1
EXHIBIT 10.1
================================================================================
US CREDIT AGREEMENT
------------------------------------------
DEVON ENERGY CORPORATION
as US Borrower
BANK OF AMERICA, N.A.
as Administrative Agent
BANC OF AMERICA SECURITIES LLC
as Lead Arranger
BANC ONE CAPITAL MARKETS, INC.
as Syndication Agent
THE CHASE MANHATTAN BANK
as Documentation Agent
FIRST UNION NATIONAL BANK
as Documentation Agent
and CERTAIN FINANCIAL INSTITUTIONS
as Lenders
------------------------------------------
US $725,000,000
August 29, 2000
================================================================================
2
TABLE OF CONTENTS
Page
----
CREDIT AGREEMENT........................................................................................... 1
ARTICLE I - The US Loans .................................................................................. 1
Section 1.1. Commitments to Lend; US Notes.......................................................... 1
Section 1.2. Requests for New US Loans.............................................................. 4
Section 1.3. Continuations and Conversions of Existing US Loans..................................... 6
Section 1.4. Use of Proceeds........................................................................ 7
Section 1.5. Interest Rates and Fees................................................................ 7
Section 1.6. Prepayments............................................................................ 9
Section 1.7. Competitive Bid Loans.................................................................. 9
Section 1.8. Refinancings of US Swing Loans......................................................... 12
Section 1.9. Re-allocation of Tranche B Maximum Credit Amount and Canadian
Maximum Credit Amount.................................................................. 13
ARTICLE II - Letters of Credit ............................................................................ 14
Section 2.1. Letters of Credit...................................................................... 14
Section 2.2. Requesting Letters of Credit........................................................... 15
Section 2.3. Reimbursement and Participations....................................................... 16
Section 2.4. Letter of Credit Fees.................................................................. 17
Section 2.5. No Duty to Inquire..................................................................... 17
Section 2.6. LC Collateral.......................................................................... 18
ARTICLE III - Payments to Lenders.......................................................................... 19
Section 3.1. General Procedures..................................................................... 19
Section 3.2. Increased Cost and Reduced Return...................................................... 20
Section 3.3. Limitation on Types of US Loans........................................................ 22
Section 3.4. Illegality............................................................................. 22
Section 3.5. Treatment of Affected US Loans......................................................... 22
Section 3.6. Compensation........................................................................... 23
Section 3.7. Change of Applicable Lending Office.................................................... 23
Section 3.8. Replacement of Lenders................................................................. 24
Section 3.9. Taxes.................................................................................. 24
Section 3.10. Currency Conversion and Currency Indemnity............................................. 26
ARTICLE IV - Conditions Precedent to Lending .............................................................. 27
Section 4.1. Documents to be Delivered.............................................................. 27
Section 4.2. Additional Conditions Precedent to First US Loan or First Letter of Credit............. 28
Section 4.3. Additional Conditions Precedent to all US Loan and Letters of Credit................... 28
i
3
ARTICLE V - Representations and Warranties................................................................. 29
Section 5.1. No Default............................................................................. 29
Section 5.2. Organization and Good Standing......................................................... 29
Section 5.3. Authorization.......................................................................... 29
Section 5.4. No Conflicts or Consents............................................................... 29
Section 5.5. Enforceable Obligations................................................................ 30
Section 5.6. Full Disclosure........................................................................ 30
Section 5.7. Litigation............................................................................. 30
Section 5.8. ERISA Plans and Liabilities............................................................ 30
Section 5.9. Environmental and Other Laws........................................................... 31
Section 5.10. Names and Places of Business........................................................... 31
Section 5.11. US Borrower's Subsidiaries............................................................. 31
Section 5.12. Title to Properties; Licenses.......................................................... 32
Section 5.13. Government Regulation.................................................................. 32
Section 5.14. Insider................................................................................ 32
Section 5.15. Solvency............................................................................... 32
ARTICLE VI - Affirmative Covenants of US Borrower.......................................................... 32
Section 6.1. Payment and Performance................................................................ 32
Section 6.2. Books, Financial Statements and Reports................................................ 33
Section 6.3. Other Information and Inspections...................................................... 34
Section 6.4. Notice of Material Events and Change of Address........................................ 34
Section 6.5. Maintenance of Properties.............................................................. 35
Section 6.6. Maintenance of Existence and Qualifications............................................ 35
Section 6.7. Payment of Trade Liabilities, Taxes, etc............................................... 35
Section 6.8. Insurance.............................................................................. 35
Section 6.9. Performance on US Borrower's Behalf.................................................... 35
Section 6.10. Interest............................................................................... 35
Section 6.11. Compliance with Law.................................................................... 36
Section 6.12. Environmental Matters.................................................................. 36
Section 6.13. Bank Accounts; Offset.................................................................. 36
ARTICLE VII - Negative Covenants of US Borrower............................................................ 36
Section 7.1. Indebtedness........................................................................... 37
Section 7.2. Limitation on Liens.................................................................... 38
Section 7.3. Limitation on Mergers ................................................................. 38
Section 7.4. Limitation on Issuance of Securities by Subsidiaries of US Borrower; Ownership of
certain Restricted Subsidiaries by US Borrower....................................... 38
Section 7.5. Limitation on Restricted Payments...................................................... 38
Section 7.6. Transactions with Affiliates........................................................... 39
Section 7.7. Prohibited Contracts; ERISA............................................................ 39
Section 7.8. Funded Debt to Total Capitalization.................................................... 39
ii
4
ARTICLE VIII - Events of Default and Remedies.............................................................. 39
Section 8.1. Events of Default...................................................................... 39
Section 8.2. Remedies............................................................................... 41
ARTICLE IX - US Agent...................................................................................... 42
Section 9.1. Appointment, Powers, and Immunities.................................................... 42
Section 9.2. Reliance by US Agent................................................................... 43
Section 9.3. Defaults............................................................................... 43
Section 9.4. Rights as Lender....................................................................... 44
Section 9.5. Indemnification........................................................................ 44
Section 9.6. Non-Reliance on US Agent and Other Lenders............................................. 44
Section 9.7. Administrative Agent in its Individual Capacity........................................ 45
Section 9.8. Sharing of Set-Offs and Other Payments................................................. 45
Section 9.9. Investments............................................................................ 45
Section 9.10. Benefit of Article IX.................................................................. 46
Section 9.11. Resignation............................................................................ 46
Section 9.12. Lenders to Remain Pro Rata............................................................. 46
Section 9.13. Other Agents........................................................................... 47
ARTICLE X - Miscellaneous.................................................................................. 47
Section 10.1. Waivers and Amendments; Acknowledgments................................................ 47
Section 10.2. Survival of Agreements; Cumulative Nature.............................................. 48
Section 10.3. Notices................................................................................ 49
Section 10.4. Payment of Expenses; Indemnity......................................................... 49
Section 10.5. Parties in Interest.................................................................... 50
Section 10.6. Assignments and Participations......................................................... 51
Section 10.7. Confidentiality........................................................................ 54
Section 10.8. Governing Law; Submission to Process................................................... 54
Section 10.9. Limitation on Interest................................................................. 54
Section 10.10. Termination; Limited Survival.......................................................... 55
Section 10.11. Severability........................................................................... 55
Section 10.12. Counterparts; Fax...................................................................... 56
Section 10.13. Waiver of Jury Trial, Punitive Damages, etc............................................ 56
Section 10.14. Defined Terms.......................................................................... 56
Section 10.15. Annex I, Exhibits and Schedules; Additional Definitions................................ 56
Section 10.16. Amendment of Defined Instruments....................................................... 56
Section 10.17. References and Titles.................................................................. 57
Section 10.18. Calculations and Determinations........................................................ 57
Section 10.19. Construction of Indemnities and Releases............................................... 57
Section 10.20. Termination of Existing US Agreement................................................... 57
iii
5
Schedules and Exhibits:
Annex I - Defined Terms
Annex II - Lenders Schedule
Schedule 1 - Disclosure Schedule
Schedule 2 - Surety Bonds & Letters of Credit
Exhibit A-1 - Tranche A Promissory Note
Exhibit A-2 - Tranche B Promissory Note
Exhibit A-3 - US Swing Promissory Note
Exhibit B - Borrowing Notice
Exhibit C - Continuation/Conversion Notice
Exhibit D - Certificate Accompanying Financial Statements
Exhibit E - Opinion of Counsel for Restricted Persons
Exhibit F - Assignment and Acceptance Agreement
Exhibit G - Letter of Credit Application and Agreement
Exhibit H - Competitive Bid Request
Exhibit I - Invitation to Bid
Exhibit J - Competitive Bid
Exhibit K - Competitive Bid Accept/Reject Letter
Exhibit L - Competitive Bid Note
Exhibit M - Re-allocation Notice
iv
6
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made as of August 29, 2000, by and among Devon
Energy Corporation, a Delaware corporation (herein called "US Borrower"), Bank
of America, N.A., individually and as administrative agent (herein called "US
Agent"), and the undersigned Lenders. In consideration of the mutual covenants
and agreements contained herein the parties hereto agree as follows:
ARTICLE I - The US Loans
Section 1.1. Commitments to Lend; US Notes.
(a) Tranche A. Subject to the terms and conditions hereof, each Tranche A
Lender agrees to make loans to US Borrower (herein called such Tranche A
Lender's "Tranche A Loans") upon US Borrower's request from time to time during
the US Facility Commitment Period, provided that (i) subject to Sections 3.3,
3.4 and 3.5, all Tranche A Lenders are requested to make Tranche A Loans of the
same Type in accordance with their respective Tranche A Percentage Shares and as
part of the same Borrowing, (ii) such Tranche A Lender's Tranche A Percentage
Share of the Tranche A Facility Usage shall never exceed such Tranche A Lender's
Percentage Share of the Tranche A Maximum Credit Amount, and (iii) such Tranche
A Lender's Percentage Share of the US Facility Usage shall never exceed such
Tranche A Lender's Percentage Share of the US Maximum Credit Amount. The
aggregate amount of all Tranche A Loans in any Borrowing must be an integral
multiple of US $100,000 which equals or exceeds US $200,000 or must equal the
unadvanced portion of the US Maximum Credit Amount. The obligation of US
Borrower to repay to each Tranche A Lender the aggregate amount of all Tranche A
Loans made by such Tranche A Lender, together with interest accruing in
connection therewith, shall be evidenced by a single promissory note (herein
called such Tranche A Lender's "Tranche A Note") made by US Borrower payable to
the order of such Tranche A Lender in the form of Exhibit A-1 with appropriate
insertions. The amount of principal owing on any Tranche A Lender's Tranche A
Note at any given time shall be the aggregate amount of all Tranche A Loans
theretofore made by such Tranche A Lender minus all payments of principal
theretofore received by such Tranche A Lender on such Tranche A Note. Interest
on each Tranche A Note shall accrue and be due and payable as provided herein
and therein. Each Tranche A Note shall be due and payable as provided herein and
therein, and shall be due and payable in full on the Tranche A Maturity Date.
Subject to the terms and conditions hereof, US Borrower may borrow, repay, and
reborrow Tranche A Loans under the US Agreement during the US Facility
Commitment Period. US Borrower may have no more than ten Borrowings of US Dollar
Eurodollar Loans (including Tranche A Loans and Tranche B Loans) outstanding at
any time.
(b) Tranche B. Subject to the terms and conditions hereof, each Tranche B
Lender agrees to make loans to US Borrower (herein called such Tranche B
Lender's "Tranche B Loans") upon US Borrower's request from time to time during
the Tranche B Revolving Period, provided that (i) subject to Sections 3.3, 3.4
and 3.5, all Tranche B Lenders are requested to make Tranche
7
B Loans of the same Type in accordance with their respective Percentage Shares
and as part of the same Borrowing, (ii) such Tranche B Lender's Tranche B
Percentage Share of the Tranche B Facility Usage shall never exceed such Tranche
B Lender's Tranche B Percentage Share of the Tranche B Maximum Credit Amount,
and (iii) such Tranche B Lender's Percentage Share of the US Facility Usage
shall never exceed such Tranche B Lender's Percentage Share of the US Maximum
Credit Amount. The aggregate amount of all Tranche B Loans in any Borrowing must
be an integral multiple of US $100,000 which equals or exceeds US $200,000 or
must equal the unadvanced portion of the US Maximum Credit Amount. The
obligation of US Borrower to repay to each Tranche B Lender the aggregate amount
of all Tranche B Loans made by such Tranche B Lender, together with interest
accruing in connection therewith, shall be evidenced by a single promissory note
(herein called such Tranche B Lender's "Tranche B Note") made by US Borrower
payable to the order of such Tranche B Lender in the form of Exhibit A-2 with
appropriate insertions. The amount of principal owing on any Tranche B Lender's
Tranche B Note at any given time shall be the aggregate amount of all Tranche B
Loans theretofore made by such Tranche B Lender minus all payments of principal
theretofore received by such Tranche B Lender on such Tranche B Note. Interest
on each Tranche B Note shall accrue and be due and payable as provided herein
and therein. Each Tranche B Note shall be due and payable as provided herein and
therein, and shall be due and payable in full on the Tranche B Maturity Date.
Subject to the terms and conditions hereof, US Borrower may borrow, repay, and
reborrow Tranche B Loans under the US Agreement during the Tranche B Revolving
Period. US Borrower may have no more than ten Borrowings of US Dollar Eurodollar
Loans (including Tranche A Loans and Tranche B Loans) outstanding at any time.
(c) Extension of Conversion Date.
(i) US Borrower may, at its option and from time to time during the
Tranche B Revolving Period, request an offer to extend the Tranche B
Revolving Period by delivering to US Agent a Request for an Offer of
Extension not more than sixty days and not less than thirty days prior to
the then current Tranche B Conversion Date. US Agent shall forthwith
provide a copy of the Request for an Offer of Extension to each of the
Tranche B Lenders. Upon receipt from US Agent of an executed Request for
an Offer of Extension, each Tranche B Lender shall, within twenty days
after the date of such Tranche B Lender's receipt of such request from US
Agent, either:
(1) notify US Agent of its acceptance of the Request for an
Offer of Extension, and the terms and conditions, if any, upon which
such Tranche B Lender is prepared to extend the Tranche B Conversion
Date; or
(2) notify US Agent that the Request for an Offer of Extension
has been denied, such notice to forthwith be forwarded by US Agent
to US Borrower to allow US Borrower to seek a replacement lender
pursuant to Section 1.1(e) (any Tranche B Lender giving notice of
such denial is herein called a "Non-Accepting Lender"). The failure
of a Tranche B Lender to so notify US Agent within such twenty day
period shall be deemed to be notification by such Tranche
2
8
B Lender to US Agent that such Tranche B Lender has denied US
Borrower's Request for an Offer of Extension.
(ii) Provided that all Tranche B Lenders provide notice to US Agent
under Section 1.1(c)(i) that they accept the Request for an Offer of
Extension, or if there are Non-Accepting Lenders, such Tranche B Lenders
shall have been repaid pursuant to Section 1.1(e) or replacement lenders
shall have become parties hereto pursuant to Section 1.1(e) and shall have
accepted the Request for an Offer of Extension, such acceptance having
common terms and conditions, US Agent shall deliver to US Borrower an
Offer of Extension incorporating the said terms and conditions. Such offer
shall be open for acceptance by US Borrower until the fifth Business Day
immediately preceding the then current Tranche B Conversion Date. Upon
written notice by US Borrower to US Agent accepting an outstanding Offer
of Extension and agreeing to the terms and conditions, if any, specified
therein (the date of such notice of acceptance in this Section 1.1 being
called the "Extension Date"), the Tranche B Conversion Date shall be
extended to the date 364 days from the Extension Date and the terms and
conditions specified in such Offer of Extension shall be immediately
effective.
(iii) US Borrower understands that the consideration of any Request
for an Offer of Extension constitutes an independent credit decision which
each Tranche B Lender retains the absolute and unfettered discretion to
make and that no commitment in this regard is hereby given by a Tranche B
Lender and that any offer to extend the Tranche B Conversion Date may be
on such terms and conditions in addition to those set out herein as the
extending Tranche B Lenders stipulate.
(d) Conversion to Tranche B Term Loan. Effective at 11:59 p.m. Dallas,
Texas time on the day immediately preceding the Tranche B Conversion Date, (i)
each Tranche B Lender's obligation to make new Tranche B Loans shall be canceled
automatically, and (ii) each Tranche B Lender's Tranche B Loans shall become
term loans maturing on the Tranche B Maturity Date.
(e) Non-Accepting Lender. Provided that Tranche B Lenders whose Percentage
Shares represent more than 50% but less than 100% of the Tranche B Maximum
Credit Amount provide notice to US Agent under Section 1.1(c)(i) that they
accept the Request for an Offer of Extension, on notice of US Borrower to US
Agent, US Borrower shall be entitled to choose any of the following in respect
of each Non-Accepting Lender prior to the expiration of the Tranche B Revolving
Period, provided that if US Borrower does not make an election prior to the
expiration of the Tranche B Revolving Period, US Borrower shall be deemed to
have irrevocably elected to exercise the provisions of Section 1.1(e)(i):
(i) the Non-Accepting Lender's obligations to make Tranche B Loans
and Canadian Loans shall be canceled as of the Extension Date, the Tranche
B Maximum Credit Amount and the Canadian Maximum Credit Amount shall be
reduced by the amount so canceled, and on or prior to the Extension Date
the US Borrower shall repay in full all Tranche B Loans and all Canadian
Obligations then outstanding to the Non-Accepting Lender (as defined in
Section 1.1(c)(i)(2)), or
3
9
(ii) replace the Non-Accepting Lender by reaching satisfactory
arrangements with one or more existing Lenders or new Lenders, for the
purchase, assignment and assumption of the Tranche B Loans and the
Canadian Obligations of the Non-Accepting Lender, and the related rights
and obligations of such Non-Accepting Lender under the Loan Documents,
provided that any new Tranche B Lender, with, if necessary, any Affiliate,
shall take a pro rata assignment of such Tranche B Loans, Canadian
Obligations and related rights and obligations, and such Non-Accepting
Lender shall be obligated to sell such Obligations in accordance with such
satisfactory arrangements.
In connection with any such replacement of a Tranche B Lender pursuant to
this Section 1.1(e), US Borrower shall pay all costs that would have been
due to such Tranche B Lender pursuant to Section 3.6 if such Tranche B
Lender's US Loans had been prepaid at the time of such replacement.
(f) Swing Loans. Subject to the terms and conditions hereof, US Agent
agrees to make loans to US Borrower (herein called "US Swing Loans") upon US
Borrower's request from time to time during the US Facility Commitment Period,
provided that (i) the aggregate amount of US Swing Loans outstanding shall never
exceed the US Swing Sublimit, (ii) the aggregate amount of Tranche A Facility
Usage and US Swing Loans outstanding shall never exceed the Tranche A Maximum
Credit Amount, and (iii) the US Facility Usage shall never exceed the US Maximum
Credit Amount. The aggregate amount of all US Swing Loans in any Borrowing must
be an integral multiple of US $100,000 which equals or exceeds US $1,000,000 or
must equal the unadvanced portion of the US Maximum Credit Amount. The
obligation of US Borrower to repay to US Agent the aggregate amount of all US
Swing Loans made by US Agent, together with interest accruing in connection
therewith, shall be evidenced by a single promissory note (herein called the "US
Swing Note") made by US Borrower payable to the order of US Agent in the form of
Exhibit A-3 with appropriate insertions. The amount of principal owing on the US
Swing Note at any given time shall be the aggregate amount of all US Swing Loans
theretofore made by US Agent minus all payments of principal theretofore
received by US Agent on the US Swing Note (including as a result of any
refinancing pursuant to Section 1.8). Interest on the US Swing Note shall accrue
and be due and payable as provided herein and therein. The US Swing Note shall
be due and payable as provided herein and therein, and shall be due and payable
in full on the Tranche A Maturity Date. Subject to the terms and conditions
hereof, US Borrower may borrow, repay, and reborrow US Swing Loans under the US
Agreement during the US Facility Commitment Period.
Section 1.2. Requests for New US Loans. US Borrower must give to US Agent
written notice (or telephonic notice promptly confirmed in writing) of any
requested Borrowing of new US Loans to be advanced by Lenders. Each such notice
constitutes a "Borrowing Notice" hereunder and must:
(a) specify the aggregate amount of any such Borrowing of new US Base Rate
Loans and the date on which such US Base Rate Loans are to be advanced, the
aggregate amount of any such Borrowing of new US Dollar Eurodollar Loans, the
date on which such US Dollar Eurodollar Loans are to be advanced (which shall be
the first day of the Eurodollar Interest
4
10
Period which is to apply thereto), and the length of the applicable Eurodollar
Interest Period, or the aggregate amount of any such Borrowing of new US Swing
Loans and the date on which such US Swing Loans are to be advanced; and
(b) be received by US Agent (i) in the case of US Loans that are not US
Swing Loans, not later than 11:00 a.m., Dallas, Texas time, on the day on which
any such US Base Rate Loans are to be made, or the second Business Day preceding
the day on which any such US Dollar Eurodollar Loans are to be made, and (ii) in
the case of US Loans that are US Swing Loans, not later than 4:00 p.m., Dallas,
Texas time on the Business Day on which any such US Swing Loans are to be made.
Each such written request or confirmation must be made in the form and substance
of the "Borrowing Notice" attached hereto as Exhibit B, duly completed. Each
such telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by US Borrower as to the matters which are required
to be set out in such written confirmation. Upon receipt of any such Borrowing
Notice, US Agent shall give each Lender notice of the terms thereof (excluding
US Swing Loans) not later than 2:00 p.m., Dallas, Texas time on the day it
receives such Borrowing Notice from US Borrower if it receives such Borrowing
Notice by 11:00 a.m., Dallas, Texas time, otherwise on the next Business Day. If
all conditions precedent to such new US Loans have been met, each Lender will on
the date requested promptly remit to US Agent at US Agent's office in Dallas,
Texas the amount of such Lender's new US Loan in immediately available funds,
and upon receipt of such funds, unless to its actual knowledge any conditions
precedent to such US Loans have been neither met nor waived as provided herein,
US Agent shall promptly make such US Loans available to US Borrower. Unless US
Agent shall have received prompt notice from a Lender that such Lender will not
make available to US Agent such Lender's new US Loan, US Agent may in its
discretion assume that such Lender has made such US Loan available to US Agent
in accordance with this section and US Agent may if it chooses, in reliance upon
such assumption, make such US Loan available to US Borrower. If and to the
extent such Lender shall not so make its new US Loan available to US Agent, such
Lender and US Borrower severally agree to pay or repay to US Agent within three
days after demand the amount of such US Loan together with interest thereon, for
each day from the date such amount was made available to US Borrower until the
date such amount is paid or repaid to US Agent, with interest at (1) the Federal
Funds Rate, if such Lender is making such payment; provided that US Agent gave
notice of the terms of the Borrowing Notice to such Lender in accordance with
the terms of this Section 1.2, and (2) the interest rate applicable at the time
to the other new US Loans made on such date, if US Borrower is making such
repayment. If neither such Lender nor US Borrower pays or repays to US Agent
such amount within such three-day period, US Agent shall in addition to such
amount be entitled to recover from such Lender and from US Borrower, on demand,
interest thereon at the Default Rate for US Base Rate Loans, calculated from the
date such amount was made available to US Borrower. The failure of any Lender to
make any new US Loan to be made by it hereunder shall not relieve any other
Lender of its obligation hereunder, if any, to make its new US Loan, but no
Lender shall be responsible for the failure of any other Lender to make any new
US Loan to be made by such other Lender.
5
11
Section 1.3. Continuations and Conversions of Existing US Loans. US
Borrower may make the following elections with respect to US Loans already
outstanding under this Agreement: to convert US Base Rate Loans to US Dollar
Eurodollar Loans, to convert US Dollar Eurodollar Loans to US Base Rate Loans on
the last day of the Eurodollar Interest Period applicable thereto, to continue
US Dollar Eurodollar Loans beyond the expiration of such Eurodollar Interest
Period by designating a new Eurodollar Interest Period to take effect at the
time of such expiration, and to convert US Swing Loans to US Dollar Eurodollar
Loans simultaneously with the refinancing of such US Swing Loans pursuant to
Section 1.8. In making such elections, US Borrower may combine existing Tranche
A Loans made pursuant to separate Borrowings into one new Borrowing or divide
existing Tranche A Loans made pursuant to one Borrowing into separate new
Borrowings, or combine existing Tranche B Loans made pursuant to separate
Borrowings into one new Borrowing or divide existing Tranche B Loans made
pursuant to one Borrowing into separate new Borrowings, provided that US
Borrower may have no more than ten Borrowings of US Dollar Eurodollar Loans
outstanding at any time. To make any such election, US Borrower must give to US
Agent written notice (or telephonic notice promptly confirmed in writing) of any
such Conversion or Continuation of existing US Loans, with a separate notice
given for each new Borrowing. Each such notice constitutes a
"Continuation/Conversion Notice" hereunder and must:
(a) specify the existing US Loans made under this Agreement which are to
be continued or converted and whether such US Loans are Tranche A Loans or
Tranche B Loans;
(b) specify the aggregate amount of any Borrowing of US Base Rate Loans
into which such existing US Loans are to be continued or converted and the date
on which such Continuation or Conversion is to occur, or the aggregate amount of
any Borrowing of US Dollar Eurodollar Loans into which such existing US Dollar
Eurodollar Loans are to be continued or converted, the date on which such
Continuation or Conversion is to occur (which shall be the first day of the
Eurodollar Interest Period which is to apply to such US Dollar Eurodollar
Loans), and the length of the applicable Eurodollar Interest Period; and
(c) be received by US Agent not later than 10:00 a.m., Dallas, Texas time,
on the day on which any such Continuation or Conversion to US Base Rate Loans is
to occur, or the second Business Day preceding the day on which any such
Continuation or Conversion to US Dollar Eurodollar Loans is to occur.
Each such written request or confirmation must be made in the form and substance
of the "Continuation/Conversion Notice" attached hereto as Exhibit C, duly
completed. Each such telephonic request shall be deemed a representation,
warranty, acknowledgment and agreement by US Borrower as to the matters which
are required to be set out in such written confirmation. Upon receipt of any
such Continuation/Conversion Notice, US Agent shall give each Lender prompt
notice of the terms thereof. Each Continuation/Conversion Notice shall be
irrevocable and binding on US Borrower. During the continuance of any Default,
US Borrower may not make any election to convert existing US Loans made under
this Agreement into US Dollar Eurodollar Loans or continue existing US Loans
made under this Agreement as US Dollar Eurodollar Loans. If (due to the
existence of a Default or for any other reason) US Borrower
6
12
fails to timely and properly give any Continuation/Conversion Notice with
respect to a Borrowing of existing US Dollar Eurodollar Loans at least two
Business Days prior to the end of the Eurodollar Interest Period applicable
thereto, such US Dollar Eurodollar Loans shall automatically be converted into
US Base Rate Loans at the end of such Eurodollar Interest Period. No new funds
shall be repaid by US Borrower or advanced by any Lender in connection with any
Continuation or Conversion of existing US Loans pursuant to this section, and no
such Continuation or Conversion shall be deemed to be a new advance of funds for
any purpose; such Continuations and Conversions merely constitute a change in
the interest rate applicable to already outstanding US Loans.
Section 1.4. Use of Proceeds. US Borrower shall use all US Loans made
under this Agreement to pay in full, contemporaneously with the making of the
first US Loan or the issuance of the first Letter of Credit, all indebtedness
outstanding under the Existing US Agreement and the Existing Santa ▇▇ ▇▇▇▇▇▇
Agreement and thereafter to refinance existing indebtedness (including any
commercial paper issued by or for the account of US Borrower), to finance
capital expenditures, to refinance Matured US LC Obligations outstanding under
this Agreement, and provide working capital for its operations and for other
general business purposes. US Borrower shall use all Letters of Credit for its
general corporate purposes. In no event shall the funds from any US Loan or any
Letter of Credit be used directly or indirectly by any Person for personal,
family, household or agricultural purposes or for the purpose, whether
immediate, incidental or ultimate, of purchasing, acquiring or carrying any
"margin stock" (as such term is defined in Regulation U promulgated by the Board
of Governors of the Federal Reserve System) or to extend credit to others
directly or indirectly for the purpose of purchasing or carrying any such margin
stock. US Borrower represents and warrants that US Borrower is not engaged
principally, or as one of US Borrower's important activities, in the business of
extending credit to others for the purpose of purchasing or carrying such margin
stock.
Section 1.5. Interest Rates and Fees.
(a) Tranche A Loans. The following interest and fees shall be payable with
respect to Tranche A Loans:
(i) Interest. Each Tranche A Loan that is a US Base Rate Loan shall
bear interest on each day outstanding at the US Base Rate in effect on
such day. Each Tranche A Loan that is a US Dollar Eurodollar Loan shall
bear interest on each day during the related Eurodollar Interest Period at
the related Adjusted US Dollar Eurodollar Rate in effect on such day.
(ii) Facility Fees. In consideration of each Tranche A Lender's
commitment to make Tranche A Loans under this Agreement, US Borrower will
pay to US Agent for the account of each Tranche A Lender a facility fee
determined on a daily basis by applying the Facility Fee Rate to such
Tranche A Lender's Tranche A Percentage Share of the Tranche A Maximum
Credit Amount on each day during the US Facility Commitment Period. This
facility fee shall be due and payable in arrears on the last day of each
Fiscal Quarter and at the end of the US Facility Commitment Period.
7
13
(b) Tranche B Loans. The following interest and fees shall be payable with
respect to Tranche B Loans:
(i) Interest. Each Tranche B Loan that is a US Base Rate Loan shall
bear interest on each day outstanding at the US Base Rate in effect on
such day. Each Tranche B Loan that is a US Dollar Eurodollar Loan shall
bear interest on each day during the related Eurodollar Interest Period at
the related Adjusted US Dollar Eurodollar Rate in effect on such day.
(ii) Facility Fees. In consideration of each Tranche B Lender's
commitment to make Tranche B Loans under this Agreement, US Borrower will
pay to US Agent for the account of each Tranche B Lender a facility fee
determined on a daily basis by applying (i) the Tranche B Facility Fee
Rate to such Tranche B Lender's Percentage Share of the Tranche B Maximum
Credit Amount on each day during the period from the date hereof until the
Tranche B Conversion Date and (ii) the Tranche B Facility Fee Rate to such
Tranche B Lender's Percentage Share of the Tranche B Facility Usage on
each day from the Tranche B Conversion Date until the Tranche B Maturity
Date. This facility fee shall be due and payable in arrears on the last
day of each Fiscal Quarter and on the Tranche B Maturity Date.
(c) US Swing Loans. Each US Swing Loan shall bear interest on each day
outstanding at the US Swing Rate for such US Swing Loan in effect on such day.
(d) Utilization Fees. In consideration of each Lender's commitment to make
US Loans under this Agreement, US Borrower will pay to US Agent for the account
of each Lender a utilization fee determined on a daily basis by applying (i) a
rate of 7.5 Basis Points per annum to such Lender's Percentage Share of the US
Facility Usage on each day during the term of this Agreement that the US
Facility Usage exceeds thirty-three percent (33%) of the US Maximum Credit
Amount, and (ii) a rate of 15 Basis Points per annum to such Lender's Percentage
Share of the US Facility Usage on each day during the term of this Agreement
that the US Facility Usage exceeds sixty-six percent (66%) of the US Maximum
Credit Amount. This utilization fee shall be due and payable in arrears on each
Interest Payment Date for US Base Rate Loans and on the date all US Obligations
are repaid in full.
(e) Competitive Bid Loans. Each Competitive Bid Loan shall bear interest
on each day outstanding at the Competitive Bid Rate for such Competitive Bid
Loan.
(f) All US Loans. Notwithstanding the foregoing, if an Event of Default
has occurred and is continuing, all US Loans shall bear interest on each day
outstanding at the applicable Default Rate. Past due payments of principal and
interest shall bear interest at the rates and in the manner set forth in the US
Notes.
(g) US Agent's Fees. In addition to all other amounts due to US Agent
under the US Loan Documents, US Borrower will pay fees to US Agent as described
in a letter agreement dated August 1, 2000 between US Agent and US Borrower.
8
14
Section 1.6. Prepayments.
(a) Optional Prepayments. US Borrower may, upon giving notice to US Agent
by 11:00 a.m., Dallas, Texas time on the Business Day of prepayment, from time
to time and without premium or penalty prepay the US Notes, including
Competitive Bid Notes, in whole or in part, so long as all partial prepayments
of principal concurrently paid on the US Notes are in increments of US $100,000
and in an aggregate amount greater than or equal to US $200,000, and so long as
US Borrower pays all amounts owing in connection with the prepayment of any US
Dollar Eurodollar Loan owing under Section 3.6. US Agent shall give each Lender
notice thereof by 2:00 p.m. Dallas, Texas time on the date such notice is
received from US Borrower. Unless otherwise designated by US Borrower, any
prepayment of Competitive Bid Loans shall be applied to the outstanding
Competitive Bid Loans in order of shortest maturity.
(b) Mandatory Prepayments of Tranche A Loans. If the Tranche A Facility
Usage exceeds the Tranche A Maximum Credit Amount, US Borrower shall immediately
prepay the principal of the Tranche A Loans in an amount at least equal to such
excess.
(c) Mandatory Prepayments of Tranche B Loans. If the aggregate amount of
the outstanding Tranche B Loans ever exceeds the Tranche B Maximum Credit
Amount, US Borrower shall immediately prepay the principal of the Tranche B
Loans in an amount at least equal to such excess.
(d) Procedures. Each prepayment of principal under this section shall be
accompanied by all interest then accrued and unpaid on the principal so prepaid.
Any principal or interest prepaid pursuant to this section shall be in addition
to, and not in lieu of, all payments otherwise required to be paid under the US
Loan Documents at the time of such prepayment.
Section 1.7. Competitive Bid Loans.
(a) US Borrower may request that each Lender submit Competitive Bids (on a
several basis) for requested maturities of thirty days or more to US Borrower on
any Business Day during the US Facility Commitment Period, provided that all
Lenders are requested to make a Competitive Bid on the same basis at the same
time. In order to request Competitive Bids, US Borrower shall deliver by hand or
facsimile to US Agent a Competitive Bid Request, to be received by US Agent not
later than 9:00 a.m., Dallas, Texas time one Business Day before the date
specified for a proposed Competitive Bid Loan. A Competitive Bid Request that
does not conform substantially to the format of Exhibit H may be rejected in US
Agent's sole discretion, and US Agent shall promptly notify US Borrower of such
rejection by facsimile. After receiving an acceptable Competitive Bid Request,
US Agent shall no later than 12:00 noon, Dallas, Texas time on the date such
Competitive Bid Request is received by US Agent, by facsimile deliver to Lenders
an Invitation to Bid substantially in the form of Exhibit I with respect
thereto.
(b) Each Lender may, in its sole discretion, make one or more Competitive
Bids to US Agent responsive to each Competitive Bid Request given by US
Borrower. Each Competitive Bid by a Lender must be received by US Agent by
facsimile not later than 9:00 a.m., Dallas,
9
15
Texas time on the date specified for a proposed Competitive Bid Loan. Multiple
bids may be accepted by US Agent. Competitive Bids that do not conform
substantially to the format of Exhibit J may be rejected by US Agent after
conferring with, and upon the instruction of, US Borrower, and US Agent shall
notify the bidding Lender of such rejection as soon as practicable. If any
Lender shall elect not to make a Competitive Bid, such Lender shall so notify US
Agent by facsimile not later than 9:00 a.m., Dallas, Texas time, on the date
specified for a Competitive Bid Loan; provided, however, that failure by any
Lender to give such notice shall not cause such Lender to be obligated to make
any Competitive Bid Loan and by such failure such Lender shall be deemed to have
rejected such Competitive Bid. A Competitive Bid submitted by a Lender shall be
irrevocable.
(c) Promptly, and in no event later than 9:30 a.m., Dallas, Texas time, on
the date specified for a proposed Competitive Bid Loan, US Agent shall notify US
Borrower by facsimile of all the Competitive Bids made, the Competitive Bid Rate
and the principal amount of each Competitive Bid Loan in respect of which a
Competitive Bid was made, and the identity of each Lender that made each
Competitive Bid. US Agent shall send a copy of all Competitive Bids to US
Borrower for its records as soon as practicable after completion of the bidding
process.
(d) US Borrower may, subject only to the provisions hereof, accept or
reject any Competitive Bid. US Borrower shall notify US Agent by facsimile
pursuant to a Competitive Bid Accept/Reject Letter whether and to what extent US
Borrower has decided to accept or reject any or all of the Competitive Bids, not
later than 10:00 a.m., Dallas, Texas time, on the date specified for a proposed
Competitive Bid Loan; provided, however, that:
(i) the failure by US Borrower to accept or reject any Competitive
Bid within the time period specified herein shall be deemed to be a
rejection of such Competitive Bid,
(ii) the aggregate amount of the Competitive Bids accepted by US
Borrower shall not exceed the principal amount specified in the
Competitive Bid Request,
(iii) the aggregate amount of all outstanding US Loans and US LC
Obligations shall never exceed the US Maximum Credit Amount,
(iv) if US Borrower shall accept a Competitive Bid or Competitive
Bids made at a particular Competitive Bid Rate, but the amount of such
Competitive Bid or Competitive Bids shall cause the total amount of
Competitive Bids to be accepted by US Borrower to exceed the amount
specified in the Competitive Bid Request, then US Borrower shall accept a
portion of such Competitive Bid or Competitive Bids in an amount equal to
the amount specified in the Competitive Bid Request less the amount of all
other Competitive Bids accepted with respect to such Competitive Bid
Request, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the
amount of each such Competitive Bid at such Competitive Bid Rate, and
10
16
(v) no Competitive Bid shall be accepted for a Competitive Bid Loan
unless such Competitive Bid Loan is in a minimum principal amount of US
$5,000,000 or a higher integral multiple of US $1,000,000; provided,
however, that if a Competitive Bid Loan must be in an amount less than US
$5,000,000 because of the provisions of clause (iv) above, such
Competitive Bid Loan may be for a minimum of US $1,000,000 or any higher
integral multiple thereof, and in calculating the pro rata allocation of
acceptances or portions of multiple bids at a particular Competitive Bid
Rate pursuant to clause (iv), the amounts shall be rounded to integral
multiples of US $1,000,000 in a manner which shall be in the sole and
absolute discretion of US Borrower.
(e) Promptly on each date US Borrower accepts a Competitive Bid, US Agent
shall notify each Lender whether or not its Competitive Bid has been accepted
(and if so, in what amount and at what Competitive Bid Rate) by facsimile
transmission sent by US Agent, and each successful bidder will thereupon become
bound, subject to the other applicable conditions hereof, to make the
Competitive Bid Loan in respect of which its Competitive Bid has been accepted.
After completing the notifications referred to in the immediately preceding
sentence, US Agent shall notify each Lender of the aggregate principal amount of
all Competitive Bids accepted. Each Lender which is to make a Competitive Bid
Loan shall, before 11:00 a.m., Dallas, Texas time, on the borrowing date
specified in the Competitive Bid Request applicable thereto, make available to
US Agent in immediately available funds the amount of each Competitive Bid Loan
to be made by such Lender, and US Agent shall promptly deposit such funds to an
account designated by US Borrower. As soon as practicable thereafter, US Agent
shall notify each Lender of the aggregate amount of Competitive Bid Loans
advanced, the respective Competitive Bid Interest Periods thereof and
Competitive Bid Rate applicable thereto.
(f) The obligation of US Borrower to repay to each Lender the aggregate
amount of all Competitive Bid Loans made by such Lender, together with interest
accruing in connection therewith, shall be evidenced by promissory notes
(respectively, such Lender's "Competitive Bid Note") made by US Borrower payable
to the order of such Lender in the form of Exhibit L, with appropriate
insertions. The amount of principal owing on any Lender's Competitive Bid Note
at any given time shall be the aggregate amount of all Competitive Bid Loans
theretofore made by such Lender thereunder minus all payments of principal
theretofore received by such Lender thereon. Interest on each Competitive Bid
Note shall accrue and be due and payable as provided herein and therein. US
Borrower shall repay on the final day of the Competitive Bid Interest Period of
each Competitive Bid Loan (such date being that specified by US Borrower for
repayment of such Competitive Bid Loan in the related Competitive Bid Request
and such date being no later than six months after the date of the Competitive
Bid Loan) the then unpaid principal amount of such Competitive Bid Loan. Subject
to Section 1.6 and the payment of amounts described in Section 3.6, US Borrower
shall have the right to prepay any principal amount of any Competitive Bid Loan.
(g) No Competitive Bid Loan shall be made within five Business Days after
the date of any other Competitive Bid Loan, unless US Borrower and US Agent
shall mutually agree otherwise. If US Agent shall at any time elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such bid directly
to US Borrower requesting such Competitive Bid one
11
17
quarter of an hour earlier than the latest time at which the other Lenders are
required to submit their bids to US Agent.
Section 1.8. Refinancings of US Swing Loans. US Agent, at any time in its
sole and absolute discretion, may, upon notice given to each Lender by not later
than 11:30 a.m., Dallas, Texas time, on any Business Day, request that each
Tranche A Lender make a Tranche A Loan that is a US Base Rate Loan (or a Tranche
A Loan that is a US Dollar Eurodollar Loan if requested by US Borrower in
accordance with Section 1.2) in an aggregate amount equal to its Tranche A
Percentage Share of the aggregate unpaid principal amount of any outstanding US
Swing Loans for the purpose of refinancing such US Swing Loans (in this section
called a "Refinancing Loan"). In any event, not later than 11:30 a.m., Dallas,
Texas time, on the first day and the fifteenth day of each calendar month (or if
such day is not a Business Day, on the next Business Day), US Agent will notify
each Tranche A Lender of the aggregate amount of US Swing Loans which are then
outstanding and the amount of the Refinancing Loan required to be made by each
Tranche A Lender to refinance such outstanding US Swing Loans (the aggregate
amount of such Refinancing Loan to be made by each Tranche A Lender shall equal
such Tranche A Lender's Tranche A Percentage Share of such outstanding US Swing
Loans). Upon the giving of notices by US Agent described above, each Tranche A
Lender shall promptly remit to US Agent such Refinancing Loan in the manner
described above in Section 1.2, so long as (a) US Agent believed in good faith
that all conditions to making the subject US Swing Loan were satisfied at the
time such US Swing Loan was made, or (b) if the conditions to such US Swing Loan
were not satisfied, the satisfaction of such conditions have been waived in a
writing by Required Tranche A Lenders in accordance with the provisions of this
Agreement (collectively, the "Refinancing Conditions"). The proceeds of the
Refinancing Loans made pursuant to the preceding sentence shall be paid to US
Agent (and not to US Borrower) and applied to the payment of principal of the
outstanding US Swing Loans. If and to the extent any Tranche A Lender shall not
so make its Refinancing Loan, such Tranche A Lender and US Borrower severally
agree to pay to US Agent (for delivery to US Swing Lender) within three days
after demand the amount of such Refinancing Loan together with interest thereon,
for each day from the date such Refinancing Loan was required to be made until
the date such amount is paid to US Agent, with interest at (1) the Federal Funds
Rate, if such Tranche A Lender is making such payment; provided that US Agent
gave notice of the terms of the Borrowing Notice to such Tranche A Lender in
accordance with the terms of this Section 1.2, and (2) the interest rate
applicable at the time to the other Refinancing Loans, if US Borrower is making
such repayment. If neither such Tranche A Lender nor US Borrower pays to US
Agent (for delivery to US Swing Lender) such amount within such three-day
period, US Swing Lender shall in addition to such amount be entitled to recover
from such Tranche A Lender and from US Borrower, on demand, interest thereon at
the Default Rate for US Base Rate Loans, calculated from the date such
Refinancing Loan was required to be made. Each Tranche A Lender's obligation to
make Refinancing Loans pursuant to this Section shall be absolute and
unconditional and shall not be affected by any circumstances, including, without
limitation, (1) any setoff, counterclaim, recoupment, defense or other right
which such Tranche A Lender may have against US Agent, US Borrower or anyone
else for any reason whatsoever; (2) the occurrence or continuance of an Event of
Default or Default; (3) any adverse change in the condition (financial or
otherwise) of US Borrower; (4) any breach of this Agreement by US Borrower, US
Agent or any Tranche A
12
18
Lender, except with respect to the Refinancing Conditions; or (5) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided, that in no event shall a Tranche A Lender be obligated
to make a Refinancing Loan pursuant to this Section if, after giving effect
thereto, (i) such Tranche A Lender's Tranche A Percentage Share of the Tranche A
Facility Usage shall exceed such Tranche A Lender's Percentage Share of the
Tranche A Maximum Credit Amount, or (ii) such Tranche A Lender's Percentage
Share of the US Facility Usage shall exceed such Tranche A Lender's Percentage
Share of the US Maximum Credit Amount. If any Tranche A Lender is prohibited by
Law from making a Tranche A Loan to refinance a US Swing Loan, such Tranche A
Lender shall purchase from US Swing Lender a participation in such US Swing Loan
in the amount of such Tranche A Lender's refinancing obligation hereunder.
Section 1.9. Re-allocation of Tranche B Maximum Credit Amount and Canadian
Maximum Credit Amount. Borrowers shall have the right (i) to re-allocate up to
US $100,000,000 of the unused Tranche B Maximum Credit Amount to the Canadian
Maximum Credit Amount (a "Tranche B Re-allocation") by reducing the Tranche B
Maximum Credit Amount and increasing the Canadian Maximum Credit Amount by the
same amount and (ii) to re-allocate up to US $100,000,000 of the unused
Canadian Maximum Credit Amount to the Tranche B Maximum Credit Amount (a
"Canadian Re-allocation") by reducing the Canadian Maximum Credit Amount and
increasing the Tranche B Maximum Credit Amount by the same amount; provided that
the Tranche B Maximum Credit Amount shall never be greater than US $625,000,000,
the Canadian Maximum Credit Amount shall never be greater than US $375,000,000;
the aggregate amount of the Tranche B Maximum Credit Amount and the Canadian
Maximum Credit Amount shall never exceed US $800,000,000. A Re-allocation may be
made only on a Business Day which occurs during the Tranche B Revolving Period
and the Canadian Revolving Period, each Re-allocation shall remain in effect for
at least 90 days and thereafter until a subsequent Re-allocation is made in
accordance with the terms set forth in the Loan Documents, and no more than four
Re-allocations may be made during any Fiscal Year.
(a) To make any Tranche B Re-allocation, US Borrower must give to US Agent
written notice (or telephonic notice promptly confirmed in writing) of such
Tranche B Re-allocation. Each such notice must:
(i) specify the amount by which the Tranche B Maximum Credit Amount
will be reduced, which amount must be equal to US $25,000,000 or any
higher integral multiple of US $1,000,000, and must also be equal to or
less than the amount by which the Tranche B Maximum Credit Amount then in
effect exceeds the Tranche B Facility Usage;
(ii) specify that the Canadian Maximum Credit Amount will be
increased by the same amount;
(iii) specify the effective date of such Tranche B Re-allocation
which must be at least 90 days after the effective date of the immediately
preceding Re-allocation (whether a Tranche B Re-allocation or a Canadian
Re-allocation); and
13
19
(iv) be received by US Agent not later than 10:00 a.m., Dallas,
Texas time, on or before the 10th Business Day preceding the day on which
such Tranche B Re-allocation is to occur.
(b) To make any Canadian Re-allocation, Borrowers must give to US Agent
written notice (or telephonic notice promptly confirmed in writing) of such
Canadian Re-allocation. Each such notice must:
(i) specify the amount by which the Canadian Maximum Credit Amount
will be reduced, which amount must be equal to US $25,000,000 or any
higher integral multiple of US $1,000,000, and must also be equal to or
less than the amount by which the Canadian Maximum Credit Amount then in
effect exceeds the Canadian Facility Usage;
(ii) specify that the Tranche B Maximum Credit Amount will be
increased by the same amount;
(iii) specify the effective date of such Canadian Re-allocation
which must be at least 90 days after the effective date of the immediately
preceding Re-allocation (whether a Tranche B Re-allocation or a Canadian
Re-allocation); and
(iv) be received by US Agent not later than 10:00 a.m., Dallas,
Texas time, on or before the 10th Business Day preceding the day on which
such Canadian Re-allocation is to occur.
Each written request or confirmation described in this section constitutes
a "Re-allocation Notice" and must be made in the form and substance of the
"Re-allocation Notice" attached hereto as Exhibit M, duly completed. Each such
telephonic request shall be deemed a representation, warranty, acknowledgment
and agreement by Borrowers as to the matters which are required to be set out in
such written confirmation. Upon receipt of any such Re-allocation Notice, US
Agent shall give Canadian Agent, each Tranche B Lender and each Canadian Lender
prompt notice of the terms thereof. Each Re-allocation Notice shall be
irrevocable and binding on Borrowers.
ARTICLE II - Letters of Credit
Section 2.1. Letters of Credit. Subject to the terms and conditions
hereof, US Borrower may during the US Facility Commitment Period request US LC
Issuer to issue one or more Letters of Credit, provided that, after taking such
Letter of Credit into account:
(a) the Tranche A Facility Usage does not exceed the Tranche A Maximum
Credit Amount at such time;
(b) the aggregate amount of US LC Obligations arising from Letters of
Credit issued under this Agreement at such time does not exceed the US LC
Sublimit;
14
20
(c) the expiration date of such Letter of Credit is prior to the end of
the US Facility Commitment Period;
(d) such Letter of Credit is to be used for general corporate purposes of
US Borrower;
(e) such Letter of Credit is not directly or indirectly used to assure
payment of or otherwise support any Indebtedness of any Person other than
Indebtedness of any Restricted Person permitted by this Agreement;
(f) the issuance of such Letter of Credit will be in compliance with all
applicable governmental restrictions, policies, and guidelines and will not
subject US LC Issuer to any cost which is not reimbursable under Article III;
(g) the form and terms of such Letter of Credit are acceptable to US LC
Issuer in its reasonable discretion;
(h) all other conditions in this Agreement to the issuance of such Letter
of Credit have been satisfied.
Subject to the terms and conditions set forth herein, US LC Issuer will, in
reliance upon the agreements of the other Tranche A Lenders set forth in Section
2.3(b), honor any such request if the foregoing conditions (a) through (i) (in
the following Section 2.2 called the "LC Conditions") have been met as of the
date of issuance of such Letter of Credit. US LC Issuer may choose to honor any
such request for any other Letter of Credit but has no obligation to do so and
may refuse to issue any other requested Letter of Credit for any reason which US
LC Issuer in its sole discretion deems relevant. Upon the execution and delivery
of this Agreement by each of the parties hereto, any letters of credit issued
under the Existing Agreement and outstanding as of the date hereof shall be
deemed Letters of Credit issued hereunder as of the date hereof and shall be
subject to the terms and conditions hereof, including without limitation US
Borrower's reimbursement obligations under Section 2.3 and Lenders'
participation obligations under Section 2.3.
Section 2.2. Requesting Letters of Credit. US Borrower must make written
application for any Letter of Credit at least three Business Days before the
date on which US Borrower desires for US LC Issuer to issue such Letter of
Credit. By making any such written application US Borrower shall be deemed to
have represented and warranted that the LC Conditions described in Section 2.1
will be met as of the date of issuance of such Letter of Credit. Each such
written application for a Letter of Credit must be made in writing in the form
and substance of Exhibit G, the terms and provisions of which are hereby
incorporated herein by reference (or in such other form as may mutually be
agreed upon by US LC Issuer and US Borrower). Two Business Days after the LC
Conditions for a Letter of Credit have been met as described in Section 2.1 (or
if US LC Issuer otherwise desires to issue such Letter of Credit), US LC Issuer
will issue such Letter of Credit at US LC Issuer's office in Dallas, Texas. If
any provisions of any
15
21
LC Application conflict with any provisions of this Agreement, the provisions of
this Agreement shall govern and control.
Section 2.3. Reimbursement and Participations.
(a) Reimbursement by US Borrower. If the beneficiary of any Letter of
Credit issued hereunder makes a draft or other demand for payment thereunder
then Tranche A Loans that are US Base Rate Loans shall be made by Lenders to US
Borrower in the amount of such draft or demand notwithstanding the fact that one
or more conditions precedent to the making of such US Base Rate Loans may not
have been satisfied. Such US Base Rate Loans shall be made concurrently with US
LC Issuer's payment of such draft or demand without any request therefor by US
Borrower and shall be immediately used by US LC Issuer to repay the amount of
the resulting Matured US LC Obligation.
(b) Participation by Lenders. US LC Issuer irrevocably agrees to grant and
hereby grants to each Tranche A Lender, and to induce US LC Issuer to issue
Letters of Credit hereunder, each Tranche A Lender irrevocably agrees to accept
and purchase and hereby accepts and purchases from US LC Issuer, on the terms
and conditions hereinafter stated and for such Tranche A Lender's own account
and risk, an undivided interest equal to such Tranche A Lender's Tranche A
Percentage Share of US LC Issuer's obligations and rights under each Letter of
Credit issued hereunder and the amount of each Matured US LC Obligation paid by
US LC Issuer thereunder. Each Tranche A Lender unconditionally and irrevocably
agrees with US LC Issuer that, if a Matured US LC Obligation is paid under any
Letter of Credit issued hereunder for which US LC Issuer is not reimbursed in
full, whether pursuant to Section 2.3(a) above or otherwise, such Tranche A
Lender shall (in all circumstances and without set-off or counterclaim) pay to
US LC Issuer on demand, in immediately available funds at US LC Issuer's address
for notices hereunder, such Tranche A Lender's Tranche A Percentage Share of
such Matured US LC Obligation (or any portion thereof which has not been
reimbursed by US Borrower). Each Tranche A Lender's obligation to pay US LC
Issuer pursuant to the terms of this subsection is irrevocable and
unconditional. If any amount required to be paid by any Tranche A Lender to US
LC Issuer pursuant to this subsection is paid by such Tranche A Lender to US LC
Issuer within three Business Days after the date such payment is due, US LC
Issuer shall in addition to such amount be entitled to recover from such Tranche
A Lender, on demand, interest thereon calculated from such due date at the
Federal Funds Rate. If any amount required to be paid by any Tranche A Lender to
US LC Issuer pursuant to this subsection is not paid by such Tranche A Lender to
US LC Issuer within three Business Days after the date such payment is due, US
LC Issuer shall in addition to such amount be entitled to recover from such
Tranche A Lender, on demand, interest thereon calculated from such due date at
the Default Rate.
(c) Distributions to Participants. Whenever US LC Issuer has in accordance
with this section received from any Tranche A Lender payment of such Tranche A
Lender's Tranche A Percentage Share of any Matured US LC Obligation, if US LC
Issuer thereafter receives any payment of such Matured US LC Obligation or any
payment of interest thereon (whether directly from US Borrower or by application
of LC Collateral or otherwise, and excluding only interest for any period prior
to US LC Issuer's demand that such Tranche A
16
22
Lender make such payment of its Tranche A Percentage Share), US LC Issuer will
distribute to such Tranche A Lender its Tranche A Percentage Share of the
amounts so received by US LC Issuer; provided, however, that if any such
payment received by US LC Issuer must thereafter be returned by US LC Issuer,
such Tranche A Lender shall return to US LC Issuer the portion thereof which US
LC Issuer has previously distributed to it.
(d) Calculations. A written advice setting forth in reasonable detail the
amounts owing under this section, submitted by US LC Issuer to US Borrower or
any Tranche A Lender from time to time, shall be conclusive, absent manifest
error, as to the amounts thereof."
Section 2.4. Letter of Credit Fees. In consideration of US LC Issuer's
issuance of any Letter of Credit, US Borrower agrees to pay to US LC Issuer for
its own account, a letter of credit fronting fee at a rate equal to 12.5 Basis
Points per annum multiplied by the face amount of such Letter of Credit, payable
on the date of issuance, and (b) to US Agent, for the account of all Tranche A
Lenders in accordance with their respective Tranche A Percentage Shares, a
letter of credit issuance fee calculated by applying the Applicable Margin to
the face amount of all Letters of Credit outstanding on each day, payable in
arrears on the last day of each Fiscal Quarter."
Section 2.5. No Duty to Inquire.
(a) Drafts and Demands. US LC Issuer is authorized and instructed to
accept and pay drafts and demands for payment under any Letter of Credit without
requiring, and without responsibility for, any determination as to the existence
of any event giving rise to said draft, either at the time of acceptance or
payment or thereafter. US LC Issuer is under no duty to determine the proper
identity of anyone presenting such a draft or making such a demand (whether by
tested telex or otherwise) as the officer, representative or agent of any
beneficiary under any Letter of Credit, and payment by US LC Issuer to any such
beneficiary when requested by any such purported officer, representative or
agent is hereby authorized and approved. US BORROWER RELEASES EACH LENDER PARTY
FROM, AND AGREES TO HOLD EACH LENDER PARTY HARMLESS AND INDEMNIFIED AGAINST, ANY
LIABILITY OR CLAIM IN CONNECTION WITH OR ARISING OUT OF THE SUBJECT MATTER OF
THIS SECTION, WHICH INDEMNITY SHALL APPLY WHETHER OR NOT ANY SUCH LIABILITY OR
CLAIM IS IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY, provided only that
no Lender Party shall be entitled to indemnification for that portion, if any,
of any liability or claim which is proximately caused by its own individual
gross negligence or willful misconduct, as determined in a final judgment.
(b) Extension of Maturity. If the maturity of any Letter of Credit is
extended by its terms or by Law or governmental action, if any extension of the
maturity or time for presentation of drafts or any other modification of the
terms of any Letter of Credit is made at the request of any Restricted Person,
or if the amount of any Letter of Credit is increased at the request of any
Restricted Person, this Agreement shall be binding upon all Restricted Persons
with respect to such Letter of Credit as so extended, increased or otherwise
modified, with respect to drafts and property covered thereby, and with respect
to any action taken by US LC Issuer, US LC Issuer's
17
23
correspondents, or any Lender Party in accordance with such extension, increase
or other modification.
(c) Transferees of Letters of Credit. If any Letter of Credit provides
that it is transferable, US LC Issuer shall have no duty to determine the proper
identity of anyone appearing as transferee of such Letter of Credit, nor shall
US LC Issuer be charged with responsibility of any nature or character for the
validity or correctness of any transfer or successive transfers, and payment by
US LC Issuer to any purported transferee or transferees as determined by US LC
Issuer is hereby authorized and approved, and US BORROWER RELEASES EACH LENDER
PARTY FROM, AND AGREES TO HOLD EACH LENDER PARTY HARMLESS AND INDEMNIFIED
AGAINST, ANY LIABILITY OR CLAIM IN CONNECTION WITH OR ARISING OUT OF THE
FOREGOING, WHICH INDEMNITY SHALL APPLY WHETHER OR NOT ANY SUCH LIABILITY OR
CLAIM IS IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY, provided only that
no Lender Party shall be entitled to indemnification for that portion, if any,
of any liability or claim which is proximately caused by its own individual
gross negligence or willful misconduct, as determined in a final judgment.
Section 2.6. LC Collateral.
(a) US LC Obligations in Excess of US Maximum Credit Amount. If, after the
making of all mandatory prepayments required under Section 1.6(b), the US LC
Obligations outstanding under the US Agreement will exceed the Tranche A Maximum
Credit Amount, then in addition to prepayment of the entire principal balance of
the US Loans US Borrower will immediately pay to US LC Issuer an amount equal to
such excess. US LC Issuer will hold such amount as security for the remaining US
LC Obligations outstanding under the US Agreement (all such amounts held as
security for US LC Obligations being herein collectively called "LC Collateral")
and the other US Obligations, and such collateral may be applied from time to
time to any Matured US LC Obligations or other US Obligations which are due and
payable. Neither this subsection nor the following subsection shall, however,
limit or impair any rights which US LC Issuer may have under any other document
or agreement relating to any Letter of Credit, LC Collateral or US LC
Obligation, including any LC Application, or any rights which any Lender Party
may have to otherwise apply any payments by US Borrower and any LC Collateral
under Section 3.1.
(b) Acceleration of US LC Obligations. If the US Obligations or any part
thereof become immediately due and payable pursuant to Section 8.1 then, unless
Tranche A Required Lenders otherwise specifically elect to the contrary (which
election may thereafter be retracted by Tranche A Required Lenders at any time),
all US LC Obligations shall become immediately due and payable without regard to
whether or not actual drawings or payments on the Letters of Credit have
occurred, and US Borrower shall be obligated to pay to US LC Issuer immediately
an amount equal to the aggregate US LC Obligations which are then outstanding.
18
24
(c) Investment of LC Collateral. Pending application thereof, all LC
Collateral shall be invested by US LC Issuer in such Investments as US LC Issuer
may choose in its sole discretion. All interest on (and other proceeds of) such
Investments shall be reinvested or applied to Matured US LC Obligations or other
US Obligations which are due and payable. When all US Obligations have been
satisfied in full, including all US LC Obligations, all Letters of Credit have
expired or been terminated, and all of US Borrower's reimbursement obligations
in connection therewith have been satisfied in full, US LC Issuer shall release
any remaining LC Collateral. US Borrower hereby assigns and grants to US LC
Issuer a continuing security interest in all LC Collateral paid by it to US LC
Issuer, all Investments purchased with such LC Collateral, and all proceeds
thereof to secure its Matured US LC Obligations and the other US Obligations
hereunder, each US Note, and the other US Loan Documents. US Borrower further
agrees that US LC Issuer shall have all of the rights and remedies of a secured
party under the Uniform Commercial Code as adopted in the State of Texas with
respect to such security interest and that an Event of Default under this
Agreement shall constitute a default for purposes of such security interest.
When US Borrower is required to provide LC Collateral for any reason and fails
to do so on the day when required, US LC Issuer may without notice to US
Borrower or any other Restricted Person provide such LC Collateral (whether by
transfers from other accounts maintained with US LC Issuer, or otherwise) using
any available funds of US Borrower or any other Person also liable to make such
payments.
ARTICLE III - Payments to Lenders
Section 3.1. General Procedures. US Borrower will make each payment which
it owes under the US Loan Documents to US Agent for the account of the Lender
Party to whom such payment is owed, in lawful money of the United States of
America, without set-off, deduction or counterclaim, and in immediately
available funds. Each such payment must be received by US Agent not later than
11:00 a.m., Dallas, Texas time, on the date such payment becomes due and
payable. Any payment received by US Agent after such time will be deemed to have
been made on the next following Business Day. Should any such payment become due
and payable on a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day, and, in the case of a
payment of principal or past due interest, interest shall accrue and be payable
thereon for the period of such extension as provided in the US Loan Document
under which such payment is due. Each payment under a US Loan Document shall be
due and payable at the place provided therein and, if no specific place of
payment is provided, shall be due and payable at the place of payment of US
Agent's US Note. When US Agent collects or receives money on account of the US
Obligations, US Agent shall distribute all money so collected or received by
2:00 p.m. Dallas, Texas time on the Business Day received, if received by 11:00
a.m. Dallas, Texas time, otherwise on the day of deemed receipt, and each Lender
Party shall apply all such money so distributed, as follows:
(a) first, for the payment of all US Obligations which are then due (and
if such money is insufficient to pay all such US Obligations, first to any
reimbursements due US Agent under Section 6.9 or 10.4, then to any reimbursement
due any other Lender Party under Section 10.4,
19
25
and then to the partial payment of all other US Obligations then due in
proportion to the amounts thereof, or as Lender Parties shall otherwise agree);
(b) then for the prepayment of amounts owing under the US Loan Documents
(other than principal on the US Notes) if so specified by US Borrower;
(c) then for the prepayment of principal on the US Notes, together with
accrued and unpaid interest on the principal so prepaid; and
(d) last, for the payment or prepayment of any other US Obligations.
All payments applied to principal or interest on any US Note shall be applied
first to any interest then due and payable, then to principal then due and
payable, and last to any prepayment of principal and interest in compliance with
Sections 1.6 and 2.3. All distributions of amounts described in any of
subsections (b), (c) or (d) above shall be made by US Agent pro rata to each
Lender Party then owed US Obligations described in such subsection in proportion
to all amounts owed to all Lender Parties which are described in such
subsection; provided that if any Lender then owes payments to US LC Issuer for
the purchase of a participation under Section 2.3(b) or to US Agent under
Section 9.8, any amounts otherwise distributable under this section to such
Lender shall be deemed to belong to US LC Issuer, or US Agent, respectively, to
the extent of such unpaid payments, and US Agent shall apply such amounts to
make such unpaid payments rather than distribute such amounts to such Lender.
Section 3.2. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable Law, rule,
or regulation, or any change in any applicable Law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender Party (or its Applicable
Lending Office) with any request or directive (whether or not having the force
of Law) of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender Party (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any US Dollar
Eurodollar Loans or Competitive Bid Loans, or its obligation to make US
Dollar Eurodollar Loans, or change the basis of taxation of any amounts
payable to such Lender Party (or its Applicable Lending Office) under this
Agreement or its Note in respect of any US Dollar Eurodollar Loans or
Competitive Bid Loans (other than taxes (including franchise taxes)
imposed on the overall net income of such Lender Party by the jurisdiction
in which such Lender Party has its principal office or such Applicable
Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the Reserve
Requirement utilized in the determination of the Adjusted US Dollar
Eurodollar Rate) relating to any extensions of credit or other assets of,
or any deposits with or other liabilities or commitments of, such
20
26
Lender Party (or its Applicable Lending Office), including the commitment
of such Lender Party hereunder; or
(iii) shall impose on such Lender Party (or its Applicable Lending
Office) or the London interbank market any other condition affecting this
Agreement or its US Notes or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
Party (or its Applicable Lending Office) of making, converting into, continuing,
or maintaining any US Dollar Eurodollar Loans or Competitive Bid Loans or to
reduce any sum received or receivable by such Lender Party (or its Applicable
Lending Office) under this Agreement or its US Notes with respect to any US
Dollar Eurodollar Loans or Competitive Bid Loans, then US Borrower shall pay to
such Lender Party on demand such amount or amounts as will compensate such
Lender Party for such increased cost or reduction. If any Lender Party requests
compensation by US Borrower under this Section 3.2(a), US Borrower may, by
notice to such Lender Party (with a copy to US Agent), suspend the obligation of
such Lender Party to make or continue US Loans of the Type with respect to which
such compensation is requested, or to convert US Loans of any other Type into US
Loans of such Type, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 3.5 shall be
applicable); provided that such suspension shall not affect the right of such
Lender Party to receive the compensation so requested.
(b) If, after the date hereof, any Lender Party shall have determined that
the adoption of any applicable Law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any Governmental Authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of Law) of
any such Governmental Authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender Party or any corporation controlling such Lender Party as a consequence
the obligations of such Lender Party hereunder to a level below that which such
Lender Party or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies with
respect to capital adequacy), then from time to time upon demand US Borrower
shall pay such Lender Party such additional amount or amounts as will compensate
such Lender Party for such reduction, but only to the extent that such Lender
Party has not been compensated therefor by any increase in the Adjusted US
Dollar Eurodollar Rate; provided that if such Lender Party fails to give notice
to US Borrower of any additional costs within ninety (90) days after it has
actual knowledge thereof, such Lender Party shall not be entitled to
compensation for such additional costs incurred more than ninety (90) days prior
to the date on which notice is given by such Lender Party.
(c) US LC Issuer and each Lender Party shall promptly notify US Borrower
and US Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle US LC Issuer or such Lender Party to compensation
pursuant to this Section and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Lender Party, be
otherwise
21
27
disadvantageous to it. US LC Issuer or any Lender Party claiming compensation
under this Section shall furnish to US Borrower and US Agent a statement setting
forth the additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, US LC
Issuer or such Lender Party shall act in good faith and may use any reasonable
averaging and attribution methods.
Section 3.3. Limitation on Types of US Loans. If on or prior to the first
day of any Eurodollar Interest Period for any US Dollar Eurodollar Loan:
(a) US Agent determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the US Dollar Eurodollar Rate for such
Eurodollar Interest Period; or
(b) US Required Lenders determine (which determination shall be
conclusive) and notify US Agent that the Adjusted US Dollar Eurodollar Rate will
not adequately and fairly reflect the cost to the Lenders of funding US Dollar
Eurodollar Loans or for such Eurodollar Interest Period;
then US Agent shall give US Borrower prompt notice thereof specifying the
relevant amounts or periods, and so long as such condition remains in effect,
the Lender Parties shall be under no obligation to make additional US Dollar
Eurodollar Loans, continue US Dollar Eurodollar Loans or convert US Base Rate
Loans into US Dollar Eurodollar Loans, and US Borrower shall, on the last day(s)
of the then current Eurodollar Interest Period(s) for the outstanding US Dollar
Eurodollar Loans, either prepay such US Loans or convert such US Loans into US
Base Rate Loans in accordance with the terms of this Agreement.
Section 3.4. Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender Party or its
Applicable Lending Office to make, maintain, or fund US Dollar Eurodollar Loans
hereunder, then such Lender Party shall promptly notify US Borrower thereof and
such Lender Party's obligation to make or continue US Dollar Eurodollar Loans
and to convert US Base Rate Loans into US Dollar Eurodollar Loans shall be
suspended until such time as such Lender Party may again make, maintain, and
fund US Dollar Eurodollar Loans (in which case the provisions of Section 3.5
shall be applicable).
Section 3.5. Treatment of Affected US Loans. If the obligation of any
Lender Party to make a particular Type of Loan or to continue, or to convert US
Loans of any other Type into, US Loans of a particular Type shall be suspended
pursuant to Sections 3.2, 3.3 or 3.4 hereof (US Loans of such Type being herein
called "Affected Loans" and such Type being herein called the "Affected Type"),
such Lender Party's Affected Loans shall be automatically converted into US Base
Rate Loans on the last day(s) of the then current Interest Period(s) for
Affected Loans (or, in the case of a Conversion required by Section 3.4 hereof,
on such earlier date as such Lender Party may specify to US Borrower with a copy
to US Agent) and, unless and until such Lender Party gives notice as provided
below that the circumstances specified in Sections 3.2, 3.3 or 3.4 hereof that
gave rise to such Conversion no longer exist:
22
28
(a) to the extent that such Lender Party's Affected Loans have been so
converted, all payments and prepayments of principal that would otherwise be
applied to such Lender Party's Affected Loans shall be applied instead to its US
Base Rate Loans; and
(b) all US Loans that would otherwise be made or continued by such Lender
Party as US Loans of the Affected Type shall be made or continued instead as US
Base Rate Loans, and all US Loans of such Lender Party that would otherwise be
converted into US Loans of the Affected Type shall be converted instead into (or
shall remain as) US Base Rate Loans.
If such Lender Party gives notice to US Borrower (with a copy to US Agent) that
the circumstances specified in Section 3.2, 3.3 or 3.4 hereof that gave rise to
the Conversion of such Lender Party's Affected Loans pursuant to this Section no
longer exist (which such Lender Party agrees to do promptly upon such
circumstances ceasing to exist) at a time when US Loans of the Affected Type
made by other Lender Parties are outstanding, such Lender Party's US Base Rate
Loans shall be automatically converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding US Loans of the Affected
Type, to the extent necessary so that, after giving effect thereto, all US Loans
held by the Lender Parties holding US Loans of the Affected Type and by such
Lender Party are held pro rata (as to principal amounts, Types, and Interest
Periods) in accordance with their Percentage Shares of the US Maximum Credit
Amount.
Section 3.6. Compensation. Upon the request of any Lender Party, US
Borrower shall pay to such Lender Party such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender Party) to compensate it for
any loss, cost, or expense (including loss of anticipated profits) incurred by
it as a result of:
(a) any payment, prepayment, or Conversion of a US Loan (other than a US
Base Rate Loan) for any reason, whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise, on a date other than the last day of the
Interest Period for such US Loan; or
(b) any failure by US Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Article IV to be
satisfied) to borrow, convert, continue, or prepay a US Loan (other than a US
Base Rate Loan) on the date for such borrowing, Conversion, Continuation, or
prepayment specified in the relevant notice of borrowing, prepayment,
Continuation, or Conversion under this Agreement.
Section 3.7. Change of Applicable Lending Office. Each Lender Party
agrees that, upon the occurrence of any event giving rise to the operation of
Sections 3.2 through 3.5 with respect to such Lender Party, it will, if
requested by US Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender Party) to designate another Applicable Lending
Office, provided that such designation is made on such terms that such Lender
Party and its Applicable Lending Office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such section. Nothing in this section shall affect
or postpone any of the obligations of US Borrower or the rights of any Lender
Party provided in Sections 3.2 through 3.5.
23
29
Section 3.8. Replacement of Lenders. If any Lender Party seeks
reimbursement for increased costs under Sections 3.2 through 3.5, or if a US
Borrower is required to increase any such payment under Section 3.9, then within
ninety days thereafter -- provided no Event of Default then exists -- US
Borrower shall have the right (unless such Lender Party withdraws its request
for additional compensation) to replace such Lender Party by requiring such
Lender Party to assign its US Loans, US Notes, US LC Obligations, Canadian
Advances, Canadian Notes, Canadian LC Obligations and its commitments hereunder
and under the Canadian Agreement to an Eligible Transferee reasonably acceptable
to all Borrowers, provided that: (a) all Obligations of Borrowers owing to such
Lender Party being replaced (including such increased costs, but excluding
principal and accrued interest on the US Notes and the Canadian Notes being
assigned) shall be paid in full to such Lender Party concurrently with such
assignment, and (b) the replacement Eligible Transferee shall purchase the
foregoing by paying to such Lender Party a price equal to the principal amount
thereof plus accrued and unpaid interest thereon. In connection with any such
assignment US Borrower, US Agent, such Lender Party and the replacement Eligible
Transferee shall otherwise comply with Section 10.5. Notwithstanding the
foregoing rights of US Borrower under this section, however, US Borrower may not
replace any Lender Party which seeks reimbursement for increased costs under
Section 3.2 through 3.5 unless US Borrower is at the same time replacing all
Lender Parties which are then seeking such compensation. In connection with any
such replacement of a Lender Party, US Borrower shall pay all costs that would
have been due to such Lender Party pursuant to Section 3.6 if such Lender
Party's US Loans had been prepaid at the time of such replacement.
Section 3.9. Taxes. (a) Any and all payments by US Borrower to or for the
account of any Lender Party, US Agent or US LC Issuer hereunder or under any
other US Loan Document shall be made free and clear of and without deduction for
any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding in
the case of each Lender Party, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the Laws of which such Lender Party (or
its Applicable Lending Office) is organized or is a resident for tax purposes or
any political subdivision thereof ( all such NON-EXCLUDED taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being hereinafter in
this section 3.9 referred to as "Taxes"). If US Borrower shall be required by
Law to deduct any Taxes from or in respect of any sum payable under this
Agreement or any other US Loan Document to any Lender Party, (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this section)
such Lender Party receives an amount equal to the sum it would have received had
no such deductions been made, (ii) US Borrower shall make such deductions, and
(iii) US Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Law.
(b) In addition, US Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Agreement or any
other US Loan Document or from the execution or delivery of, or otherwise with
respect to, this Agreement or any other US Loan Document (hereinafter in this
Section 3.9 referred to as "Other Taxes ").
24
30
(c) US Borrower agrees to indemnify each Lender Party, US Agent and US LC
Issuer for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this section) paid by such Lender Party or US Agent (as
the case may be) and any liability (including penalties, interest, and expenses)
arising therefrom or with respect thereto.
(d) Each Lender Party organized under the Laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender Party listed on the signature pages hereof
and on or prior to the date on which it becomes a Lender Party in the case of
each other Lender Party, and from time to time thereafter if requested in
writing by US Borrower or US Agent (but only so long as such Lender Party
remains lawfully able to do so), shall provide US Borrower and US Agent with a
properly executed (i) Internal Revenue Service Form 1001, 4224, W-8 BEN, or W-8
ECI, as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender Party is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Lender Party is entitled to an
exemption from or a reduced rate of tax on payments pursuant to this Agreement
or any of the other US Loan Documents.
(e) For any period with respect to which a Lender Party has failed to
provide US Borrower and US Agent with the appropriate form pursuant to Section
3.9(d) (unless such failure is due to a change in treaty, Law, or regulation
occurring subsequent to the date on which a form originally was required to be
provided), such Lender Party shall not be entitled to indemnification under
Sections 3.9(a), 3.9(b) or 3.9(c) with respect to Taxes imposed by the United
States; provided, however, that should a Lender Party, which is otherwise exempt
from or subject to a reduced rate of withholding tax, become subject to Taxes
because of its failure to deliver a form required hereunder, US Borrower shall
take such steps as such Lender Party shall reasonably request to assist such
Lender Party to recover such Taxes. Further, US Borrower shall not be required
to indemnify such Lender Party for any withholding taxes which US Borrower is
required to withhold and remit in respect of any principal, interest or other
amount paid or payable by US Borrower to or for account of any Lender Party
hereunder or under any other US Loan Document.
(f) If US Borrower is required to pay additional amounts to or for the
account of any Lender Party pursuant to this Section, then such Lender Party
will agree to use reasonable efforts to change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Lender Party, is not otherwise disadvantageous to such Lender Party and in the
event Lender Party is reimbursed for an amount paid by US Borrower pursuant to
this Section, it shall promptly return such amount to US Borrower.
25
31
(g) Within thirty (30) days after the date of any payment of Taxes, US
Borrower shall furnish to US Agent the original or a certified copy of a receipt
evidencing such payment.
(h) Without prejudice to the survival of any other agreement of US
Borrower hereunder, the agreements and obligations of US Borrower contained in
this section shall survive the termination of the US Facility Commitment Period
and the payment in full of the US Notes.
Section 3.10. Currency Conversion and Currency Indemnity.
(a) Restricted Persons shall make payment relative to any US Obligation in
the currency (the "Agreed Currency") in which the US Obligation was incurred. If
any payment is received on account of any US Obligation in any currency (the
"Other Currency") other than the Agreed Currency (whether voluntarily or
pursuant to an order or judgment or the enforcement thereof or the realization
of any security or the liquidation of such Restricted Person or otherwise
howsoever), such payment shall constitute a discharge of the liability of a
Restricted Person hereunder and under the other US Loan Documents in respect of
such US Obligation only to the extent of the amount of the Agreed Currency which
the relevant Lender Parties are able to purchase with the amount of the Other
Currency received by it on the Business Day next following such receipt in
accordance with its normal procedures and after deducting any premium and costs
of exchange.
(b) If, for the purpose of obtaining or enforcing judgment in any court in
any jurisdiction, it becomes necessary to convert into a particular currency
(the "Judgment Currency") any amount due in the Agreed Currency then the
conversion shall be made on the basis of the rate of exchange prevailing on the
next Business Day following the date such judgment is given and in any event
each Restricted Person shall be obligated to pay the Lender Parties any
deficiency in accordance with Section 3.10(c). For the foregoing purposes "rate
of exchange" means the rate at which the relevant Lender Parties, as applicable,
in accordance with their normal banking procedures are able on the relevant date
to purchase the Agreed Currency with the Judgment Currency after deducting any
premium and costs of exchange.
(c) If (i) any Lender Party receives any payment or payments on account of
the liability of a Restricted Person hereunder pursuant to any judgment or order
in any Other Currency, and (ii) the amount of the Agreed Currency which the
relevant Lender Party is able to purchase on the Business Day next following
such receipt with the proceeds of such payment or payments in accordance with
its normal procedures and after deducting any premiums and costs of exchange is
less than the amount of the Agreed Currency due in respect of such US
Obligations immediately prior to such judgment or order, then US Borrower on
demand shall, and US Borrower hereby agrees to, indemnify and save such Lender
Party harmless from and against any loss, cost or expense arising out of or in
connection with such deficiency. The agreement of indemnity provided for in this
Section 3.10(c) shall constitute an obligation separate and independent from all
other obligations contained in this Agreement, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted
by the Lender Parties or any of them from time to time, and shall continue in
full force and effect
26
32
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due hereunder or under any judgment or order.
ARTICLE IV - Conditions Precedent to Lending
Section 4.1. Documents to be Delivered. No Lender has any obligation to
make its first US Loan, and US LC Issuer has no obligation to issue the first
Letter of Credit, unless US Agent shall have received all of the following, at
US Agent's office in Dallas, Texas, duly executed and delivered and in form,
substance and date satisfactory to US Agent:
(a) This Agreement and any other documents that Lenders are to execute in
connection herewith.
(b) Each US Note.
(c) Certain certificates of US Borrower including:
(i) An "Omnibus Certificate" of the Secretary or Assistant Secretary
and of the Chairman of the Board, President, or Senior Vice President -
Finance of US Borrower, which shall contain the names and signatures of
the officers of US Borrower authorized to execute US Loan Documents and
which shall certify to the truth, correctness and completeness of the
following exhibits attached thereto: (1) a copy of resolutions duly
adopted by the Board of Directors of US Borrower and in full force and
effect at the time this Agreement is entered into, authorizing the
execution of this Agreement and the other US Loan Documents delivered or
to be delivered in connection herewith and the consummation of the
transactions contemplated herein and therein, (2) a copy of the charter
documents of US Borrower and all amendments thereto, certified by the
appropriate official of the State of Delaware, and (3) a copy of the
bylaws of US Borrower; and
(ii) A "Compliance Certificate" of the Senior Vice President -
Finance and of the Treasurer or Vice President - Accounting of US
Borrower, of even date with such US Loan or such Letter of Credit, in
which such officers certify to the satisfaction of the conditions set out
in subsections (a), (b), and (c) of Section 4.3.
(d) Certificate (or certificates) of the due formation, valid existence
and good standing of US Borrower in the State of Delaware, issued by the
appropriate official of such State.
(e) A favorable opinion of McAfee & ▇▇▇▇, a professional corporation,
counsel for Restricted Persons, substantially in the form set forth in Exhibit E
and a favorable opinion of ▇▇▇▇▇▇▇▇ & Knight L.L.P. covering the matters
requested by US Agent.
(f) The Initial Financial Statements.
27
33
(g) A copy of the certificate of merger merging Devon Merger Co. with and
into Santa ▇▇ ▇▇▇▇▇▇ Corporation, certified by the appropriate official of the
State of Delaware,
Section 4.2. Additional Conditions Precedent to First US Loan or First
Letter of Credit. No Lender has any obligation to make its first US Loan, and US
LC Issuer has no obligation to issue the first Letter of Credit, unless on the
date thereof:
(a) All commitment, facility, agency, legal and other fees required to be
paid or reimbursed to any Lender pursuant to any US Loan Documents or any
commitment agreement heretofore entered into shall have been paid.
(b) No event which would reasonably be expected to have a Material Adverse
Effect shall have occurred since June 30, 2000.
(c) US Borrower shall have certified to US Agent and Lenders that the
Initial Financial Statements fairly present US Borrower's Consolidated financial
position at the respective dates thereof and the Consolidated results of US
Borrower's operations and US Borrower's Consolidated cash flows for the
respective periods thereof.
(d) US Borrower shall have certified to US Agent and Lenders that no
Restricted Person has any outstanding Liabilities of any kind (including
contingent obligations, tax assessments, and unusual forward or long-term
commitments) which are, in the aggregate, material to US Borrower or material
with respect to US Borrower's Consolidated financial condition and not shown in
the Initial Financial Statements or disclosed in the Disclosure Schedule.
(e) Contemporaneously with the making of the first US Loan or the issuance
of the first Letter of Credit, (i) all Indebtedness outstanding under the
Existing Santa ▇▇ ▇▇▇▇▇▇ Agreement (except for Indebtedness relating to letters
of credit outstanding under the Existing Santa ▇▇ ▇▇▇▇▇▇ Agreement which is
being assumed by US Borrower) shall be paid in full and the Existing Santa ▇▇
▇▇▇▇▇▇ Agreement shall be terminated (except with respect to such letters of
credit) and (ii) the Indebtedness outstanding under the Existing Canadian
Agreement shall be refinanced under the Canadian Agreement.
(f) All legal matters relating to the US Loan Documents and the
consummation of the transactions contemplated thereby shall be satisfactory to
▇▇▇▇▇▇▇▇ & Knight L.L.P., counsel to US Agent.
Section 4.3. Additional Conditions Precedent to all US Loan and Letters of
Credit. No Lender has any obligation to make any US Loan (including its first),
and US LC Issuer has no obligation to issue any Letter of Credit (including its
first), unless the following conditions precedent have been satisfied:
(a) All representations and warranties made by any Restricted Person in
any US Loan Document shall be true on and as of the date of such US Loan or the
date of issuance of such
28
34
Letter of Credit (except to the extent that the facts upon which such
representations are based have been changed by the extension of credit
hereunder) as if such representations and warranties had been made as of the
date of such US Loan or the date of issuance of such Letter of Credit.
(b) No Default shall exist at the date of such US Loan or the date of
issuance of such Letter of Credit.
(c) The making of such US Loan or the issuance of such Letter of Credit
shall not be prohibited by any Law and shall not subject any Lender or any US LC
Issuer to any material penalty under or pursuant to any such Law.
ARTICLE V - Representations and Warranties
To confirm each Lender's understanding concerning Restricted Persons and
Restricted Persons' businesses, properties and obligations and to induce each
Lender to enter into this Agreement and to extend credit hereunder, US Borrower
represents and warrants to each Lender that:
Section 5.1. No Default. No event has occurred and is continuing which
constitutes a Default.
Section 5.2. Organization and Good Standing. Each Restricted Person is
duly organized, validly existing and in good standing under the Laws of its
jurisdiction of organization, having all powers required to carry on its
business and enter into and carry out the transactions contemplated hereby. Each
Restricted Person is duly qualified, in good standing, and authorized to do
business in all other jurisdictions within the United States wherein the
character of the properties owned or held by it or the nature of the business
transacted by it makes such qualification necessary except where failure to so
qualify would not have a Material Adverse Effect. Each Restricted Person has
taken all actions and procedures customarily taken in order to enter, for the
purpose of conducting business or owning property, each jurisdiction outside the
United States wherein the character of the properties owned or held by it or the
nature of the business transacted by it makes such actions and procedures
desirable except where failure to so qualify would not have a Material Adverse
Effect.
Section 5.3. Authorization. US Borrower and Canadian Borrowers have duly
taken all action necessary to authorize the execution and delivery by it of the
Loan Documents to which it is a party and to authorize the consummation of the
transactions contemplated thereby and the performance of its obligations
thereunder. US Borrower is duly authorized to borrow funds hereunder.
Section 5.4. No Conflicts or Consents. The execution and delivery by the
various Restricted Persons of the Loan Documents to which each is a party, the
performance by each of its obligations under such Loan Documents, and the
consummation of the transactions contemplated by the various Loan Documents, do
not and will not (i) conflict with any provision
29
35
of (A) any Law, (B) the organizational documents of any Restricted Person, or
(C) any agreement, judgment, license, order or permit applicable to or binding
upon any Restricted Person unless such conflict would not reasonably be expected
to have a Material Adverse Effect, or (ii) result in the acceleration of any
Indebtedness owed by any Restricted Person which would reasonably be expected to
have a Material Adverse Effect, or (iii) result in or require the creation of
any Lien upon any assets or properties of any Restricted Person which would
reasonably be expected to have a Material Adverse Effect, except as expressly
contemplated or permitted in the Loan Documents. Except as expressly
contemplated in the Loan Documents no consent, approval, authorization or order
of, and no notice to or filing with, any Tribunal or third party is required in
connection with the execution, delivery or performance by any Restricted Person
of any Loan Document or to consummate any transactions contemplated by the Loan
Documents, unless failure to obtain such consent would not reasonably be
expected to have a Material Adverse Effect.
Section 5.5. Enforceable Obligations. This Agreement is, and the other
Loan Documents when duly executed and delivered will be, legal, valid and
binding obligations of each Restricted Person which is a party hereto or
thereto, enforceable in accordance with their terms except as such enforcement
may be limited by bankruptcy, insolvency or similar Laws of general application
relating to the enforcement of creditors' rights.
Section 5.6. Full Disclosure. No certificate, statement or other
information delivered herewith or heretofore by any Restricted Person to any
Lender in connection with the negotiation of this Agreement or in connection
with any transaction contemplated hereby contains any untrue statement of a
material fact or omits to state any material fact known to any Restricted Person
(other than industry-wide risks normally associated with the types of businesses
conducted by Restricted Persons) necessary to make the statements contained
herein or therein not misleading as of the date made or deemed made. There is no
fact known to any Restricted Person (other than industry-wide risks normally
associated with the types of businesses conducted by Restricted Persons) that
has not been disclosed to each Lender in writing which would reasonably be
expected to have a Material Adverse Effect.
Section 5.7. Litigation. Except as disclosed in the Initial Financial
Statements or in the Disclosure Schedule: (a) there are no actions, suits or
legal, equitable, arbitrative or administrative proceedings pending, or to the
knowledge of any Restricted Person threatened, against any Restricted Person
before any Tribunal which would reasonably be expected to have a Material
Adverse Effect, and (b) there are no outstanding judgments, injunctions, writs,
rulings or orders by any such Tribunal against any Restricted Person which would
reasonably be expected to have a Material Adverse Effect.
Section 5.8. ERISA Plans and Liabilities. All currently existing ERISA
Plans are listed in the Disclosure Schedule. Except as disclosed in the Initial
Financial Statements or in the Disclosure Schedule, no Termination Event has
occurred with respect to any ERISA Plan and all ERISA Affiliates are in
compliance with ERISA in all material respects. No ERISA Affiliate is required
to contribute to, or has any other absolute or contingent liability in respect
of, any "multiemployer plan" as defined in Section 4001 of ERISA. Except as set
forth in the Disclosure
30
36
Schedule: (a) no "accumulated funding deficiency" (as defined in Section 412(a)
of the Internal Revenue Code) exists with respect to any ERISA Plan, whether or
not waived by the Secretary of the Treasury or his delegate, and (b) the current
value of each ERISA Plan's benefits does not exceed the current value of such
ERISA Plan's assets available for the payment of such benefits by more than US
$100,000,000.
Section 5.9. Environmental and Other Laws. Except as disclosed in the
Disclosure Schedule: (a) Restricted Persons are conducting their businesses in
material compliance with all applicable Laws, including Environmental Laws, and
have and are in compliance with all licenses and permits required under any such
Laws, unless failure to so comply would not reasonably be expected to have a
Material Adverse Effect; (b) none of the operations or properties of any
Restricted Person is the subject of federal, state or local investigation
evaluating whether any material remedial action is needed to respond to a
release of any Hazardous Materials into the environment or to the improper
storage or disposal (including storage or disposal at offsite locations) of any
Hazardous Materials, unless such remedial action would not reasonably be
expected to have a Material Adverse Effect; and (c) no Restricted Person (and to
the best knowledge of US Borrower, no other Person) has filed any notice under
any Law indicating that any Restricted Person is responsible for the improper
release into the environment, or the improper storage or disposal, of any
material amount of any Hazardous Materials or that any Hazardous Materials have
been improperly released, or are improperly stored or disposed of, upon any
property of any Restricted Person, unless such failure to so comply would not
reasonably be expected to have a Material Adverse Effect.
Section 5.10. Names and Places of Business. No Restricted Person has,
during the preceding five years, had, been known by, or used any other trade or
fictitious name, except as disclosed in the Disclosure Schedule. Except as
otherwise indicated in the Disclosure Schedule, the chief executive office and
principal place of business of each Restricted Person are (and for the preceding
five years have been) located at the address of US Borrower set out on the
signature pages hereto. Except as indicated in the Disclosure Schedule, no
Restricted Person has any other office or place of business.
Section 5.11. US Borrower's Subsidiaries. US Borrower does not presently
have any Subsidiary or own any stock in any other corporation or association
except those listed in the Disclosure Schedule. Neither US Borrower nor any
Restricted Person is a member of any general or limited partnership, limited
liability company, joint venture formed under the laws of the United States or
any State thereof or association of any type whatsoever except those listed in
the Disclosure Schedule and associations, joint ventures or other relationships
(a) which are established pursuant to a standard form operating agreement or
similar agreement or which are partnerships for purposes of federal income
taxation only, (b) which are not corporations or partnerships (or subject to the
Uniform Partnership Act) under applicable state Law, and (c) whose businesses
are limited to the exploration, development and operation of oil, gas or mineral
properties, pipelines or gathering systems and interests owned directly by the
parties in such associations, joint ventures or relationships. US Borrower owns,
directly or indirectly, the equity interest in each of its Subsidiaries which is
indicated in the Disclosure Schedule.
31
37
Section 5.12. Title to Properties; Licenses. Each Restricted Person has
good and defensible title to all of its material properties and assets, free and
clear of all Liens other than Permitted Liens and of all impediments to the use
of such properties and assets in such Restricted Person's business except to the
extent failure to have such title would not have a Material Adverse Effect. Each
Restricted Person possesses all licenses, permits, franchises, patents,
copyrights, trademarks and trade names, and other intellectual property (or
otherwise possesses the right to use such intellectual property without
violation of the rights of any other Person) which are necessary to carry out
its business as presently conducted and as presently proposed to be conducted
hereafter, and no Restricted Person is in violation in any material respect of
the terms under which it possesses such intellectual property or the right to
use such intellectual property except to the extent failure to possess such
licenses, permits, franchises, and intellectual property would not have a
Material Adverse Effect.
Section 5.13. Government Regulation. Neither US Borrower nor any other
Restricted Person owing Obligations is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Investment
Company Act of 1940 (as any of the preceding acts have been amended) or any
other Law which regulates the incurring by such Person of Indebtedness,
including Laws relating to common contract carriers or the sale of electricity,
gas, steam, water or other public utility services.
Section 5.14. Insider. Except as disclosed on the Disclosure Schedule, no
Restricted Person, nor any Person having "control" (as that term is defined in
12 U.S.C. Section 375b(9) or in regulations promulgated pursuant thereto) of any
Restricted Person, is a "director" or an "executive officer" or "principal
shareholder" (as those terms are defined in 12 U.S.C. Section 375b(8) or (9) or
in regulations promulgated pursuant thereto) of any Lender, of a bank holding
company of which any Lender is a Subsidiary or of any Subsidiary of a bank
holding company of which any Lender is a Subsidiary.
Section 5.15. Solvency. Upon giving effect to the issuance of the US
Notes, the execution of the US Loan Documents by US Borrower and the
consummation of the transactions contemplated hereby, US Borrower will be
solvent (as such term is used in applicable bankruptcy, liquidation,
receivership, insolvency or similar Laws).
ARTICLE VI - Affirmative Covenants of US Borrower
To conform with the terms and conditions under which each Lender is
willing to have credit outstanding to US Borrower, and to induce each Lender to
enter into this Agreement and extend credit hereunder, US Borrower warrants,
covenants and agrees that until the full and final payment of the Obligations
and the termination of this Agreement, unless US Required Lenders have
previously agreed otherwise:
Section 6.1. Payment and Performance. US Borrower will pay all amounts
due under the US Loan Documents in accordance with the terms thereof and will
observe, perform and comply with every covenant, term and condition expressed or
implied in the US Loan Documents.
32
38
US Borrower will cause each other Restricted Person to observe, perform and
comply with every such term, covenant and condition in any Loan Document.
Section 6.2. Books, Financial Statements and Reports. Each Restricted
Person will at all times maintain full and accurate books of account and
records. US Borrower will maintain and will cause its Subsidiaries to maintain a
standard system of accounting, will maintain its Fiscal Year, and will furnish
the following statements and reports to each Lender Party at US Borrower's
expense:
(a) As soon as available, and in any event within ninety (90) days after
the end of each Fiscal Year, complete Consolidated financial statements of US
Borrower together with all notes thereto, prepared in reasonable detail in
accordance with US GAAP, together with an unqualified opinion, based on an audit
using generally accepted auditing standards, by KPMG Peat Marwick L.L.P., or
other independent certified public accountants selected by US Borrower and
acceptable to US Agent, stating that such Consolidated financial statements have
been so prepared. These financial statements shall contain a Consolidated
balance sheet as of the end of such Fiscal Year and Consolidated statements of
earnings, of cash flows, and of changes in owners' equity for such Fiscal Year,
each setting forth in comparative form the corresponding figures for the
preceding Fiscal Year. In addition, within ninety (90) days after the end of
each Fiscal Year US Borrower will furnish to US Agent and each Lender a
certificate in the form of Exhibit D signed by the President, Senior Vice
President - Finance, Treasurer or Vice President - Accounting of US Borrower,
stating that such financial statements are accurate and complete, stating that
such Person has reviewed the US Loan Documents, containing all calculations
required to be made to show compliance or non-compliance with the provisions of
Section 7.8, and further stating that there is no condition or event at the end
of such Fiscal Year or at the time of such certificate which constitutes a
Default and specifying the nature and period of existence of any such condition
or event.
(b) As soon as available, and in any event within forty-five (45) days
after the end of each Fiscal Quarter, US Borrower's Consolidated and
consolidating balance sheet and income statement as of the end of such Fiscal
Quarter and a Consolidated statement of cash flows for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal Quarter, all
in reasonable detail and prepared in accordance with US GAAP, subject to changes
resulting from normal year-end adjustments. In addition US Borrower will,
together with each such set of financial statements, furnish a certificate in
the form of Exhibit D signed by the President, Senior Vice President - Finance,
Treasurer or Vice President - Accounting of US Borrower stating that such
financial statements are accurate and complete (subject to normal year-end
adjustments), stating that such Person has reviewed the US Loan Documents,
containing all calculations required to be made by US Borrower to show
compliance or non-compliance with the provisions of Section 7.8 and further
stating that there is no condition or event at the end of such Fiscal Quarter or
at the time of such certificate which constitutes a Default and specifying the
nature and period of existence of any such condition or event.
(c) Promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent by any Restricted Person
to its stockholders and all registration
33
39
statements, periodic reports and other statements and schedules filed by any
Restricted Person with any securities exchange, the Securities and Exchange
Commission or any similar Governmental Authority, including any information or
estimates with respect to US Borrower's oil and gas business (including its
exploration, development and production activities) which are required to be
furnished in US Borrower's annual report pursuant to Sections 13 or 15(d) of the
Securities Exchange Act of 1934, as amended.
Section 6.3. Other Information and Inspections. Each Restricted Person
will furnish to each Lender any information which US Agent may from time to time
reasonably request concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with Restricted Persons' businesses and
operations. Each Restricted Person will permit representatives appointed by US
Agent (including independent accountants, auditors, agents, attorneys,
appraisers and any other Persons) to visit and inspect upon prior written notice
during normal business hours any of such Restricted Person's property, including
its books of account, other books and records, and any facilities or other
business assets, and to make extra copies therefrom and photocopies and
photographs thereof, and to write down and record any information such
representatives obtain, and each Restricted Person shall permit US Agent or its
representatives to investigate and verify the accuracy of the information
furnished to US Agent or any Lender in connection with the Loan Documents and to
discuss all such matters with its officers, employees and representatives.
Section 6.4. Notice of Material Events and Change of Address . US Borrower
will promptly notify each Lender in writing, stating that such notice is being
given pursuant to this Agreement, of:
(a) the occurrence of any event which would have a Material Adverse
Effect,
(b) the occurrence of any Default,
(c) the acceleration of the maturity of any Indebtedness owed by any
Restricted Person having a principal balance of more than US $100,000,000, or of
any default by any Restricted Person under any indenture, mortgage, agreement,
contract or other instrument to which any of them is a party or by which any of
them or any of their properties is bound, if such default would have a Material
Adverse Effect,
(d) the occurrence of any Termination Event,
(e) any claim of US $100,000,000 or more, any notice of potential
liability under any Environmental Laws which might exceed such amount, or any
other material adverse claim asserted against any Restricted Person or with
respect to any Restricted Person's properties, and
(f) the filing of any suit or proceeding against any Restricted Person in
which an adverse decision would reasonably be expected to have a Material
Adverse Effect.
34
40
US Borrower will also notify US Agent and US Agent's counsel in writing promptly
in the event that any Restricted Person changes its name or the location of its
chief executive office.
Section 6.5. Maintenance of Properties. Each Restricted Person will
maintain, preserve, protect, and keep all property used or useful in the conduct
of its business in good condition, and will from time to time make all repairs,
renewals and replacements needed to enable the business and operations carried
on in connection therewith to be promptly and advantageously conducted at all
times except to the extent failure to do so would not reasonably be expected to
have a Material Adverse Effect.
Section 6.6. Maintenance of Existence and Qualifications. Each Restricted
Person will maintain and preserve its existence and its rights and franchises in
full force and effect and will qualify to do business in all states or
jurisdictions where required by applicable Law, except where the failure so to
qualify will not have a Material Adverse Effect.
Section 6.7. Payment of Trade Liabilities, Taxes, etc. Each Restricted
Person will (a) timely file all required tax returns; (b) timely pay all taxes,
assessments, and other governmental charges or levies imposed upon it or upon
its income, profits or property; and (c) maintain appropriate accruals and
reserves for all of the foregoing in accordance with US GAAP. Each Restricted
Person may, however, delay paying or discharging any of the foregoing so long as
it is in good faith contesting the validity thereof by appropriate proceedings
and has set aside on its books adequate reserves therefor.
Section 6.8. Insurance. Each Restricted Person will keep or cause to be
kept insured in accordance with industry standards by financially sound and
reputable insurers, its surface equipment and other property of a character
usually insured by similar Persons engaged in the same or similar businesses.
Section 6.9. Performance on US Borrower's Behalf. If any Restricted Person
fails to pay any taxes, insurance premiums, expenses, attorneys' fees or other
amounts it is required to pay under any US Loan Document, US Agent may pay the
same, and shall use its best efforts to give at least five (5) Business Days
notice to US Borrower prior to making any such payment; provided, however, that
any failure by US Agent to so notify US Borrower shall not limit or otherwise
impair US Agent's ability to make any such payment. US Borrower shall
immediately reimburse US Agent for any such payments and each amount paid by US
Agent shall constitute an US Obligation owed hereunder which is due and payable
on the date such amount is paid by US Agent.
Section 6.10. Interest. US Borrower hereby promises to each Lender Party
to pay interest at the Default Rate applicable to Base Rate Loans on all US
Obligations (including US Obligations to pay fees or to reimburse or indemnify
any Lender) which US Borrower has in this Agreement promised to pay to such
Lender Party and which are not paid when due. Such interest shall accrue from
the date such US Obligations become due until they are paid.
35
41
Section 6.11. Compliance with Law. Each Restricted Person will conduct its
business and affairs in compliance with all Laws applicable thereto except to
the extent failure to do so would not reasonably be expected to have a Material
Adverse Effect.
Section 6.12. Environmental Matters.
(a) Each Restricted Person will comply in all material respects with all
Environmental Laws now or hereafter applicable to such Restricted Person, as
well as all contractual obligations and agreements with respect to environmental
remediation or other environmental matters, and shall obtain, at or prior to the
time required by applicable Environmental Laws, all environmental, health and
safety permits, licenses and other authorizations necessary for its operations
and will maintain such authorizations in full force and effect, unless such
failure to so comply would not reasonably be expected to have a Material Adverse
Effect.
(b) US Borrower will promptly furnish to US Agent all written notices of
violation, orders, claims, citations, complaints, penalty assessments, suits or
other proceedings received by US Borrower, or of which it has notice, pending or
threatened against any Restricted Person, by any Governmental Authority with
respect to any alleged violation of or non-compliance with any Environmental
Laws or any permits, licenses or authorizations in connection with its ownership
or use of its properties or the operation of its business which involve a
potential liability or claim in excess of US $100,000,000.
Section 6.13. Bank Accounts; Offset. To secure the repayment of the
Obligations US Borrower hereby grants to each Lender a right of offset, each of
which shall be in addition to all other interests, liens, and rights of any
Lender at common Law, under the Loan Documents, or otherwise, and each of which
shall be upon and against (a) any and all moneys, securities or other property
(and the proceeds therefrom) of US Borrower now or hereafter held or received by
or in transit to any Lender from or for the account of US Borrower, whether for
safekeeping, custody, pledge, transmission, collection or otherwise, (b) any and
all deposits (general or special, time or demand, provisional or final) of US
Borrower with any Lender, and (c) any other credits and claims of US Borrower at
any time existing against any Lender, including claims under certificates of
deposit. At any time and from time to time after the occurrence of any Default,
each Lender is hereby authorized to offset against the Obligations then due and
payable (in either case without notice to US Borrower), any and all items
hereinabove referred to. To the extent that US Borrower has accounts designated
as royalty or joint interest owner accounts, the foregoing right of offset shall
not extend to funds in such accounts which belong to, or otherwise arise from
payments to US Borrower for the account of, third party royalty or joint
interest owners.
ARTICLE VII - Negative Covenants of US Borrower
To conform with the terms and conditions under which each Lender is
willing to have credit outstanding to US Borrower, and to induce each Lender to
enter into this Agreement and make the US Loans, US Borrower warrants, covenants
and agrees that until the full and final
36
42
payment of the Obligations and the termination of this Agreement, unless US
Required Lenders have previously agreed otherwise:
Section 7.1. Indebtedness. No Restricted Subsidiary will in any manner owe
or be liable for Indebtedness except:
(a) the Canadian Obligations.
(b) capital lease obligations (excluding oil, gas or mineral leases)
entered into in the ordinary course of such Restricted Person's business in
arm's length transactions at competitive market rates under competitive terms
and conditions in all respects, provided that such capital lease obligations
required to be paid in any Fiscal Year do not in the aggregate exceed US
$35,000,000 for all Restricted Subsidiaries.
(c) unsecured Liabilities owed among Restricted Persons.
(d) guaranties by one Restricted Person of Liabilities owed by another
Restricted Person, if such Liabilities either (i) are not Indebtedness, or (ii)
are allowed under subsections (a), (b) or (c) of this Section 7.1.
(e) Indebtedness of the Restricted Persons for plugging and abandonment
bonds or for letters of credit issued by any Lender in place thereof which are
required by regulatory authorities in the area of operations, and Indebtedness
of the Restricted Persons for other bonds or letters of credit issued by any
Lender which are required by such regulatory authorities with respect to other
normal oil and gas operations.
(f) non-recourse Indebtedness as to which no Restricted Person (i)
provides any guaranty or credit support of any kind (including any undertaking,
guarantee, indemnity, agreement or instrument that would constitute
Indebtedness) or (ii) is directly or indirectly liable (as a guarantor or
otherwise); provided , that after giving effect to such Indebtedness outstanding
from time to time, US Borrower is not in violation of Section 7.8.
(g) Indebtedness that is subordinated to the US Obligations and the
Canadian Obligations on terms acceptable to US Required Lenders.
(h) Indebtedness in the approximate amount of C $3,459,000 owed to Indeck
Gas Supply Corporation by Northstar Energy pursuant to a Gas Sales and Purchase
Agreement dated as of March 9, 1989, as heretofore or hereafter amended from
time to time.
(i) Acquired Debt.
(j) Indebtedness under Hedging Contracts.
(k) Indebtedness relating to the surety bond and letter of credit
obligations listed on Schedule 2.
37
43
(l) miscellaneous items of Indebtedness of all Restricted Persons (other
than US Borrower) not described in subsections (a) through (m) which do not in
the aggregate exceed US $200,000,000 in principal amount at any one time
outstanding.
Section 7.2. Limitation on Liens. Except for Permitted Liens, no
Restricted Person will create, assume or permit to exist any Lien upon any of
the properties or assets which it now owns or hereafter acquires. No Restricted
Person will allow the filing or continued existence of any financing statement
describing as collateral any assets or property of such Restricted Person, other
than financing statements which describe only collateral subject to a Lien
permitted under this section and which name as secured party or lessor only the
holder of such Lien.
Section 7.3. Limitation on Mergers. No Restricted Person will merge or
consolidate with or into any other Person except that any Subsidiary of US
Borrower may be merged into or consolidated with (a) another Subsidiary of US
Borrower, or (b) US Borrower, so long as US Borrower is the surviving business
entity.
Section 7.4. Limitation on Issuance of Securities by Subsidiaries of US
Borrower; Ownership of certain Restricted Subsidiaries by US Borrower.
(a) No Restricted Subsidiary of US Borrower will issue any additional
shares of its capital stock, additional partnership interests or other
securities or any options, warrants or other rights to acquire such additional
shares, partnership interests or other securities except to another Restricted
Person which is a wholly-owned direct or indirect Subsidiary of US Borrower
unless (i) such securities are being issued to acquire a business, directly or
indirectly through the use of the proceeds of such issuance, and (ii) such
securities are convertible into the common or similar securities of US Borrower
and/or may be redeemed in cash at the option of the Restricted Person that
issued such securities. In addition, (A) Northstar Energy may issue
"Exchangeable Shares" (as defined in the Restated Articles of Incorporation of
Northstar Energy) upon the terms specified in the Restated Articles of
Incorporation of Northstar Energy as in effect on the date hereof (in this
section called "Exchangeable Shares"), (B) Devon Canada may issue exchangeable
shares upon substantially the same terms as such Exchangeable Shares, and (C)
Northstar Energy may issue stock options to its employees from time to time to
acquire such Exchangeable Shares, provided that such options are granted under a
stock option plan of either Canadian Borrower and/or US Borrower.
(b) US Borrower will at all times own, directly or indirectly, 100% of the
partnership interests in Devon Energy Production Company, L.P. and 100% of the
outstanding shares of common stock of Devon SFS and Northstar Energy.
Section 7.5. Limitation on Restricted Payments. The aggregate amount of
Restricted Payments made by the Restricted Persons during any Fiscal Year shall
not exceed five percent (5%) of the book value of the Consolidated Assets of US
Borrower as of the end of the immediately preceding Fiscal Year, as adjusted to
take into account any increase associated with an acquisition or merger.
38
44
Section 7.6. Transactions with Affiliates. No Restricted Person will
engage in any material transaction with any of its Affiliates on terms which are
less favorable in any material respect to it than those which would have been
obtainable at the time in arm's-length dealing with Persons other than such
Affiliates, provided that such restriction shall not apply to transactions among
US Borrower and the other Restricted Persons that are wholly-owned, directly or
indirectly, by US Borrower.
Section 7.7. Prohibited Contracts; ERISA. Except as expressly provided
for in the US Loan Documents, the Support Agreement dated December 10, 1998
between the US Borrower and Northstar Energy, and the Santa ▇▇ ▇▇▇▇▇▇
Indentures, no Restricted Person will, directly or indirectly, enter into,
create, or otherwise allow to exist any contract or other consensual restriction
on the ability of any Restricted Person that is a Subsidiary of US Borrower: (a)
to pay dividends or make other distributions to US Borrower, (b) to redeem
equity interests held in it by US Borrower, (c) to repay loans and other
indebtedness owing by it to US Borrower, or (d) to transfer any of its assets to
US Borrower. No ERISA Affiliate will incur any obligation to contribute to any
"multiemployer plan" as defined in Section 4001 of ERISA.
Section 7.8. Funded Debt to Total Capitalization. At the end of each
Fiscal Quarter, the ratio of US Borrower's Consolidated Total Funded Debt to US
Borrower's Total Capitalization will never exceed sixty-five percent (65%).
ARTICLE VIII - Events of Default and Remedies
Section 8.1. Events of Default. Each of the following events constitutes
an Event of Default under this Agreement:
(a) Any Restricted Person fails to pay any principal component of any US
Obligation when due and payable or fails to pay any other US Obligation within
three (3) days after the date when due and payable, whether at a date for the
payment of a fixed installment or as a contingent or other payment becomes due
and payable or as a result of acceleration or otherwise;
(b) Any "default" or "event of default" occurs under any US Loan Document
which defines either such term, and the same is not remedied within the
applicable period of grace (if any) provided in such Loan Document;
(c) Any Restricted Person fails (other than as referred to in subsections
(a) or (b) above) to (i) duly comply with Section 7.4(b) of the US Agreement or
(ii) duly observe, perform or comply with any other covenant, agreement,
condition or provision of any US Loan Document, and such failure remains
unremedied for a period of thirty (30) days after notice of such failure is
given by US Agent to US Borrower;
(d) Any representation or warranty previously, presently or hereafter made
in writing by or on behalf of any Restricted Person in connection with any US
Loan Document shall prove to have been false or incorrect in any material
respect on any date on or as of which made
39
45
provided that if such falsity or lack of correctness is capable of being
remedied or cured within a 30-day period, US Borrower shall (subject to the
other provisions of this Section 8.1) have a period of 30 days after written
notice thereof has been given to US Borrower by US Agent within which to remedy
or cure such lack of correctness; or this Agreement or any US Note is asserted
to be or at any time ceases to be valid, binding and enforceable in any material
respect as warranted in Section 5.5 for any reason other than its release or
subordination by US Agent;
(e) Any Restricted Person (i) fails to duly pay any Indebtedness in excess
of US $100,000,000 constituting principal or interest owed by it with respect to
borrowed money or money otherwise owed under any note, bond, or similar
instrument, or (ii) breaches or defaults in the performance of any agreement or
instrument by which any such Indebtedness is issued, evidenced, governed, or
secured, other than a breach or default described in clause (i) above, and any
such failure, breach or default results in the acceleration of such
Indebtedness;
(f) Either (i) any "accumulated funding deficiency" (as defined in Section
412(a) of the Internal Revenue Code of 1986, as amended) in excess of US
$100,000,000 exists with respect to any ERISA Plan, whether or not waived by the
Secretary of the Treasury or his delegate, or (ii) any Termination Event occurs
with respect to any ERISA Plan and the then current value of such ERISA Plan's
benefit liabilities exceeds the then current value of such ERISA Plan's assets
available for the payment of such benefit liabilities by more than US
$100,000,000 (or in the case of a Termination Event involving the withdrawal of
a substantial employer, the withdrawing employer's proportionate share of such
excess exceeds such amount);
(g) Any Change in Control occurs;
(h) US Borrower or any other Restricted Person having assets with a book
value of at least US $100,000,000:
(i) suffers the entry against it of a judgment, decree or order for
relief by a Tribunal of competent jurisdiction in an involuntary
proceeding commenced under any applicable bankruptcy, insolvency or other
similar Law of any jurisdiction now or hereafter in effect, including the
federal Bankruptcy Code, as from time to time amended, or has any such
proceeding commenced against it which remains undismissed for a period of
thirty days; or
(ii) commences a voluntary case under any applicable bankruptcy,
insolvency or similar Law now or hereafter in effect, including the
federal Bankruptcy Code, as from time to time amended; or applies for or
consents to the entry of an order for relief in an involuntary case under
any such Law; or makes a general assignment for the benefit of creditors;
or fails generally to pay (or admits in writing its inability to pay) its
debts as such debts become due; or takes corporate or other action to
authorize any of the foregoing; or
(iii) suffers the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of all or a substantial part of its
40
46
property in a proceeding brought against or initiated by it, and such
appointment or taking possession is neither made ineffective nor
discharged within thirty days after the making thereof, or such
appointment or taking possession is at any time consented to, requested
by, or acquiesced to by it; or
(iv) suffers the entry against it of a final judgment for the
payment of money in an amount that exceeds (x) the valid and collectible
insurance in respect thereof or (y) the amount of an indemnity with
respect thereto reasonably acceptable to the US Required Lenders by US
$100,000,000 or more, unless the same is discharged within thirty days
after the date of entry thereof or an appeal or appropriate proceeding for
review thereof is taken within such period and a stay of execution pending
such appeal is obtained; or
(v) suffers a writ or warrant of attachment or similar process to be
issued by any Tribunal against all or any part of its property having a
book value of at least US $100,000,000, and such writ or warrant of
attachment or any similar process is not stayed or released within thirty
days after the entry or levy thereof or after any stay is vacated or set
aside; and
(i) Any "Event of Default" occurs under the Canadian Agreement.
Upon the occurrence of an Event of Default described in subsection (h)(i),
(h)(ii) or (h)(iii) of this section with respect to US Borrower, all of the US
Obligations shall thereupon be immediately due and payable, without demand,
presentment, notice of demand or of dishonor and nonpayment, protest, notice of
protest, notice of intention to accelerate, declaration or notice of
acceleration, or any other notice or declaration of any kind, all of which are
hereby expressly waived by US Borrower and each Restricted Person who at any
time ratifies or approves this Agreement. Upon any such acceleration, any
obligation of any Lender to make any further US Loans, any obligation of US LC
Issuer to issue Letters of Credit hereunder, and any obligation of US Swing
Lender to make any further US Swing Loans shall be permanently terminated.
During the continuance of any other Event of Default, US Agent at any time and
from time to time may (and upon written instructions from US Required Lenders,
US Agent shall), without notice to US Borrower or any other Restricted Person,
do either or both of the following: (1) terminate any obligation of Lenders to
make US Loans hereunder, any obligation of US LC Issuer to issue Letters of
Credit hereunder, and any obligation of US Swing Lender to make US Swing Loans
hereunder, and (2) declare any or all of the US Obligations immediately due and
payable, and all such US Obligations shall thereupon be immediately due and
payable, without demand, presentment, notice of demand or of dishonor and
nonpayment, protest, notice of protest, notice of intention to accelerate,
declaration or notice of acceleration, or any other notice or declaration of any
kind, all of which are hereby expressly waived by US Borrower and each
Restricted Person who at any time ratifies or approves this Agreement.
Section 8.2. Remedies. If any Event of Default shall occur and be
continuing, each Lender Party may protect and enforce its rights under the US
Loan Documents by any appropriate proceedings, including proceedings for
specific performance of any covenant or agreement contained in any Loan
Document, and each Lender Party may enforce the payment of
41
47
any US Obligations due it or enforce any other legal or equitable right which it
may have. All rights, remedies and powers conferred upon Lender Parties under
the US Loan Documents shall be deemed cumulative and not exclusive of any other
rights, remedies or powers available under the US Loan Documents or at Law or in
equity.
ARTICLE IX - US Agent
Section 9.1. Appointment, Powers, and Immunities.
(a) Each Lender hereby irrevocably appoints and authorizes US Agent to act
as its agent under this Agreement and the other US Loan Documents with such
powers and discretion as are specifically delegated to US Agent by the terms of
this Agreement and the other US Loan Documents, together with such other powers
as are reasonably incidental thereto. The Agent-Related Persons: (i) shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and shall not be trustees or fiduciaries for any Lender; (ii) shall
not be responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Loan
Document or any certificate or other document referred to or provided for in, or
received by any of them under, any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any Loan Document,
or any other document referred to or provided for therein or for any failure by
any Restricted Person or any other Person to perform any of its obligations
thereunder; (iii) shall not be responsible for or have any duty to ascertain,
inquire into, or verify the performance or observance of any covenants or
agreements by any Restricted Person or the satisfaction of any condition or to
inspect the property (including the books and records) of any Restricted Person
or any of its Subsidiaries or Affiliates or for the failure of any Restricted
Person or Lender Party to perform its obligations under any Loan Document; (iv)
shall not be required to initiate or conduct any litigation or collection
proceedings under any Loan Document; and (v) shall not be responsible for any
action taken or omitted to be taken by it under or in connection with any Loan
Document, except for its own gross negligence or willful misconduct; provided ,
however, that no action taken in accordance with the directions of the number of
Lenders herein specified with respect to a particular action shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
US Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in the other Loan
Documents with reference to US Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) US LC Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time (and except for so long) as the US Agent may agree at the request of the
Required Lenders to act for US LC Issuer with respect thereto; provided,
however, that US LC Issuer shall have all of the benefits and
42
48
immunities (i) provided to the US Agent in this Article IX with respect to any
acts taken or omissions suffered by US LC Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as fully as
if the term "US Agent" as used in this Article IX included US LC Issuer with
respect to such acts or omissions, and (ii) as additionally provided herein with
respect to US LC Issuer.
Section 9.2. Reliance by US Agent. US Agent shall be entitled to rely upon
any certification, notice, instrument, writing, or other communication
(including, without limitation, any thereof by telephone or telecopy) believed
by it to be genuine and correct and to have been signed, sent or made by or on
behalf of the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel for any Restricted Person), independent accountants,
and other experts selected by US Agent. US Agent may deem and treat the payee of
any Note as the holder thereof for all purposes hereof unless and until US Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 10.6 hereof. US Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Tranche A Required Lenders, Tranche
B Required Lenders, US Required Lenders, US Majority Lenders or all Lenders, if
required hereunder, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all Lenders and participants. Where this
Agreement expressly permits or prohibits an action unless the Tranche A Required
Lenders, Tranche B Required Lenders, US Required Lenders, US Majority Lenders or
all Lenders otherwise determine, the US Agent shall, and in all other instances,
the US Agent may, but shall not be required to, initiate any solicitation for
the consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.1, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by US Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender; provided , however, that
US Agent shall not be required to take any action that exposes US Agent to
personal liability or that is contrary to any Loan Document or applicable Law or
unless it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking any such action.
Section 9.3. Defaults. US Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless US Agent has
received written notice from a Lender or US Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that US Agent receives such a notice of the occurrence of a Default or
Event of Default, US Agent shall give prompt notice thereof to the Lenders. US
Agent shall (subject to Section 9.1 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the US
Required Lenders. Notwithstanding the foregoing, unless and until US Agent shall
have received such directions, US Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interest of the Lenders.
43
49
Section 9.4. Rights as Lender. With respect to its Percentage Share of the
US Maximum Credit Amount and the US Loans made by it, US Agent (and any
successor acting as US Agent) in its capacity as a Lender hereunder shall have
the same rights and powers hereunder as any other Lender and may exercise the
same as though it were not acting as US Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include US Agent in its
individual capacity. US Agent (and any successor acting as US Agent) and its
Affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make Investments in, provide services to, and
generally engage in any kind of lending, trust, or other business with any
Restricted Person or any of its Subsidiaries or Affiliates as if it were not
acting as US Agent, and US Agent (and any successor acting as US Agent) and its
Affiliates may accept fees and other consideration from any Restricted Person or
any of its Subsidiaries or Affiliates for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
Section 9.5. Indemnification. The Lenders agree to indemnify each
Agent-Related Person (to the extent not reimbursed under Section 10.4 hereof,
but without limiting the obligations of US Borrower under such section) ratably
in accordance with their respective Percentage Shares, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including attorneys' fees), or disbursements of any kind and
nature whatsoever that may be imposed on, incurred by or asserted against US
Agent (including by any Lender) in any way relating to or arising out of any
Loan Document or the transactions contemplated thereby or any action taken or
omitted by US Agent under any Loan Document (INCLUDING ANY OF THE FOREGOING
ARISING FROM THE NEGLIGENCE OF US AGENT); provided that no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified, and provided
further that no action taken in accordance with the directions of the number of
Lenders herein specified with respect to a particular action shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender agrees to reimburse US Agent
promptly upon demand for its ratable share of any costs or expenses payable by
US Borrower under Section 10.4, to the extent that US Agent is not promptly
reimbursed for such costs and expenses by US Borrower. The agreements contained
in this section shall survive payment in full of the US Loans and all other
amounts payable under this Agreement.
Section 9.6. Non-Reliance on US Agent and Other Lenders . Each Lender
agrees that it has, independently and without reliance on US Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the US Borrower and its
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon US 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 analysis and decisions in taking or not taking action
under the US Loan Documents. Except for notices, reports, and other documents
and information expressly required to be furnished to the Lenders by US Agent
hereunder, US Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition, or
44
50
business of any Restricted Person or any of its Subsidiaries or Affiliates that
may come into the possession of US Agent or any of its Affiliates.
Section 9.7. Administrative Agent in its Individual Capacity. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Restricted Persons and their respective Affiliates as
though Bank of America were not the US Agent or the US LC Issuer hereunder and
without notice to or consent of Lenders. Lenders acknowledge that, pursuant to
such activities, Bank of America or its Affiliates may receive information
regarding any Restricted Person or its Affiliates (including information that
may be subject to confidentiality obligations in favor of such Restricted Person
or such Affiliate) and acknowledge that the US Agent shall be under no
obligation to provide such information to them. With respect to its US Loans,
Bank of America shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it were not
the US Agent or the US LC Issuer, and the terms "Lender" and "Lenders" include
Bank of America in its individual capacity.
Section 9.8. Sharing of Set-Offs and Other Payments . Each Lender Party
agrees that if it shall, whether through the exercise of rights under US Loan
Documents or rights of banker's lien, set off, or counterclaim against US
Borrower or otherwise, obtain payment of a portion of the aggregate Obligations
owed to it which, taking into account all distributions made by US Agent under
Section 3.1, causes such Lender Party to have received more than it would have
received had such payment been received by US Agent and distributed pursuant to
Section 3.1, then (a) it shall be deemed to have simultaneously purchased and
shall be obligated to purchase interests in the Obligations as necessary to
cause all Lender Parties to share all payments as provided for in Section 3.1,
and (b) such other adjustments shall be made from time to time as shall be
equitable to ensure that US Agent and all Lender Parties share all payments of
Obligations as provided in Section 3.1; provided, however, that nothing herein
contained shall in any way affect the right of any Lender Party to obtain
payment (whether by exercise of rights of banker's lien, set-off or counterclaim
or otherwise) of indebtedness other than the Obligations. US Borrower expressly
consents to the foregoing arrangements and agrees that any holder of any such
interest or other participation in the Obligations, whether or not acquired
pursuant to the foregoing arrangements, may to the fullest extent permitted by
Law exercise any and all rights of banker's lien, set-off, or counterclaim as
fully as if such holder were a holder of the Obligations in the amount of such
interest or other participation. If all or any part of any funds transferred
pursuant to this section is thereafter recovered from the seller under this
section which received the same, the purchase provided for in this section shall
be deemed to have been rescinded to the extent of such recovery, together with
interest, if any, if interest is required pursuant to the order of a Tribunal
order to be paid on account of the possession of such funds prior to such
recovery.
Section 9.9. Investments. Whenever US Agent in good faith determines that
it is uncertain about how to distribute to Lender Parties any funds which it has
received, or whenever US Agent in good faith determines that there is any
dispute among Lender Parties about how such funds should be distributed, US
Agent may choose to defer distribution of the funds which are the subject of
such uncertainty or dispute. If US Agent in good faith believes that the
uncertainty or
45
51
dispute will not be promptly resolved, or if US Agent is otherwise required to
invest funds pending distribution to Lender Parties, US Agent shall invest such
funds pending distribution; all interest on any such Investment shall be
distributed upon the distribution of such Investment and in the same proportion
and to the same Persons as such Investment. All moneys received by US Agent for
distribution to Lender Parties (other than to the Person who is US Agent in its
separate capacity as a Lender Party) shall be held by US Agent pending such
distribution solely as US Agent for such Lender Parties, and US Agent shall have
no equitable title to any portion thereof.
Section 9.10. Benefit of Article IX. The provisions of this Article (other
than the following Section 9.11) are intended solely for the benefit of Lender
Parties, and no Restricted Person shall be entitled to rely on any such
provision or assert any such provision in a claim or defense against any Lender.
Lender Parties may waive or amend such provisions as they desire without any
notice to or consent of US Borrower or any Restricted Person.
Section 9.11. Resignation. US Agent may resign at any time by giving
written notice thereof to Lenders and US Borrower. Each such notice shall set
forth the date of such resignation. Upon any such resignation, US Required
Lenders shall have the right to appoint a successor US Agent and if no Default
or Event of Default has occurred and is continuing, US Required Lenders shall
obtain the consent of US Borrower. A successor must be appointed for any
retiring US Agent, and such US Agent's resignation shall become effective when
such successor accepts such appointment. If, within thirty days after the date
of the retiring US Agent's resignation, no successor US Agent has been appointed
and has accepted such appointment, then the retiring US Agent may appoint a
successor US Agent, which shall be a commercial bank organized or licensed to
conduct a banking or trust business under the Laws of the United States of
America or of any state thereof and if no Default or Event of Default has
occurred and is continuing, retiring US Agent shall obtain the consent of US
Borrower. Upon the acceptance of any appointment as US Agent hereunder by a
successor US Agent, the retiring US Agent shall be discharged from its duties
and obligations under this Agreement and the other US Loan Documents. After any
retiring US Agent's resignation hereunder the provisions of this Article IX
shall continue to inure to its benefit as to any actions taken or omitted to be
taken by it while it was US Agent under the US Loan Documents.
Section 9.12. Lenders to Remain Pro Rata. It is the intent of all parties
hereto that the pro rata share of each Lender in the Tranche B Loans and in the
Canadian Obligations and the related rights and obligations of such Lender under
the Loan Documents shall be substantially the same at all times during the term
of this Agreement. Accordingly, the initial Tranche B Percentage Share of each
Tranche B Lender in the Tranche B Maximum Credit Amount will be the same as the
initial Percentage Share of such Lender in the Canadian Maximum Credit Amount.
All subsequent assignments and adjustments of the interests of the Tranche B
Lenders in the Tranche B Facility and the Canadian Obligations will be made so
as to maintain such a pro rata arrangement; provided that for the purposes of
determining these pro rata shares, any Percentage Share held by any Lender's
Affiliates shall be included in determining the interests of such Lender.
46
52
Section 9.13. Other Agents. None of the Lenders identified on the facing
page or signature pages of this Agreement as a "syndication agent" or
"documentation agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE X - Miscellaneous
Section 10.1. Waivers and Amendments; Acknowledgments.
(a) Waivers and Amendments. No failure or delay (whether by course of
conduct or otherwise) by any Lender Party in exercising any right, power or
remedy which such Lender Party may have under any of the US Loan Documents shall
operate as a waiver thereof or of any other right, power or remedy, nor shall
any single or partial exercise by any Lender Party of any such right, power or
remedy preclude any other or further exercise thereof or of any other right,
power or remedy. No waiver of any provision of any US Loan Document and no
consent to any departure therefrom shall ever be effective unless it is in
writing and signed as provided below in this section, and then such waiver or
consent shall be effective only in the specific instances and for the purposes
for which given and to the extent specified in such writing. No notice to or
demand on any Restricted Person shall in any case of itself entitle any
Restricted Person to any other or further notice or demand in similar or other
circumstances. This Agreement and the other US Loan Documents set forth the
entire understanding between the parties hereto with respect to the transactions
contemplated herein and therein and supersede all prior discussions and
understandings with respect to the subject matter hereof and thereof, and no
waiver, consent, release, modification or amendment of or supplement to this
Agreement or the other US Loan Documents shall be valid or effective against any
party hereto unless the same is in writing and signed by (i) if such party is US
Borrower, by US Borrower, (ii) if such party is US Agent or US LC Issuer, by
such party, (iii) if such party is a Tranche B Lender, by such Tranche B Lender
or by US Agent on behalf of Tranche B Lenders with the written consent of
Tranche B Required Lenders and (iv) if such party is a Lender, by such Lender or
by US Agent on behalf of Lenders with the written consent of US Required Lenders
(which consent has already been given as to the termination of the US Loan
Documents as provided in Section 10.10). Notwithstanding the foregoing or
anything to the contrary herein, US Agent shall not, without the prior consent
of US Majority Lenders and Canadian Majority Lenders, execute and deliver on
behalf of such Lender any waiver or amendment which would increase the US
Maximum Credit Amount hereunder, except in connection with the Re-allocations
described in Section 1.9. Notwithstanding the foregoing or anything to the
contrary herein, US Agent shall not, without the prior consent of each
individual US Lender, execute and deliver on behalf of such Lender any waiver or
amendment which would: (1) waive any of the conditions specified in Article IV,
(2) increase the maximum amount which such Lender is committed hereunder to
lend, (3) reduce any fees payable to such Lender hereunder, or the principal of,
or interest on, such Lender's Note, (4) postpone any date fixed for any payment
of any such fees, principal or interest, (5) change the aggregate
47
53
amount of Percentage Shares which is required for US Agent, Lenders or any of
them to take any particular action under the US Loan Documents, (6) release US
Borrower from its obligation to pay such Lender's Note, or (7) amend this
Section 10.1(a), except in connection with the Reallocations described in
Section 1.9.
(b) Acknowledgments and Admissions. US Borrower hereby represents,
warrants, acknowledges and admits that (i) it has been advised by counsel in the
negotiation, execution and delivery of the US Loan Documents to which it is a
party, (ii) it has made an independent decision to enter into this Agreement and
the other US Loan Documents to which it is a party, without reliance on any
representation, warranty, covenant or undertaking by US Agent or any Lender,
whether written, oral or implicit, other than as expressly set out in this
Agreement or in another Loan Document delivered on or after the date hereof,
(iii) there are no representations, warranties, covenants, undertakings or
agreements by any Lender as to the US Loan Documents except as expressly set out
in this Agreement or in another Loan Document delivered on or after the date
hereof, (iv) no Lender has any fiduciary obligation toward US Borrower with
respect to any Loan Document or the transactions contemplated thereby, (v) the
relationship pursuant to the US Loan Documents between US Borrower and the other
Restricted Persons, on one hand, and each Lender, on the other hand, is and
shall be solely that of debtor and creditor, respectively, (vi) no partnership
or joint venture exists with respect to the US Loan Documents between any
Restricted Person and any Lender, (vii) US Agent is not US Borrower's US Agent,
but US Agent for Lenders, (viii) without limiting any of the foregoing, US
Borrower is not relying upon any representation or covenant by any Lender, or
any representative thereof, and no such representation or covenant has been
made, that any Lender will, at the time of an Event of Default or Default, or at
any other time, waive, negotiate, discuss, or take or refrain from taking any
action permitted under the US Loan Documents with respect to any such Event of
Default or Default or any other provision of the US Loan Documents, and (ix) all
Lender Parties have relied upon the truthfulness of the acknowledgments in this
section in deciding to execute and deliver this Agreement and to become
obligated hereunder.
(c) Joint Acknowledgment. THIS WRITTEN AGREEMENT AND THE OTHER US LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 10.2. Survival of Agreements; Cumulative Nature. All of Restricted
Persons' various representations, warranties, covenants and agreements in the US
Loan Documents shall survive the execution and delivery of this Agreement and
the other US Loan Documents and the performance hereof and thereof, including
the making or granting of the US Loans and the delivery of the US Notes and the
other US Loan Documents, and shall further survive until all of the US
Obligations are paid in full to each Lender Party and all of Lender Parties'
obligations to
48
54
US Borrower are terminated. All statements and agreements contained in any
certificate or other instrument delivered by any Restricted Person to any Lender
Party under any Loan Document shall be deemed representations and warranties by
US Borrower or agreements and covenants of US Borrower under this Agreement. The
representations, warranties, indemnities, and covenants made by Restricted
Persons in the US Loan Documents, and the rights, powers, and privileges granted
to Lender Parties in the US Loan Documents, are cumulative, and, except for
expressly specified waivers and consents, no Loan Document shall be construed in
the context of another to diminish, nullify, or otherwise reduce the benefit to
any Lender Party of any such representation, warranty, indemnity, covenant,
right, power or privilege. In particular and without limitation, no exception
set out in this Agreement to any representation, warranty, indemnity, or
covenant herein contained shall apply to any similar representation, warranty,
indemnity, or covenant contained in any other Loan Document, and each such
similar representation, warranty, indemnity, or covenant shall be subject only
to those exceptions which are expressly made applicable to it by the terms of
the various US Loan Documents.
Section 10.3. Notices. All notices, requests, consents, demands and other
communications required or permitted under any Loan Document shall be in
writing, unless otherwise specifically provided in such Loan Document (provided
that US Agent may give telephonic notices to the other Lender Parties), and
shall be deemed sufficiently given or furnished if delivered by personal
delivery, by facsimile or other electronic transmission, by delivery service
with proof of delivery, or by registered or certified United States mail,
postage prepaid, to US Borrower and Restricted Persons at the address of US
Borrower specified on the signature pages hereto and to each Lender Party at its
address specified on Annex II hereto (unless changed by similar notice in
writing given by the particular Person whose address is to be changed). Any such
notice or communication shall be deemed to have been given (a) in the case of
personal delivery or delivery service, as of the date of first attempted
delivery during normal business hours at the address provided herein, (b) in the
case of facsimile or other electronic transmission, upon receipt, or (c) in the
case of registered or certified United States mail, three days after deposit in
the mail; provided, however, that no Borrowing Notice shall become effective
until actually received by US Agent.
Section 10.4. Payment of Expenses; Indemnity.
(a) Payment of Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, US Borrower will promptly (and in any event,
within 30 days after any invoice or other statement or notice) pay: (i) all
reasonable costs and expenses incurred by or on behalf of US Agent (including
without limitation, attorneys' fees) in connection with (1) the negotiation,
preparation, execution and delivery of the US Loan Documents, and any and all
consents, waivers or other documents or instruments relating thereto, (2) the
borrowings hereunder and other action reasonably required in the course of
administration hereof, (3) monitoring or confirming (or preparation or
negotiation of any document related to) US Borrower's compliance with any
covenants or conditions contained in this Agreement or in any Loan Document, and
(ii) all reasonable costs and expenses incurred by or on behalf of any Lender
Party (including without limitation, attorneys' fees, consultants' fees and
accounting fees) in
49
55
connection with the defense or enforcement of any of the US Loan Documents
(including this section) or the defense of any Lender Party's exercise of its
rights thereunder.
(b) INDEMNITY. US BORROWER AGREES TO INDEMNIFY EACH AGENT-RELATED PERSON
AND EACH LENDER PARTY, UPON DEMAND, FROM AND AGAINST ANY AND ALL LIABILITIES,
OBLIGATIONS, CLAIMS, LOSSES, DAMAGES, PENALTIES, FINES, ACTIONS, JUDGMENTS,
SUITS, SETTLEMENTS, COSTS, EXPENSES OR DISBURSEMENTS (INCLUDING REASONABLE FEES
OF ATTORNEYS, ACCOUNTANTS, EXPERTS AND ADVISORS) OF ANY KIND OR NATURE
WHATSOEVER (IN THIS SECTION COLLECTIVELY CALLED "LIABILITIES AND COSTS") WHICH
TO ANY EXTENT (IN WHOLE OR IN PART) MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED
AGAINST SUCH LENDER PARTY GROWING OUT OF, RESULTING FROM OR IN ANY OTHER WAY
ASSOCIATED WITH THE US LOAN DOCUMENTS AND THE TRANSACTIONS AND EVENTS (INCLUDING
THE ENFORCEMENT OR DEFENSE THEREOF) AT ANY TIME ASSOCIATED THEREWITH OR
CONTEMPLATED THEREIN (WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE AND
INCLUDING ANY VIOLATION OR NONCOMPLIANCE WITH ANY ENVIRONMENTAL LAWS BY ANY
AGENT-RELATED PERSON OR LENDER PARTY OR ANY OTHER PERSON OR ANY LIABILITIES OR
DUTIES OF ANY AGENT-RELATED PERSON OR LENDER PARTY OR ANY OTHER PERSON WITH
RESPECT TO HAZARDOUS MATERIALS FOUND IN OR RELEASED INTO THE ENVIRONMENT).
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND
COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM
OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART BY ANY NEGLIGENT
ACT OR OMISSION OF ANY KIND BY ANY AGENT-RELATED PERSON OR LENDER PARTY,
provided only that no Agent-Related Person or Lender Party shall be entitled
under this section to receive indemnification for that portion, if any, of any
liabilities and costs which is proximately caused by its own individual gross
negligence or willful misconduct, as determined in a final judgment. If any
Person (including US Borrower or any of its Affiliates) ever alleges such gross
negligence or willful misconduct by any Lender Party, the indemnification
provided for in this section shall nonetheless be paid upon demand, subject to
later adjustment or reimbursement, until such time as a court of competent
jurisdiction enters a final judgment as to the extent and effect of the alleged
gross negligence or willful misconduct. As used in this section the term "Lender
Party" shall refer not only to each Person designated as such in Section 1.1 but
also to each director, officer, agent, attorney, employee, representative,
attorney-in-fact and Affiliate of such Person.
Section 10.5. Parties in Interest. All grants, covenants and agreements
contained in the US Loan Documents shall bind and inure to the benefit of the
parties thereto and their respective successors and assigns; provided, however,
that no Restricted Person may assign or transfer any of its rights or delegate
any of its duties or obligations under any Loan Document without the prior
consent of all Lenders (and any attempted assignment or transfer by any
Restricted Person without such consent shall be null and void). Neither US
Borrower nor any Affiliates of US Borrower shall directly or indirectly purchase
or otherwise retire any Obligations owed to any
50
56
Lender nor will any Lender accept any offer to do so, unless each Lender shall
have received substantially the same offer with respect to the same Percentage
Share of the Obligations owed to it. If US Borrower or any Affiliate of US
Borrower at any time purchases some but less than all of the Obligations owed to
all Lender Parties, such purchaser shall not be entitled to any rights of any
Lender under the US Loan Documents unless and until US Borrower or its
Affiliates have purchased all of the Obligations.
Section 10.6. Assignments and Participations.
(a) Each Lender may assign to one or more Eligible Transferees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Tranche A Note and its Percentage Share of
the Tranche A Facility Usage and the Tranche A Maximum Credit Amount, and
related rights and obligations under the US Loan Documents and/or its Tranche B
Note and its Percentage Share of the Tranche B Facility Usage and the Tranche B
Maximum Credit Amount and related rights and obligations under the US Loan
Documents); provided, however, that
(i) each such assignment shall be to an Eligible Transferee;
(ii) together with each such assignment of its rights and
obligations relating to Tranche B Loans under this Agreement, such Lender
shall assign the same Percentage Share of its rights and obligations under
the Canadian Agreement to the same Eligible Transferee or an Affiliate of
such Eligible Transferee.
(iii) except in the case of such an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under this
Agreement, any partial assignment of such Lender's rights and obligations
under this Agreement and under the Canadian Agreement shall be in a
collective amount at least equal to US $20,000,000 or an integral multiple
of US $5,000,000 in excess thereof (in the case of the US Agreement
calculated with respect to the Maximum US Credit Amount during the Tranche
B Revolving Period and thereafter calculated with respect to the aggregate
amount of the Tranche B Facility Usage and the Tranche A Maximum Credit
Amount, and in the case of the Canadian Credit Agreement calculated with
respect to the Canadian Maximum Credit Amount during the Canadian
Revolving Period and thereafter calculated with respect to the Canadian
Facility Usage);
(iv) each such assignment by a Lender with respect to Tranche A
Loans shall be of a constant, and not varying, percentage of all of its
rights and obligations with respect to Tranche A Loans and Letters of
Credit under the US Loan Documents and each such assignment by a Lender
with respect to Tranche B Loans shall be of a constant, and not varying,
percentage of all of its rights and obligations with respect to Tranche B
Loans under the US Loan Documents and Canadian Loans under the Canadian
Loan Documents;
51
57
(v) the parties to such assignment shall execute and deliver to US
Agent for its acceptance an Assignment and Acceptance in the form of
Exhibit F hereto, together with any Note subject to such assignment and a
processing fee of US $3,500; and
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this section, the assignor, US Agent
and US Borrower shall make appropriate arrangements so that, if required, new US
Notes are issued to the assignor and the assignee. If the assignee is not
incorporated under the Laws of the United States of America or a state thereof,
it shall deliver to US Borrower and US Agent certification as to exemption from
deduction or withholding of Taxes in accordance with Section 3.10.
(b) US Agent shall maintain at its address referred to in Section 10.3 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and their
Percentage Share of the US Maximum Credit Amount of, and principal amount of the
US Loans 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 US Borrower, US 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 US Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, US Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit F hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons that are
Eligible Transferees in all or a portion of its rights and obligations under
this Agreement (including all or a portion of its US Maximum Credit Amount and
its US Loans); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participant shall be entitled to the benefit of the yield protection
provisions contained in Article III (provided that a participant shall not be
entitled to receive any greater payment under Section 3.1 or 3.2 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such participant, unless the sale of the participation to
such participant is made with the US Borrower's prior written consent. A
participant that would have been subject to Section 3.9 if it were a Lender,
shall not be entitled to the benefits of Section 3.1 unless US Borrower has been
notified of the participation sold to such participant, and such participant
agrees, for the benefit of US Borrower, to comply with such Section as if it
were a Lender) and the right of offset contained in Section 6.14 (provided that
such participant agrees to be subject to Section 9.8 as if it were a Lender),
and (iv) US Borrower shall continue to deal solely and directly
52
58
with such Lender in connection with such Lender's rights and obligations under
this Agreement, and such Lender shall retain the sole right to enforce the
obligations of US Borrower relating to its US Loans and its Note and to approve
any amendment, modification, or waiver of any provision of this Agreement
(provided that such Lender may agree that it will not approve amendments,
modifications, or waivers decreasing the amount of principal of or the rate at
which interest is payable on such US Loans or Note, extending any scheduled
principal payment date or date fixed for the payment of interest on such US
Loans or Note, or extending its US Maximum Credit Amount without the consent of
the participant).
(e) If the consent of US Borrower to an assignment to an Eligible Assignee
is required hereunder, US Borrower shall be deemed to have given its consent ten
(10) Business Days after the date notice thereof has been delivered by the
assigning Lender (through US Agent) unless such consent is expressly refused by
US Borrower prior to such tenth Business Day.
(f) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Percentage Share in the Obligations and
its rights and obligations hereunder pursuant to subsection 10.6(a) above, Bank
of America may resign as US LC Issuer and/or terminate its commitment to make US
Swing Loans by giving written notice thereof to US Borrower and US Lenders. Each
such notice shall set forth the date of such resignation; provided that any such
resignation or termination shall not become effective until a successor has been
appointed as provided below and has accepted such appointment. In the event of
any such resignation by Bank of America as US LC Issuer or termination of its
commitment to make US Swing Loans, US Borrower shall be entitled to appoint from
among the US Lenders a successor US LC Issuer or US Swing Lender hereunder. If,
within sixty days after notice has been given to US Borrower and US Lenders of
any such resignation or termination, no successor US LC Issuer or US Swing
Lender, as the case may be, has been appointed and has accepted such
appointment, then Bank of America may appoint such a successor, which shall be a
commercial bank organized or licensed to conduct a banking or trust business
under the Laws of the United States of America or of any state thereof. If Bank
of America resigns as US LC Issuer, it shall retain all the rights and
obligations of US LC Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as US LC Issuer and all
US LC Obligations with respect thereto (including the right to require the
Tranche A Lenders to make US Base Rate Loans or fund participations in
unreimbursed amounts pursuant to Section 2.3(b)). If Bank of America terminates
its commitment to make US Swing Loans, it shall retain all the rights of US
Swing Lender provided for hereunder with respect to US Swing Loans made by it
and outstanding as of the effective date of such termination, including the
right to require the US Lenders to make Tranche A Loans or fund participations
in outstanding US Swing Loans pursuant to Section 1.8.
(e) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time assign and pledge all or any portion of its US Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
53
59
(f) Any Lender may furnish any information concerning US Borrower or any
of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 10.7 hereof.
Section 10.7. Confidentiality. US Agent and each Lender (in this Section
each is called a "Lending Party") agrees to keep confidential any information
furnished or made available to it by US Borrower pursuant to this Agreement that
is marked confidential; provided that nothing herein shall prevent any Lending
Party from disclosing such information (a) to any other Lending Party or any
Affiliate of any Lending Party, or any officer, director, employee, US Agent, or
advisor of any Lending Party or Affiliate of any Lending Party, (b) to any other
Person if reasonably incidental to the administration of the credit facility
provided herein, (c) as required by any Law, rule, or regulation, (d) upon the
order of any court or administrative agency, (e) upon the request or demand of
any regulatory agency or authority, (f) that is or becomes available to the
public or that is or becomes available to any Lending Party other than as a
result of a disclosure by any Lending Party prohibited by this Agreement, (g) in
connection with any litigation to which such Lending Party or any of its
Affiliates may be a party, (h) to the extent necessary in connection with the
exercise of any remedy under this Agreement or any other Loan Document, and (i)
subject to provisions substantially similar to those contained in this section,
to any actual or proposed participant or assignee.
Section 10.8. Governing Law; Submission to Process. Except to the extent
that the law of another jurisdiction is expressly elected in a Loan Document,
the US Loan Documents shall be deemed contracts and instruments made under the
laws of the State of Texas and shall be construed and enforced in accordance
with and governed by the laws of the State of Texas and the laws of the United
States of America, without regard to principles of conflicts of law. Chapter 346
of the Texas Finance Code (which regulates certain revolving credit loan
accounts and revolving tri-party accounts) does not apply to this Agreement or
to the US Notes. US Borrower hereby irrevocably submits itself and each other
Restricted Person to the non-exclusive jurisdiction of the state and federal
courts sitting in the State of Texas and agrees and consents that service of
process may be made upon it or any Restricted Person in any legal proceeding
relating to the US Loan Documents or the Obligations by any means allowed under
Texas or federal law.
Section 10.9. Limitation on Interest. Lender Parties, Restricted Persons
and any other parties to the US Loan Documents intend to contract in strict
compliance with applicable usury Law from time to time in effect. In furtherance
thereof such Persons stipulate and agree that none of the terms and provisions
contained in the US Loan Documents shall ever be construed to create a contract
to pay, for the use, forbearance or detention of money, interest in excess of
the maximum amount of interest permitted to be charged by applicable Law from
time to time in effect. Neither any Restricted Person nor any present or future
guarantors, endorsers, or other Persons hereafter becoming liable for payment of
any Obligation shall ever be liable for unearned interest thereon or shall ever
be required to pay interest thereon in excess of the maximum amount that may be
lawfully charged under applicable Law from time to time in effect, and the
provisions of this section shall control over all other provisions of the US
Loan Documents which may be in
54
60
conflict or apparent conflict herewith. Lender Parties expressly disavow any
intention to charge or collect excessive unearned interest or finance charges in
the event the maturity of any Obligation is accelerated. If (a) the maturity of
any Obligation is accelerated for any reason, (b) any Obligation is prepaid and
as a result any amounts held to constitute interest are determined to be in
excess of the legal maximum, or (c) any Lender or any other holder of any or all
of the Obligations shall otherwise collect moneys which are determined to
constitute interest which would otherwise increase the interest on any or all of
the Obligations to an amount in excess of that permitted to be charged by
applicable Law then in effect, then all sums determined to constitute interest
in excess of such legal limit shall, without penalty, be promptly applied to
reduce the then outstanding principal of the related Obligations or, at such
Lender's or holder's option, promptly returned to US Borrower or the other payor
thereof upon such determination. In determining whether or not the interest paid
or payable, under any specific circumstance, exceeds the maximum amount
permitted under applicable Law, Lender Parties and Restricted Persons (and any
other payors thereof) shall to the greatest extent permitted under applicable
Law, (i) characterize any non-principal payment as an expense, fee or premium
rather than as interest, (ii) exclude voluntary prepayments and the effects
thereof, and (iii) amortize, prorate, allocate, and spread the total amount of
interest throughout the entire contemplated term of the instruments evidencing
the Obligations in accordance with the amounts outstanding from time to time
thereunder and the maximum legal rate of interest from time to time in effect
under applicable Law in order to lawfully charge the maximum amount of interest
permitted under applicable Law. In the event applicable Law provides for an
interest ceiling under Chapter 303 of the Texas Finance Code (the "Texas Finance
Code") as amended, for that day, the ceiling shall be the "weekly ceiling" as
defined in the Texas Finance Code; provided that if any applicable Law permits
greater interest, the Law permitting the greatest interest shall apply. As used
in this section the term "applicable Law" means the Laws of the State of Texas
or the Laws of the United States of America, whichever Laws allow the greater
interest, as such Laws now exist or may be changed or amended or come into
effect in the future.
Section 10.10.Termination; Limited Survival. In its sole and absolute
discretion US Borrower may at any time that no Obligations are owing elect in a
written notice delivered to US Agent to terminate this Agreement. Upon receipt
by US Agent of such a notice, if no Obligations are then owing this Agreement
and all other US Loan Documents shall thereupon be terminated and the parties
thereto released from all prospective obligations thereunder. Notwithstanding
the foregoing or anything herein to the contrary, any waivers or admissions made
by any Restricted Person in any Loan Document, any Obligations under Sections
3.2 through 3.6, and any obligations which any Person may have to indemnify or
compensate any Lender Party shall survive any termination of this Agreement or
any other Loan Document. At the request and expense of US Borrower, US Agent
shall prepare and execute all necessary instruments to reflect and effect such
termination of the US Loan Documents. US Agent is hereby authorized to execute
all such instruments on behalf of all Lenders, without the joinder of or further
action by any Lender.
Section 10.11. Severability. If any term or provision of any Loan
Document shall be determined to be illegal or unenforceable all other terms and
provisions of the US Loan
55
61
Documents shall nevertheless remain effective and shall be enforced to the
fullest extent permitted by applicable Law.
Section 10.12. Counterparts; Fax. This Agreement may be separately
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to
constitute one and the same Agreement. This Agreement and the US Loan Documents
may be validly executed and delivered by facsimile or other electronic
transmission.
Section 10.13. Waiver of Jury Trial, Punitive Damages, etc. US BORROWER
AND EACH LENDER PARTY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND
IRREVOCABLY (a) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH
THE US LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED
THEREWITH, BEFORE OR AFTER MATURITY, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY, (b) waives, to the maximum
extent not prohibited by Law, any right it may have to claim or recover in any
such litigation any "Special Damages", as defined below, (c) certifies that no
party hereto nor any representative or agent or counsel for any party hereto has
represented, expressly or otherwise, or implied that such party would not, in
the event of litigation, seek to enforce the foregoing waivers, and (d)
acknowledges that it has been induced to enter into this Agreement, the other US
Loan Documents and the transactions contemplated hereby and thereby by, among
other things, the mutual waivers and certifications contained in this section.
As used in this section, "Special Damages" includes all special, consequential,
exemplary, or punitive damages (regardless of how named), but does not include
any payments or funds which any party hereto has expressly promised to pay or
deliver to any other party hereto.
Section 10.14. Defined Terms. Capitalized terms and phrases used and not
otherwise defined herein shall for all purposes of this Agreement have the
meaning given to such terms and phrases in Annex I hereto.
Section 10.15. Annex I, Exhibits and Schedules; Additional Definitions .
Annex I, Annex II and all Exhibits and Schedules attached to this Agreement are
a part hereof for all purposes.
Section 10.16. Amendment of Defined Instruments. Unless the context
otherwise requires or unless otherwise provided herein the terms defined in this
Agreement which refer to a particular agreement, instrument or document also
refer to and include all renewals, extensions, modifications, amendments and
restatements of such agreement, instrument or document,
56
62
provided that nothing contained in this section shall be construed to authorize
any such renewal, extension, modification, amendment or restatement.
Section 10.17.References and Titles. All references in this Agreement to
Exhibits, Schedules, articles, sections, subsections and other subdivisions
refer to the Exhibits, Schedules, articles, sections, subsections and other
subdivisions of this Agreement unless expressly provided otherwise. Titles
appearing at the beginning of any subdivisions are for convenience only and do
not constitute any part of such subdivisions and shall be disregarded in
construing the language contained in such subdivisions. The words "this
Agreement", "this instrument", "herein", "hereof", "hereby", "hereunder" and
words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited. The phrases "this section"
and "this subsection" and similar phrases refer only to the sections or
subsections hereof in which such phrases occur. The word "or" is not exclusive,
and the word "including" (in its various forms) means "including without
limitation". Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
requires.
Section 10.18. Calculations and Determinations. All calculations under the
US Loan Documents of interest chargeable with respect to Eurodollar Loans and of
fees shall be made on the basis of actual days elapsed (including the first day
but excluding the last) and a year of 360 days. All other calculations of
interest made under the US Loan Documents shall be made on the basis of actual
days elapsed (including the first day but excluding the last) and a year of 365
or 366 days, as appropriate. Each determination by a Lender Party of amounts to
be paid under Article III or any other matters which are to be determined
hereunder by a Lender Party (such as any US Dollar Eurodollar Rate, Adjusted US
Dollar Eurodollar Rate, Business Day, Interest Period, or Reserve Requirement)
shall, in the absence of manifest error, be conclusive and binding. Unless
otherwise expressly provided herein or unless US Required Lenders otherwise
consent all financial statements and reports furnished to any Lender Party
hereunder shall be prepared and all financial computations and determinations
pursuant hereto shall be made in accordance with US GAAP.
Section 10.19. Construction of Indemnities and Releases. All
indemnification and release provisions of this Agreement shall be construed
broadly (and not narrowly) in favor of the Persons receiving indemnification
from or being released.
Section 10.20. Termination of Existing US Agreement. Upon the payment in
full of all outstanding indebtedness owing under the Existing US Agreement, the
Existing US Agreement and the other loan documents executed pursuant thereto
shall be terminated and the parties thereto shall have no further obligations or
liabilities, covenants, or representations thereunder; provided, however, the
indemnification obligations provided in the Existing US Agreement shall not be
terminated and shall survive the termination of the Existing US Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
57
63
IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
DEVON ENERGY CORPORATION
US Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President - Finance
Address:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President - Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
64
BANK OF AMERICA, N.A.,
Administrative Agent, US LC Issuer
and Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
65
BANK OF MONTREAL
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
66
BANK ONE, NA
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
67
THE CHASE MANHATTAN BANK
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
68
UMB BANK
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Community Bank President
69
FIRST UNION NATIONAL BANK
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice ▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ (▇▇▇▇▇), INC.
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
71
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Associate
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
73
ROYAL BANK OF CANADA
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Manager
74
SUNTRUST BANK, ATLANTA
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Banking Officer
75
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Associate
76
CITIBANK, N.A.
Lender
By: /s/ ▇▇▇▇▇▇ ▇. BAILHI
------------------------------------
Name: ▇▇▇▇▇▇ ▇. Bailhi
Title: Attorney-in-Fact
77
DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
78
CIBC, INC.
Lender
By: /s/ M. ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: M. ▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
79
ABN AMRO BANK, N.V.
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
80
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
81
THE FUJI BANK, LIMITED
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President & Manager
82
CREDIT LYONNAIS
Lender
By: /s/ PHILLIPPE SOUSTRA
------------------------------------
Name: Phillippe Soustra
Title: Senior Vice President
83
BANK OF TOKYO - MITSUBISHI LTD.
HOUSTON AGENCY
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Deputy General Manager
84
ANNEX I
DEFINED TERMS
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any assets acquired by such specified Person, and any refinancing of
the foregoing indebtedness on similar terms, taking into account current market
conditions.
"Adjusted Canadian Dollar Eurodollar Rate" means, for any Canadian Dollar
Eurodollar Loan for any Eurodollar Interest Period therefor, the per annum rate
equal to the sum of (a) the Applicable Margin plus (b) the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
Canadian Agent to be equal to the quotient obtained by dividing (i) the Canadian
Dollar Eurodollar Rate for such Canadian Dollar Eurodollar Loan for such
Eurodollar Interest Period by (ii) 1 minus the Reserve Requirement for such
Canadian Dollar Eurodollar Loan for such Interest Period. The Adjusted Canadian
Dollar Eurodollar Rate for any Canadian Dollar Eurodollar Loan shall change
whenever the Applicable Margin or the Reserve Requirement changes. No Adjusted
Canadian Dollar Eurodollar Rate charged by any Person shall ever exceed the
Highest Lawful Rate.
"Adjusted US Dollar Eurodollar Rate" means, for any US Dollar Eurodollar
Loan for any Eurodollar Interest Period therefor, the per annum rate equal to
the sum of (a) the Applicable Margin plus (b) the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined by US Agent to be
equal to the quotient obtained by dividing (i) the US Dollar Eurodollar Rate for
such US Dollar Eurodollar Loan for such Eurodollar Interest Period by (ii) 1
minus the Reserve Requirement for such US Dollar Eurodollar Loan for such
Interest Period. The Adjusted US Dollar Eurodollar Rate for any US Dollar
Eurodollar Loan shall change whenever the Applicable Margin or the Reserve
Requirement changes. No Adjusted US Dollar Eurodollar Rate charged by any Person
shall ever exceed the Highest Lawful Rate.
"Affiliate" means, as to any Person, each other Person that directly or
indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person. A Person shall be
deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 20% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing general
partners; or
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
85
"Agent-Related Persons" means the US Agent (including Bank of America in
its capacity as US LC Issuer and US Swing Lender) and its Affiliates, the
Canadian Agent (including Bank of America Canada in its capacity as Canadian LC
Issuer and Canadian Swing Lender) and its Affiliates, the Arranger, any
successors to US Agent or Canadian Agent appointed in accordance with the Loan
Documents, and the officers, directors, employees, agents and attorneys-in-fact
of such Persons.
"Applicable Currency" means (i) when used with respect to any US Loan or
US LC Obligations, US Dollars, and (ii) when used with respect to any Canadian
Prime Rate Loan, any Canadian Dollar Eurodollar Loan or any Bankers' Acceptance,
Canadian Dollars, and (iii) when used with respect to any Canadian Base Rate
Loan or an US Dollar Eurodollar Loan made under the Canadian Agreement, US
Dollars.
"Applicable Lending Office" means, for each Lender and for each Type of
Loan, the "Lending Office" of such Lender (or of an Affiliate of such Lender)
designated for such Type of Loan on Annex II hereof or such other office of such
Lender (or an Affiliate of such Lender) as such Lender may from time to time
specify to US Agent, Canadian Agent, and Borrowers by written notice in
accordance with the terms hereof as the office by which its Loans of such Type
are to be made and maintained.
"Applicable Margin" means
(a) when used in the Canadian Agreement on any date and when used in
the US Agreement, except with respect to any Tranche B Loan, on
any date, the number of Basis Points per annum set forth below
based on the Applicable Rating Level on such date:
=================================================================
Applicable Applicable
Rating Level Margin
-----------------------------------------------------------------
Level I 24.0
-----------------------------------------------------------------
Level II 35.0
-----------------------------------------------------------------
Level III 45.0
-----------------------------------------------------------------
Level IV 67.5
-----------------------------------------------------------------
Level V 75.0
=================================================================
(b) when used with respect to any Tranche B Loan on any date, the
number of Basis Points per annum set forth below based on the
Applicable Rating Level on such date:
2
86
=================================================================
Applicable Applicable
Rating Level Margin
-----------------------------------------------------------------
Level I 26.0
-----------------------------------------------------------------
Level II 37.5
-----------------------------------------------------------------
Level III 47.5
-----------------------------------------------------------------
Level IV 70.0
-----------------------------------------------------------------
Level V 77.5
=================================================================
Changes in the Applicable Margin will occur automatically without prior notice
as changes in the Applicable Rating Level occur. US Agent will give notice
promptly to Borrowers and the Lenders of changes in the Applicable Margin.
"Applicable Rating Level" means for any day, the highest Rating Level (as
such term is defined below in this paragraph) issued by S&P or ▇▇▇▇▇'▇
(collectively, in this definition called the "Designated Rating Agencies"). As
used in this definition, (i) the term "Rating Level" means for any day with
respect to any of the Designated Rating Agencies, the rating level described
below (or its then equivalent) applicable on such day, issued by such Designated
Rating Agency, from time to time, with respect to US Borrower's Long-Term Debt
or if such rating is unavailable, equivalents thereof, including counterparty
ratings, implied ratings and corporate ratings; (ii) "US Borrower's Long-Term
Debt" means senior, unsecured, non-credit enhanced long-term indebtedness for
borrowed money of US Borrower, and (iii) "$" means a rating equal to or more
favorable than and "<" means a rating less favorable than.
=================================================================
Rating Level S&P ▇▇▇▇▇'▇
-----------------------------------------------------------------
Level I $A- $A3
-----------------------------------------------------------------
Level II BBB+ Baa1
-----------------------------------------------------------------
Level III BBB Baa2
-----------------------------------------------------------------
Level IV BBB- Baa3
-----------------------------------------------------------------
Level V