[EXECUTION COPY]
[FIVE YEAR CREDIT AGREEMENT]
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CREDIT AGREEMENT,
dated as of November 30, 2001
among
NOBLE AFFILIATES, INC.,
as the Borrower,
JPMORGAN CHASE BANK,
as the Administrative Agent for the Lenders,
SOCIETE GENERALE,
as the Syndication Agent for the Lenders,
MIZUHO FINANCIAL GROUP,
CREDIT LYONNAIS, NEW YORK BRANCH,
THE ROYAL BANK OF SCOTLAND PLC,
and
DEUTSCHE BANK AG NEW YORK BRANCH,
as the Co-Documentation Agents for the Lenders,
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
AS LEAD ARRANGER AND SOLE BOOKRUNNER
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.......................................................1
SECTION 1.1 Defined Terms.....................................................................1
SECTION 1.2 Use of Defined Terms.............................................................14
SECTION 1.3 Cross-References.................................................................14
SECTION 1.4 Accounting and Financial Determinations..........................................14
ARTICLE II THE FACILITY AND BORROWING PROCEDURES.................................................14
SECTION 2.1 Facility.........................................................................14
SECTION 2.2 [Intentionally Omitted]..........................................................15
SECTION 2.3 Reduction of Commitment Amount...................................................15
SECTION 2.4 Base Rate Loans and Eurodollar Loans.............................................15
SECTION 2.5 Borrowing Procedures for Loans...................................................15
SECTION 2.6 Continuation and Conversion Elections............................................16
SECTION 2.7 Funding..........................................................................16
SECTION 2.8 Repayment of Loans; Evidence of Debt.............................................16
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES............................................17
SECTION 3.1 Repayments and Prepayments.......................................................17
SECTION 3.2 Interest Provisions..............................................................18
SECTION 3.3 Fees.............................................................................18
ARTICLE IV CERTAIN EURODOLLAR AND OTHER PROVISIONS...............................................19
SECTION 4.1 Eurodollar Lending Unlawful......................................................19
SECTION 4.2 Deposits Unavailable or Eurodollar Interest Rate Unascertainable.................19
SECTION 4.3 Increased Eurodollar Borrowing Costs, etc........................................19
SECTION 4.4 Funding Losses...................................................................20
SECTION 4.5 Increased Capital Costs..........................................................20
SECTION 4.6 Taxes............................................................................20
SECTION 4.7 Special Fees in Respect of Reserve Requirements..................................22
SECTION 4.8 Payments, Computations, etc......................................................22
SECTION 4.9 Sharing of Payments..............................................................23
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SECTION 4.10 Replacement of Lender on Account of Increased Costs, Eurodollar Lending
Unlawful, Reserve Requirements, Taxes, Certain Dissents, etc.....................23
SECTION 4.11 Maximum Interest.................................................................24
ARTICLE V CONDITIONS............................................................................25
SECTION 5.1 Effective Date...................................................................25
SECTION 5.2 All Borrowings...................................................................26
ARTICLE VI REPRESENTATIONS AND WARRANTIES........................................................26
SECTION 6.1 Organization, etc................................................................26
SECTION 6.2 Due Authorization, Non-Contravention, etc........................................27
SECTION 6.3 Government Approval, Regulation, etc.............................................27
SECTION 6.4 Validity, etc....................................................................27
SECTION 6.5 Financial Information............................................................27
SECTION 6.6 No Material Adverse Change.......................................................27
SECTION 6.7 Litigation, Labor Controversies, etc.............................................28
SECTION 6.8 Subsidiaries.....................................................................28
SECTION 6.9 Taxes............................................................................28
SECTION 6.10 Pension and Welfare Plans........................................................28
SECTION 6.11 Environmental Warranties and Compliance..........................................28
SECTION 6.12 Regulation U.....................................................................28
SECTION 6.13 Accuracy of Information..........................................................29
SECTION 6.14 Use of Proceeds..................................................................29
ARTICLE VII COVENANTS.............................................................................29
SECTION 7.1 Affirmative Covenants............................................................29
SECTION 7.2 Negative Covenants...............................................................32
ARTICLE VIII EVENTS OF DEFAULT.....................................................................35
SECTION 8.1 Listing of Events of Default.....................................................35
SECTION 8.2 Action if Bankruptcy.............................................................37
SECTION 8.3 Action if Other Event of Default.................................................37
ARTICLE IX THE AGENTS............................................................................38
SECTION 9.1 Actions..........................................................................38
SECTION 9.2 Funding Reliance, etc............................................................38
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SECTION 9.3 Exculpation......................................................................39
SECTION 9.4 Successor........................................................................39
SECTION 9.5 Loans by the Agents..............................................................39
SECTION 9.6 Credit Decisions.................................................................40
SECTION 9.7 Copies, etc......................................................................40
ARTICLE X MISCELLANEOUS PROVISIONS..............................................................40
SECTION 10.1 Waivers, Amendments, etc.........................................................40
SECTION 10.2 Notices..........................................................................41
SECTION 10.3 Payment of Costs, Expenses and Taxes.............................................42
SECTION 10.4 Indemnification..................................................................42
SECTION 10.5 Survival.........................................................................43
SECTION 10.6 Severability.....................................................................43
SECTION 10.7 Headings.........................................................................43
SECTION 10.8 Governing Law; Entire Agreement..................................................43
SECTION 10.9 Successors and Assigns...........................................................44
SECTION 10.10 Sale and Transfer of Loans and Commitments; Participations in Loans and
Commitments......................................................................44
SECTION 10.11 Other Transactions...............................................................45
SECTION 10.12 Confidentiality..................................................................45
SECTION 10.13 Forum Selection and Consent to Jurisdiction......................................46
SECTION 10.14 Waiver of Jury Trial.............................................................47
SECTION 10.15 NO ORAL AGREEMENTS...............................................................47
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SCHEDULES AND EXHIBITS
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Schedule of Commitments
SCHEDULE 6.8 - Subsidiaries
SCHEDULE 7.2 - Existing Liens
EXHIBIT 2.5 - Form of Borrowing Request
EXHIBIT 2.6 - Form of Continuation/Conversion Notice
EXHIBIT 5.1.3 - Form of Opinion of Counsel
EXHIBIT 10.10 - Form of Lender Assignment Agreement
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CREDIT AGREEMENT
THIS
CREDIT AGREEMENT, dated as of November 30, 2001 (as may be amended,
restated, supplemented or otherwise modified from time to time, this
"AGREEMENT"), is among NOBLE AFFILIATES, INC., a Delaware corporation (the
"BORROWER"), JPMORGAN CHASE BANK ("JPMORGAN"), as administrative agent (JPMorgan
in such capacity, together with any successor(s) thereto in such capacity, the
"AGENT"), SOCIETE GENERALE, as syndication agent (in such capacity, together
with any successor(s) thereto in such capacity, the "SYNDICATION AGENT"), MIZUHO
FINANCIAL GROUP, CREDIT LYONNAIS, NEW YORK BRANCH, THE ROYAL BANK OF SCOTLAND
PLC, and DEUTSCHE BANK AG NEW YORK BRANCH, as co-documentation agents (in such
capacity, together with any successor(s) thereto in such capacity, individually,
a "CO-DOCUMENTATION AGENT" and, collectively, the "CO-DOCUMENTATION AGENTS"),
and certain commercial lending institutions as are or may become parties hereto
(collectively, the "LENDERS").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS. The following terms (whether or not underscored)
when used in this Agreement, including its preamble and recitals, shall, except
where the context otherwise requires, have the following meanings (such meanings
to be equally applicable to the singular and plural forms thereof):
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). 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.
"AGENT" is defined in the PREAMBLE and includes each other Person as shall
have subsequently been appointed as the successor Agent pursuant to SECTION 9.4.
"AGENTS" means the Agent, the Co-Documentation Agents, and the Syndication
Agent, together with any successors in any such capacities.
"AGREEMENT" means, on any date, this
Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Agent.
"APPLICABLE FACILITY FEE RATE" means the number of basis points per annum
(based on a year of 360 days) set forth below based on the Applicable Rating
Level on such date:
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APPLICABLE RATING LEVEL APPLICABLE FACILITY FEE RATE
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Level I 15.0
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Level II 17.5
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Level III 20.0
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Level IV 25.0
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Level V 30.0
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Changes in the Applicable Facility Fee Rate will occur automatically without
prior notice. The Agent will give notice promptly to the Borrower and the
Lenders of changes in the Applicable Facility Fee Rate.
"APPLICABLE MARGIN" means on any date and with respect to each Eurodollar
Loan the number of basis points per annum set forth below based on the
Applicable Rating Level on such date:
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APPLICABLE RATING LEVEL UTILIZATION LESS THAN OR UTILIZATION GREATER THAN
EQUAL TO 25% 25%
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Level I 60.0 85.0
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Level II 70.0 95.0
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Level III 80.0 105.0
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Level IV 100.0 125.0
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Level V 120.0 145.0
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Changes in the Applicable Margin will occur automatically without prior notice.
The Agent will give notice promptly to the Borrower and the Lenders of changes
in the Applicable Margin.
"APPLICABLE RATING LEVEL" means (i) at any time that ▇▇▇▇▇'▇ and S&P have
the equivalent rating or split ratings of not more than one rating differential
of the Borrower's senior unsecured long-term debt, the level set forth in the
chart below under the heading "Applicable Rating Level" opposite the rating
under the heading "▇▇▇▇▇'▇" or "S&P" which is the higher of the two if split
ratings or opposite the ratings under the headings "▇▇▇▇▇'▇" and "S&P" if
equivalent, and (ii) at any time that ▇▇▇▇▇'▇ and S&P have split ratings of more
than one rating differential of the Borrower's senior unsecured long-term debt,
the level set forth in the chart below under the "Applicable Rating Level"
opposite the midpoint (rounding to the nearest lower rating) between the two
ratings of "▇▇▇▇▇'▇" or "S&P".
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APPLICABLE RATING LEVEL ▇▇▇▇▇'▇ S&P
----------------------------------- --------------------- ---------------------
Level I GREATER THAN = A3 GREATER THAN = A-
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Level II Baa1 BBB+
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Level III Baa2 BBB
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Level IV Baa3 BBB-
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Level V LESS THAN = Ba1 LESS THAN = BB+
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For example, if the ▇▇▇▇▇'▇ rating is Baa1 and the S&P rating is BBB, Level II
shall apply.
For purposes of the foregoing, (i) "GREATER THAN =" means a rating equal to
or more favorable than; "LESS THAN =" means a rating equal to or less favorable
than; "GREATER THAN" means a rating greater than; "LESS THAN" means a rating
less than; (ii) if a rating for the Borrower's senior unsecured long-term debt
is not available from one of the Rating Agencies, the Applicable Rating Level
will be based on the rating of the other Rating Agency; (iii) if ratings for the
Borrower's senior unsecured long-term debt is available from neither S&P nor
▇▇▇▇▇'▇, Level V shall be deemed applicable; (iv) if determinative ratings shall
change (other than as a result of a change in the rating system used by any
applicable Rating Agency) such that a change in Applicable Rating Level would
result, such change shall effect a change in Applicable Rating Level as of the
day on which it is first announced by the applicable Rating Agency, and any
change in the Applicable Margin or percentage used in calculating fees due
hereunder shall apply commencing on the effective date of such change and ending
on the date immediately preceding the effective date of the next such change;
and (v) if the rating system of any of the Rating Agencies shall change prior to
the date all obligations hereunder have been paid and the Commitments canceled,
the Borrower and the Lenders shall negotiate in good faith to amend the
references to specific ratings in this definition to reflect such changed rating
system, and pending such amendment, if no Applicable Rating Level is otherwise
determinable based upon the foregoing, Level V shall apply.
"ARRANGER" means ▇.▇. ▇▇▇▇▇▇ Securities Inc., in its capacity as sole lead
arranger.
"ASSIGNEE LENDER" is defined in SECTION 10.10.1.
"AUTHORIZED OFFICER" means, relative to the Borrower, the President, any
Senior Vice President, the Treasurer or the Secretary of the Borrower, or any
other officer of the Borrower specified as such to the Agent in writing by any
of the aforementioned officers of the Borrower.
"BASE RATE" means, on any date and with respect to all Base Rate Loans, a
fluctuating rate of interest per annum equal to the higher of (a) the rate of
interest most recently announced by JPMorgan at its Domestic Office as its base
rate for Dollar loans; and (b) the Federal Funds Rate most recently determined
by the Agent plus 1/2%. The Base Rate is not necessarily intended to be the
lowest rate of interest determined by JPMorgan in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the Base
Rate. The Agent will give notice promptly to the Borrower and the Lenders of
changes in the Base Rate.
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"BASE RATE LOAN" means a Loan bearing interest at a fluctuating rate
determined by reference to the Base Rate.
"BORROWER" is defined in the PREAMBLE, and includes its permitted
successors and assigns.
"BORROWING" means any extension of credit (as opposed to any continuation
or conversion thereof) made by the Lenders by way of Loans.
"BORROWING DATE" means a date on which a Borrowing is made hereunder.
"BORROWING REQUEST" means a loan request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of EXHIBIT 2.5
hereto.
"BUSINESS DAY" means (a) any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York, New York or Houston, Texas; and (b) relative to the making, continuing,
prepaying or repaying of any Eurodollar Borrowing, any day on which dealings in
Dollars are carried on in the London and New York Eurodollar interbank market.
"CAPITALIZATION" means the sum, at any time outstanding and without
duplication, of (i) Debt plus (ii) Stockholders' Equity.
"CAPITALIZED LEASE LIABILITIES" means all monetary obligations of the
Borrower or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as capitalized leases, and,
for purposes of this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CHANGE IN CONTROL" means (a) the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 30% or more of the outstanding shares of voting stock of the
Borrower; or (b) the failure of the Borrower to own, free and clear of all Liens
or encumbrances (other than non-consensual Liens or encumbrances which are not
material or which are fully discharged or with respect to obligations which are
fully bonded, in either case within thirty (30) days after the imposition of
such Lien or encumbrance) at least 100% of the outstanding shares of voting
stock of SOC on a fully diluted basis.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"CO-DOCUMENTATION AGENT" and "CO-DOCUMENTATION AGENTS" are defined in the
preamble.
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"COMMITMENT" means, as to any Lender, the obligation, if any, of such
Lender to make Loans pursuant to SECTION 2.1.1 of this Agreement in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount,
if any, set forth opposite such Lender's name on SCHEDULE II, as the same may be
reduced or adjusted from time to time in accordance with this Agreement,
including SECTIONS 2.3.
"COMMITMENT AMOUNT" means, on any date, $400,000,000, as such amount may be
reduced, increased or adjusted from time to time in accordance with this
Agreement, including SECTION 2.3.
"COMMITMENT TERMINATION EVENT" means (a) the occurrence of any Event of
Default described in CLAUSES (a) through (e) of SECTION 8.1.9; or (b) the
occurrence and continuance of any other Event of Default and either (i) the
declaration of the Loans to be due and payable pursuant to SECTION 8.3, or (ii)
in the absence of such declaration, the giving of notice by the Agent, acting at
the direction of the Required Lenders, to the Borrower that the Commitments have
been terminated.
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of EXHIBIT 2.6 hereto.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"DEBT" means the consolidated Indebtedness of the Borrower and its
Subsidiaries.
"DEFAULT" means any condition, occurrence or event which, after notice or
lapse of time or both, would constitute an Event of Default.
"DEFAULT MARGIN" means two percent (2%).
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Agent and the Required
Lenders.
"DOLLAR" and the sign "$" mean lawful money of the United States.
"DOMESTIC OFFICE" means, relative to any Lender, the office of such Lender
designated as such in its Administrative Questionnaire or designated in the
Lender Assignment Agreement or such other office of a Lender (or any successor
or assign of such Lender) within the United States as may be designated from
time to time by notice from such Lender, as the case may be, to each other
Person party hereto.
"EBITDAX" means, for any period, the sum of (i) the consolidated net income
of the Borrower and its Subsidiaries for such period before non-cash
non-recurring items, gains or losses on dispositions of assets and the
cumulative effect of changes in accounting principles
5
PLUS (ii) to the extent included in the determination of such income, the
consolidated charges for such period for interest, depreciation, depletion,
amortization and exploration expenses PLUS (or, if there is a benefit from
income taxes, MINUS) (iii) to the extent included in the determination of such
income, the amount of the provision for or benefit from income taxes.
"EDC" means Energy Development Corporation, a New Jersey corporation, and
its permitted successors and assigns.
"EFFECTIVE DATE" means the date on which the conditions specified in
ARTICLE V are satisfied (or waived in accordance with SECTION 10.1).
"ENVIRONMENTAL LAW" means any federal, state, or local statute, or rule or
regulation promulgated thereunder, any judicial or administrative order or
judgment to which the Borrower or any Subsidiary is party or which are
applicable to the Borrower or any Subsidiary (whether or not by consent), and
any provision or condition of any governmental permit, license or other
operating authorization, relating to protection of the environment, persons or
the public welfare from actual or potential exposure for the effects of exposure
to any actual or potential release, discharge, spill or emission (whether past
or present) of, or regarding the manufacture, processing, production, gathering,
transportation, importation, use, treatment, storage or disposal of, any
chemical, raw material, pollutant, contaminant or toxic, corrosive, hazardous,
or non-hazardous substance or waste, including petroleum.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"EURODOLLAR BORROWING" means a borrowing hereunder consisting of the
aggregate amount of the several Eurodollar Loans made by all or some of the
Lenders to the Borrower, at the same time, at the same interest rate and for the
same Interest Period.
"EURODOLLAR LOAN" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the Eurodollar Rate.
"EURODOLLAR OFFICE" means, relative to any Lender, the office of such
Lender designated as such in its Administrative Questionnaire or designated in
the Lender Assignment Agreement or such other office of a Lender as designated
from time to time by notice from such Lender to the Borrower and the Agent,
whether or not outside the United States, which shall be making or maintaining
Eurodollar Loans of such Lender hereunder.
"EURODOLLAR RATE" means, relative to any Interest Period for Eurodollar
Loans, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Agent from time to
time for purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for dollar deposits with a maturity
6
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the "Eurodollar Rate" with respect to such
Eurodollar Loan for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period
"EVENT OF DEFAULT" is defined in SECTION 8.1.
"EXISTING CREDIT FACILITY" means that certain Amended and Restated
Credit
Agreement, dated as of December 24, 1997, among the Borrower, Union Bank of
Switzerland, Houston Agency, as administrative agent, and the lenders and the
agents party thereto, and the other agreements or instruments executed and
delivered in connection with, or as security for the payment or performance of
the obligations thereunder, as such agreements may have been amended,
supplemented or restated from time to time.
"FACILITY" is defined in SECTION 2.1.
"FEDERAL FUNDS RATE" means, for any day, the average rate quoted to the
Agent at approximately 11:00 a.m. (Central time) on such day (or, if such day is
not a Business Day, on the next preceding Business Day) for overnight Federal
Funds transactions arranged by New York Federal Funds brokers selected by the
Agent.
"FEE LETTER" is defined in SECTION 3.3.2.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive calendar months ending
on December 31.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in SECTION 1.4.
"GUARANTEED LIABILITY" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the Indebtedness of any
other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's Guaranteed Liability
shall be the lesser of (i) the limitation on such Person's liability, if any,
set forth in such agreement, undertaking or arrangement or (ii) the outstanding
principal amount of the Indebtedness guaranteed thereby. Guaranteed Liabilities
shall exclude any act or agreement in connection with any financing of a project
owned by any Person that either (A) guarantees performance of the acquisition,
improvement, installation, design, engineering, construction, development,
completion, maintenance or operation of, or otherwise affects any such act in
respect of, all or a portion of the project that is financed, except
7
during any period, and then only to the extent, that such act or agreement is a
guarantee of payment of such financing or (B) the obligation to pay or perform
under which is contingent upon the occurrence of an event or condition which has
not occurred, other than notice, the passage of time or such financing or any
part thereof becoming due; PROVIDED, HOWEVER, to the extent that any partial
payment is required to be made under any such act or agreement providing for a
contingent payment obligation as described in clause (B) above, "Guaranteed
Liability" shall be deemed to include an amount equal to four (4) times such
amount required to be paid during the Fiscal Quarter most recently ended, up to
the full amount of the Guaranteed Liability as specified in the immediately
preceding sentence.
"HAZARDOUS MATERIAL" means: (i) any "hazardous substance", as defined by
CERCLA; (ii) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended; (iii) any petroleum, crude oil or any fraction
thereof; (iv) any hazardous, dangerous or toxic chemical, material, waste or
substance within the meaning of any Environmental Law; (v) any radioactive
material, including any naturally occurring radioactive material, and any
source, special or by-product material as defined in 42 U.S.C. Section 2011
et. seq., and any amendments or reauthorizations thereof; (vi)
asbestos-containing materials in any form or condition; or (vii) polychlorinated
biphenyls in any form or condition.
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities of
such Person under derivative contracts, including interest rate or commodity
swap agreements, interest rate or commodity cap agreements and interest rate or
commodity collar agreements, and all similar agreements or arrangements.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Borrower, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature; (b) which relates to the
limited scope of examination of matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in such
financial statement and which, as a condition to its removal, would require an
adjustment to such item the effect of which would be to cause the Borrower to be
in default of any of its obligations under SECTION 7.2.4.
"INCLUDING" means including without limiting the generality of any
description preceding such term.
"INDEBTEDNESS" of any Person means, without duplication: (a) all
obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (b) all
obligations relative to banker's acceptances issued for the account of such
Person; (c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities; (d) all obligations of such Person to pay the deferred purchase
price of property or services (except
8
accounts payable arising in the ordinary course of business), (e) Indebtedness
of another Person of the type described in CLAUSES (a), (b), (c) or (d) above
secured by a Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such Indebtedness shall have been assumed by such
Person or is limited in recourse (such Indebtedness being the lesser of (i) the
value of such property on the books of such Person or (ii) the outstanding
principal amount of such Indebtedness); and (f) all Guaranteed Liabilities of
such Person in respect of any of the foregoing. For all purposes of this
Agreement, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner or a
joint venturer except to the extent that such Indebtedness by its terms is
expressly non-recourse to such general partner or joint venturer.
"INDEMNIFIED LIABILITIES" is defined in SECTION 10.4.
"INDEMNIFIED PARTIES" is defined in SECTION 10.4.
"INFORMATION" is defined in SECTION 10.12.
"INTEREST PERIOD" means, with respect to Eurodollar Borrowings, the period
beginning on (and including) the date on which such Eurodollar Borrowing is made
or continued as, or converted into, a Eurodollar Borrowing pursuant to
SECTION 2.5 or 2.6 and shall end on (but exclude) the day which numerically
corresponds to such date one, two, three or six months thereafter (or, if such
month has no numerically corresponding day, on the last Business Day of such
month), as the Borrower may select in its relevant notice pursuant to SECTION
2.5, PROVIDED, HOWEVER, that (a) the Borrower shall not be permitted to select
Interest Periods to be in effect at any one time which have expiration dates
occurring on more than five different dates; (b) Interest Periods commencing on
the same date for Loans comprising part of the same Borrowing shall be of the
same duration; (c) if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next following
Business Day (unless, if such Interest Period applies to Eurodollar Loans, such
next following Business Day is the first Business Day of a calendar month, in
which case such Interest Period shall end on the Business Day next preceding
such numerically corresponding day); and (d) no Interest Period may end later
than the Maturity Date.
"JPMORGAN" is defined in the PREAMBLE, and includes its successors and
assigns.
"LAW" means any law (including, without limitation, any zoning law or
ordinance or any Environmental Law), statute, rule, regulation, ordinance,
order, directive, code, interpretation, judgment, decree, injunction, writ,
determination, award, permit, license, authorization, direction, requirement or
decision of and agreement with or by any government or governmental department,
commission, board, court, authority, agency, official or officer, domestic or
foreign.
"LENDER AFFILIATE" means, (a) with respect to any Lender, (i) an Affiliate
of such Lender or (ii) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an Affiliate of such
Lender and (b) with respect to any Lender that is a fund which invests in bank
loans and
9
similar extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement
substantially in the form of EXHIBIT 10.10 hereto.
"LENDERS" means the financial institutions listed on the signature pages
hereto and their respective successors and assigns in accordance with
SECTION 10.10 (including any commercial lending institution becoming a party
hereto pursuant to a Lender Assignment Agreement) or otherwise by operation of
law.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or the
performance of an obligation.
"LOAN" shall mean the loans provided for in SECTION 2.1.1 hereof.
"LOAN ADVANCES" means the Loans of the same Type and, in the case of
Eurodollar Loans, having the same Interest Period made by all Lenders on the
same Business Day and pursuant to the same Borrowing Request in accordance with
SECTION 2.1.
"LOAN DOCUMENTS" means this Agreement, each Borrowing Request, each
Borrowing Notice, the Fee Letter, any note, together in each case with all
exhibits, schedules and attachments thereto, and all other agreements and
instruments from time to time executed and delivered by the Borrower or any of
its Subsidiaries pursuant to or in connection with any of the foregoing.
"MARGIN STOCK" means "margin stock" within the meaning of Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, property, financial condition or results of operations of the Borrower
and its Subsidiaries (taken as a whole) or (ii) the ability of the Borrower to
perform its payment obligations under any of the Loan Documents.
"MATURITY DATE" shall mean the earliest of:
(a) November 30, 2006;
(b) the date on which the Commitment Amount is terminated in full or
reduced to zero pursuant to the terms of SECTION 2.3; and
(c) the date on which the Commitments are terminated in full and
reduced to zero pursuant to the terms of ARTICLE VIII.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto
that is a nationally-recognized rating agency.
10
"OBLIGATIONS" means all obligations (monetary or otherwise) of the Borrower
arising under or in connection with this Agreement and each other Loan Document.
"ORGANIC DOCUMENT" means, relative to the Borrower, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of capital
stock.
"PARTICIPANT" is defined in SECTION 10.10.
"PAYMENT DATE" is defined in SECTION 3.2.3.
"PAYMENT OFFICE" means the principal office of the Administrative Agent,
presently located at JPMorgan Chase Bank, Agency Services, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"PENSION PLAN" means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which the Borrower or
any corporation, trade or business that is, along with the Borrower, a member of
a Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
"PERCENTAGE" means, relative to any Lender, the percentage set forth in
SCHEDULE II attached hereto or set forth in the most recent Lender Assignment
Agreement executed by such Lender, as such percentage may be adjusted from time
to time pursuant to Lender Assignment Agreements executed by such Lender and its
Assignee Lenders and delivered pursuant to SECTION 10.10.
"PERSON" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"PLAN" means any Pension Plan or Welfare Plan.
"QUARTERLY PAYMENT DATE" means the last day of each March, June, September,
and December or, if any such day is not a Business Day, the next succeeding
Business Day.
"RATING AGENCY" means either of S&P or Moody's.
"REGULATION U" means any of Regulations T, U or X of the Board of Governors
of the Federal Reserve System of the United States of America (the "BOARD") from
time to time in effect and shall include any successor or other regulations or
official interpretations of the Board or any successor Person relating to the
extension of credit for the purpose of purchasing or
11
carrying Margin Stock and which is applicable to member banks of the Federal
Reserve System or any successor Person.
"RELEASE" means a "release", as such term is defined in CERCLA.
"REQUIRED LENDERS" means Lenders in the aggregate holding greater than 50%
of the aggregate unpaid principal amount of the outstanding Borrowings and if no
Borrowings are outstanding, Lenders having greater than 50% of the then Total
Commitment.
"RESOURCE CONSERVATION AND RECOVERY ACT" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 690, ET SEQ., as in effect from time to
time.
"RESTRICTED SUBSIDIARY" means any Subsidiary that is not an Unrestricted
Subsidiary.
"S&P" means Standard & Poor's Ratings Group and any successor thereto that
is a nationally-recognized rating agency.
"SOC" means Samedan Oil Corporation, a Delaware corporation, and its
permitted successors and assigns.
"SOLVENT" means, with respect to any Person at any time, a condition under
which: a) the fair saleable value of such Person's assets is, on the date of
determination, greater than the total amount of such Person's liabilities
(including contingent and unliquidated liabilities) at such time; b) such Person
is able to pay all of its liabilities as such liabilities mature; and c) such
Person does not have unreasonably small capital with which to conduct its
business. For purposes of this definition (i) the amount of a Person's
contingent or unliquidated liabilities at any time shall be that amount which,
in light of all the facts and circumstances then existing, represents the amount
which can reasonably be expected to become an actual or matured liability; (ii)
the "fair saleable value" of an asset shall be the amount which may be realized
within a reasonable time either through collection or sale of such asset at its
regular market value; and (iii) the "regular market value" of an asset shall be
the amount which a capable and diligent business person could obtain for such
asset from an interested buyer who is willing to purchase such asset under
ordinary selling conditions.
"STOCKHOLDERS' EQUITY" means, as of the time of any determination thereof
is to be made, shareholders' equity determined in accordance with GAAP PLUS the
absolute cumulative amount by which such stockholders' equity shall have been
reduced by reason of non-cash write downs of oil and gas assets from time to
time after the Effective Date.
"SUBSIDIARY" means any subsidiary of the Borrower.
"SUBSIDIARY" means, with respect to any Person, (a) any corporation,
limited liability company or other business entity of which more than 50% of the
outstanding equity interests having ordinary voting power to elect a majority of
the board of directors (or persons performing similar functions) of such
corporation, limited liability company or other business entity (irrespective of
whether at the time equity interests of any other class or classes of such
corporation, limited liability company or other business entity shall or might
have voting power upon the occurrence of any contingency) is at the time
directly or indirectly owned by such
12
Person, by such Person and one or more other Subsidiaries of such Person, or by
one or more other Subsidiaries of such Person and (b) any partnership of which
such Person, such Person and one or more other Subsidiaries of such Person, or
one or more other Subsidiaries of such Person holds more than 50% of the
outstanding general partner interests.
"SYNDICATION AGENT" is defined in the preamble.
"TAXES" is defined in SECTION 4.6.
"364-DAY
CREDIT AGREEMENT" means that certain 364-Day
Credit Agreement,
dated as of November 30, 2001, among the Borrower, JPMorgan Chase Bank, as
administrative agent, and the lenders and the agents party thereto, as such
agreement may be amended, supplemented or restated from time to time.
"364-DAY TOTAL COMMITMENT" means (i) on or prior to the "Revolving
Commitment Termination Date" (as such term is defined in the 364-Day
Credit
Agreement), the then effective "Total Commitment" (as such term is defined in
the 364-Day
Credit Agreement) under the 364-Day Credit Agreement, or (ii) after
the Revolving Commitment Termination Date, the then outstanding principal amount
of "Term Loans" (as such term is defined in the 364-Day Credit Agreement) under
the 364-Day Credit Agreement.
"TOTAL ASSET VALUE" means, at any time with respect to any assets, the book
value of such assets determined in accordance with GAAP.
"TOTAL COMMITMENT" means the aggregate of all the Lenders' Commitments.
"TOTAL DEBT TO CAPITALIZATION RATIO" means the ratio of (a) Debt TO (b)
Capitalization.
"TOTAL INTEREST EXPENSE" means with respect to any period for which a
determination thereof is to be made, interest expense of the Borrower and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP.
"TYPE" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a Eurodollar Loan.
"UNITED STATES" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary that is designated on
SCHEDULE 6.8 as such or which the Borrower has designated in writing to the
Agent to be an Unrestricted Subsidiary pursuant to SECTION 7.1.8, and, in either
case, which the Borrower has not designated to be a Restricted Subsidiary
pursuant to SECTION 7.1.8.
"UTILIZATION" means, at any time, the ratio (expressed as a percentage) of
(i) the sum of (A) the outstanding principal amount of Loans under this
Agreement plus (B) the outstanding principal amount of "Loans" (as such term is
defined in the 364-Day Credit Agreement) under the 364-Day Credit Agreement to
(ii) the sum of (X) the then effective Total Commitment under this Agreement
plus (Y) 364-Day Total Commitment.
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"WELFARE PLAN" means a "welfare plan", as such term is defined in section
3(1) of ERISA.
SECTION 1.2 USE OF DEFINED TERMS. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the Disclosure Schedule and in each
Borrowing Request, Continuation/Conversion Notice, notice and other
communication delivered from time to time in connection with this Agreement or
any other Loan Document.
SECTION 1.3 CROSS-REFERENCES. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4 ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under SECTION 7.2.3) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those generally accepted accounting principles ("GAAP") applied
in the preparation of the financial statements referred to in SECTION 6.5.
ARTICLE II
THE FACILITY AND BORROWING PROCEDURES
SECTION 2.1 FACILITY. The Lenders grant to the Borrower a credit facility
(the "FACILITY") pursuant to which, and upon the terms and subject to the
conditions herein set out and provided that no Default or Event of Default has
occurred and is continuing from time to time on any Business Day, each Lender
severally agrees to make Loans in U.S. Dollars to the Borrower equal to such
Lender's Percentage of the aggregate amount of Loans requested by the Borrower
to be made on such day.
SECTION 2.1.1 LOANS. From time to time on or after the date hereof and
prior to the Maturity Date, each Lender shall make Loans under this Section to
the Borrower in an aggregate principal amount at any one time outstanding up to
but not exceeding such Lender's Commitment. Subject to the conditions herein,
any such Loan repaid prior to the Maturity Date may be reborrowed pursuant to
the terms of this Agreement.
SECTION 2.1.2 AVAILABILITY OF FACILITY. No Lender shall be permitted or
required to make (i) any Loan if, after giving effect thereto, the aggregate
outstanding principal amount of all Loans of all Lenders would exceed the
Commitment Amount, or (ii) any Loan if, after giving effect thereto, the
aggregate amount of all Loans of such Lender would exceed the Lender's
Percentage of the Commitment Amount.
SECTION 2.2 [Intentionally Omitted]
SECTION 2.3 REDUCTION OF COMMITMENT AMOUNT. The Borrower may, from time to
time on any Business Day occurring after the Effective Date, voluntarily reduce
the amount of the Commitment Amount; PROVIDED, HOWEVER, that all such reductions
shall require at least three
14
Business Days' prior notice to the Agent and be permanent, and any partial
reduction of the Commitment Amount shall be in a minimum amount of $10,000,000
and in an integral multiple of $1,000,000.
SECTION 2.4 BASE RATE LOANS AND EURODOLLAR LOANS. Subject to the terms and
conditions set forth in ARTICLE V, each Loan shall be either a Eurodollar Loan
or a Base Rate Loan as the Borrower may request, it being understood that Loans
made to the Borrower on any date may be either Eurodollar Loans or Base Rate
Loans or a combination thereof. As to any Eurodollar Loan, each Lender may, if
it so elects, fulfill its commitment to make such Eurodollar Loan by causing its
Eurodollar Office to make such Eurodollar Loan; PROVIDED, HOWEVER, that in such
event the obligation of the Borrower to repay such Eurodollar Loan nevertheless
shall be to such Lender and shall be deemed to be held by such Lender for the
account of such Eurodollar Office.
SECTION 2.5 BORROWING PROCEDURES FOR LOANS. The Borrower shall give the
Agent prior written or telegraphic notice pursuant to a Borrowing Request (in
substantially the form of EXHIBIT 2.5 hereto) of each proposed Borrowing or
continuation, and as to whether such Borrowing or continuation is to be of Base
Rate Loans or Eurodollar Loans, as follows:
SECTION 2.5.1 BASE RATE LOANS. The Agent shall receive written or
telegraphic notice from the Borrower on or before 2:00 p.m. Central time one (1)
Business Day prior to the date of such Borrowing and amount of such Borrowing
(which shall be in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000), and the Agent shall advise each Lender thereof promptly thereafter.
Not later than 10:00 a.m., Central time, on the date specified in such notice
for such Borrowing, each Lender shall provide to the Agent at the Payment
Office, same day or immediately available funds covering such Lender's
Percentage of the requested Base Rate Loan. Upon fulfillment of the applicable
conditions set forth in ARTICLE V with respect to such Base Rate Loan, the Agent
shall make available to the Borrower the proceeds of each Base Rate Loan (to the
extent received from the Lenders) by wire transfer of such proceeds to such
account(s) as the Borrower shall have specified in the Borrowing Request.
SECTION 2.5.2 EURODOLLAR LOANS. The Agent shall receive written or
telegraphic notice pursuant to a Borrowing Request from the Borrower on or
before 10:00 a.m. Central time, at least three (3) Business Days prior to the
date requested for each proposed Borrowing or continuation of a Eurodollar Loan,
of the date of such Borrowing or continuation, as the case may be, the amount of
such Borrowing or continuation, as the case may be (which shall be in a minimum
amount of $5,000,000 and an integral multiple of $1,000,000), and the duration
of the initial Eurodollar Interest Period with respect thereto, and the Agent
shall advise each Lender thereof promptly thereafter. Not later than 10:00 a.m.,
Central time, on the date specified in such notice for such Borrowing, each
Lender shall provide to the Agent at the Payment Office, same day or immediately
available funds covering such Lender's Percentage of the requested Eurodollar
Loan. Upon fulfillment of the applicable conditions set forth in ARTICLE V with
respect to such Eurodollar Loan, the Agent shall make available to the Borrower
the proceeds of each Eurodollar Loan (to the extent received from the Lenders)
by wire transfer of such proceeds to such account(s) as the Borrower shall have
specified in the Borrowing Request.
15
SECTION 2.6 CONTINUATION AND CONVERSION ELECTIONS. By delivering a
Continuation/Conversion Notice to the Agent on or before 10:00 a.m., Central
time, on a Business Day, the Borrower may from time to time irrevocably elect,
on not less than three (3) nor more than five (5) Business Days' notice that
all, or any portion in an aggregate minimum amount of $5,000,000 and an integral
multiple of $1,000,000 of any Borrowings be, (i) in the case of Base Rate Loans,
converted into Eurodollar Loans, or (ii) in the case of Eurodollar Loans, be
converted into a Base Rate Loan or continued as a Eurodollar Loan of such Type
(in the absence of delivery of a Continuation/Conversion Notice with respect to
any Eurodollar Loan at least three (3) Business Days before the last day of the
then current Interest Period with respect thereto, such Eurodollar Loan shall,
on such last day, automatically convert to a Base Rate Loan); PROVIDED, HOWEVER,
that (i) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders, and (ii) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, Eurodollar Loans when any Default has occurred and is continuing.
SECTION 2.7 FUNDING. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert Eurodollar Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such Eurodollar Loan; PROVIDED,
HOWEVER, that such Eurodollar Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
Eurodollar Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of SECTIONS 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all Eurodollar Loans by purchasing, as
the case may be, Dollar deposits in its Eurodollar Office's interbank eurodollar
market.
SECTION 2.8 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay, unless otherwise
provided in this Agreement, to the Agent for the account of each Lender the then
unpaid principal amount of each Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iii) the amount of
any sum received by the Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Agent to maintain such accounts
16
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Agent. Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to SECTION 10.10.1) be represented by one or more promissory notes in
such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1 REPAYMENTS AND PREPAYMENTS. The Borrower shall repay in full
(i) the unpaid principal amount of each Loan upon the Maturity Date. Prior
thereto, the Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
Loans; PROVIDED, HOWEVER, that (i) any such prepayment shall be applied to the
Lenders among Loans having the same Type and, if applicable, having the same
Interest Period; (ii) all such voluntary prepayments shall require at least
three Business Days' prior written notice to the Agent; and (iii) all such
voluntary partial prepayments shall be in an minimum amount of $10,000,000 and
an integral multiple of $1,000,000; and
(b) shall, immediately upon any acceleration of the Maturity Date pursuant
to SECTION 8.2 or SECTION 8.3, repay all Loans unless, pursuant to SECTION 8.3,
only a portion of all Loans is so accelerated.
Each prepayment of Loans shall be applied, to the extent of such prepayment, in
the inverse order of maturity. Each prepayment of any Loans made pursuant to
this Section shall be without premium or penalty, except as may be required by
SECTION 4.4. No voluntary prepayment of principal of any Loans shall cause a
reduction in the Commitment Amount.
SECTION 3.2 INTEREST PROVISIONS. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this SECTION 3.2.
SECTION 3.2.1 RATES. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum: (a) on that portion
maintained from time to time as a Base Rate Loan, equal to the Base Rate from
time to time in effect; and (b) on that portion maintained as a Eurodollar Loan,
during each Interest Period applicable thereto, equal to the sum of the
Eurodollar Rate for such Interest Period plus the Applicable Margin. All
Eurodollar Borrowings shall bear interest from and including the first day of
the applicable Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such Eurodollar
Borrowing.
17
SECTION 3.2.2 POST-MATURITY RATES. After the date any principal amount of
any Loan is due and payable (whether on the Maturity Date, upon acceleration or
otherwise), or after any other monetary Obligation of the Borrower shall have
become due and payable, the Borrower shall pay, but only to the extent permitted
by law, interest (after as well as before judgment) on such amounts at a rate
per annum equal to the Base Rate plus the Default Margin.
SECTION 3.2.3 PAYMENT DATES. Interest accrued on each Borrowing shall be
payable, without duplication on the following dates (each a "PAYMENT DATE"): (a)
on the Maturity Date; (b) on the date of any payment or prepayment, in whole or
in part, of principal outstanding on such Loan on the amount of such principal
prepaid or repaid; (c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the Effective Date; (d) with respect to Eurodollar
Borrowings, on the last day of each applicable Interest Period (and, if such
Interest Period shall exceed three months, every three months from the first day
of such Interest Period); (e) with respect to any portion of Base Rate Loans
converted into Eurodollar Loans on a day when interest would not otherwise have
been payable pursuant to CLAUSE (c), on the date of such conversion; and (f) on
that portion of any Borrowings the Maturity Date of which is accelerated
pursuant to SECTION 8.2 or SECTION 8.3, immediately upon such acceleration.
SECTION 3.3 FEES. The Borrower agrees to pay the fees set forth in this
SECTION 3.3. All such fees shall be non-refundable.
SECTION 3.3.1 FACILITY FEE. The Borrower agrees to pay to the Agent for the
account of each Lender a facility fee in an amount equal to the product of the
Applicable Facility Fee Rate times such Lender's Percentage of Commitments times
the Commitment Amount. Accrued facility fees shall be payable in arrears on each
Quarterly Payment Date and on the Maturity Date.
SECTION 3.3.2 AGENT'S FEES. The Borrower agrees to pay to the Agent for its
own account, all fees (including any fees pursuant to SECTION 2.2.8) pursuant to
that certain fee letter agreement, dated November 26, 2001, between the Borrower
and the Agent, as amended from time to time (the "FEE LETTER").
SECTION 3.3.3 PAYMENT OFFICE. The Borrower shall make all payments to the
Agent at the Payment Office.
ARTICLE IV
CERTAIN EURODOLLAR AND OTHER PROVISIONS
SECTION 4.1 EURODOLLAR LENDING UNLAWFUL. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Borrowing as, or to convert any
Borrowing into, a Eurodollar Borrowing, the obligations of such Lender to make,
continue, maintain or convert any such Borrowings shall, upon such
determination, forthwith be suspended until such Lender shall notify the Agent
that the circumstances causing such suspension no longer exist, and all
Eurodollar Borrowings shall automatically convert into Base Rate Loans at
18
the end of the then current Interest Periods with respect thereto or sooner, if
required by such law or assertion; PROVIDED, HOWEVER, that the obligation of
such Lender to make, continue, maintain or convert any such Eurodollar
Borrowings shall remain unaffected if such Lender can designate a different
Eurodollar Office for the making, continuance, maintenance or conversion of
Eurodollar Borrowings and such designation will not, in the sole discretion of
such Lender, be otherwise disadvantageous to such Lender.
SECTION 4.2 DEPOSITS UNAVAILABLE OR EURODOLLAR INTEREST RATE
UNASCERTAINABLE. If the Agent shall have determined that, by reason of
circumstances affecting the Agent's relevant market, adequate means do not exist
for ascertaining the interest rate applicable hereunder to Eurodollar
Borrowings, then, upon notice from the Agent to the Borrower and the Lenders,
the obligations of all Lenders under SECTION 2.5.2 and SECTION 2.6 to make or
continue any Borrowings as, or to convert any Borrowings into, Eurodollar
Borrowings shall forthwith be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 4.3 INCREASED EURODOLLAR BORROWING COSTS, ETC. The Borrower agrees
to reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Borrowings as, or of converting (or of its obligation to convert)
any Borrowings into, Eurodollar Borrowings. Such Lender shall promptly notify
the Agent and the Borrower in writing of the occurrence of any such event, such
notice to state, in reasonable detail, the reasons therefor and the additional
amount required fully to compensate such Lender for such increased cost or
reduced amount; PROVIDED, HOWEVER, that such Lender shall designate a different
Eurodollar Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the sole discretion of such
Lender, be otherwise disadvantageous to such Lender. Such additional amounts
shall be payable by the Borrower directly to such Lender within fifteen days of
its receipt of such notice, and such notice shall be rebuttable presumptive
evidence of the amount payable by the Borrower.
SECTION 4.4 FUNDING LOSSES. In the event any Lender shall incur any loss or
expense (including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Borrowing as, or
to convert any portion of the principal amount of any Borrowing into, a
Eurodollar Borrowing) as a result of (a) any conversion or repayment or
prepayment of the principal amount of any Eurodollar Borrowings on a date other
than the scheduled last day of the Interest Period applicable thereto, whether
pursuant to SECTION 3.1 or otherwise, (b) any Borrowings not being made as
Eurodollar Borrowings in accordance with the Borrowing Request, as the case may
be, therefor, (c) any Borrowings not being continued as, or converted into,
Eurodollar Borrowings in accordance with the Continuation/Conversion Notice, or
(d) the assignment of any Eurodollar Borrowing other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower
pursuant to SECTION 4.10, therefor, then, upon the written notice of such Lender
to the Borrower (with a copy to the Agent), the Borrower shall, within fifteen
days of its receipt thereof, pay directly to such Lender such amount as will (in
the reasonable determination of such Lender) reimburse such Lender for such loss
or expense. Such written notice (which shall include calculations in reasonable
detail) shall be rebuttable presumptive evidence of the amount payable by the
Borrower.
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SECTION 4.5 INCREASED CAPITAL COSTS. If any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in of, any
law or regulation, directive, guideline, decision or request (whether or not
having the force of law) of any court, central bank, regulator or other
governmental authority affects or would affect the amount of capital required or
expected to be maintained by any Lender or any Person controlling such Lender,
and such Lender determines (in its sole discretion) that the rate of return on
its or such controlling Person's capital as a consequence of its Commitments or
the Borrowings made by such Lender is reduced to a level below that which such
Lender or such controlling Person could have achieved but for the occurrence of
any such circumstance, then, in any such case upon notice from time to time by
such Lender to the Borrower, the Borrower shall pay directly to such Lender,
within fifteen days, additional amounts sufficient to compensate such Lender or
such controlling Person for such reduction in rate of return; PROVIDED, HOWEVER,
that such Lender shall designate a different Domestic or Eurodollar Office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole discretion of such Lender, be otherwise
disadvantageous to such Lender. A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall be rebuttable presumptive evidence of the amount payable by the
Borrower. In determining such amount, such Lender may use any reasonable method
of averaging and attribution that it (in its sole discretion) shall deem
applicable.
SECTION 4.6 TAXES. All payments by the Borrower of principal of, and
interest on, the Borrowings and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts (such non-excluded items being called "TAXES"). In the event
that any withholding or deduction from any payment to be made by the Borrower
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then the Borrower will, within fifteen days (a) pay directly
to the relevant authority the full amount required to be so withheld or
deducted; (b) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and (c) pay to the Agent for the account of the Lenders such
additional amount or amounts as is necessary to ensure that the net amount
actually received by each Lender will equal the full amount such Lender would
have received had no such withholding or deduction been required.
If any Taxes are directly asserted against the Agent or any Lender with
respect to any payment received by the Agent or such Lender hereunder, the Agent
or such Lender may pay such Taxes and the Borrower will promptly pay such
additional amounts (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such person after the payment
of such Taxes (including any Taxes on such additional amount) shall equal the
amount such person would have received had not such Taxes been asserted;
provided that the Borrower will not be obligated to pay such additional amounts
to the Agent or such Lender to the extent that such additional amounts shall
have been incurred as a consequence of the Agent's or such Lender's gross
negligence or willful misconduct, as the case may be.
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Agent, for the account of the respective
Lenders, the required receipts or
20
other required documentary evidence, the Borrower shall indemnify the Lenders
for any incremental Taxes, interest or penalties that may become payable by any
Lender as a result of any such failure. For purposes of this Section, a
distribution hereunder by the Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the Borrower.
Each Lender that is organized under the laws of a jurisdiction other than
the United States shall, prior to the due date of any payments of the Loans
under this Agreement, execute and deliver to the Borrower and the Agent, on or
about the first scheduled Payment Date in each Fiscal Year, one or more (as the
Borrower or the Agent may reasonably request) United States Internal Revenue
Service Form W-8 BEN or Form W-8 ECI or such other forms or documents (or
successor forms or documents), appropriately completed, as may be applicable to
establish the extent, if any, to which a payment to such Lender is exempt from
withholding or deduction of Taxes, and shall (but only so long as such Lender
remains lawfully able to do so) deliver to the Borrower and the Agent additional
copies of such forms on or before the date that such forms expire or become
obsolete or after the occurrence of an event requiring a change in the most
recent form so delivered by it and such amendments thereto as may be reasonably
requested by the Borrower or the Agent, in each case certifying that such Lender
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
fees 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. If the form provided by a Lender at the time such Lender first becomes a
party to this Agreement indicates a United States withholding tax rate in excess
of zero, withholding tax at such rate shall be considered excluded from the
definition of "Taxes". For any period with respect to which a Lender has failed
to provide the Borrower and the Agent with the forms required pursuant to this
paragraph, if any (other than if 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 shall not be entitled to indemnification
under this Section with respect to Taxes imposed by the United States which
Taxes would not have been imposed but for such failure to provide such form;
provided, however, that should a Lender, 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, the Borrower shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
If the Borrower is required to pay additional amounts to or for the account
of any Lender pursuant to this Section, then such Lender will change the
jurisdiction of its applicable Eurodollar or Domestic Office so as to eliminate
or reduce any such additional payment which may thereafter accrue if such
change, in the sole discretion of such Lender, is not otherwise disadvantageous
to such Lender. No Lender shall be entitled to receive any greater payment under
this Section as a result of the designation by such Lender of a different
applicable Eurodollar or Domestic Office after the date hereof, unless such
designation is made with the Borrower's prior written consent or by reason of
the provisions of SECTIONS 4.1, 4.3 or 4.5 requiring such Lender to designate a
different applicable Eurodollar or Domestic Office under certain circumstances
or at a time when the circumstances giving rise to such greater payment did not
exist.
SECTION 4.7 SPECIAL FEES IN RESPECT OF RESERVE REQUIREMENTS. With respect
to Eurodollar Borrowings, the Borrower agrees to pay to each Lender on
appropriate Payment
21
Dates, as additional interest, such amounts as will compensate such Lender for
any cost to such Lender, from time to time, of any reserve, special deposit,
special assessment or similar capital requirements against assets of, deposits
with or for the account of, or credit extended by, such Lender which are imposed
on, or deemed applicable by, such Lender, from time to time, under or pursuant
to (i) any Law, treaty, regulation or directive now or hereafter in effect
(including, without limitation, Regulation D of the Board of Governors of the
Federal Reserve System but excluding any reserve requirement included in the
definition of Eurodollar Rate in SECTION 1.1), (ii) any interpretation or
application thereof by any governmental authority, agency or instrumentality
charged with the administration thereof or by any court, central bank or other
fiscal, monetary or other authority having jurisdiction over the Eurodollar
Borrowings or the office of such Lender where its Eurodollar Borrowings are
lodged, or (iii) any requirement imposed or requested by any court, governmental
authority, agency or instrumentality or central bank, fiscal, monetary or other
authority, whether or not having the force of law. A written notice as to the
amount of any such cost or any change therein (including calculations, in
reasonable detail, showing how such Lender computed such cost or change) shall
be promptly furnished by such Lender to the Borrower and shall be rebuttable
presumptive evidence of such cost or change. The Borrower will not be
responsible for paying any amounts pursuant to this Section accruing prior to
180 days prior to the receipt by the Borrower of the written notice referred to
in the preceding sentence. Within fifteen (15) days after such certificate is
furnished to the Borrower, the Borrower will pay directly to such Lender such
additional amount or amounts as will compensate such Lender for such cost or
change.
SECTION 4.8 PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly
provided, all payments by the Borrower pursuant to this Agreement or any other
Loan Document shall be made by the Borrower to the Agent for the PRO RATA
account of the Lenders entitled to receive such payment. All such payments
required to be made to the Agent shall be made, without setoff, deduction or
counterclaim, not later than 11:00 a.m., Central time, on the date due, in same
day or immediately available funds, to such account as the Agent shall specify
from time to time by notice to the Borrower. Funds received after that time
shall be deemed to have been received by the Agent on the next succeeding
Business Day. The Agent shall promptly remit in same day funds to each Lender
its share, if any, of such payments received by the Agent for the account of
such Lender. All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of 360 days (or, in the case of interest on a Base Rate Loan, 365 days
or, if appropriate, 366 days). Whenever any payment to be made shall otherwise
be due on a day which is not a Business Day, such payment shall (except as
otherwise required by CLAUSE (c) of the definition of the term "INTEREST PERIOD"
with respect to Eurodollar Loans) be made on the next succeeding Business Day
and such extension of time shall be included in computing interest and fees, if
any, in connection with such payment.
SECTION 4.9 SHARING OF PAYMENTS. If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan (other than pursuant to the terms of SECTIONS
4.3, 4.4 and 4.5) in excess of its PRO RATA share of payments then or therewith
obtained by all Lenders, such Lender shall purchase from the other Lenders such
participations in Loans made by them as shall be necessary to cause such
purchasing Lender to share the excess payment or other recovery ratably with
each of them; PROVIDED, HOWEVER, that if all or any portion of the excess
payment or other recovery is thereafter
22
recovered from such purchasing Lender, the purchase shall be rescinded and each
Lender which has sold a participation to the purchasing Lender shall repay to
the purchasing Lender the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Lender's ratable share (according
to the proportion of (a) the amount of such selling Lender's required repayment
to the purchasing Lender TO (b) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section may, to the fullest extent permitted by law, exercise
all its rights of payment with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a set off to which this
Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.10 REPLACEMENT OF LENDER ON ACCOUNT OF INCREASED COSTS,
EURODOLLAR LENDING UNLAWFUL, RESERVE REQUIREMENTS, TAXES, CERTAIN DISSENTS, ETC.
If any Lender shall claim the inability to make or maintain Eurodollar
Borrowings pursuant to SECTION 4.1 above, if any Lender is owed increased costs
under SECTION 4.5 above, if any payment to any Lender by the Borrower is subject
to any withholding tax pursuant to SECTION 4.6 above, or if any Lender is owed
any cost or expense pursuant to SECTION 4.7 above, the Borrower shall have the
right, if no Event of Default or Default then exists, to replace such Lender
with another bank or financial institution PROVIDED that (i) if it is not a
Lender or an Affiliate thereof, such bank or financial institution shall be
reasonably acceptable to the Agent and (ii) such bank or financial institution
shall unconditionally purchase, in accordance with SECTION 10.10 hereof, all of
such Lender's rights and obligations under this Agreement and the other Loan
Documents and the appropriate pro rata share of such Lender's Loans and
Commitments, without recourse or expense to, or warranty by, such Lender being
replaced for a purchase price equal to the aggregate outstanding principal
amount of the Loans payable to such Lender, PLUS any accrued but unpaid interest
on such Loans, plus accrued but unpaid fees in respect of such Lender's
Borrowings and Percentage of the Commitments hereunder to the date of such
purchase on a date therein specified. The Borrower shall be obligated to pay,
simultaneously with such purchase and sale, the increased costs, amounts,
expenses and taxes under SECTIONS 4.1, 4.5, 4.6, and 4.7 above, any amounts
payable under SECTION 4.4 and all other costs, fees and expenses payable to such
Lender hereunder and under the Loan Documents, to the date of such purchase as
well as all other Obligations due and payable to or for the benefit of such
Lender; PROVIDED, that if such bank or financial institution fails to purchase
such rights and obligations, the Borrower shall continue to be obligated to pay
the increased costs, amounts, expenses and taxes under SECTIONS 4.1, 4.5, 4.6,
and 4.7 above to such Lender.
SECTION 4.11 MAXIMUM INTEREST. It is the intention of the parties hereto to
conform strictly to applicable usury laws and, anything herein to the contrary
notwithstanding, the obligations of the Borrower to the Agent and each Lender
under this Agreement shall be subject to the limitation that payments of
interest shall not be required to the extent that receipt thereof would be
contrary to provisions of law applicable to the Agent or such Lender limiting
rates of interest which may be charged or collected by the Agent or such Lender.
Accordingly, if the
23
transactions contemplated hereby would be usurious under applicable law
(including the Federal and state laws of the United States of America, or of any
other jurisdiction whose laws may be mandatorily applicable) with respect to the
Agent or a Lender then, in that event, notwithstanding anything to the contrary
in this Agreement, it is agreed as follows: (a) the provisions of this Section
shall govern and control; (b) the aggregate of all consideration which
constitutes interest under applicable law that is contracted for, charged or
received under this Agreement, or under any of the other aforesaid agreements or
otherwise in connection with this Agreement by the Agent or such Lender shall
under no circumstances exceed the maximum amount of interest allowed by
applicable law (such maximum lawful interest rate, if any, with respect to such
Lender herein called the "HIGHEST LAWFUL RATE"), and any excess shall be
credited to the Borrower by the Agent or such Lender (or, if such consideration
shall have been paid in full, such excess refunded to the Borrower); (c) all
sums paid, or agreed to be paid, to the Agent or such Lender for the use,
forbearance and detention of the Indebtedness of the Borrower to the Agent or
such Lender hereunder shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of such
Indebtedness until payment in full so that the actual rate of interest is
uniform throughout the full term thereof; and (d) if at any time the interest
provided pursuant to SECTION 4.1 together with any other fees payable pursuant
to this Agreement and the other Loan Documents and deemed interest under
applicable law, exceeds that amount which would have accrued at the Highest
Lawful Rate, the amount of interest and any such fees to accrue to the Agent or
such Lender pursuant to this Agreement shall be limited, notwithstanding
anything to the contrary in this Agreement to that amount which would have
accrued at the Highest Lawful Rate, but any subsequent reductions, as
applicable, shall not reduce the interest to accrue to the Agent or such Lender
pursuant to this Agreement below the Highest Lawful Rate until the total amount
of interest accrued pursuant to this Agreement and such fees deemed to be
interest equals the amount of interest which would have accrued to the Agent or
such Lender if a varying rate per annum equal to the interest provided pursuant
to SECTION 3.2 had at all times been in effect, PLUS the amount of fees which
would have been received but for the effect of this Section. For purposes of
Section 303.201 of the Texas Finance Code, as amended, to the extent, if any,
applicable to the Agent or a Lender, the Borrower agrees that the Highest Lawful
Rate shall be the "indicated (weekly) rate ceiling" as defined in said Section,
provided that the Agent or such Lender may also rely, to the extent permitted by
applicable laws, on alternative maximum rates of interest under other laws
applicable to the Agent or such Lender if greater. Chapter 346 of the Texas
Finance Code (which regulates certain revolving credit loan accounts and
revolving tri-party accounts (formerly Tex. Rev. Civ. Stat. ▇▇▇. Art. ▇▇▇▇, ▇▇.
15)) shall not apply to this Agreement or the other Loan Documents.
ARTICLE V
CONDITIONS
SECTION 5.1 EFFECTIVE DATE. The obligations of the Lenders to fund the
initial Borrowing shall be subject to the prior satisfaction, or waiver in
writing by the Agent (with the consent of Required Lenders) of each of the
conditions precedent set forth in this SECTION 5.1.
SECTION 5.1.1 RESOLUTIONS, ETC. The Agent shall have received from the
Borrower a certificate, dated the Effective Date, of its Secretary or Assistant
Secretary as to (a) resolutions of its Board of Directors then in full force and
effect authorizing the execution,
24
delivery and performance of this Agreement and each other Loan Document to be
executed by it; and (b) the incumbency and signatures of its Authorized
Officers, upon which certificate each Lender may conclusively rely until it
shall have received a further certificate of the Secretary of the Borrower
canceling or amending such prior certificate.
SECTION 5.1.2 [Intentionally omitted].
SECTION 5.1.3 OPINION OF COUNSEL. The Agent shall have received a favorable
opinion, dated the Effective Date and addressed to the Agent and all Lenders,
from ▇▇▇▇▇▇▇▇ & Knight L.L.P., counsel to the Borrower, substantially in the
form of EXHIBIT 5.1.3 hereto.
SECTION 5.1.4 FEE LETTERS, CLOSING FEES, EXPENSES, ETC. The Agent shall
have received the Fee Letter duly executed by the Borrower. The Agent shall also
have received for its own account, or for the account of the Arranger and each
Lender, as the case may be, all fees, costs and expenses due and payable
pursuant to SECTIONS 3.3 and 10.3, if then invoiced.
SECTION 5.1.5 MATERIAL ADVERSE CHANGE. There shall have been no material
adverse change in the consolidated business, condition (financial or otherwise),
operations, performance or properties of any of the Borrower and its
consolidated Subsidiaries taken as a whole from December 31, 2000, except as
disclosed in ITEM 5.1.5 ("MATERIAL ADVERSE CHANGE") of the Disclosure Schedule.
SECTION 5.1.6 EXISTING CREDIT FACILITY. The Agent shall have received
satisfactory proof of the Borrower's termination of the Existing Credit Facility
and any obligations of the Borrower in connection therewith on the Effective
Date.
SECTION 5.1.7 OTHER DOCUMENTS. Such other documents as the Agent or any
Lender may have reasonably requested.
SECTION 5.2 ALL BORROWINGS. The obligation of each Lender to fund any
Borrowing (including the initial Borrowing) shall be subject to the satisfaction
of each of the conditions precedent set forth in this Section.
SECTION 5.2.1 COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before and
after giving effect to any Borrowing (but, if any Default of the nature referred
to in SECTION 8.1.5 shall have occurred with respect to any other Indebtedness,
without giving effect to the application, directly or indirectly, of the
proceeds thereof) the following statements shall be true and correct (a) the
representations and warranties set forth in ARTICLE VI shall be true and correct
with the same effect as if then made (unless stated to relate solely to an
earlier date, in which case such representations and warranties shall be true
and correct as of such earlier date); and (b) no Default or Event of Default
shall have then occurred and be continuing.
SECTION 5.2.2 BORROWING REQUEST. The Agent shall have received a Borrowing
Request for such Borrowing. Each of the delivery of a Borrowing Request and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing
(both immediately before and after giving effect to such Borrowing and the
application of the proceeds thereof) the statements made in SECTION 5.2.1 are
true and correct.
25
SECTION 5.2.3 SATISFACTORY LEGAL FORM. All documents executed or submitted
pursuant hereto by or on behalf of the Borrower or any of its Subsidiaries shall
be satisfactory in form and substance to the Agent and its counsel; the Agent
and its counsel shall have received all information, approvals, opinions,
documents or instruments as the Agent or its counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this Agreement
and to make Loans hereunder, the Borrower represents and warrants unto the Agent
and each Lender as set forth in this ARTICLE VI.
SECTION 6.1 ORGANIZATION, ETC. The Borrower and each of its Restricted
Subsidiaries is a corporation, partnership, limited partnership or limited
liability company validly organized and existing and in good standing under the
laws of the State of its incorporation, is duly qualified to do business and is
in good standing as a foreign entity in each jurisdiction where the nature of
its business requires such qualification, and has full power and authority and
holds all requisite governmental licenses, permits and other approvals to enter
into and perform its Obligations under this Agreement and each other Loan
Document to which it is a party and to conduct its business substantially as
currently conducted by it (except where the failure to be so qualified to do
business or be in good standing or to hold any such licenses, permits and other
approvals will not have a Material Adverse Effect).
SECTION 6.2 DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by the Borrower of this Agreement and each other Loan
Document executed or to be executed by it, and the Borrower's participation in
any transaction contemplated herein are within the Borrower's powers, have been
duly authorized by all necessary corporate action, and do not (a) contravene the
Borrower's Organic Documents; (b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or affecting the
Borrower; or (c) result in, or require the creation or imposition of, any Lien
on any of the Borrower's properties.
SECTION 6.3 GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by the Borrower of this Agreement or any other Loan
Document to which it is a party, or for the Borrower's participation in any
transaction contemplated herein, except as have been obtained. Neither the
Borrower nor any of its Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.4 VALIDITY, ETC. This Agreement constitutes, and each other Loan
Document executed by the Borrower will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of the Borrower
enforceable in accordance with their
26
respective terms except as (i) enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditor's rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
SECTION 6.5 FINANCIAL INFORMATION. The balance sheets of the Borrower and
each of its consolidated Subsidiaries as at June 30, 2001 and the related
statements of earnings and cash flow, copies of which have been furnished to the
Agent and each Lender, have been prepared in accordance with GAAP consistently
applied, and present fairly the consolidated financial condition of the
corporations covered thereby as at the dates thereof and the results of their
operations for the periods then ended except as disclosed in ITEM 6.5
("Financial Information") of the Disclosure Schedule.
SECTION 6.6 NO MATERIAL ADVERSE CHANGE. As of the Effective Date, since the
date of the financial statements described in SECTION 6.5, there has been no
material adverse change in the financial condition, operations, assets, business
or properties of the Borrower and its Restricted Subsidiaries (on a consolidated
basis), except as disclosed in ITEM 5.1.5 ("Material Adverse Change") of the
Disclosure Schedule.
SECTION 6.7 LITIGATION, LABOR CONTROVERSIES, ETC. As of the Effective Date,
there is no pending or, to the knowledge of the Borrower, threatened litigation,
action, proceeding, or labor controversy affecting the Borrower or any of its
Restricted Subsidiaries, or any of their respective properties, businesses,
assets or revenues, which could reasonably be expected to have a Material
Adverse Effect or which purports to affect the legality, validity or
enforceability of, and the rights and remedies of the Agent and the Lenders
under, this Agreement or any other Loan Document, except as disclosed in
ITEM 6.7 ("Litigation") of the Disclosure Schedule.
SECTION 6.8 SUBSIDIARIES. SCHEDULE 6.8 sets forth the name, the identity or
corporate structure and the ownership interest of each direct or indirect
Subsidiary as of the Effective Date. SCHEDULE 6.8 also sets forth the name of
each Restricted Subsidiary and Unrestricted Subsidiary as of the Effective Date.
As of the Effective Date, the Borrower does not have any Subsidiaries other than
the Subsidiaries identified in SCHEDULE 6.8.
SECTION 6.9 TAXES. The Borrower, each of its Restricted Subsidiaries and
each of its Unrestricted Subsidiaries which is a member of the Borrower's
consolidated U.S. federal income tax group has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books except such returns and taxes for jurisdictions other than the United
States with respect to which the failure to file and pay such taxes would not
have a Material Adverse Effect.
SECTION 6.10 PENSION AND WELFARE PLANS. During the twelve-consecutive-month
period prior to the date of the execution and delivery of this Agreement and
prior to the date of any Borrowing hereunder, no steps have been taken to
terminate any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien securing an amount
in excess of $1,000,000 under section 302(f) of ERISA. No condition exists or
event or transaction has occurred with respect to any Pension Plan which might
result in the
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incurrence by the Borrower or any member of the Controlled Group of any
liability, fine or penalty which could reasonably be expected to result in a
Material Adverse Effect. Except as disclosed in ITEM 6.10 ("Employee Benefit
Plans") of the Disclosure Schedule, neither the Borrower nor any member of the
Controlled Group has any contingent liability with respect to any
post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
SECTION 6.11 ENVIRONMENTAL WARRANTIES AND COMPLIANCE. The liabilities and
costs of the Borrower and its consolidated Restricted Subsidiaries related to
compliance with applicable Environmental Laws (as in effect on the date on which
this representation is made or deemed made) could not reasonably be expected to
have a Material Adverse Effect.
SECTION 6.12 REGULATION U. None of the Borrower and its Subsidiaries are
engaged in the business of extending credit for the purpose of purchasing or
carrying Margin Stock, and no proceeds of any Loans will be used for a purpose
which violates, or would be inconsistent with, Regulation U.
SECTION 6.13 ACCURACY OF INFORMATION. No certificate, statement or other
information delivered herewith or hereto by or on behalf of the Borrower in
writing to the Agent or any Lender in connection with the negotiation of this
Agreement or in connection with any transaction contemplated hereby contains any
untrue statement of a fact or omits to state any fact known to the Borrower or
its Subsidiaries necessary to make the statements contained herein or therein
not misleading as of the date made or deemed made, except to the extent that any
untrue statement or omission could not reasonably be expected to have a Material
Adverse Effect.
SECTION 6.14 USE OF PROCEEDS. The proceeds of each Borrowing shall be used
for the general corporate purposes of the Borrower and its Subsidiaries. No
proceeds of any Borrowing shall be used to make any investment in any Person if
the board of directors or other governing body of such Person has announced its
opposition to such investment.
ARTICLE VII
COVENANTS
SECTION 7.1 AFFIRMATIVE COVENANTS. The Borrower agrees with the Agent and
each Lender that, until all Commitments have terminated and all Obligations have
been paid and performed in full, the Borrower will perform the obligations set
forth in this SECTION 7.1.
SECTION 7.1.1 FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. The Borrower
will furnish, or will cause to be furnished, to each Lender and the Agent copies
of the following financial statements, reports, notices and information:
(a) as soon as available and in any event within 45 days after the end of
each of the first three Fiscal Quarters of each Fiscal Year of the Borrower,
consolidated balance sheets of the Borrower and its Subsidiaries as of the end
of such Fiscal Quarter and consolidated statements of earnings and cash flow of
the Borrower and its Subsidiaries for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the end of
such Fiscal Quarter, certified by the chief financial Authorized Officer of the
Borrower;
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(b) as soon as available and in any event within 90 days after the end of
each Fiscal Year of the Borrower, a copy of the annual audit report for such
Fiscal Year for the Borrower and its Subsidiaries, including therein
consolidated balance sheets of the Borrower and its Subsidiaries as of the end
of such Fiscal Year and consolidated statements of earnings and cash flow of the
Borrower and its Subsidiaries for such Fiscal Year, in each case certified
(without any Impermissible Qualification) in a manner acceptable to the Agent
and the Required Lenders by independent public accountants of recognized
national standing;
(c) as soon as available and in any at the time of each delivery of
financial reports under subsections (a) and (b) of this SECTION 7.1.1, a
certificate, executed by the chief financial Authorized Officer of the Borrower,
showing (in reasonable detail and with appropriate calculations and computations
in all respects satisfactory to the Agent) compliance with the financial
covenants set forth in SECTION 7.2.3;
(d) promptly, and in any event within three Business Days after an
Authorized Officer of the Borrower or any of its Subsidiaries becomes aware of
the existence of the occurrence of each Default, a statement of the chief
executive officer or the chief financial Authorized Officer of the Borrower
setting forth details of such Default and the action which the Borrower has
taken and proposes to take with respect thereto;
(e) promptly, and in any event within three Business Days after an
Authorized Officer of the Borrower or any of its Subsidiaries becomes aware of
(x) the occurrence of any adverse development with respect to any litigation,
action, proceeding, or labor controversy described in SECTION 6.7 which would
have or reasonably be expected to have a Material Adverse Effect, or (y) the
commencement of any material labor controversy, litigation, action, proceeding
of the type described in SECTION 6.7 which would have or reasonably be expected
to have a Material Adverse Effect, notice thereof and copies of all
documentation relating thereto requested by the Agent or any Lender;
(f) promptly after the sending or filing thereof, copies of all reports and
registration statements which the Borrower or any of its Subsidiaries files with
the Securities and Exchange Commission or any national securities exchange;
(g) immediately upon becoming aware of the institution of any steps by the
Borrower or any other Person to terminate any Pension Plan, or the failure to
make a required contribution to any Pension Plan if such failure is sufficient
to give rise to a Lien under section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which could result in the requirement that
the Borrower furnish a bond or other security to the PBGC or such Pension Plan,
or the occurrence of any event with respect to any Pension Plan which could
result in the incurrence by the Borrower of any liability, fine or penalty, or
any increase in the contingent liability of the Borrower with respect to any
post-retirement Welfare Plan benefit which would have or could reasonably be
expected to have a Material Adverse Effect, notice thereof and copies of all
documentation relating thereto; and
(h) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender
through the Agent may from time to time reasonably request.
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SECTION 7.1.2 COMPLIANCE WITH LAWS, ETC. The Borrower will, and will cause
each of its Subsidiaries to, comply with all Laws, such compliance to include,
without limitation: (a) the maintenance and preservation of its corporate
existence and qualification as a foreign corporation, (b) the payment, before
the same become delinquent, of all taxes, assessments and governmental charges
imposed upon it or upon its property except to the extent being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books and (c)
all Environmental Laws; except; in each case, where the failure to so comply
would not have or would not reasonably be expected to have a Material Adverse
Effect.
SECTION 7.1.3 MAINTENANCE OF PROPERTIES. The Borrower will, and will cause
each of its Restricted Subsidiaries to, maintain, preserve, protect and keep its
properties in good repair, working order and condition (ordinary wear and tear
excepted), and make necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be properly conducted
at all times unless the Borrower determines in good faith that the continued
maintenance of any of its properties is no longer economically desirable or
unless failure to so preserve, maintain, protect or keep its properties would
not reasonably be expected to have a Material Adverse Effect.
SECTION 7.1.4 INSURANCE. The Borrower will, and will cause each of its
Restricted Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses in similar locations.
SECTION 7.1.5 BOOKS AND RECORDS. The Borrower will, and will cause each of
its Subsidiaries to, keep books and records which accurately reflect, in
accordance with GAAP, all of its business affairs and transactions and permit
the Agent or its representatives, at reasonable times and intervals and upon
reasonable prior notice to the Borrower, to visit all of its offices, to discuss
its financial matters with its officers and employees and to examine any of its
books or other corporate records; PROVIDED, HOWEVER, that prior notice to the
Borrower shall not be required if an Event of Default has occurred or is
continuing.
SECTION 7.1.6 CONDUCT OF BUSINESS. The Borrower will, and will cause each
Restricted Subsidiary to, cause all material properties and businesses to be
regularly conducted, operated, maintained and developed in a good and
workmanlike manner, as would a prudent operator and in accordance with all
applicable federal, state and local laws, rules and regulations, except for any
failure to so operate, maintain and develop that could not reasonably be
expected to have a Material Adverse Effect.
SECTION 7.1.7 SUBSIDIARIES; UNRESTRICTED SUBSIDIARIES. The Borrower shall:
(a) if any additional Subsidiary is formed or acquired after the Effective
Date, notify the Agent thereof and whether such Subsidiary is an Unrestricted
Subsidiary or a Restricted Subsidiary.
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(b) cause the management, business and affairs of the Borrower and its
Restricted Subsidiaries to be conducted in such a manner (including, without
limitation, by keeping separate books of account, furnishing separate financial
statements of Unrestricted Subsidiaries to creditors and potential creditors
thereof and by not permitting Properties of the Borrower and its respective
Subsidiaries to be commingled) so that each Unrestricted Subsidiary that is a
corporation will be treated as a corporate entity separate and distinct from the
Borrower and the Restricted Subsidiaries;
(c) except as permitted by SECTION 7.2.5, will not, and will not permit any
of the Restricted Subsidiaries to incur any Guaranteed Liabilities in respect of
any Indebtedness of any of the Unrestricted Subsidiaries; and
(d) will not permit any Unrestricted Subsidiary to hold any equity or other
ownership interest in, or any Indebtedness of, any Restricted Subsidiary.
SECTION 7.1.8 DESIGNATION AND CONVERSION OF RESTRICTED AND UNRESTRICTED
SUBSIDIARIES.
(a) Unless designated as an Unrestricted Subsidiary on SCHEDULE 6.8 as of
the date of this Agreement or thereafter in writing to the Agent, any Person
that becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries
shall be classified as a Restricted Subsidiary.
(b) The Borrower may designate any Subsidiary (including a newly formed or
newly acquired Subsidiary) as an Unrestricted Subsidiary if (i) the
representations and warranties of the Borrower and its Restricted Subsidiaries
contained in each of the Loan Documents are true and correct on and as of such
date as if made on and as of the date of such designation (or, if stated to have
been made expressly as of an earlier date, were true and correct as of such
date), and (ii) after giving effect to such designation, no Default or Event of
Default would exist; PROVIDED, HOWEVER, that the Borrower may not designate
either EDC or SOC as Unrestricted Subsidiaries. Except as provided in this
Section, no Restricted Subsidiary may be redesignated as an Unrestricted
Subsidiary.
(c) The Borrower may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary if after giving effect to such designation, (i) the
representations and warranties of the Borrower and its Restricted Subsidiaries
contained in each of the Loan Documents are true and correct on and as of such
date as if made on and as of the date of such redesignation (or, if stated to
have been made expressly as of an earlier date, were true and correct as of such
date), and (ii) after giving effect to such designation, no Default or Event of
Default would exist.
SECTION 7.2 NEGATIVE COVENANTS. The Borrower agrees with the Agent and each
Lender that, until all Commitments have terminated and all Obligations have been
paid and performed in full, the Borrower will perform the obligations set forth
in this SECTION 7.2.
SECTION 7.2.1 BUSINESS ACTIVITIES. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, engage in any business activity
if, as a result thereof, the Borrower and its Restricted Subsidiaries taken as a
whole would no longer be principally engaged in the business of oil, gas and
energy exploration, development, production, processing and marketing and such
activities as may be incidental or related thereto.
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SECTION 7.2.2 LIENS. The Borrower will not, and will not permit any of its
Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens securing payment of the Obligations, granted pursuant to any Loan
Document;
(b) Liens for taxes, assessments or other governmental charges or levies
not at the time delinquent or thereafter payable without penalty or being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books;
(c) Liens of carriers, warehousemen, mechanics, materialmen and landlords
incurred in the ordinary course of business for sums not overdue or being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books;
(d) Liens incurred in the ordinary course of business in connection with
workmen's compensation, unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders, statutory
obligations, leases and contracts (other than for borrowed money) entered into
in the ordinary course of business or to secure obligations on surety or appeal
bonds;
(e) judgment Liens in existence less than 30 days after the entry thereof
or with respect to which execution has been stayed or the payment of which is
covered in full (subject to a customary deductible) by insurance maintained with
responsible insurance companies;
(f) Liens on cash or cash-equivalents securing Hedging Obligations of the
Borrower or any of its Restricted Subsidiaries not in excess in the aggregate of
$50,000,000 for all such cash and cash equivalents;
(g) Liens in favor of the United States of America or any state thereof or
any department, agency, instrumentality or political subdivision of any such
jurisdiction to secure partial, progress, advance or other payments pursuant to
any contract or statute;
(h) Liens required by any contract or statute in order to permit the
Borrower or a Restricted Subsidiary to perform any contract or subcontract made
by it with or at the request of the United States of America, any state or any
department, agency or instrumentality or political subdivision of either;
(i) Liens which exist prior to the time of acquisition upon any assets
acquired by the Borrower or any Restricted Subsidiary (including Liens on assets
of any Person at the time of the acquisition of the capital stock or assets of
such Person or a merger with or consolidation with such Person by the Borrower
or a Restricted Subsidiary), PROVIDED that (i) the Lien shall attach solely to
the assets so acquired (or of the Person so acquired, merged or consolidated),
and (ii) in the case of Liens securing Indebtedness the aggregate principal
amount of all Indebtedness of Restricted Subsidiaries secured by such Liens
shall be permitted by the limitations set forth in SECTION 7.2.5;
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(j) Liens securing Indebtedness owing by any Restricted Subsidiary to the
Borrower;
(k) Liens under operating agreements, unitization agreements, pooling
orders, and similar arrangements;
(l) Liens set forth on SCHEDULE 7.2 which are existing on the Effective
Date;
(m) Liens on debt of or equity interests in a Person that is not a
Restricted Subsidiary;
(n) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in the
foregoing clauses of this Section or of any Indebtedness secured thereby;
PROVIDED that in the case of Liens securing Indebtedness, the principal amount
of Indebtedness secured thereby shall not exceed the principal amount of
Indebtedness so secured at the time of such extension, renewal or replacement
and that such extension, renewal or replacement Lien shall be limited to all or
part of substantially the same property or revenue subject of the Lien extended,
renewed or replaced (plus improvements on such property); and
(o) additional Liens upon assets of the Borrower and its Restricted
Subsidiaries created after the date hereof, PROVIDED that (i) the aggregate
Indebtedness secured thereby and incurred on or after the date hereof shall not
exceed two and one-half percent (2 1/2%) of Stockholders' Equity in the
aggregate at any one time outstanding and (ii) that such Liens do not encumber
or attach to any equity interest in a Restricted Subsidiary.
SECTION 7.2.3 FINANCIAL COVENANTS. The Borrower will not:
(a) EBITDAX TO TOTAL INTEREST EXPENSE. Permit the ratio of EBITDAX to Total
Interest Expense for any consecutive period of four fiscal quarters ending on
the last day of a fiscal quarter to be less than 4.0:1.0.
(b) TOTAL DEBT TO CAPITALIZATION. Permit the Total Debt to Capitalization
Ratio, expressed as a percentage, to exceed 60% at any time.
(c) MINIMUM TOTAL ASSET VALUE. Permit the Total Asset Value of its
Restricted Subsidiaries to be less than $800,000,000 at any time.
SECTION 7.2.4 RESTRICTED PAYMENTS, ETC. On and at all times after the
Effective Date, the Borrower will not declare, pay or make any dividend or
distribution (in cash, property or obligations) on any shares of any class of
capital stock (now or hereafter outstanding) of the Borrower or on any warrants,
options or other rights with respect to any shares of any class of capital stock
(now or hereafter outstanding) of the Borrower (other than dividends or
distributions payable in its common stock or warrants to purchase its common
stock or splitups or reclassifications of its stock into additional or other
shares of its common stock) or apply, or permit any of its Restricted
Subsidiaries to apply, any of its funds, property or assets to the purchase,
redemption, sinking fund or other retirement of, or agree or permit any of its
Restricted Subsidiaries to purchase or redeem, any shares of any class of
capital stock (now or hereafter outstanding) of the Borrower, or warrants,
options or other rights with respect to any shares of any class of capital stock
(now or hereafter outstanding) of the Borrower, if, after giving effect
33
thereto, a Default or an Event of Default shall have occurred and be continuing
or been caused thereby.
SECTION 7.2.5 INDEBTEDNESS. The Borrower will not permit any of its
Restricted Subsidiaries to contract, create, incur or assume any Indebtedness,
except:
(a) Indebtedness of a Restricted Subsidiary owed to the Borrower or an
other Restricted Subsidiary;
(b) Indebtedness of a Restricted Subsidiary which exists prior to the time
of the acquisition of such Subsidiary by the Borrower or any Restricted
Subsidiary (including Indebtedness at the time of the acquisition of the capital
stock or assets of such Person or a merger with or consolidation with such
Person by the Borrower or a Restricted Subsidiary) and any extensions, renewals
or replacements of such Indebtedness, PROVIDED that the aggregate principal
amount of such Indebtedness and any extensions, renewals or replacements thereof
shall not exceed the principal amount of such Indebtedness at the time such
Person becomes a Subsidiary; and
(c) other Indebtedness in an aggregate amount not to exceed an amount equal
to five percent (5%) of Stockholders' Equity.
SECTION 7.2.6 CONSOLIDATION, MERGER, ETC. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or purchase or
otherwise acquire all or substantially all of the assets of any Person (or of
any division thereof) except (a) any such Restricted Subsidiary may liquidate or
dissolve voluntarily into, and may merge with and into, the Borrower or any
other Restricted Subsidiary, and the assets or stock of any Restricted
Subsidiary may be purchased or otherwise acquired by the Borrower or any other
Restricted Subsidiary; and (b) so long as no Default or Event of Default has
occurred and is continuing or would occur after giving effect thereto, the
Borrower or any of its Restricted Subsidiaries may purchase all or substantially
all of the assets of any Person, or acquire such Person by merger (as long as
the Borrower or such Restricted Subsidiary is the surviving entity).
SECTION 7.2.7 NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC. The Borrower
will not, and will not permit any of its Restricted Subsidiaries to, enter into
any agreement (excluding this Agreement, any other Loan Document and any
agreement governing any Indebtedness not prohibited under this Agreement)
prohibiting the creation or assumption of any Lien upon its material properties,
revenues or assets, whether now owned or hereafter acquired, or the ability of
the Borrower to amend or otherwise modify this Agreement or any other Loan
Document. The foregoing shall not prohibit agreements entered into or acquired
in the ordinary course of business regarding specific properties or assets which
restrict or place conditions the transfer of or the creation of a Lien on such
properties or assets or the revenues derived therefrom, but which do not affect
other unrelated properties, assets or revenues. The Borrower will not and will
not permit any of its Restricted Subsidiaries to enter into any agreement
prohibiting the ability of any Restricted Subsidiary to make any payments,
directly or indirectly, to the Borrower by way of dividends, advances,
repayments of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on investments, or
any other
34
agreement or arrangement which restricts the ability of any such Restricted
Subsidiary to make any payment, directly or indirectly, to the Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 LISTING OF EVENTS OF DEFAULT. Each of the following events or
occurrences described in this SECTION 8.1 shall constitute an "EVENT OF
DEFAULT".
SECTION 8.1.1 NON-PAYMENT OF OBLIGATIONS. The Borrower shall default in the
payment or prepayment when due of any principal of any Loan, or the Borrower
shall default (and such default shall continue unremedied for a period of five
days) in the payment when due of any interest on any Loan, of any fee hereunder
or of any other Obligation.
SECTION 8.1.2 BREACH OF WARRANTY. Any representation or warranty of the
Borrower made or deemed to be made hereunder or in any other Loan Document
executed by it or any certificates delivered pursuant to ARTICLE V is or shall
be incorrect in any material respect when made or deemed made.
SECTION 8.1.3 NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS. The
Borrower shall default in the due performance and observance of any of its
obligations under SECTION 7.2.2, 7.2.3, 7.2.6 or 7.2.7; PROVIDED that the
imposition of any non-consensual Lien that is not permitted to exist pursuant to
SECTION 7.2.2 shall not be deemed to constitute an Event of Default hereunder
until thirty (30) days after the date of such imposition.
SECTION 8.1.4 NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS. The
Borrower shall default in the due performance and observance of any other
provision contained herein (not constituting an Event of Default under the
preceding provisions of this SECTION 8.1) or any other Loan Document executed by
it, and such default shall continue unremedied for a period of 30 days after
notice thereof shall have been given to the Borrower by the Agent.
SECTION 8.1.5 DEFAULT ON OTHER INDEBTEDNESS. A default shall occur in the
payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in SECTION 8.1.1) of the Borrower or any of its Restricted
Subsidiaries having a principal amount, individually or in the aggregate, in
excess of $35,000,000, or a default shall occur in the performance or observance
of any obligation or condition with respect to such Indebtedness if the effect
of such default is to accelerate the maturity of any such Indebtedness or such
default shall continue unremedied for any applicable period of time sufficient
to permit the holder or holders of such Indebtedness, or any trustee or agent
for such holders, to cause such Indebtedness to become due and payable prior to
its expressed maturity.
SECTION 8.1.6 JUDGMENTS. Any judgment or order for the payment of money in
excess of $35,000,000 shall be rendered against the Borrower or any of its
Restricted Subsidiaries if such excess is not fully covered by valid and
collectible insurance in respect thereof, the payment of which is not being
disputed or contested by the insurer or the insurers, and either (i) proper or
valid enforcement or levying proceedings shall have been commenced by
35
any creditor upon such judgment or order or (ii) such judgment or order shall
continue unsatisfied and unstayed for a period of thirty (30) consecutive days.
SECTION 8.1.7 PENSION PLANS. Any of the following events shall occur with
respect to any Pension Plan (a) the institution of any steps by the Borrower,
any member of its Controlled Group or any other Person to terminate a Pension
Plan if, as a result of such termination, the Borrower or any such member could
be required to make a contribution to such Pension Plan in excess of
$35,000,000; or (b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA to the
extent such action could reasonably be expected to have a Material Adverse
Effect.
SECTION 8.1.8 CHANGE IN CONTROL. Any Change in Control shall occur.
SECTION 8.1.9 BANKRUPTCY, INSOLVENCY, ETC. The Borrower or any of its
Restricted Subsidiaries shall (a) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness to pay, debts as they become
due; (b) apply for, consent to, or acquiesce in, the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of its
Restricted Subsidiaries or any substantial portion of the property of any
thereof, or make a general assignment for the benefit of creditors; (c) in the
absence of such application, consent or acquiescence, permit or suffer to exist
the appointment of a trustee, receiver, sequestrator or other custodian for the
Borrower or any of its Restricted Subsidiaries or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or other
custodian shall not be discharged within 60 days, provided that the Borrower,
each Restricted Subsidiary hereby expressly authorizes the Agent and each Lender
to appear in any court conducting any relevant proceeding during such 60-day
period to preserve, protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of the Borrower or any of its Restricted Subsidiaries,
and, if any such case or proceeding is not commenced by the Borrower or such
Subsidiary, such case or proceeding shall be consented to or acquiesced in by
the Borrower or such Restricted Subsidiary or shall result in the entry of an
order for relief or shall remain for 60 days undismissed, provided that the
Borrower, each Restricted Subsidiary hereby expressly authorizes the Agent and
each Lender to appear in any court conducting any such case or proceeding during
such 60-day period to preserve, protect and defend their rights under the Loan
Documents; or (e) take any corporate action authorizing, or in furtherance of,
any of the foregoing.
SECTION 8.2 ACTION IF BANKRUPTCY. If any Event of Default described in
SECTION 8.1.9 shall occur with respect to the Borrower or any Restricted
Subsidiary, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Borrowings and
all other Obligations shall automatically be and become immediately due and
payable, without notice or demand.
SECTION 8.3 ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default
(other than any Event of Default described in SECTION 8.1.9 with respect to the
Borrower or any Restricted Subsidiary) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Agent, upon the direction of
the Required Lenders, shall by notice to the Borrower declare all or
36
any portion of the outstanding principal amount of the Borrowings and other
Obligations to be due and payable and/or the Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of such Loans and
other Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment, as
the case may be, and/or the Commitments shall terminate.
ARTICLE IX
THE AGENTS
SECTION 9.1 ACTIONS. Each Lender hereby appoints (i) JPMorgan as the Agent
under this Agreement and each other Loan Document, (ii) Societe Generale, as
Syndication Agent under this Agreement and each other Loan Document, and (iii)
Mizuho Financial Group, Credit Lyonnais, New York Branch, The Royal Bank of
Scotland plc, and Deutsche Bank AG New York Branch, as Co-Documentation Agents
under this Agreement and each other Loan Document. Each Lender authorizes the
Agent to act on behalf of such Lender under this Agreement and each other Loan
Document and, in the absence of other written instructions from the Required
Lenders received from time to time by the Agent (with respect to which the Agent
agrees that it will comply, except as otherwise provided in this Section or as
otherwise advised by counsel), to exercise such powers hereunder and thereunder
as are specifically delegated to or required of the Agent by the terms hereof
and thereof, together with such powers as may be reasonably incidental thereto.
Each Lender acknowledges that none of the Syndication Agent and the
Co-Documentation Agents have any duties or obligations under this Agreement or
any other Loan Document in connection with their capacity as either the
Syndication Agent or a Co-Documentation Agent, respectively. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
each of the Agents, PRO RATA according to such Lender's Percentage, WHETHER OR
NOT RELATED TO ANY SINGULAR, JOINT OR CONCURRENT NEGLIGENCE OF THE AGENTS, from
and against any and all liabilities, obligations, losses, damages, claims, costs
or expenses of any kind or nature whatsoever which may at any time be imposed
on, incurred by, or asserted against, any Agent in any way relating to or
arising out of this Agreement and any other Loan Document, including reasonable
attorneys' fees, and as to which such Agent is not reimbursed by the Borrower;
PROVIDED, HOWEVER, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final proceeding
to have resulted solely from such Agent's gross negligence or willful
misconduct. None of the Agents shall be required to take any action hereunder or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement or any other Loan Document, unless it is indemnified hereunder to
its satisfaction. If any indemnity in favor of any Agent shall be or become
inadequate, in such Agent's determination, as the case may be, such Agent may
call for additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, none of the Agents shall have any
duties or responsibilities, except as expressly set forth herein, nor shall any
of the Agents have or be deemed to have any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against any of the Agents.
37
SECTION 9.2 FUNDING RELIANCE, ETC. Unless the Agent shall have been
notified by telephone, confirmed in writing, by any Lender by 5:00 p.m., Central
time, on the day prior to a Borrowing (except with respect to a Borrowing
comprised of Base Rate Loans, in which case notice shall be given no later than
12:00 noon, Central time, on the date of the proposed Borrowing) that such
Lender will not make available the amount which would constitute its Percentage
of such Borrowing on the date specified therefor, the Agent may assume that such
Lender has made such amount available to the Agent and, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If and to the
extent that such Lender shall not have made such amount available to the Agent,
such Lender and the Borrower severally agree to repay the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date the Agent made such amount available to the Borrower to the date
such amount is repaid to the Agent, at the Federal Funds Rate.
SECTION 9.3 EXCULPATION. None of the Agents and their respective directors,
officers, employees or agents shall be liable to any Lender for any action taken
or omitted to be taken by it under this Agreement or any other Loan Document, or
in connection herewith or therewith, except for its own willful misconduct or
gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution of
this Agreement or any other Loan Document, nor to make any inquiry respecting
the performance by the Borrower of its obligations hereunder or under any other
Loan Document. Any such inquiry which may be made by any Agent shall not
obligate it to make any further inquiry or to take any action. Each of the
Agents shall be entitled to rely upon advice of counsel concerning legal matters
and upon any notice, consent, certificate, statement or writing which such Agent
believes to be genuine and to have been presented by a proper Person.
SECTION 9.4 SUCCESSOR. Any of the Agents may resign as such at any time
upon at least 30 days' prior notice to the Borrower and all Lenders. If the
Agent at any time shall resign, the Required Lenders may appoint another Lender
as the successor Agent which shall thereupon become the Agent hereunder. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
notice of resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be one of the Lenders or a commercial
banking institution organized under the laws of the U.S. (or any State thereof)
or a U.S. branch or agency of a commercial banking institution, and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as the Agent hereunder by a successor Agent, such successor
Agent shall be entitled to receive from the retiring Agent such documents of
transfer and assignment as such successor Agent may reasonably request, and
shall thereupon succeed to and become vested with all rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement. After a retiring Agent's
resignation hereunder as a Agent, the provisions of this ARTICLE IX shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
the Agent under this Agreement, and SECTION 10.4 (and, with respect to the
Agent, SECTION 10.3) shall continue to inure to its benefit.
SECTION 9.5 LOANS BY THE AGENTS. Each of the Agents shall have the same
rights and powers with respect to the Loans made by it or any of its Affiliates
and may exercise the same as if it were not a Agent. Each of the Agents and its
Affiliates may accept deposits from,
38
lend money to, and generally engage in any kind of business with the Borrower or
any Subsidiary or Affiliate of the Borrower as if it were not a Agent hereunder.
SECTION 9.6 CREDIT DECISIONS. Each Lender acknowledges that it has made its
own credit decision to extend its Commitments hereunder (i) independently of
each of the Agents and each other Lender, and (ii) based on such Lender's review
of the financial information of the Borrower, this Agreement, the other Loan
Documents (the terms and provisions of which being satisfactory to such Lender)
and such other documents, information and investigations as such Lender has
deemed appropriate. Each Lender also acknowledges that it will continue to make
its own credit decisions as to exercising or not exercising from time to time
any rights and privileges available to it under this Agreement or any other Loan
Document (i) independently of each of the Agents and each other Lender, and (ii)
based on such other documents, information and investigations as it shall deem
appropriate at any time.
SECTION 9.7 COPIES, ETC. The Agent shall give prompt notice to each Lender
of each notice or request required or permitted to be given to the Agent by the
Borrower pursuant to the terms of this Agreement (unless concurrently delivered
to the Lenders by the Borrower). The Agent will distribute to each Lender each
document or instrument received for its account and copies of all other
communications received by the Agent from the Borrower for distribution to the
Lenders by the Agent in accordance with the terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement and
of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrower and the Required Lenders; PROVIDED, HOWEVER, that no such
amendment, modification or waiver which would: (a) modify any requirement
hereunder that any particular action be taken by all the Lenders or by the
Required Lenders shall be effective unless consented to by each Lender; (b)
modify this SECTION 10.1, change the definition of "REQUIRED LENDERS", reduce
any fees described in ARTICLE III, change the schedule of reductions to the
Commitments provided for in SECTION 2.3, release any collateral security except
as otherwise specifically provided in any Loan Document or extend the Maturity
Date, shall be made without the consent of each Lender; (c) extend the due date
for, or reduce the amount of, any scheduled repayment or prepayment of principal
of or interest on any Loan (or reduce the principal amount of or rate of
interest on any Loan) shall be made without the consent of the Lender which made
such Loan; or (d) affect adversely the interests, rights or obligations of any
Agent as Agent shall be made without the consent of such Agent; PROVIDED,
FURTHER, that no such amendment, modification or waiver which would either
increase any Commitment, Commitment Amount or the Percentage of any Lender, or
modify the rights, duties or obligations of any Agent, shall be effective
without the consent of such Lender or such Agent, as applicable. No failure or
delay on the part of the Agent or any Lender in exercising any power or right
under this Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on the Borrower in any case shall entitle
it to any notice or demand in similar or other circumstances. No waiver or
approval by the Agent or any Lender under this
39
Agreement or any other Loan Document shall, except as may be otherwise stated in
such waiver or approval, be applicable to subsequent transactions. No waiver or
approval hereunder shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.
SECTION 10.2 NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to:
Noble Affiliates, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent, to:
Agency Services
JPMorgan Chase Bank
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
JPMorgan Chase Bank
Global Oil & Gas Group
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
And in connection with business-related matters, with a copy to:
JPMorgan Chase Bank
Global Oil & Gas Group
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
40
(c) if to the Syndication Agent:
Societe Generale
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(d) if to any Co-Documentation Agent or any other Lender, to it at its
address (or telecopy number) provided to the Agent and the Borrower or as set
forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.3 PAYMENT OF COSTS, EXPENSES AND TAXES. The Borrower agrees to
pay on demand all reasonable out-of-pocket costs and expenses of (i) the Agent
(including, without limitation, the reasonable fees and out-of-pocket expenses
of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇) in connection with the preparation, negotiation,
execution, delivery, syndication and administration of this Agreement and of
each other Loan Document, including schedules and exhibits, and any amendments,
waivers, consents, supplements or other modification to this Agreement or any
other Loan Document and (ii) the Agent and the Lenders in connection with the
enforcement by the Lenders or the Agent of, or the protection of rights under,
this Agreement and each other Loan Document. The Agent, the other Agents, the
Arranger and each Lender agree to the extent feasible, and to the extent a
conflict of interest does not exist in the reasonable opinion of the Agent, the
other Agents, the Arranger or any Lender, to use one law firm in each
jurisdiction in connection with the foregoing, to the extent they seek
reimbursement for the expenses thereof from the Borrower. Each Lender agrees to
reimburse the Agent on demand for such Lender's PRO RATA share (based upon its
respective Percentage) of any such costs or expenses not paid by the Borrower.
In addition, the Borrower agrees to pay, and to save the Agent, the other
Agents, the Arranger, and the Lenders harmless from all liability for, any stamp
or other taxes which may be payable in connection with the execution or delivery
of this Agreement, the Borrowings hereunder, or of any other instruments or
documents provided for herein or delivered or to be delivered hereunder or in
connection herewith.
SECTION 10.4 INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies, exonerates and holds each Agent, the Arranger
and each Lender and each of their respective officers, directors, employees and
agents (collectively, the "INDEMNIFIED PARTIES"), WHETHER OR NOT RELATED TO ANY
NEGLIGENCE OF THE INDEMNIFIED PARTIES, free and harmless from and against any
and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements
(collectively, the "INDEMNIFIED LIABILITIES"), incurred by the Indemnified
Parties or any of them as a result of, or
41
arising out of, or relating to any transaction financed or to be financed in
whole or in part, directly or indirectly, with the proceeds of any Loan; the
entering into and performance of this Agreement and any other Loan Document by
any of the Indemnified Parties; any investigation, litigation or proceeding
related to any acquisition or proposed acquisition by the Borrower or any of its
Restricted Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not such Agent, the Arranger or such Lender is party thereto;
any investigation, litigation or proceeding related to any environmental
cleanup, audit, compliance or other matter relating to the protection of the
environment or the Release by the Borrower or any of its Restricted Subsidiaries
of any Hazardous Material; or the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Environmental Law), regardless
of whether caused by, or within the control of, the Borrower or such Subsidiary,
except for any such Indemnified Liabilities which are determined by a court of
competent jurisdiction in a final proceeding to have resulted solely from the
relevant Indemnified Party's gross negligence or willful misconduct. If and to
the extent that the foregoing undertaking may be unenforceable for any reason,
the Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 10.5 SURVIVAL. The obligations of the Borrower under SECTIONS 4.3,
4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under SECTION
9.1, shall in each case survive any termination of this Agreement, the payment
in full of all Obligations and the termination of all Commitments.
SECTION 10.6 SEVERABILITY. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 10.7 HEADINGS. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 10.8 GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT AND EACH OTHER
LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS. This Agreement and the other Loan Documents constitute the
entire understanding among the parties hereto with respect to the subject matter
hereof and supersede any prior agreements, written or oral, with respect
thereto.
SECTION 10.9 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED, HOWEVER, that: (a) the Borrower may not assign
or transfer its rights or obligations
42
hereunder without the prior written consent of the Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are subject to
SECTION 10.10.
SECTION 10.10 SALE AND TRANSFER OF LOANS AND COMMITMENTS; PARTICIPATIONS IN
LOANS AND COMMITMENTS. Each Lender may assign, or sell participations in, its
Loans and Commitments to one or more other Persons in accordance with this
Section.
SECTION 10.10.1 ASSIGNMENTS. Any Lender (a) with the written consents of
the Borrower (provided that the consent of the Borrower shall not be required if
an Event of Default has occurred and is continuing) and the Agent (which
consents shall not be unreasonably delayed or withheld), may at any time assign
and delegate to one or more commercial banks or other financial institutions,
and (b) with notice to the Borrower and the Agent, but without the consent of
the Borrower or the Agent, may assign and delegate to any of its Affiliates or
to any other Lender or Lender Affiliate (each Person described in either of the
foregoing clauses as being the Person to whom such assignment and delegation is
to be made, being hereinafter referred to as an "ASSIGNEE LENDER"), all or any
fraction of such Lender's total Loans and Commitments (which assignment and
delegation shall be of a constant, and not a varying, percentage of all the
assigning Lender's Loans and Commitments and which shall be of equal PRO RATA
shares of the Facility) in a minimum aggregate amount of $10,000,000; PROVIDED,
HOWEVER, that any such Assignee Lender will comply, if applicable, with the
provisions contained in the last sentence of SECTION 4.6 and FURTHER, PROVIDED,
HOWEVER, that, the Borrower and the Agent shall be entitled to continue to deal
solely and directly with such Lender in connection with the interests so
assigned and delegated to an Assignee Lender until (i) written notice of such
assignment and delegation, together with payment instructions, addresses and
related information with respect to such Assignee Lender, shall have been given
to the Borrower and the Agent by such Lender and such Assignee Lender, (ii) such
Assignee Lender shall have executed and delivered to the Borrower and the Agent
a Lender Assignment Agreement, accepted by the Agent, (iii) such Assignee Lender
shall have delivered to the Agent an Administrative Questionnaire, and (iii) the
processing fees described below shall have been paid.
From and after the date that the Agent accepts such Lender Assignment
Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to
have become a party hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Assignee Lender in connection
with such Lender Assignment Agreement, shall have the rights and obligations of
a Lender hereunder and under the other Loan Documents, and (y) the assignor
Lender, to the extent that rights and obligations hereunder have been assigned
and delegated by it in connection with such Lender Assignment Agreement, shall
be released from its obligations hereunder and under the other Loan Documents.
Accrued interest on that part of the predecessor Loans and Commitments, and
accrued fees, shall be paid as provided in the Lender Assignment Agreement.
Accrued interest on that part of the predecessor Loans and Commitments shall be
paid to the assignor Lender. Accrued interest and accrued fees shall be paid at
the same time or times provided in this Agreement. Such assignor Lender or such
Assignee Lender must also pay a processing fee to the Agent upon delivery of any
Lender Assignment Agreement in the amount of $3,500. Any attempted assignment
and delegation not made in accordance with this Section shall be null and void.
43
SECTION 10.10.2 PARTICIPATIONS. Any Lender may at any time sell to one or
more commercial banks or other Persons (each of such commercial banks and other
Persons being herein called a "PARTICIPANT") participating interests in any of
the Loans, Commitments or other interests of such Lender hereunder; PROVIDED,
HOWEVER, that (a) no participation contemplated in this SECTION 10.10 shall
relieve such Lender from its Commitments or its other obligations hereunder or
under any other Loan Document, (b) such Lender shall remain solely responsible
for the performance of its Commitments and such other obligations, (c) the
Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and each of the other Loan Documents, (d) no Participant, unless such
Participant is an Affiliate of such Lender, or is itself a Lender, shall be
entitled to require such Lender to take or refrain from taking any action
hereunder or under any other Loan Document, except that such Lender may agree
with any Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in CLAUSE (b) or (c) of SECTION
10.1, and (e) the Borrower shall not be required to pay any amount under SECTION
4.6 that is greater than the amount which it would have been required to pay had
no participating interest been sold. The Borrower acknowledges and agrees that
each Participant, for purposes of SECTIONS 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 and
10.4, shall be considered a Lender; provided that this sentence shall not
obligate the Borrower to pay more under such Sections that it would be obligated
to pay had no such participation been granted.
SECTION 10.10.3 PLEDGE BY LENDER. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest;
PROVIDED that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 10.11 OTHER TRANSACTIONS. Nothing contained herein shall preclude
the Agent or any other Lender from engaging in any transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Affiliates in which the Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.
SECTION 10.12 CONFIDENTIALITY. Each of the Agents and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any
44
Hedging Agreement, (g) with the consent of Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section by any Person or (ii) becomes available to any Agent or any Lender
on a nonconfidential basis from a source other than Borrower or any of its
Affiliates. For the purposes of this Section, "INFORMATION" means all
information received from Borrower or its Affiliate relating to Borrower and its
Subsidiaries or their business, other than any such information that is
available to any Agent or any Lender on a nonconfidential basis prior to
disclosure by Borrower or any of its Affiliates. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 10.13 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR THE BORROWER
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF TEXAS
OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER,
THE AGENT, AND EACH LENDER HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE BORROWER, THE AGENT,
AND EACH LENDER FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF TEXAS. THE BORROWER, THE AGENT, AND EACH LENDER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
45
SECTION 10.14 WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS AND THE BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF THE AGENT, THE LENDERS OR THE BORROWER. THE BORROWER ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY)
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS
ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.15 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
NOBLE AFFILIATES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Treasurer
S-1
JPMORGAN CHASE BANK, individually as a
Lender and as the Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
S-2
SOCIETE GENERALE, individually as a Lender
and as the Syndication Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
S-3
MIZUHO FINANCIAL GROUP, as a Co-
Documentation Agent
THE FUJI BANK, LIMITED (as a member of
Mizuho Financial Group), individually as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President and Manager
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH (as a member
of Mizuho Financial Group), individually as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President, Houston Office
S-4
CREDIT LYONNAIS, NEW YORK BRANCH,
individually as a Lender and as a Co-
Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
S-5
THE ROYAL BANK OF SCOTLAND PLC,
individually as a Lender and as a Co-
Documentation Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
S-6
DEUTSCHE BANK AG NEW YORK BRANCH,
individually as a Lender and as a Co-
Documentation Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
S-7
BNP PARIBAS, individually as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
S-8
CITIBANK, N.A., individually as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-In-Fact
S-9
TORONTO DOMINION (TEXAS), INC.,
individually as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
S-10
FIRST UNION NATIONAL BANK, individually
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇-▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, individually as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
S-12
THE BANK OF TOKYO-MITSUBISHI, LTD.,
individually as a Lender
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Manager
S-13
DEN NORSKE BANK ASA, individually as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: First Vice President
By: /s/ Hans Jorgen Ormar
---------------------------------------
Name: Hans Jorgen Ormar
Title: Vice President
S-14
KBC BANK, N.V., individually as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
S-15