary to engage in its business and operations as now conducted,
the failure to obtain or maintain which would have a Material Adverse Effect.
Each Subsidiary which is, on and as of the Effective Date, a Material Subsidiary
is listed on Schedule I hereto.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, if any, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's certificate of incorporation or by-laws or (ii)
law or any contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower of this
Agreement or the Notes, if any, which has not been duly made or obtained, except
those (i) required in the ordinary course to comply with ongoing covenant
obligations of the Borrower hereunder the performance of which is not yet due
and (ii) that will, in the ordinary course of business in accordance with this
Agreement, be duly made or obtained on or prior to the time or times the
performance of such obligations shall be due.
(d) This Agreement constitutes, and the Notes (if and when
delivered hereunder) shall constitute, legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
respective terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors rights
generally or by general principles of equity.
(e) The consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at December 31, 2000 and the related consolidated
statements of income and cash flow for the fiscal year then ended, reported on
by PricewaterhouseCoopers LLC, independent public accountants, and the
consolidated balance sheet of the Borrower and its consolidated subsidiaries as
at September 30, 2001 and the related consolidated statements of income and cash
flow for the nine-month period then ended, certified by the chief financial
officer of the Borrower, copies of each of which have been furnished to the
Administrative Agent and the Initial Lenders, fairly present the consolidated
financial condition of the Borrower and such Subsidiaries as at December 31,
2000, and September 30, 2001, respectively, and the consolidated results of
their operations for such fiscal periods, subject in the case of the September
30, 2001, statements to
34
normal year-end adjustments, all in accordance with generally accepted
accounting principles consistently applied.
(f) [reserved]
(g) The Borrower and each consolidated Subsidiary have duly
filed all tax returns required to be filed, and duly paid and discharged all
taxes, assessments and governmental charges upon it or against its properties
now due and payable, the failure to file or pay which, as applicable, would have
a Material Adverse Effect, unless and to the extent only that the same are being
contested in good faith and by appropriate proceedings by the Borrower or the
appropriate Subsidiary.
(h) Except to the extent permitted pursuant to Section
5.02(e), neither the Borrower nor any Material Subsidiary is subject to any
contractual restrictions which limit the amount of dividends payable by any
Subsidiary.
(i) No Termination Event has occurred or is reasonably
expected to occur with respect to any Plan which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default under Section
6.01(g).
(j) Neither the Borrower nor any ERISA Affiliate has incurred,
or is reasonably expected to incur, any Withdrawal Liability to any
Multiemployer Plan that, when aggregated with all other amounts required to be
paid to Multiemployer Plans in connection with Withdrawal Liability (as of the
date of determination), exceeds 5% of the Consolidated Tangible Net Worth of the
Borrower.
(k) Neither the Borrower nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan
is reasonably expected to be in reorganization or to be terminated within the
meaning of Title IV of ERISA the effect of which reorganization or termination
would be the occurrence of an Event of Default under Section 6.01(i).
(l) The Borrower is not an "investment company" or a "company"
controlled by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(m) The Borrower is not 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.
All representations and warranties made by the Borrower herein or made in any
certificate delivered pursuant hereto shall survive the making of the Advances
and the execution and delivery to the Lenders of this Agreement and the Notes,
if any.
35
ARTICLE 5
COVENANTS OF THE BORROWER
Section 5.01 Affirmative Covenants. So long as any Advance,
Note or other amount payable by the Borrower hereunder shall remain unpaid or
any Lender shall have any Commitment hereunder, the Borrower will, unless the
Majority Lenders shall otherwise consent in writing:
(a) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain, and cause each Material Subsidiary to preserve and maintain, its
existence, rights (organizational and statutory) and material franchises, except
as otherwise contemplated or permitted by Section 5.02(c) or 5.02(d); provided,
that any Material Subsidiary may change its form of organization to a
partnership or other form of Business Entity.
(b) COMPLIANCE WITH LAWS, ETC. Comply, and cause each
Subsidiary to comply, in all material respects, with all applicable laws, rules,
regulations and orders (including all environmental laws and laws requiring
payment of all taxes, assessments and governmental charges imposed upon it or
upon its property except to the extent contested in good faith by appropriate
proceedings) the failure to comply with which would have a Material Adverse
Effect.
(c) VISITATION RIGHTS. At such reasonable times and intervals
as the Administrative Agent or any of the Lenders (other than Designated
Bidders) may desire, permit the Administrative Agent or any of the Lenders
(other than Designated Bidders) to visit the Borrower and to discuss the
affairs, finances, accounts and mineral reserve performance of the Borrower and
any of its Subsidiaries with officers of the Borrower and independent certified
public accountants of the Borrower and any of its Subsidiaries, provided that if
an Event of Default, or an event which with the giving of notice or the passage
of time, or both, would become an Event of Default, has occurred and is
continuing, the Administrative Agent or any Lender may, in addition to the other
provisions of this Subsection (c) and at such reasonable times and intervals as
the Administrative Agent or any of the Lenders may desire, visit and inspect,
under guidance of officers of the Borrower, any properties significant to the
consolidated operations of the Borrower and its Subsidiaries, and to examine the
books and records of account (other than with respect to any mineral reserve
information that the Borrower determines to be confidential, except, during the
continuation of an Event of Default, if such Lenders shall have entered into a
confidentiality agreement with respect to such information satisfactory in form
and substance to the Borrower) of the Borrower and any of its Subsidiaries and
to discuss the affairs, finances and accounts of any of the Borrower's
Subsidiaries with any of the officers of such Subsidiary.
(d) BOOKS AND RECORDS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Borrower and each Subsidiary in accordance with generally
accepted accounting principles either (i) consistently applied or (ii) applied
in a changed manner that does not, under generally accepted accounting
principles or public reporting requirements applicable to the Borrower, either
require disclosure in the consolidated financial statements of the Borrower and
its consolidated Subsidiaries or require the consent of
36
the accountants which (as required by Section 5.03(b)) report on such financial
statements for the fiscal year in which such change shall have occurred, or
(iii) applied in a changed manner not covered by clause (ii) above provided such
change shall have been disclosed to the Administrative Agent and shall have been
consented to by the accountants which (as required by Section 5.03(b)) report on
the consolidated financial statements of the Borrower and its consolidated
Subsidiaries for the fiscal year in which such change shall have occurred,
provided that if any change referred to in clause (ii) or (iii) above would not
meet the standard set forth in clause (i) or (ii) of Section 1.03, the
Administrative Agent, the Lenders and the Borrower agree to amend the covenants
contained in Section 5.01 and 5.02 so that the relative protection afforded
thereby to the Lenders and the relative flexibility afforded thereby to the
Borrower will in substance be retained after such amendment, provided, however,
that until such amendment becomes effective hereunder, the covenants as set
forth herein shall remain in full force and effect and those accounting
principles applicable to the Borrower and its consolidated Subsidiaries which do
meet the standards set forth in clause (i) or (ii) of Section 1.03 shall be
applied to determine whether or not the Borrower is in compliance with such
covenants.
(e) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and
cause each Material Subsidiary to maintain and preserve, all of its properties
which are used in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, to the extent that any failure to do
so would have a Material Adverse Effect.
(f) MAINTENANCE OF INSURANCE. Maintain, and cause each
Material Subsidiary to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or such Subsidiary
operates.
(g) USE OF PROCEEDS OF ADVANCES. Use, and cause the
Acquisition Company to use, the proceeds of the Advances solely for the purposes
specified in Section 2.18.
(h) ACQUISITION; REPLACEMENT OF THIS AGREEMENT. Use its best
commercially reasonable efforts to (i) complete the Acquisition as soon as
practicable and (ii) terminate the Commitments and repay all outstanding
Advances as soon as practicable.
Section 5.02 Negative Covenants. So long as any Advance, Note
or other amount payable by the Borrower hereunder shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will not, unless the
Majority Lenders shall otherwise consent in writing:
(a) Liens, Etc. (i) Create, assume or suffer to exist, or
permit any Material Subsidiary to create, assume or suffer to exist, any Liens
upon or with respect to any of the Equity Interests in any Material Subsidiary,
whether now owned or hereafter acquired, or (ii) create or assume, or permit any
Material Subsidiary to create or assume, any Liens upon or with respect to any
other assets material to the consolidated operations of the Borrower and its
consolidated Subsidiaries taken as a whole securing the payment of Debt and
Guaranties in an aggregate amount (determined without duplication of amount (so
that the amount of a Guaranty will be excluded to the extent the Debt Guaranteed
thereby is included in computing such aggregate amount))
37
exceeding the greater of (x) $250,000,000 and (y) 10% of Consolidated Tangible
Net Worth as at the date of such creation or assumption; provided, however, that
this Subsection (a) shall not apply to:
(A) Liens on assets acquired by the Borrower or any
of its Subsidiaries after the Original Effective Date to the
extent that such Liens existed at the time of such acquisition
and were not placed thereon by or with the consent of the
Borrower in contemplation of such acquisition;
(B) Liens on Equity Interests acquired after the
Original Effective Date in a Business Entity which has become
or becomes a Subsidiary of the Borrower, or on assets of any
such Business Entity, to the extent that such Liens existed at
the time of such acquisition and were not placed thereon by or
with the consent of the Borrower in contemplation of such
acquisition;
(C) Liens on Margin Stock;
(D) Liens on the Equity Interests in, or Debt or
other obligations of, or assets of, any Project Financing
Subsidiary (or any Equity Interests in, Debt or other
obligations of any Business Entity which are owned by any
Project Financing Subsidiary) securing the payment of a
Project Financing and related obligations;
(E) Permitted Liens;
(F) Liens arising out of the refinancing, extension,
renewal or refunding of any Debt or Guaranty secured by any
Lien permitted by any of the foregoing clauses of this
Section, provided that the principal amount of such Debt or
Guaranty is not increased (except by the amount of costs
reasonably incurred in connection with the issuance thereof)
and such Debt or Guaranty is not secured by any additional
assets that would not have been permitted by this Section to
secure the Debt or Guaranty refinanced, extended, renewed or
refunded; and
(G) Liens on products and proceeds (including
dividend, interest and like payments on, and insurance and
condemnation proceeds and rental, lease, licensing and similar
proceeds) of, and property evidencing or embodying, or
constituting rights or other general intangibles relating to,
and accessions and improvements to, collateral subject to
Liens permitted by this Section 5.02.
(b) DEBT, ETC. Create, assume or suffer to exist, or permit
any of its consolidated Subsidiaries to create, assume or suffer to exist, any
Debt or any Guaranty unless, immediately after giving effect to such Debt or
Guaranty and the receipt and application of any proceeds thereof or value
received in connection therewith,
(1) the sum (without duplication) of (i) consolidated
Debt of the Borrower and its consolidated Subsidiaries plus
(ii) the aggregate amount (determined on a consolidated basis)
of Guaranties by the Borrower and its consolidated
Subsidiaries is less than 60% of Capitalization, provided that
Debt
38
for borrowed money either maturing within one year and
evidenced by instruments commonly known as commercial paper,
or evidenced by variable demand notes or other similar
short-term financing instruments issued to commercial banks
and trust companies (other than Debt incurred pursuant to this
Agreement, the Short-Term Revolving Credit Agreement, the
Long-Term Revolving Credit Agreement or the Canadian Credit
Agreement or any replacement therefor), shall not exceed the
sum of the unused commitments under the Canadian Credit
Agreement and the aggregate of the Borrower's unused bank
lines of credit and unused credit available to the Borrower
under financing arrangements with banks or other financial
institutions; and
(2) with respect to any such Debt created or assumed
by a consolidated Subsidiary that is either a Subsidiary of
the Borrower as of the Original Effective Date or a Subsidiary
of the Borrower acquired or created after the Original
Effective Date and owning a material portion of the
consolidated operating assets existing at the Original
Effective Date of the Borrower and its Subsidiaries, the
aggregate amount of Debt of the consolidated Subsidiaries of
the Borrower referred to above in this paragraph (2) owing to
Persons other than the Borrower and its consolidated
Subsidiaries is less than the greater of (i) $500,000,000
(exclusive of public Debt of LL&E existing at the time LL&E
became a Subsidiary, the principal amount of which at such
time was approximately $400,000,000, and any refinancing of
such Debt, in a principal amount not to exceed the principal
amount refinanced) and (ii) 30% of Consolidated Tangible Net
Worth as at the date of incurrence or creation of such Debt.
(c) SALE, ETC., OF ASSETS. Sell, lease or otherwise transfer, or
permit any Material Subsidiary to sell, lease or otherwise transfer (in either
case, whether in one transaction or in a series of transactions, and except, in
either case, to the Borrower or an entity which after giving effect to such
transfer will be or become a Material Subsidiary in which the Borrower's direct
or indirect Equity Interests will be at least as great as its direct or indirect
Equity Interests in the transferor immediately prior thereto, and except as
permitted by Section 5.02(d)), assets constituting all or substantially all of
the consolidated assets of the Borrower and its Material Subsidiaries, provided
that, notwithstanding the foregoing, the Borrower or any Material Subsidiary may
sell, lease or otherwise transfer any Permitted Assets constituting all or
substantially all of the consolidated assets of the Borrower and its Material
Subsidiaries, so long as (A) such Permitted Assets are sold, leased or otherwise
transferred in exchange for other Permitted Assets and/or (B) the proceeds from
such sale, lease or other transfer, or an amount equal to the proceeds thereof,
are (x) reinvested within one year from the date of receipt thereof in Permitted
Assets and/or the development of Permitted Assets and/or (y) used to repay Debt
the proceeds of which were or are being used for investment in, and/or the
development of, Permitted Assets; provided further that, no such sale, lease or
other transfer shall be permitted by the foregoing proviso unless either (1)
after giving effect to such sale, lease or other transfer, no Event of Default,
and no event which with lapse of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and be continuing or (2) the
Borrower or the relevant Material Subsidiary, as the case may be, was
contractually obligated, prior to the occurrence of such Event of Default or
event, to consummate such sale, lease or other transfer.
39
(d) MERGERS, ETC. Merge, amalgamate or consolidate with any
Person, or permit any Material Subsidiary to merge, amalgamate or consolidate
with any Person, except that:
(i) any Subsidiary may merge, amalgamate or
consolidate with (or liquidate into) any other Subsidiary or
may merge, amalgamate or consolidate with (or liquidate into)
the Borrower, provided that (A) if such Subsidiary merges,
amalgamates or consolidates with (or liquidates into) the
Borrower, either the survivor or successor is the Borrower or
such successor or surviving Business Entity is organized and
existing under the laws of the United States and expressly
assumes the obligations of the Borrower hereunder and under
the Notes, (B) if any such Subsidiary merges, amalgamates or
consolidates with (or liquidates into) any other Subsidiary of
the Borrower, one or more Business Entities that are
Subsidiaries of the Borrower are the surviving or successor
Business Entity(ies) and, if any such Subsidiary is not
directly or indirectly wholly-owned by the Borrower, such
merger, amalgamation or consolidation is on an arm's length
basis and (C) as a result of such merger, amalgamation or
consolidation, no Event of Default, and no event which with
lapse of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and be
continuing, and
(ii) the Borrower or any Material Subsidiary may
merge, amalgamate or consolidate with any other Business
Entity (that is, in addition to the Borrower or any other
Subsidiary), provided that (A) if the Borrower merges,
amalgamates or consolidates with any such other Business
Entity(ies), the survivor or successor Business Entity is the
Borrower, (B) if any Material Subsidiary merges, amalgamates
or consolidates with any such other Business Entity, each
surviving or successor Business Entity is a directly or
indirectly wholly-owned Subsidiary, and (C) if either the
Borrower or any Material Subsidiary merges, amalgamates or
consolidates with any such other Business Entity, after giving
effect to such merger, amalgamation or consolidation no Event
of Default, and no event which with lapse of time or the
giving of notice, or both, would constitute an Event of
Default, shall have occurred and be continuing.
(e) DIVIDEND RESTRICTIONS. Create, or consent or agree to, or
permit any of its Material Subsidiaries existing on the Original Effective Date
or any of its Subsidiaries thereafter created or acquired and owning a material
portion of the consolidated operating assets existing at the Original Effective
Date of the Borrower and its Subsidiaries, to create, or consent or agree to,
any restrictions, contained in any agreement or instrument relating to or
evidencing Debt, on any such Subsidiary's ability to pay dividends or to make
advances to the Borrower or any Subsidiary of the Borrower; provided, however,
that this Subsection (e) shall not apply to any such restrictions (including any
extensions of the term of any thereof (by amendment, or continuation thereof in
any refinancing of the Debt to which such restriction relates, or otherwise))
applicable to the Equity Interests in any Subsidiary of the Borrower the Equity
Interests in which are acquired by the Borrower after the Original Effective
Date and which restrictions are existing at the time such Subsidiary first
becomes a Subsidiary of the Borrower and are not placed thereon by or with the
consent of the Borrower in contemplation of such acquisition by the Borrower.
40
Section 5.03 Reporting Requirements. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will furnish to each Lender in such reasonable quantities as shall from
time to time be requested by such Lender:
(a) within 60 days after the end of each of the first three
quarters of each fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as of the end of such quarter,
and consolidated statements of income and cash flow of the Borrower and its
consolidated Subsidiaries each for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, certified (subject
to normal year-end adjustments) as to fairness and utilization of generally
accepted accounting principles by the chief financial officer of the Borrower
and accompanied by a certificate of such officer stating (i) that such
statements of income and cash flow and such balance sheet have been prepared in
accordance with generally accepted accounting principles, (ii) whether or not
such officer has knowledge of the occurrence of any Event of Default which is
continuing hereunder or of any event not theretofore remedied which with notice
or lapse of time or both would constitute such an Event of Default and, if so,
stating in reasonable detail the facts with respect thereto, (iii) all relevant
facts in reasonable detail to evidence, and the computations as to, whether or
not the Borrower is in compliance with the requirements set forth in Subsection
(b) of Section 5.02, and (iv) a listing of all Material Subsidiaries and
consolidated Subsidiaries of the Borrower showing the extent of its direct and
indirect holdings of their Equity Interests;
(b) within 120 days after the end of each fiscal year of the
Borrower, a copy of the annual report for such year for the Borrower and its
consolidated Subsidiaries containing financial statements for such year reported
on by nationally recognized independent public accountants acceptable to the
Lenders, accompanied by (i) a report signed by said accountants stating that
such financial statements have been prepared in accordance with generally
accepted accounting principles and (ii) a letter from such accountants stating
that in making the investigations necessary for such report they obtained no
knowledge, except as specifically stated therein, of any Event of Default which
is continuing hereunder or of any event not theretofore remedied which with
notice or lapse of time or both would constitute such an Event of Default;
(c) within 120 days after the close of each of the Borrower's
fiscal years, a certificate of the chief financial officer of the Borrower
stating (i) whether or not such officer has knowledge of the occurrence of any
Event of Default which is continuing hereunder or of any event not theretofore
remedied which with notice or lapse of time or both would constitute such an
Event of Default and, if so, stating in reasonable detail the facts with respect
thereto, (ii) all relevant facts in reasonable detail to evidence, and the
computations as to, whether or not the Borrower is in compliance with the
requirements set forth in Subsection (b) of Section 5.02 and (iii) a listing of
all Material Subsidiaries and consolidated Subsidiaries of the Borrower showing
the extent of its direct and indirect holdings of their Equity Interests;
(d) promptly upon their distribution, copies of all financial
statements, reports and proxy statements which the Borrower or any Material
Subsidiary shall have sent to its public Equity Interest holders;
41
(e) promptly upon their becoming publicly available, all
regular and periodic financial reports and registration statements which the
Borrower or any Material Subsidiary shall file with the Securities and Exchange
Commission or any national securities exchange other than registration
statements relating to employee benefit plans and to registration statements of
securities for selling security holders;
(f) promptly in writing, notice of all litigation and of all
proceedings before any governmental or regulatory agencies against or involving
the Borrower or any Material Subsidiary, except any litigation or proceeding
which in the reasonable judgment of the Borrower (taking into account the
exhaustion of all appeals) is not likely to have a material adverse effect on
the consolidated financial condition of the Borrower and its consolidated
Subsidiaries taken as a whole;
(g) within three Business Days after an executive officer of
the Borrower obtains knowledge of the occurrence of any Event of Default which
is continuing or of any event not theretofore remedied which with notice or
lapse of time, or both, would constitute an Event of Default, notice of such
occurrence together with a detailed statement by a responsible officer of the
Borrower of the steps being taken by the Borrower or the appropriate Subsidiary
to cure the effect of such event;
(h) as soon as practicable and in any event (i) within 30 days
after the Borrower or any ERISA Affiliate knows or has reason to know that any
Termination Event described in clause (i) of the definition of Termination Event
with respect to any Plan has occurred and (ii) within 10 days after the Borrower
or any ERISA Affiliate knows or has reason to know that any other Termination
Event with respect to any Plan has occurred, a statement of the chief financial
officer of the Borrower describing such Termination Event and the action, if
any, which the Borrower or such ERISA Affiliate proposes to take with respect
thereto;
(i) promptly and in any event within two Business Days after
receipt thereof by the Borrower or any ERISA Affiliate, copies of each notice
received by the Borrower or any ERISA Affiliate from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed to administer any
Plan;
(j) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect to each Plan;
(k) promptly and in any event within five Business Days after
receipt thereof by the Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Borrower or any ERISA
Affiliate concerning (i) the imposition of Withdrawal Liability by a
Multiemployer Plan, (ii) the determination that a Multiemployer Plan is, or is
expected to be, in reorganization within the meaning of Title IV of ERISA, (iii)
the termination of a Multiemployer Plan within the meaning of Title IV of ERISA,
or (iv) the amount of liability incurred, or expected to be incurred, by the
Borrower or any ERISA Affiliate in connection with any event described in clause
(i), (ii) or (iii) above; and
42
(l) as soon as practicable but in any event within 60 days of
any notice of request therefor, such other information respecting the financial
condition and results of operations of the Borrower or any Subsidiary as any
Lender through the Administrative Agent may from time to time reasonably
request.
Each balance sheet and other financial statement furnished pursuant to
Subsections (a) and (b) of this Section 5.03 shall contain comparative
information which conforms to the presentation required in Form 10-Q and Form
10-K, as appropriate, under the Securities Exchange Act of 1934, as amended.
ARTICLE 6
EVENTS OF DEFAULT
Section 6.01 Events of Default. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance within two Business Days after the same shall be due, or any interest on
any Advance or any other amount payable hereunder within five Business Days
after the same shall be due; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or by the Borrower (or any of its officers) in connection with
this Agreement shall prove to have been incorrect in any material respect when
made or deemed made; or
(c) The Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed and any such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to the Borrower by the
Administrative Agent or by any Lender with a copy to the Administrative Agent;
or
(d) The Borrower or any Material Subsidiary shall fail to pay
any Debt or Guaranty (excluding any Advances) of the Borrower or such Subsidiary
(as the case may be) in an aggregate principal amount in excess of the greater
of (i) $100,000,000 and (ii) 3% of Consolidated Tangible Net Worth at such time,
or any installment of principal thereof or interest or premium thereon, when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to such Debt or Guaranty;
or any other default under any agreement or instrument relating to any such
Debt, or any other event, shall occur and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such default or event is to accelerate the maturity of such Debt; provided
that, notwithstanding any provision contained in this Subsection (d) to the
contrary, to the extent that pursuant to the terms of any agreement or
instrument relating to any Debt referred to in this Subsection (d), any sale,
pledge or disposal of Margin Stock, or utilization of the proceeds thereof would
result in a breach of any covenant contained therein or otherwise give rise to a
default or event of default thereunder and/or acceleration of the maturity of
the Debt extended pursuant thereto and as a result of such terms or of such
sale, pledge, disposal, utilization, breach, default, event of default or
acceleration, or the provisions hereof
43
relating thereto, this Agreement or any Advance hereunder would otherwise be
subject to the margin requirements or any other restriction under Regulation U
issued by the Board of Governors of the Federal Reserve System, then such
breach, default, event of default or acceleration shall not constitute a default
or Event of Default under this Subsection (d); or
(e) (i) The Borrower or any Material Subsidiary shall (A)
generally not pay its debts as such debts become due; or (B) admit in writing
its inability to pay its debts generally; or (C) make a general assignment for
the benefit of creditors; or (ii) any proceeding shall be instituted or
consented to by the Borrower or any such Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property; or (iii) any such proceeding shall have been instituted against
the Borrower or any such Subsidiary and either such proceeding shall not be
stayed or dismissed for 60 consecutive days or any of the actions referred to
above sought in such proceeding (including the entry of an order for relief
against it or the appointment of a receiver, trustee, custodian or other similar
official for it or any substantial part of its property) shall occur; or (iv)
the Borrower or any such Subsidiary shall take any corporate action to authorize
any of the actions set forth above in this Subsection (e); or
(f) Any judgment or order for the payment of money in excess
the greater of (i) $100,000,000 and (ii) 3% of Consolidated Tangible Net Worth
at such time shall be rendered against the Borrower or any Material Subsidiary
and either (i) enforcement proceedings shall have been commenced and are
continuing or have been completed by any creditor upon such judgment or order
(other than any enforcement proceedings consisting of the mere obtaining and
filing of a judgment lien or obtaining of a garnishment or similar order so long
as no foreclosure, levy or similar process in respect of such lien, or payment
over in respect of such garnishment or similar order, has commenced and is
continuing or has been completed) or (ii) there shall be any period of 30
consecutive days during which a stay of execution or enforcement proceedings
(other than those referred to in the parenthesis in clause (i) above) in respect
of such judgment or order, by reason of a pending appeal, bonding or otherwise,
shall not be in effect; or
(g) Any Termination Event with respect to a Material Plan
shall have occurred and, 30 days after notice thereof shall have been given to
the Borrower by the Lender, (i) such Termination Event shall still exist and
(ii) the sum (determined as of the date of occurrence of such Termination Event)
of the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which a Termination Event shall have occurred and then
exist (or in the case of a Plan with respect to which a Termination Event
described in clause (ii) of the definition of Termination Event shall have
occurred and then exist, the liability related thereto), in each case in respect
of which the Borrower or any ERISA Affiliate has liability, is equal to or
greater than $50,000,000; or
(h) The Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount which, when aggregated with
all other amounts required to be paid to Multiemployer
44
Plans in connection with Withdrawal Liabilities (determined as of the date of
such notification), exceeds $50,000,000; or
(i) The Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, if as a result of such reorganization or termination the aggregate annual
contributions of the Borrower and its ERISA Affiliates to all Multiemployer
Plans which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years which include the Original Effective Date by an amount
exceeding $50,000,000; or
(j) Upon completion of, and pursuant to, a transaction, or a
series of transactions (which may include prior acquisitions of capital stock of
the Borrower in the open market or otherwise), involving a tender offer (i) a
"person" (within the meaning of Section 13(d) of the Securities Exchange Act of
1934) other than the Borrower, a Subsidiary of the Borrower or any employee
benefit plan maintained for employees of the Borrower and/or any of its
Subsidiaries or the trustee therefor, shall have acquired direct or indirect
ownership of and paid for in excess of 50% of the outstanding capital stock of
the Borrower entitled to vote in elections for directors of the Borrower and
(ii) at any time before the later of (x) six months after the completion of such
tender offer and (y) the next annual meeting of the shareholders of the Borrower
following the completion of such tender offer more than half of the directors of
the Borrower consists of individuals who (a) were not directors before the
completion of such tender offer and (b) were not appointed, elected or nominated
by the Board of Directors in office prior to the completion of such tender offer
(other than any such appointment, election or nomination required or agreed to
in connection with, or as a result of, the completion of such tender offer); or
(k) Any "Event of Default" as defined in the Short-Term
Revolving Credit Agreement, the Long-Term Revolving Credit Agreement or the
Canadian Credit Agreement shall occur and be continuing;
then, and in any such event, the Administrative Agent shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Borrower, (i)
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) declare the Advances, all
interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that if an Event of Default under
Subsection (e) of this Section 6.01 (except under clause (i)(A) thereof) shall
occur, (A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Advances, all interest thereon and all other amounts
payable under this Agreement shall automatically become and be forthwith due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
45
ARTICLE 7
THE ADMINISTRATIVE AGENT
Section 7.01 Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including enforcement of this Agreement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this
Agreement or applicable law. The Administrative Agent agrees to give to each
Lender prompt notice of each notice given to it by the Borrower pursuant to the
terms of this Agreement.
Section 7.02 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender which is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it 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; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) 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 this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
Section 7.03 JPMorgan and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, JPMorgan shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
JPMorgan in its individual capacity. JPMorgan and its affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any of its Subsidiaries and
any Person who may do business
46
with or own securities of the Borrower or any Subsidiary, all as if JPMorgan
were not the Administrative Agent and without any duty to account therefor to
the other Lenders.
Section 7.04 Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative 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 this Agreement.
Section 7.05 Indemnification. THE LENDERS (OTHER THAN THE
DESIGNATED BIDDERS) AGREE TO INDEMNIFY THE ADMINISTRATIVE AGENT (TO THE EXTENT
NOT REIMBURSED BY THE BORROWER), RATABLY ACCORDING TO THE RESPECTIVE PRINCIPAL
AMOUNTS OF THE ADVANCES THEN HELD BY EACH OF THEM (OR IF NO ADVANCES ARE AT THE
TIME OUTSTANDING OR IF ANY ADVANCES ARE HELD BY PERSONS WHICH ARE NOT LENDERS,
RATABLY ACCORDING TO THE RESPECTIVE AMOUNTS OF THEIR COMMITMENTS OR THE
RESPECTIVE AMOUNTS OF THEIR COMMITMENTS IMMEDIATELY PRIOR TO TERMINATION IF THE
COMMITMENTS HAVE BEEN TERMINATED), FROM AND AGAINST ANY AND ALL LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED
ON, INCURRED BY, OR ASSERTED AGAINST THE ADMINISTRATIVE AGENT IN ANY WAY
RELATING TO OR ARISING OUT OF THIS AGREEMENT, ANY OF THE NOTES OR ANY OTHER
INSTRUMENT OR DOCUMENT FURNISHED PURSUANT HERETO OR IN CONNECTION HEREWITH, OR
ANY ACTION TAKEN OR OMITTED BY THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, OR
ANY OF THE NOTES OR ANY OTHER INSTRUMENT OR DOCUMENT FURNISHED PURSUANT HERETO
OR IN CONNECTION HEREWITH; PROVIDED THAT NO LENDER SHALL BE LIABLE FOR ANY
PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS RESULTING FROM THE
ADMINISTRATIVE AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Without
limitation of the foregoing, each Lender (other than the Designated Bidders)
agrees to reimburse the Administrative Agent promptly upon demand for such
Lender's ratable share of any reasonable out-of-pocket expenses (including
counsel fees) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings, in bankruptcy or
insolvency proceedings, or otherwise) of, or legal advice in respect of rights
or responsibilities under, this Agreement, any of the Notes or any other
instrument or document furnished pursuant hereto or in connection herewith to
the extent that the Administrative Agent acts in its capacity as Administrative
Agent and is not reimbursed for such expenses by the Borrower.
47
Section 7.06 Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time with or without
cause by the Majority Lenders. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Administrative Agent, then such
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized, or authorized
to conduct a banking business, under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article 7 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
Section 7.07 Auction Administrative Agent. The Administrative
Agent shall until such time as it so notifies the Borrower and the Lenders
discharge its duties under Section 2.19 through the Auction Administrative Agent
and all references to the "Administrative Agent" or to JPMorgan relating to such
duties or made in this Article 7 shall be deemed to also refer to the Auction
Administrative Agent and any Affiliate of JPMorgan serving in such capacity. All
payments to be made to or by the Auction Administrative Agent shall be made
through the Administrative Agent.
ARTICLE 8
MISCELLANEOUS
Section 8.01 Amendments, Etc. An amendment or waiver of any
provision of this Agreement or the Notes, or a consent to any departure by the
Borrower therefrom, shall be effective against the Lenders and all holders of
the Notes if, but only if, it shall be in writing and signed by the Majority
Lenders or, where so specified, the Required Lenders, and then such a waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall, unless in writing and signed by all the Lenders (other than the
Designated Bidders), be effective to: (a) waive any of the conditions specified
in Article 3, (b) except as contemplated by Section 2.20, increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Advances or any facility fees
or utilization fees hereunder, (d) except as contemplated by Section 2.21,
postpone any date fixed for any payment of principal of, or interest on, the
Advances or any facility fees or utilization fees hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Advances, which shall be required for the Lenders or any of them to take any
action under this Agreement, or (f) amend this Section 8.01; and, provided
further that no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the
48
Lenders required hereinabove to take such action, affect the rights or duties of
the Administrative Agent under this Agreement or any Note.
Section 8.02 Notices, Etc. Except as otherwise provided in
Section 2.02(a) or 2.10(ii), all notices and other communications provided for
hereunder shall be in writing and mailed by certified mail, return receipt
requested and postage prepaid, or telecopied, telefaxed or otherwise
teletransmitted, or delivered, if to the Borrower, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, Telefax: (▇▇▇) ▇▇▇-▇▇▇▇; if to
any Initial Lender, at its Domestic Lending Office set forth in such Initial
Lender's Administrative Questionnaire; if to any other Lender at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender or at the address for notices specified in the Designation
Agreement pursuant to which it became a party hereto; if to the Administrative
Agent, in care of JPMorgan Chase Bank, Agency Services, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Telefax: (212)
552-3295, with a copy to JPMorgan Chase Bank, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Telefax: (▇▇▇) ▇▇▇-▇▇▇▇; and if
to the Auction Administrative Agent, at JPMorgan Chase Bank, Agency Services, at
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Telefax: (▇▇▇) ▇▇▇-▇▇▇▇; or, as to each party, at such other address
as shall be designated by such party in a written notice to the other parties.
All such notices and communications shall be effective, (a) in the case of any
notice or communication given by certified mail, when receipted for, (b) in the
case of any notice or communication given by telecopy, telefax or other
teletransmission, when confirmed by appropriate answerback, in each case
addressed as aforesaid, and (c) in the case of any notice or communication
delivered by hand or courier, when so delivered, except that notices and
communications to the Administrative Agent pursuant to Article 2 or 7 shall not
be effective until received by the Administrative Agent. A notice received by
the Administrative Agent or a Lender by telephone pursuant to Section 2.02(a) or
2.10(ii) shall be effective if the Administrative Agent or Lender believes in
good faith that it was given by an authorized representative of the Borrower and
acts pursuant thereto, notwithstanding the absence of written confirmation or
any contradictory provision thereof.
Section 8.03 No Waiver; Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder or under any Note
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 8.04 Costs and Expenses; Indemnity.
(a) The Borrower agrees to pay on demand (i) all reasonable
fees and out-of-pocket expenses of counsel for the Administrative Agent in
connection with the preparation, execution and delivery of this Agreement, the
Notes and the other documents to be delivered hereunder and with respect to
advising the Administrative Agent as to its rights and responsibilities under
this Agreement, (ii) all reasonable costs and expenses incurred by the
Administrative Agent and its Affiliates in initially syndicating all or any
portion of the Commitments hereunder, including the related reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent or its
49
Affiliates, travel expenses, duplication and printing costs and courier and
postage fees, and excluding any syndication fees paid to other parties joining
the syndicate, if any, and (iii) all out-of-pocket costs and expenses, if any,
of the Administrative Agent and the Lenders (including reasonable counsel fees
and expenses and the allocated costs of in-house counsel), in connection with
the enforcement (whether through negotiations, legal proceedings, in bankruptcy
or insolvency proceedings, or otherwise) of this Agreement, the Notes and the
other documents to be delivered hereunder and thereunder.
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender on any day other than the last day of the Interest Period for such
Advance, as a result of a prepayment pursuant to Section 2.10 or a Conversion
pursuant to Section 2.08(f) or Section 2.09 or due to acceleration of the
maturity of the Advances pursuant to Section 6.01 or due to any other reason
attributable to the Borrower, or if the Borrower shall fail to borrow, convert,
continue or prepay any Eurodollar Rate Advance on the date specified in any
notice delivered pursuant hereto, the Borrower shall, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment or Conversion, including any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(c) THE BORROWER AGREES TO INDEMNIFY AND HOLD HARMLESS THE
ADMINISTRATIVE AGENT, THE ARRANGER AND EACH LENDER FROM AND AGAINST ANY AND ALL
CLAIMS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING FEES AND DISBURSEMENTS OF
COUNSEL) WHICH MAY BE INCURRED BY OR ASSERTED AGAINST THE ADMINISTRATIVE AGENT,
THE ARRANGER OR SUCH LENDER IN CONNECTION WITH OR ARISING OUT OF ANY
INVESTIGATION, LITIGATION, OR PROCEEDING (WHETHER OR NOT THE ADMINISTRATIVE
AGENT, THE ARRANGER OR SUCH LENDER IS PARTY THERETO) RELATED TO THE ACQUISITION
OR ANY OTHER ACQUISITION OR PROPOSED ACQUISITION BY THE BORROWER, OR BY ANY
SUBSIDIARY OF THE BORROWER, OF ALL OR ANY PORTION OF THE EQUITY INTERESTS IN, OR
SUBSTANTIALLY ALL THE ASSETS OF, ANY PERSON OR ANY USE OR PROPOSED USE OF THE
ADVANCES BY THE BORROWER (EXCLUDING ANY CLAIMS, DAMAGES, LIABILITIES OR EXPENSES
INCURRED BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY TO
BE INDEMNIFIED OR ITS EMPLOYEES OR ADMINISTRATIVE AGENTS, OR BY REASON OF ANY
USE OR DISCLOSURE OF INFORMATION RELATING TO ANY SUCH ACQUISITION OR USE OR
PROPOSED USE OF THE PROCEEDS BY THE PARTY TO BE INDEMNIFIED OR ITS EMPLOYEES OR
ADMINISTRATIVE AGENTS).
Section 8.05 Right of Set-off. Upon the declaration of the
Advances as due and payable pursuant to the provisions of Section 6.01, each
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness
50
at any time owing by such Lender to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and any Note held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section 8.05 are in addition to other rights and remedies (including other
rights of set-off) which such Lender may have.
Section 8.06 Binding Effect. This Agreement shall become
effective in accordance with the provisions of Section 3.01, and thereafter
shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent, the Arranger and each Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of all of the Lenders.
Section 8.07 Assignments and Participations.
(a) Each Lender (other than a Designated Bidder) may assign to
one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment,
the A Advances owing to it and the Note or Notes held by it); provided, however,
that each such assignment shall be to an Eligible Assignee, and the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note or Notes subject to such assignment and, except in the
case of an assignment to a Lender Affiliate, a processing and recordation fee of
$3,000, and shall send to the Borrower an executed counterpart of such
Assignment and Acceptance, and provided further, however, that (i) the amount of
the Commitment of the assigning Lender being assigned to the assignee pursuant
to each such assignment (determined as of the date of the Assignment) must be
equal to or greater than $25,000,000, or if less, the entire amount of such
assigning Lender's "Commitment" (unless the Borrower and the Administrative
Agent shall otherwise consent, which consent may be withheld for any reason) and
must be an integral multiple of $1,000,000, (ii) any assignment to a Lender
Affiliate will not relieve the assigning Lender of its obligation to make
Advances hereunder timely in accordance with the terms hereof in the event such
Lender Affiliate shall fail to do so and (iii) except in the case of an
assignment to a Lender Affiliate or as required by the Borrower pursuant to
Section 2.21(d) or 2.22, each such assignment shall be of a constant, and not a
varying, percentage of all such Lender's rights and obligations under this
Agreement (other than any right to make B Advances, any B Advances or any
Notes). Upon the execution, delivery, acceptance and recording of each
Assignment and Acceptance by the parties thereto, from and after the effective
date specified in such Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) except as otherwise
provided in clause (ii) above, the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, except in the circumstances
contemplated by clause (ii) above, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
51
party hereto, provided, however, that such assigning Lender shall retain any
claim with respect to any fee, interest, cost, expense or indemnity which
accrues, or relates to an event that occurs, prior to the date of such
assignment pursuant to Section 2.03, 2.06, 2.07, 2.11, 2.12, 2.15 or 8.04).
(b) By executing and delivering an Assignment and Acceptance,
each Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender 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 this Agreement; (v) such assignee confirms that it is (subject to
approval in writing by the Borrower and the Administrative Agent to the extent
required) an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and each
Designation Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and, with respect to
Lenders other than Designated Bidders, the Commitment of, and principal amount
of the A Advances owing to, each Lender from time to time (the "REGISTER"). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit D hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt
52
of such notice and its receipt of an executed counterpart of such Assignment and
Acceptance, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for any surrendered Note or Notes a new Note to
the order of such Eligible Assignee and, if the assigning Lender has retained a
Commitment hereunder, a new Note to the order of the assigning Lender. Any such
new Note or Notes shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(e) Each Lender (other than a Designated Bidder) may designate
one or more banks or other entities to have a right to make B Advances as a
Lender pursuant to Section 2.19; provided that (i) such Lender shall have
obtained the written consent of the Administrative Agent and the Borrower, such
consent not to be unreasonably withheld, (ii) no such Lender shall be entitled
to make more than two such designations, (iii) each such Lender making one or
more of such designations shall retain the right to make B Advances as a Lender
pursuant to Section 2.19, (iv) each such designation shall be to a Designated
Bidder and (v) the parties to each such designation shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register, a
Designation Agreement. Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Designation Agreement, the
designee thereunder shall be a party hereto with a right to make B Advances as a
Lender pursuant to Section 2.19 and the obligations related thereto.
(f) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm and
agree with each other and the other parties hereto as follows: (i) such Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto, (ii) such Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such designee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into the
Designation Agreement; (iv) such designee will, independently and without
reliance upon the Administrative Agent, such designating Lender 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 this Agreement; (v) such designee confirms that it is a Designated
Bidder; (vi) such designee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto, and (vii) such
designee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(g) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Administrative Agent shall, if such Designation Agreement has been completed
and is substantially in the form of Exhibit H hereto,
53
(i) accept such Designation Agreement, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
(h) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment, and the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, (v)
such Lender shall continue to be able to agree to any modification or amendment
of this Agreement or any waiver hereunder without the consent, approval or vote
of any such participant or group of participants, other than modifications,
amendments and waivers which (A) postpone any date fixed for any payment of, or
reduce any payment of, principal of or interest on such Lender's Advances or any
facility fees or utilization fees payable under this Agreement, or (B) increase
the amount of such Lender's Commitment in a manner which would have the effect
of increasing the amount of a participant's participation, or (C) reduce the
interest rate payable under this Agreement and such Lender's Advances, or (D)
consent to the assignment or the transfer by the Borrower of any of its rights
and obligations under the Agreement, and (vi) except as contemplated by the
immediately preceding clause (v), no participant shall be deemed to be or to
have any of the rights or obligations of a "Lender" hereunder.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee or
participant or proposed assignee, designee or participant shall agree in writing
for the benefit of the Borrower to preserve the confidentiality of any
confidential information relating to the Borrower received by it from such
Lender in a manner consistent with Section 8.08.
(j) Anything in this Agreement to the contrary
notwithstanding, any Lender may at any time create a security interest in all or
any portion of its rights under this Agreement (including the Advances owing to
it) and the Notes, if any, issued to it hereunder in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System (or any successor regulation) and the applicable
operating circular of such Federal Reserve Bank.
Section 8.08 Confidentiality. Each Lender and the
Administrative Agent (each, a "PARTY") agrees that it will use its best
reasonable efforts not to disclose, without the prior consent of the Borrower
(other than to its, or its Affiliates, employees, auditors, accountants, counsel
or other representatives, whether existing at the Original Effective Date or any
subsequent time), any information with respect to the Borrower which is
furnished pursuant to this Agreement, provided that any party may disclose any
such information (i) as has become generally available to the public, (ii) as
may be required or appropriate in any report, statement
54
or testimony submitted to any municipal, state or Federal regulatory body having
or claiming to have jurisdiction over such party or to the Board of Governors of
the Federal Reserve System or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors, (iii) as may be required or appropriate in response to any summons
or subpoena or in connection with any litigation or regulatory proceeding, (iv)
in order to comply with any law, order, regulation or ruling applicable to such
party, or (v) to any prospective assignee, designee or participant in connection
with any contemplated assignment of any rights or obligations hereunder, any
designation or any sale of any participation therein, by such party pursuant to
Section 8.07, if such prospective assignee, designee or participant, as the case
may be, executes an agreement with the Borrower containing provisions
substantially similar to those contained in this Section 8.08; provided,
however, that the Borrower acknowledges that the Administrative Agent has
disclosed and may continue to disclose such information as the Administrative
Agent in its sole discretion determines is appropriate to the Lenders from time
to time.
Section 8.09 Consent to Jurisdiction.
(a) The Borrower hereby irrevocably submits to the
jurisdiction of any New York State or Federal court sitting in New York City and
any appellate court from any thereof in any action or proceeding by the
Administrative Agent, the Arranger, any Lender or the holder of any Note in
respect of, but only in respect of, any claims or causes of action arising out
of or relating to this Agreement or the Notes (such claims and causes of action,
collectively, being "PERMITTED CLAIMS"), and the Borrower hereby irrevocably
agrees that all Permitted Claims may be heard and determined in such New York
State court or in such Federal court. The Borrower hereby irrevocably waives, to
the fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any aforementioned
court in respect of Permitted Claims. Service of the summons and complaint and
any other process which may be served by the Administrative Agent, the Arranger,
any Lender or the holder of any Note on the Borrower in any such action or
proceeding in any aforementioned court in respect of Permitted Claims may be
made by delivering separate copies of such process to the Borrower by courier
and by certified mail (return receipt requested), fees and postage prepaid at
the Borrower's address specified pursuant to Section 8.02, to the attention of
each of the Treasurer and the Executive Vice President, Law. The Borrower agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(b) Nothing in this Section 8.09 (i) shall affect the right of
the Arranger, the Borrower, any Lender, the holder of any Note or the
Administrative Agent to serve legal process in any other manner permitted by law
or affect any right otherwise existing of the Borrower, any Lender, the
Arranger, the holder of any Note or the Administrative Agent to bring any action
or proceeding in the courts of other jurisdictions or (ii) shall be deemed to be
a general consent to jurisdiction in any particular court or a general waiver of
any defense or a consent to jurisdiction of the courts expressly referred to in
Subsection (a) above in any action or proceeding in respect of any claim or
cause of action other than Permitted Claims.
Section 8.10 Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of New
York.
55
Section 8.11 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery to the Administrative Agent of a counterpart executed by a
Lender shall constitute delivery of such counterpart to all of the Lenders.
Delivery of an executed counterpart by facsimile shall be as effective as
delivery of a manually executed original counterpart.
Section 8.12 WAIVER OF JURY TRIAL. THE BORROWER, THE
ADMINISTRATIVE AGENT, AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OF THE NOTES OR ANY OTHER INSTRUMENT OR
DOCUMENT FURNISHED PURSUANT HERETO OR IN CONNECTION HEREWITH OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BURLINGTON RESOURCES INC.
Commitments By:
--------------------------------
Name:
Title:
$350,000,000 JPMORGAN CHASE BANK, in its
individual capacity and
as Administrative Agent and
Auction Administrative Agent,
By:
--------------------------------
Name:
Title:
56
SCHEDULE I
MATERIAL SUBSIDIARIES
Burlington Resources Canada Ltd.
Canadian Hunter Exploration Ltd.
The Louisiana Land and Exploration Company Burlington Resources Oil & Gas
Company ▇▇ ▇▇▇▇ GP Inc.
▇▇▇▇ ▇▇ Inc.
Sched. I-1
SCHEDULE II
PRICING GRID
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
------- -------- --------- -------- ------- --------
Basis for Pricing If the If the If the If the If the If Levels I-V
Borrower's Borrower's Borrower's Borrower's Borrower's do not apply.
senior senior senior senior senior
unsecured long unsecured long unsecured long unsecured long unsecured long
term debt is term debt is term debt is term debt is term debt is
rated at least rated at least rated at least rated at least rated at least
A by S&P or A2 A- by S&P or A3 BBB+ by S&P or BBB by S&P or BBB- by S&P or
by ▇▇▇▇▇'▇. by ▇▇▇▇▇'▇. Baa1 by Baa2 by ▇▇▇▇▇'▇. Baa3 by ▇▇▇▇▇'▇.
▇▇▇▇▇'▇.
Facility Fee
Percentage .060% .080% .100% .125% .150% .200%
LIBOR .290% .320% .400% .475% .700% .800%
Applicable
Margin
The applicable pricing level shall change on the date of any relevant change in
the rating by S&P or ▇▇▇▇▇'▇ of any public long term senior unsecured debt
securities of the Borrower. In the case of split ratings from S&P and ▇▇▇▇▇'▇,
the rating to be used to determine the applicable pricing level is the higher of
the two (e.g., A-/Baa1 results in Level II pricing), provided that in the event
the split is more than one full category, the average (or the higher of two
intermediate ratings) shall be used (e.g., A-/Baa2 results in Level III pricing,
as does A-/Baa3).
Sched. II-1
EXHIBIT A
FORM OF
NOTE
New York, New York
[Date]
For value received,
Burlington Resources Inc., a Delaware corporation
(the "BORROWER"), promises to pay to the order of ______________________ (the
"LENDER"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Advance made by the Lender to the Borrower pursuant to
the Credit Agreement referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of each such Advance on the dates and at the rate or rates provided for
in the Credit Agreement. All such payments of principal and interest shall be
made in lawful money of the United States in Federal or other immediately
available funds at the office of JPMorgan Chase Bank, Agency Services, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇.
All Advances made by the Lender, the respective types thereof and all
repayments of the principal thereof shall be recorded by the Lender and, if the
Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Advance then outstanding may be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make (or any error in
making) any such recordation or endorsement shall not affect the Borrower's
obligations hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the
Bridge Revolving
Credit Agreement dated as of _________, 2002, among the Borrower, the Lenders
party hereto, JPMorgan Chase Bank, as Administrative Agent and JPMorgan Chase
Bank, as Auction Administrative Agent (as the same may be amended from time to
time, the "CREDIT AGREEMENT"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
BURLINGTON RESOURCES INC.
By:
-----------------------
Name:
Title:
Exh. A-1
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Type of Principal
Date Advance Advance Repaid Notation Made By
---- ------- ------- ----------- -----------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Exh. A-2
EXHIBIT B
FORM OF
NOTICE OF A BORROWING
Date ___________
JPMorgan Chase Bank
Agency Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
copy to:
JPMorgan Chase Bank,
as Administrative Agent under the Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned,
Burlington Resources Inc. (the "BORROWER"), refers to
the
Bridge Revolving Credit Agreement dated as of _____________, 2002 (as the
same may be amended from time to time, the "CREDIT AGREEMENT," the terms defined
therein being used herein as therein defined), among the Borrower, the Lenders
parties thereto, JPMorgan Chase Bank, as Administrative Agent, and JPMorgan
Chase Bank, as Auction Administrative Agent. Pursuant to Section 2.02(a) of the
Credit Agreement, the Borrower hereby gives you notice of and requests an A
Borrowing under the Credit Agreement (the "PROPOSED A BORROWING"), and in that
connection sets forth below the information relating to such A Borrowing:
1. The Business Day of the Proposed A Borrowing is _________ __,
____.
2. The Type of A Advances comprising the Proposed A Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
3. The aggregate amount of the Proposed A Borrowing is $_______.
Exh. B-1
4. The Interest Period for each Eurodollar Rate Advance made as
part of the Proposed A Borrowing is [__] month[s].(1)
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Borrowing, before and
immediately after giving effect thereto and to the application of the proceeds
therefrom:
(a) each representation and warranty contained in Section 4.01
is correct in all material respects as though made on and as of such date (or,
if such representation and warranty is stated to be made as at a specific date
or for a specific period, as at the original specified date or with respect to
the original specified period);
(b) no event has occurred and is continuing, or would result
from such A Borrowing, which constitutes an Event of Default or would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both; and
(c) the aggregate amount of the borrowings under the Credit
Agreement (including the Proposed A Borrowing) and under other agreements or
facilities or evidenced by other instruments or documents is not in excess of
the aggregate amount of such borrowings approved as of such date by the Board of
Directors of the Borrower.
BURLINGTON RESOURCES INC.
By:
---------------------------
Name:
Title:
------------------
(1) To be used for Eurodollar Rate Advances only.
Exh. ▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇ ▇ BORROWING
Date ___________
JPMorgan Chase Bank
Agency Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
copy to:
JPMorgan Chase Bank,
as Administrative Agent under the Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned, Burlington Resources Inc. (the "BORROWER"), refers to
the
Bridge Revolving Credit Agreement dated as of ____________, 2002 (as the
same may be amended from time to time, the "CREDIT AGREEMENT," the terms defined
therein being used herein as therein defined), among the Borrower, the Lenders
parties thereto, JPMorgan Chase Bank, as Administrative Agent, and JPMorgan
Chase Bank, as Auction Administrative Agent. Pursuant to Section 2.19 of the
Credit Agreement, the Borrower hereby gives you notice of and requests a B
Borrowing under the Credit Agreement (the "PROPOSED B BORROWING"), and in that
connection sets forth the terms on which such B Borrowing is requested to be
made:
1. Date of B Borrowing
--------------------------
2. Proposed Amount of B Borrowing
--------------------------
3. Maturity Date
--------------------------
4. Interest Rate Basis
--------------------------
5. Interest Payment Date(s)
--------------------------
6. [Other Terms]
--------------------------
Exh. C-1
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Borrowing, before and
immediately after giving effect thereto and to the application of the proceeds
therefrom:
(a) each representation and warranty contained in Section 4.01 is
correct in all material respects as though made on and as of such date (or, if
such representation and warranty is stated to be made as at a specific date or
for a specific period, as at the original specified date or with respect to the
original specified period);
(b) no event has occurred and is continuing, or would result from such
A Borrowing, which constitutes an Event of Default or would constitute an Event
of Default but for the requirement that notice be given or time elapse or both;
and
(c) the aggregate amount of the borrowings under the Credit Agreement
(including the Proposed A Borrowing) and under other agreements or facilities or
evidenced by other instruments or documents is not in excess of the aggregate
amount of such borrowings approved as of such date by the Board of Directors of
the Borrower.
BURLINGTON RESOURCES INC.
By
------------------------------
Name:
Title:
Exh. C-2
EXHIBIT D
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated: _________, 20_
Reference is made to the
Bridge Revolving Credit Agreement dated as of
_____________, 2002 (such agreement, as in effect on the date hereof and as it
may hereafter be amended, modified or supplemented from time to time, the
"CREDIT AGREEMENT") among Burlington Resources Inc., a Delaware corporation (the
"BORROWER"), the Lenders party thereto (the "LENDERS"), JPMorgan Chase Bank, as
Administrative Agent, and JPMorgan Chase Bank, as Auction Administrative Agent.
Terms defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
Section (A). The Assignor hereby sells and assigns to the Assignee,
without recourse, and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the date hereof (other than in respect of B
Advances) which represents the percentage interest specified on Schedule 1
hereto of all outstanding rights and obligations under the Credit Agreement
(other than in respect of B Advances), including such interest in the Assignor's
Commitment, the A Advances owing to the Assignor, and the Note[s] held by the
Assignor. After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the A Advances owing to the Assignee will be as set
forth in Section 2 of Schedule 1 hereof.
Section (B). The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; [and (iv) requests that the Administrative
Agent arrange for the issuance of a new Note or Notes payable to the order of
the Assignee].
Section (C). The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor 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 Credit Agreement; (iii) confirms that it is (subject to approval in writing
by the Borrower and the Administrative Agent to the extent required) an Eligible
Assignee; (iv) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender; [and] (vi) specifies as its Domestic Lending Office (and address for
notices) and Eurodollar Lending Office the offices set forth beneath its name on
the signature pages hereof [;and (vii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement and the Notes or such other documents as are necessary to indicate
that all such payments are subject to such rates at a rate reduced by an
applicable tax treaty].(1)
Section (D). Following the execution of this Assignment and Acceptance
by the Assignor and the Assignee, it will be delivered to the Administrative
Agent for acceptance and recording by the Administrative Agent. The effective
date for this Assignment and Acceptance shall be at least five Business Days
after the execution and delivery thereof to the Administrative Agent, unless
otherwise specified on Schedule 1 hereto (the "EFFECTIVE DATE").
Section (E). Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement, provided,
however, such assigning Lender shall retain any claim with respect to any fee,
interest, cost, expense or indemnity which accrues, or relates to an event that
occurs, prior to the date of such assignment pursuant to Section 2.03, 2.06,
2.07, 2.11, 2.12, 2.15 or 8.04 of the Credit Agreement.
Section (F). Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including all payments of principal, interest and commitment
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the Notes
for periods prior to the Effective Date directly between themselves.
Section (G). This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York
----------
(1) If the Assignee is not a United States person (as such term is defined in
Section 7701(a)(30) of the Internal Revenue Code).
Exh. D-2
IN WITNESS WHEREOF, the parties have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly authorized
as of the date specified thereon.
Exh. D-3
Schedule 1
to
Assignment and Acceptance
Dated __________
Section 1.
Percentage Interest assigned: %
-------
Section 2.
Assignee's Commitment: $
-------
Aggregate Outstanding Principal Amount of
to the Assignee: $
-------
Section 3.
Effective Date(2):
[NAME OF ASSIGNOR]
By
-------------------------------
Title:
[NAME OF ASSIGNEE]
By
-------------------------------
Title:
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
----------
(2) This date should be no earlier than at least five Business Days after the
execution and delivery thereof to the Administrative Agent.
Exh. D-4
Accepted and Consented to this day of , :
-- ---------- ----
JPMORGAN CHASE BANK,
as Administrative Agent
By
-------------------------------------------
Name:
Title:
Consented to this day of , :
-- ---------- ----
BURLINGTON RESOURCES INC.
By
------------------------------------------
Name:
Title:
▇▇▇. ▇-▇
EXHIBIT E
FORM OF
EXTENSION REQUEST
JPMorgan Chase Bank
Agency Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
copy to:
JPMorgan Chase Bank,
as Administrative Agent under the Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned, Burlington Resources Inc. (the "BORROWER"), refers to
the
Bridge Revolving Credit Agreement dated as of ______________, 2002 (as the
same may be amended from time to time, the "CREDIT AGREEMENT," the terms defined
therein being used herein as therein defined), among the Borrower, the Lenders
parties thereto, JPMorgan Chase Bank, as Administrative Agent, and JPMorgan
Chase Bank, as Auction Administrative Agent. Pursuant to Section 2.21(a) of the
Credit Agreement, the Borrower hereby gives you notice of and requests an
extension of the Stated Termination Date under the Credit Agreement, and in that
connection sets forth below the information relating to such extension:
1. The requested Stated Termination Date is _______________ __, ____.(1)
2. This Extension Request constitutes the [first] [second] exercise of
the Borrower's right to extend the Stated Termination Date.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date the Stated Termination Date is
extended:
----------
(1) Such requested Stated Termination Date shall be no more than one year
from the presently effective Stated Termination Date.
Exh. E-1
(a) this Extension Request is being made not later than 30 days prior
to the Stated Termination Date now in effect;
(b) no event has occurred and is continuing which constitutes an Event
of Default.
BURLINGTON RESOURCES INC.
By:
--------------------------
Name:
Title:
Exh. E-2
EXHIBIT F
FORM OF
OPINION OF VICE PRESIDENT AND GENERAL COUNSEL FOR BORROWER
____, 2002
To each of the Lenders and the Agents
Referred to Below
c/o JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re:
Bridge Revolving Credit Agreement, dated as
of ________________, 2002
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(iii)(d) of
the
Bridge Revolving Credit Agreement dated as of ______________, 2002 (as the
same may be amended from time to time, the "Credit Agreement," the terms defined
therein being used herein as therein defined), among the Borrower, the Lenders
parties thereto, JPMorgan Chase Bank, as Administrative Agent, and JPMorgan
Chase Bank, as Auction Administrative Agent. Unless the context otherwise
requires, all capitalized terms used herein without definition shall have the
meanings ascribed to them in the Credit Agreement.
I am Vice President and General Counsel of the Borrower, and I, or
attorneys over whom I exercise supervision, have acted as counsel for the
Borrower in connection with the preparation, execution and delivery of the
Credit Agreement. In that connection, I or such attorneys have examined:
(1) The Credit Agreement, executed by the parties thereto;
(2) Each of the Notes (the "Notes"), executed by the Borrower; and
(3) The other documents furnished by the Borrower in connection with
the Credit Agreement.
The documents referred to in items (1) and (2) above are collectively referred
to herein as the "Documents."
I, or attorneys over whom I exercise supervision, have also examined
the originals, or copies certified to our satisfaction, of the agreements,
instruments and other documents, and all of the orders, writs, judgments,
awards, injunctions and decrees, which affect or purport to affect the
Borrower's ability to perform its obligations under the Documents. In addition,
I, or attorneys over whom I exercise supervision, have examined the originals,
or copies certified to
Exh. F-1
our satisfaction, of such other corporate records of the Borrower, certificates
of public officials and of officers of the Borrower, and agreements, instruments
and other documents, as I have deemed necessary as a basis for the opinions
hereinafter expressed. In all such examinations, I, or attorneys over whom I
exercise supervision, have assumed the legal capacity of all natural persons
executing documents, the genuineness of all signatures on original or certified,
conformed or reproduction copies of documents of all parties (other than, with
respect to the Documents, the Borrower), the authenticity of original and
certified documents and the conformity to original or certified copies of all
copies submitted to such attorneys or me as conformed or reproduction copies. As
to various questions of fact relevant to the opinions expressed herein, I have
relied upon, and assume the accuracy of, representations and warranties
contained in the Credit Agreement and certificates and oral or written
statements and other information of or from public officials, officers and/or
representatives of the Borrower and others.
To the extent it may be relevant to the opinions expressed herein, I
have assumed that the parties to the Documents other than the Borrower have the
power to enter into and perform such Documents and that such Documents have been
duly authorized, executed and delivered by, and constitute legal, valid and
binding obligations of, such parties.
I am licensed to practice law in the states of Texas and Louisiana. The
opinions expressed below are limited to the federal laws of the United States
and, to the extent relevant hereto, the General Corporation Law of the State of
Delaware, as currently in effect. I assume no obligation to supplement this
opinion if any applicable laws change after the date hereof or if I become aware
of any facts that might change the opinions expressed herein after the date
hereof.
Based upon the foregoing and upon such investigation as I have deemed
necessary, and subject to the limitations, qualifications and assumptions set
forth herein, I am of the following opinion:
1. The Borrower (i) is a corporation duly incorporated and existing in good
standing under the laws of the State of Delaware, and (ii) possesses all the
corporate powers and all other authorizations and licenses necessary to engage
in its business and operations as now conducted, the failure to obtain or
maintain which would have a Material Adverse Effect.
2. The execution and delivery by the Borrower of, and the performance by the
Borrower of its obligations under, the Documents are within the Borrower's
corporate powers and have been duly authorized by all necessary corporate action
in respect of or by the Borrower (except to the extent that the Borrower seeks
to exercise its rights under Section 2.20 of the Credit Agreement to effectuate
an increase of Commitments), and do not contravene (i) the Borrower's
Certificate of Incorporation or By-Laws, in each case as amended, (ii) any
United States federal law, rule or regulation applicable to the Borrower
(excluding provisions of United States federal law expressly referred to in and
covered by the opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇ delivered to you in
connection with the transactions contemplated hereby), or (iii) any contractual
restriction binding on or affecting the Borrower. The Documents have been duly
executed and delivered on behalf of the Borrower.
Exh. F-2
3. No authorization or approval or other action by, and no notice to or filing
with, any United States federal governmental authority or regulatory body
(including, without limitation, the Federal Energy Regulatory Commission) is
required for the due execution and delivery by the Borrower of, and the
performance by the Borrower of its obligations under, the Documents, except
those required in the ordinary course of business in connection with the
performance by the Borrower of its obligations under certain covenants and
warranties contained in the Documents.
4. To the best of my knowledge, there is no action, suit or proceeding pending
or overtly threatened against or involving the Borrower or any of its Material
Subsidiaries, which, in my reasonable judgment (taking into account the
exhaustion of all appeals), would have a material adverse effect upon the
consolidated financial condition of Borrower and its consolidated Subsidiaries
taken as a whole, or which purports to affect the legality, validity, binding
effect or enforceability of any Document.
These opinions are given as of the date hereof and are solely for your
benefit in connection with the transactions contemplated by the Credit
Agreement. These opinions may not be relied upon by you for any other purpose or
relied upon by any other person for any purpose without my prior written
consent.
Very truly yours,
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
and General Counsel
Exh. F-3
EXHIBIT G
FORM OF
OPINION OF ▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇, NEW YORK
COUNSEL FOR BORROWER
________, 2002
To Each of the Lenders and the Administrative Agent
Referred to Below
c/o JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Bridge Revolving Credit Agreement, dated as
of ________________, 2002
Ladies and Gentlemen:
We have acted as special New York counsel for Burlington Resources
Inc., a Delaware corporation (the "Borrower"), in connection with the Bridge
Revolving Credit Agreement dated as of ______________, 2002 (as the same may be
amended from time to time, the "Credit Agreement," the terms defined therein
being used herein as therein defined), among the Borrower, the Lenders parties
thereto, JPMorgan Chase Bank, as Administrative Agent, and JPMorgan Chase Bank,
as Auction Administrative Agent. This opinion is delivered to you pursuant to
Section 3.01(iii)(e) of the Credit Agreement. Capitalized terms used herein and
not otherwise defined herein have the meanings assigned to such terms in the
Credit Agreement. The Uniform Commercial Code, as amended and in effect in the
State of New York on the date hereof, is referred to herein as the "NY UCC."
With your permission, all assumptions and statements of reliance herein have
been made without any independent investigation or verification on our part
except to the extent, if any, otherwise expressly stated, and we express no
opinion with respect to the subject matter or accuracy of the assumptions or
items upon which we have relied.
In connection with the opinions expressed herein, we have examined such
documents, records and matters of law as we have deemed necessary for the
purposes of this opinion. We have examined, among other documents, the
following:
(a) An executed copy of the Credit Agreement;
(b) An executed copy of each of the Notes (the "Notes"); and
(c) An executed copy of the Officer's Certificate of the Borrower
delivered to us in connection with this opinion, a copy of which is attached
hereto as Annex A.
Exh. G-1
The documents referred to in items (a) and (b) above are referred to
herein collectively as the "Documents."
In all such examinations, we have assumed the legal capacity of all
natural persons executing documents, the genuineness of all signatures, the
authenticity of original and certified documents and the conformity to original
or certified copies of all copies submitted to us as conformed or reproduction
copies. As to various questions of fact relevant to the opinions expressed
herein, we have relied upon, and assume the accuracy of, representations and
warranties contained in the Documents and certificates and oral or written
statements and other information of or from representatives of the Borrower and
others and assume compliance on the part of all parties to the Documents with
their respective covenants and agreements contained therein. With respect to the
opinions expressed in paragraph (a) below, our opinions are limited (x) to our
actual knowledge, if any, of the specially regulated business activities and
properties of the Borrower based solely upon an officer's certificate in respect
of such matters and without any independent investigation or verification on our
part and (y) to our review of only those laws and regulations that, in our
experience, are normally applicable to transactions of the type contemplated by
the Documents.
To the extent it may be relevant to the opinions expressed herein, we
have assumed that the parties to the Documents other than the Borrower have the
power to enter into and perform such Documents and to consummate the
transactions contemplated thereby and that such Documents have been duly
authorized, executed and delivered by, and constitute legal, valid and binding
obligations of, such parties.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that:
(a) The execution and delivery to the Administrative Agent and the
Lenders by the Borrower of the Documents and the performance by the Borrower of
its obligations thereunder (i) do not require under present law any filing or
registration by the Borrower with, or approval or consent to the Borrower of,
any governmental agency or authority of the State of New York, except those, if
any, required in the ordinary course of business in connection with the
performance by the Borrower of its obligations under certain covenants contained
in the Documents and (ii) do not violate any present law, or present regulation
of any governmental agency or authority of the State of New York applicable to
the Borrower or its property.
(b) Each of the Documents constitutes an enforceable obligation of the
Borrower in accordance with its terms.
(c) The borrowings by the Borrower under the Credit Agreement and the
application of the proceeds thereof as provided in the Credit Agreement will not
violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
The opinions set forth above are subject to the following
qualifications:
Exh. G-2
(A) We express no opinion as to:
(i) the effect of any law of any jurisdiction other than the State
of New York wherein the Administrative Agent or any Lender may be located or
wherein enforcement of any document referred to above may be sought that limits
the rates of interest legally chargeable or collectible; and
(ii) any filing, registration, approval or consent of the Federal
Energy Regulatory Commission or any other United States federal agency or
authority needed in connection with the execution, delivery and performance by
the Borrower of the Documents, the consummation of the transactions contemplated
thereby and compliance with the terms and conditions thereof.
(B) Our opinions above as to enforceability are subject to (i)
applicable bankruptcy, insolvency, reorganization, fraudulent transfer, voidable
preference, moratorium, receivership, conservatorship, arrangement or similar
laws, and related judicial doctrines, from time to time in effect affecting
creditors' rights and remedies generally, (ii) general principles of equity
(including, without limitation, standards of materiality, good faith, fair
dealing and reasonableness, equitable defenses, the exercise of judicial
discretion and limits on the availability of equitable remedies), whether such
principles are considered in a proceeding at law or in equity and (iii) the
qualification that certain other provisions of the Documents may be
unenforceable in whole or in part under the laws (including judicial decisions)
of the State of New York or the United States of America, but the inclusion of
such provisions does not affect the validity as against the Borrower of the
Documents as a whole, and the Documents contain adequate provisions for
enforcing payment of the obligations governed thereby, subject to the other
qualifications contained in this letter.
(C) We express no opinion as to the enforceability of any provision in
the Documents:
(i) permitting the Administrative Agent, any Lender or any
other person or entity to enforce any right or remedy thereunder, except in
compliance with the NY UCC and other applicable laws; or
(ii) relating to indemnification, contribution or exculpation
in connection with violations of any securities laws or statutory duties or
public policy, or in connection with willful, reckless or unlawful acts or gross
negligence of the indemnified or exculpated party or the party receiving
contribution; or
(iii) relating to exculpation of any party in connection with
its own negligence that a court would determine in the circumstances under
applicable law to be unfair or insufficiently explicit; or
(iv) providing that any Lender or other person or entity may
exercise set-off rights other than in accordance with and pursuant to applicable
law; or
(v) relating to forum selection to the extent the forum is a
federal court; or
Exh. G-3
(vi) relating to forum selection to the extent that the
enforceability of any such provision is to be determined by any court other than
a court of the State of New York; or
(vii) relating to choice of governing law to the extent that
the enforceability of any such provision is to be determined by any court other
than a court of the State of New York or may be subject to constitutional
limitations; or
(viii) specifying that provisions thereof may be waived only
in writing, to the extent that an oral agreement or an implied agreement by
trade practice or course of conduct has been created that modifies any provision
of such Documents; or
(ix) giving any person or entity the power to accelerate
obligations without any notice to the obligor.
(D) Our opinions as to enforceability are subject to the effect of
generally applicable rules of law that:
(i) provide that forum selection clauses in contracts are not
necessarily binding on the court(s) in the forum selected; and
(ii) limit the availability of a remedy under certain
circumstances when another remedy has been elected; and
(iii) may, where less than all of a contract may be
unenforceable, limit the enforceability of the balance of the contract to
circumstances in which the unenforceable portion is not an essential part of the
agreed exchange, or that permit a court to reserve to itself a decision as to
whether any provision of any agreement is severable; and
(iv) govern and afford judicial discretion regarding the
determination of damages and entitlement to attorneys' fees and other costs.
(E) We express no opinion as to the enforceability of any purported
waiver, release, variation, disclaimer, consent or other agreement to similar
effect (all of the foregoing, collectively, a "Waiver") by the Borrower under
any of the Documents to the extent limited by provisions of applicable law
(including judicial decisions), or to the extent that such a Waiver applies to a
right, claim, duty, defense or ground for, or a circumstance that would operate
as, a discharge or release otherwise existing or occurring as a matter of law
(including judicial decisions), except to the extent that such a Waiver is
effective under and is not prohibited by or void or invalid under applicable law
(including judicial decisions).
(F) For purposes of our opinions above, insofar as they relate to the
Borrower, we have assumed that (i) the Borrower is a corporation validly
existing in good standing in its jurisdiction of incorporation, has all
requisite power and authority, and has obtained all requisite corporate,
shareholder, third party and governmental authorizations, consents and
approvals, and made all requisite filings and registrations, necessary to
execute, deliver and perform the Documents (except to the extent noted in
paragraph (a) above), and that such execution, delivery and performance will not
violate or conflict with any law, rule, regulation, order, decree, judgment,
instrument or agreement binding upon or applicable to it or its properties
(except to
Exh. G-4
the extent noted in paragraph (a) above), and (ii) the Documents have been duly
executed and delivered by the Borrower.
(G) For purposes of the opinions set forth in paragraph (c) above, we
have assumed that (i) neither the Administrative Agent nor any of the Lenders
has or will have the benefit of any agreement or arrangement (excluding the
Documents) pursuant to which any Advances are directly or indirectly secured by
Margin Stock, (ii) neither the Administrative Agent nor any of the Lenders nor
any of their respective affiliates has extended or will extend any other credit
to the Borrower directly or indirectly secured by Margin Stock and (iii) neither
the Administrative Agent nor any of the Lenders has relied or will rely upon any
Margin Stock as collateral in extending or maintaining any Advances pursuant to
the Credit Agreement.
We express no opinion as to the compliance or noncompliance, or the
effect of the compliance or noncompliance, of each of the addressees with any
state or federal laws or regulations applicable to each of them by reason of
their status as or affiliation with a federally insured depository institution,
except as expressly set forth in paragraph (c) above.
The opinions expressed herein are limited to the federal laws of the
United States of America (in the case of the matters covered in paragraph (c)
above) and the laws of the State of New York (in the case of the matters covered
in paragraphs (a) and (b) above), as currently in effect. Our opinions are
limited to those expressly set forth herein, and we express no opinions by
implication.
The opinions expressed herein are solely for the benefit of the
Administrative Agent and the Lenders and may not be relied on in any manner or
for any purpose by any other person or entity.
Very truly yours,
▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇
Exh. G-5
EXHIBIT H
FORM OF
DESIGNATION AGREEMENT
Dated __________, 20__
Reference is made to the Bridge Revolving Credit Agreement dated as of
_____________, 2002 (such agreement, as in effect on the date hereof and as it
may hereafter be amended, modified or supplemented from time to time, being the
"CREDIT AGREEMENT") among Burlington Resources Inc., a Delaware corporation (the
"BORROWER"), the Lenders party thereto (the "LENDERS"), JPMorgan Chase Bank, as
administrative agent for the Lenders (the "ADMINISTRATIVE AGENT"), and JPMorgan
Chase Bank, as Auction Administrative Agent. Terms defined in the Credit
Agreement are used herein with the same meaning.
______________ (the "DESIGNATOR"), ____________ (the "DESIGNEE"), and
Burlington Resources Inc., a Delaware corporation (the "BORROWER"), agree as
follows:
1. The Designator designates the Designee, and the Designee hereby
accepts such designation, to have a right to make B Advances pursuant to Section
2.19 of the Credit Agreement.
2. The Designator makes no representations or warranties and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto and
(ii) the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Designator 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 Credit Agreement; (iii) confirms that it is a Designated Bidder; (iv)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
specifies as its Applicable Lending Office with respect to B Advances (and
address for notices) the offices set forth beneath its name on the signature
pages hereof.
Exh. H-1
4. Following the execution of this Designation Agreement by the
Designator, the Designee and the Borrower, it will be delivered to the
Administrative Agent for acceptance and recording by the Administrative Agent.
The effective date of this Designation Agreement shall be the date of acceptance
thereof by the Administrative Agent, unless otherwise specified on the signature
page hereto (the "EFFECTIVE DATE").
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right to make B Advances as a Lender pursuant to Section 2.19 of the
Credit Agreement and the rights and obligations of a Lender related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Designation Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
Effective Date:(2)
_______________, 20___
[NAME OF DESIGNATOR]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[NAME OF DESIGNEE]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
----------
(2) This date should be no earlier than the date of acceptance by the
Administrative Agent.
Exh. H-2
Applicable Lending Office (and addresses
for notices)
[Address
BURLINGTON RESOURCES INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Accepted and Approved this ____ day of ___________, 20__
JPMORGAN CHASE BANK,
as Administrative Agent
By:
------------------------------------
Name:
Title:
Exh. H-3