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EXHIBIT 10.1
[U.S. CREDIT AGREEMENT]
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CREDIT AGREEMENT
dated as of June 12, 1997
among
APACHE CORPORATION,
THE LENDERS PARTY HERETO,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY,
as Global Documentation Agent
and U.S. Syndication Agent,
THE FIRST NATIONAL BANK OF CHICAGO,
as U.S. Documentation Agent,
NATIONSBANK OF TEXAS, N.A., and
UNION BANK OF SWITZERLAND, HOUSTON AGENCY,
as Co-Agents,
and
THE CHASE MANHATTAN BANK,
as Global Administrative Agent
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CHASE SECURITIES INC.,
as Global Arranger
▇▇ ▇▇▇▇▇▇ SECURITIES INC.,
as Global Co-Arranger
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TABLE OF CONTENTS
ARTICLE I Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Classification of Loans and Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.3. Terms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.4. Accounting Terms; GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE II The Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.1. Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.2. Loans and Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.3. Requests for Revolving Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.4. Competitive Bid Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.5. Funding of Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.6. Extension of Maturity Date and of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.7. Interest Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.8. Termination and Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.9. Repayment of Loans; Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.10. Prepayment of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.11. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.12. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.13. Alternate Rate of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.14. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.15. Break Funding Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.16. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs . . . . . . . . . . . . . . . . . . 33
2.18. Mitigation Obligations; Replacement of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.19. Currency Conversion and Currency Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE III Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.1. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.2. Authorization and Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.3. Government Approval and Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.4. Pension and Welfare Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.5. Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.7. Subsidiaries; Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE IV Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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4.1. Initial Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.2. All Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE V Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.1. Financial Reporting and Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.2. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.3. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.4. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.5. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.6. Minimum Book Value for Assets of Borrower and its Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.7. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VI Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.1. Minimum Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.2. Ratio of Total Debt to Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VII Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.1. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.2. Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.3. Asset Dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.4. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.5. Restrictive Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.6. Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VIII Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.1. Listing of Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.2. Action if Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.3. Action if Other Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE IX Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE X Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.2. Waivers; Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
10.3. Expenses; Indemnity; Damage Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
10.4. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
10.5. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.6. Counterparts; Integration; Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.7. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.8. Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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10.9. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS . . . . . . . . . . . . . . . . . . . 59
10.10. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.11. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.12. Interest Rate Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.13. NO ORAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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SCHEDULES AND EXHIBITS
EXHIBITS:
Exhibit A-1 Form of Legal Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Exhibit A-2 Form of Legal Opinion of Chamberlain, Hrdlicka, White, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Exhibit B Form of Legal Opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Borrowing/Interest Election Request
Exhibit F Form of Competitive Bid Quote Request
Exhibit G Form of Notice of Competitive Bid Quote Request
Exhibit H Form of Competitive Bid
Exhibit I Form of Competitive Bid Accept/Reject Letter
SCHEDULES:
Schedule 2.1 Commitments
Schedule 3.7 Subsidiaries; Restricted Subsidiaries
Schedule 7.1 Liens
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 12, 1997, is among APACHE
CORPORATION, a Delaware corporation, the LENDERS (as defined below) party
hereto, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY, as Global Documentation Agent and U.S.
Syndication Agent, THE FIRST NATIONAL BANK OF CHICAGO, as U.S. Documentation
Agent, NATIONSBANK OF TEXAS, N.A., and UNION BANK OF SWITZERLAND, HOUSTON
AGENCY, as Co-Agents, and THE CHASE MANHATTAN BANK, as Global Administrative
Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Accepting Lenders" is defined in Section 2.6(c).
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Global Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means each of the Global Administrative Agent, the Global
Documentation Agent, the U.S. Syndication Agent, the U.S. Documentation Agent
and the Co-Agents.
"Agreed Currency" is defined in Section 2.19(a).
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"Agreement" means this Credit Agreement, as it may be amended,
supplemented, restated or otherwise modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Annual Certificate of Extension" means a certificate of Borrower,
executed by an Authorized Officer and delivered to the Global Administrative
Agent, in a form acceptable to the Global Administrative Agent, which requests
an extension of the then scheduled Maturity Date pursuant to Section 2.6.
"Apache Canada" means Apache Canada Ltd., a corporation organized
under the laws of the Province of Alberta, Canada.
"Apache Energy Limited" means Apache Energy Limited (ACN 009 301 964),
a corporation organized under the laws of the State of Western Australia,
Australia.
"Apache Oil Australia" means Apache Oil Australia Pty. Limited (ACN
050 611 688), a corporation organized under the laws of the ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment.
If the Commitments have terminated or expired, the Applicable Percentages shall
be determined based upon the Commitments most recently in effect, giving effect
to any assignments.
"Applicable Rate" means, for any day, with respect to any Eurodollar
Revolving Loan, or with respect to the Facility Fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption
"Eurodollar Margin" or "Facility Fee", as the case may be, based upon the
ratings by ▇▇▇▇▇'▇, S&P and D&P, respectively, applicable on such date to the
Index Debt:
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Facility Fee (in basis Eurodollar Margin (in basis
Index Debt Ratings: points) points)
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Category 1: A/A2 6.00 16.50
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Category 2: A-/A3 8.00 17.00
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Category 3: BBB+/Baa1 9.00 18.50
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Category 4: BBB/Baa2 12.00 20.50
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Category 5: BBB-/Baa3 17.50 25.00
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Category 6: < BBB-/Baa3 25.00 50.00
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For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇, S&P or D&P shall
not have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 6; (ii)
if the ratings established or deemed to have been established by ▇▇▇▇▇'▇, S&P
and D&P for the Index Debt shall fall within different Categories, the
Applicable Rate shall be based on the highest two ratings, unless the highest
two ratings shall fall within different Categories in which case the Applicable
Rate shall be based on the lower of the highest two ratings; and (iii) if the
ratings established or deemed to have been established by ▇▇▇▇▇'▇, S&P and D&P
for the Index Debt shall be changed (other than as a result of a change in the
rating system of ▇▇▇▇▇'▇, S&P or D&P), such change shall be effective as of the
date on which it is first announced by the applicable rating agency. Each
change in the Applicable Rate shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of ▇▇▇▇▇'▇, S&P
or D&P shall change, or if any such rating agency shall cease to be in the
business of rating corporate debt obligations, Borrower and the Lenders shall
negotiate in good faith to amend this definition to reflect such changed rating
system or the unavailability of ratings from such rating agency and, pending
the effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating most recently in effect prior to such
change or cessation.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent
is required by Section 10.4), and accepted by the Global Administrative Agent,
in substantially the form of Exhibit D or any other form approved by the Global
Administrative Agent.
"Australian Administrative Agent" means Citisecurities Limited (ACN
▇▇▇ ▇▇▇ ▇▇▇) in its capacity as Australian administrative agent for the lenders
party to the Australian Credit Agreement and any successor thereto.
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"Australian Borrower" means Apache Energy Limited and Apache Oil
Australia.
"Australian Credit Agreement" means that certain Credit Agreement of
even date herewith among the Australian Borrower, the Australian Lenders, the
Global Administrative Agent, the Global Documentation Agent, the Australian
Administrative Agent, Bank of America National Trust and Savings Association,
Sydney Branch (ARBN 064 874 531), as Australian documentation agent, and The
Chase Manhattan Bank (ARBN 074 112 011), as Australian syndication agent, as it
may be amended, supplemented, restated or otherwise modified and in effect from
time to time.
"Australian Lenders" means the financial institutions listed on the
signature pages of the Australian Credit Agreement and their respective
successors and assigns.
"Australian Loan Documents" means the Australian Credit Agreement, any
notes, any guaranties, any assignment agreements, and the agreement with
respect to fees, together with all exhibits, schedules and attachments thereto,
and all other agreements, documents, certificates, financing statements and
instruments from time to time executed and delivered pursuant to or in
connection with any of the foregoing.
"Authorized Officer" means the Chairman, the President, the Vice
President and Chief Financial Officer and the Treasurer of Borrower, and any
officer or employee of Borrower specified as such to the Global Administrative
Agent in writing by any of the aforementioned officers of Borrower.
"Availability Period" means the period from and including the Global
Effective Date to but excluding the earlier of the Maturity Date and the date
of termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Apache Corporation, a Delaware corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans,
as to which a single Interest Period is in effect or (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect.
"Borrowing Request" means a request by Borrower for a Revolving
Borrowing in accordance with Section 2.3, in substantially the form of Exhibit
E or any other form approved by the Global Administrative Agent.
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"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law to remain closed; provided that, when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"Canadian Administrative Agent" means Bank of Montreal in its capacity
as Canadian administrative agent for the lenders party to the Canadian Credit
Agreement and any successor thereto.
"Canadian Borrower" means Apache Canada.
"Canadian Credit Agreement" means that certain Credit Agreement of
even date herewith among the Canadian Borrower, the Canadian Lenders, the
Global Administrative Agent, the Global Documentation Agent, the Canadian
Administrative Agent, Royal Bank of Canada, as Canadian documentation agent,
and The Chase Manhattan Bank of Canada, as Canadian syndication agent, as it
may be amended, supplemented, restated or otherwise modified and in effect from
time to time.
"Canadian Lenders" means the financial institutions listed on the
signature pages of the Canadian Credit Agreement and their respective
successors and assigns.
"Canadian Loan Documents" means the Canadian Credit Agreement, any
notes, any guaranties, any assignment agreements, and the agreement with
respect to fees, together with all exhibits, schedules and attachments thereto,
and all other agreements, documents, certificates, financing statements and
instruments from time to time executed and delivered pursuant to or in
connection with any of the foregoing.
"Capital" means the consolidated shareholder's equity of Borrower and
its Subsidiaries plus the consolidated Debt of Borrower and its Subsidiaries.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601, et. seq., as amended from
time to time.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.16(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
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"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Co-Agents" means NationsBank of Texas, N.A., and Union Bank of
Switzerland, Houston Agency, in their capacity as co-agents for the Lenders
hereunder.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Combined Commitments" means, with respect to each Combined Lender,
the commitment of such Combined Lender to make Revolving Loans (or in the case
of Australian Lenders or Canadian Lenders, "Loans" (as defined in the
Australian Credit Agreement and the Canadian Credit Agreement, respectively)),
expressed as an amount representing the maximum aggregate amount of such
Combined Lender's Revolving Credit Exposure (or in the case of Australian
Lenders or Canadian Lenders, "Credit Exposure" (as defined in the Australian
Credit Agreement and the Canadian Credit Agreement, respectively)) under the
Combined Credit Agreements, as such commitment may be reduced, increased or
terminated from time to time pursuant to the Global Loan Documents. The
initial amount of each Combined Lender's Commitment is set forth on Schedule
2.1 to the applicable Combined Credit Agreement, or in a Assignment and
Acceptance (as defined in this Agreement and the Canadian Credit Agreement) or
in a Substitution Certificate (as defined in the Australian Credit Agreement)
or pursuant to which such Combined Lender shall have assumed its Combined
Commitment, as applicable. The initial aggregate amount of the Combined
Lenders' Combined Commitments is $1,000,000,000.
"Combined Credit Agreements" means this Agreement, the Australian
Credit Agreement and the Canadian Credit Agreement.
"Combined Lenders" means the Lenders hereunder, the Australian Lenders
and the Canadian Lenders.
"Combined Loan Documents" means the Loan Documents, the Australian
Loan Documents and the Canadian Loan Documents.
"Combined Loans" means the loans made by the Combined Lenders to
Borrower, Australian Borrower and Canadian Borrower pursuant to the Combined
Loan Documents.
"Combined Required Lenders" means Combined Lenders having in the
aggregate 51% of the aggregate total Combined Commitments under the Combined
Loan Documents, or, if the Combined Commitments have been terminated, Combined
Lenders holding 51% of the aggregate unpaid principal amount of the outstanding
Combined Loans under the Combined Loan Documents.
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"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section
2.8, (b) reduced or increased from time to time pursuant to assignments by or
to such Lender pursuant to Section 10.4 and (c) terminated pursuant to Sections
8.2 or 8.3. The initial amount of each Lender's Commitment is set forth on
Schedule 2.1, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable. The initial aggregate amount
of the Lenders' Commitments is $700,000,000.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.4, in substantially the form of Exhibit H or
any other form approved by the Global Administrative Agent.
"Competitive Bid Accept/Reject Letter" means a letter in substantially
the form of Exhibit I or any other form approved by the Global Administrative
Agent.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by Borrower for Competitive
Bids in accordance with Section 2.4, in substantially the form of Exhibit F or
any other form approved by the Global Administrative Agent.
"Competitive Loan" means a Loan made pursuant to Section 2.4.
"Consolidated Tangible Net Worth" means (i) the consolidated
shareholder's equity of Borrower and its Subsidiaries (determined in accordance
with GAAP), less (ii) the amount of consolidated intangible assets of Borrower
and its Subsidiaries, plus (iii) the aggregate amount of any non-cash write
downs, on a consolidated basis, by Borrower and its Subsidiaries during the
term hereof.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"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
Borrower, are treated as a single employer under Section 414 (b) or 414 (c) of
the Internal Revenue Code or Section 4001 of ERISA.
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"Debt" of any Person means indebtedness, including capital leases,
shown as debt on a consolidated balance sheet of such Person prepared in
accordance with GAAP.
"Declining Lenders" is defined in Section 2.6(c).
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"dollars" or "$" refers to lawful money of the United States of
America.
"D&P" means Duff & ▇▇▇▇▇▇ Credit Rating Company and any successor
thereto that is a nationally recognized rating agency.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"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.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan
(other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the
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incurrence by Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt
by Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by Borrower
or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
from Borrower or any ERISA Affiliate of any notice, concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in
the case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article
VIII.
"Excluded Taxes" means, with respect to any Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending
office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which Borrower
is located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by Borrower under Section 2.18(b)), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Foreign Lender's failure to comply with
Section 2.16(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from Borrower with
respect to such withholding tax pursuant to Section 2.16(a).
"Existing Global Credit Facilities" means (i) that certain Fourth
Amended and Restated Credit Agreement, dated as October 31, 1996, among
Borrower, the lenders party thereto, The First National Bank of Chicago, as
global administrative agent, The Chase Manhattan Bank, as co-agent, First
Chicago Capital Markets, Inc., as arranger, and Chase Securities Inc., as
arranger, (ii) that certain Credit Agreement, dated as October 31, 1996, among
the Australian Borrower, the lenders party thereto, The First National Bank of
Chicago, as global administrative agent, Chase Securities Australia Limited
(ACN 002 888 011), as Australian administrative agent, First Chicago Capital
Markets, Inc., as arranger, and Chase Securities Inc., as arranger, and (iii)
that certain Credit Agreement, dated as October 31, 1996, among the Canadian
Borrower, the lenders party thereto, The First National Bank of Chicago, as
global administrative agent,
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15
Bank of Montreal, as Canadian administrative agent, First Chicago Capital
Markets, Inc., as arranger, and Chase Securities Inc., as arranger.
"Facility Fee" is defined in Section 2.11.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Global Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar Competitive Loan), the fixed rate of interest per annum (expressed
as a decimal to no more than four (4) decimal places) specified by the Lender
making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Foreign Lender" means any Lender that is not organized under the laws
of, or resident, in the United States. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall
be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles as in effect
from time to time, applied on a basis consistent with the most recent financial
statements of Borrower and its Subsidiaries delivered to the Lenders pursuant
hereto.
"Global Administrative Agent" means The Chase Manhattan Bank, in its
capacity as global administrative agent for the Combined Lenders.
"Global Documentation Agent" means ▇▇▇▇▇▇ Guaranty Trust Company, in
its capacity as global documentation agent for the Lenders hereunder.
"Global Effective Date" means a date agreed upon by Borrower and the
Global Administrative Agent as the date on which the conditions specified in
Section 4.1 of each Combined Credit Agreement are satisfied (or waived in
accordance with Section 10.2 of each Combined Credit Agreement).
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"Global Effectiveness Notice" means a notice and certificate of
Borrower properly executed by an Authorized Officer of Borrower addressed to
the Combined Lenders and delivered to the Global Administrative Agent, in
sufficient number of counterparts to provide one for each such lender and each
agent under each Combined Credit Agreement, whereby Borrower certifies
satisfaction of all the conditions precedent to the effectiveness under Section
4.1 of each Combined Credit Agreement.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Hazardous Material" means (a) any "hazardous substance," as defined
by CERCLA; (b) any "hazardous waste," as defined by the Resource Conservation
and Recovery Act; or (c) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance within the meaning of any other
Environmental Law.
"Indebtedness" of any Person means all (i) Debt, and (ii) guaranties
or other contingent obligations in respect of the Debt of any other Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, non-credit enhanced, long-term
indebtedness for borrowed money of Borrower that is not guaranteed by any other
Person or subject to any other credit enhancement.
"Interest Election Request" means a request by Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.7, in substantially
the form of Exhibit E or any other form approved by the Global Administrative
Agent.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three (3) months' duration, each
day prior to the last day of such Interest Period that occurs at intervals of
three (3) months' duration after the first day of such Interest Period, and (c)
with respect to any Fixed Rate Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Fixed Rate Borrowing with an Interest Period of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid Request), each
day prior to the last day of such Interest Period that occurs at intervals of
90 days' duration after the first day of such
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Interest Period, and any other dates that are specified in the applicable
Competitive Bid Request as Interest Payment Dates with respect to such
Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day, or, with the consent of the Global
Administrative Agent, such other day, in the calendar month that is one, two,
three or six months (or, with the consent of each Lender, nine or twelve
months) thereafter, as Borrower may elect, (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than seven (7) days or more than
360 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the
case of a Eurodollar Borrowing only, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end
on the next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Judgment Currency" is defined in Section 2.19(b).
"Lenders" means the Persons listed on Schedule 2.1 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, 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 reasonably determined by
the Global Administrative Agent and the Borrower 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 comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing 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 Global
Administrative 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.
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"Lien" means any mortgage, pledge, lien, encumbrance, charge, or
security interest of any kind, granted or created to secure Indebtedness;
provided, however, that, with respect to any prohibitions of Liens on Property,
the following transactions shall not be deemed to create a Lien to secure
Indebtedness; (i) production payments and (ii) liens required by statute and
created in favor of U.S. governmental entities to secure partial, progress,
advance, or other payments intended to be used primarily in connection with air
or water pollution control.
"Loan Document" means this Agreement, any Borrowing Request, any
Interest Election Request, any Competitive Bid Quote Request, any Notice of
Competitive Bid Quote Request, any Competitive Bid, any Competitive Bid
Accept/Reject Letter, any Annual Certificate of Extension, any Assignment and
Acceptance, any election notice, the agreement with respect to fees described
in Section 2.11(b), and each other agreement, document or instrument delivered
by Borrower or any other Person in connection with this Agreement, as such may
be amended from time to time.
"Loans" means the loans made by the Lenders to Borrower pursuant to
this Agreement.
"Margin" means, with respect to any Competitive Loan
bearing interest at a rate based on the LIBO Rate, the marginal rate of
interest, if any, to be added to or subtracted from the LIBO Rate to determine
the rate of interest applicable to such Loan, as specified by the Lender making
such Loan in its related Competitive Bid.
"Material Adverse Effect" means, as to any matter, that such matter
could reasonably be expected to materially and adversely affect the assets,
business, properties, condition (financial or otherwise) of Borrower and its
Subsidiaries taken as a whole. No matter shall be considered to result, or be
expected to result, in a Material Adverse Effect unless such matter causes
Borrower and its Subsidiaries, on a consolidated basis, to suffer a loss or
incur a cost equal to at least ten percent (10%) of Borrower's Consolidated
Tangible Net Worth.
"Maturity Date" means the Original Maturity Date, or such other later
date as may result from any extension requested by Borrower and consented to by
the Lenders pursuant to Section 2.6.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Notice of Competitive Bid Request" means a notice of request by
Borrower for Competitive Bids sent by the Global Administrative Agent to each
Lender in accordance with Section 2.4, in substantially the form of Exhibit G
or any other form approved by the Global Administrative Agent.
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"Obligations" means, at any time, the sum of (i) the outstanding
principal amount of any Loans plus (ii) all accrued and unpaid interest and
Facility Fees plus (iii) all other obligations of Borrower or any Subsidiary to
any Lender or any Agent, whether or not contingent, arising under or in
connection with any of the Loan Documents.
"Original Maturity Date" means June 12, 2002.
"Other Currency" is defined in Section 2.19(a).
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"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 a
Borrower or any corporation, trade or business that is, along with a 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.
"Person" means any natural person, corporation, limited liability
company, joint venture, partnership, firm, association, trust, government,
governmental agency or any other entity, whether acting in an individual,
fiduciary or other capacity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at
its principal office in New York City which rate may not be the lowest rate
offered; each change in the Prime Rate shall be effective from and including
the date such change is publicly announced as being effective.
"Property" means (i) any property owned or leased by Borrower or any
Subsidiary, or any interest of Borrower or any Subsidiary in property, which is
considered by Borrower to be capable
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of producing oil, gas, or minerals in commercial quantities, (ii) any interest
of Borrower or any Subsidiary in, any refinery, processing or manufacturing
plant owned or leased by Borrower or any manufacturing plant owned or leased by
Borrower or any Subsidiary, (iii) any interest of Borrower or any Subsidiary
in, all present and future oil, gas, other liquid and gaseous hydrocarbons, and
other minerals now or hereafter produced from any other Property or to which
Borrower or any Subsidiary may be entitled as a result of its ownership of any
Property, and (iv) all real and personal assets owned or leased by Borrower or
any Subsidiary used in the drilling, gathering, processing, transportation, or
marketing of any oil, gas, and other hydrocarbons or minerals, except (a) any
such real or personal assets related thereto employed in transportation,
distribution or marketing or (b) any interest of Borrower or any Subsidiary in,
any refinery, processing or manufacturing plant, or portion thereof, which
property described in clauses (a) or (b), in the opinion of the Board of
Directors of Borrower, is not a principal plant or principal facility in
relation to the activities of Borrower and its Subsidiaries taken as a whole.
"Register" has the meaning set forth in Section 10.4.
"Regulation U" means any of Regulations G, T, U or X of the Board from
time to time in effect and shall include any successor or other regulations or
official interpretations of said Board or any successor Person relating to the
extension of credit for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System or any successor
Person.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Replacement Lenders" is defined in Section 2.6(c)(ii).
"Required Lenders" means Lenders having in the aggregate 51% of the
aggregate total Commitments, or, if the Commitments have been terminated,
Lenders holding 51% of the aggregate unpaid principal amount of the outstanding
Obligations.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 690, et seq., as amended from
time to time.
"Restricted Subsidiary" means any Subsidiary of Borrower that owns any
asset representing or consisting of an entitlement to production from, or other
interest in, reserves of oil, gas or other minerals in place located in the
United States, Canada or Australia or is otherwise designated by Borrower in
writing to the Global Administrative Agent.
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"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.3.
"S&P" means Standard & Poor's and any successor thereto that is a
nationally-recognized rating agency.
"Stated Maturity Date" means, with respect to any Competitive Bid
Loan, the last day of any Interest Period.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the applicable maximum reserve percentages
(including any basic, marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Global
Administrative Agent is subject with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person, any corporation or
other similar entity of which more than 50% of the outstanding capital stock
(or other equity) having ordinary voting power to elect a majority of the Board
of Directors of such corporation or entity (irrespective of whether or not at
the time capital stock or any other class or classes of such corporation or
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person.
"Subsidiary" means any subsidiary of Borrower; provided, however, that
in all events the following Persons shall not be deemed to be Subsidiaries of
Borrower or any of its Subsidiaries: Producers Energy Marketing, LLC, a
Delaware limited liability company, Apache Series 1996-A Trust, a Delaware
business trust, Apache Offshore Investment Partnership, a Delaware general
partnership, Apache Offshore Petroleum Limited Partnership, a Delaware limited
partnership, Main Pass 151 Pipeline Company, a Texas general partnership,
Tranpache Partnership, a Texas general partnership, and Apache 681/682 Joint
Venture, a Texas joint venture.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
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"Transactions" means the execution, delivery and performance by
Borrower of this Agreement and the other Loan Documents, the borrowing of Loans
and the use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or
a Fixed Rate.
"United States" or "U.S." means the United States of America, its
fifty states and the District of Columbia.
"Unrestricted Subsidiary" means any Subsidiary of Borrower that is not
a Restricted Subsidiary.
"U.S. Documentation Agent" means The First National Bank of Chicago,
in its capacity as U.S. documentation agent for the Lenders hereunder.
"U.S. Syndication Agent" means ▇▇▇▇▇▇ Guaranty Trust Company, in its
capacity as U.S. syndication agent for the Lenders hereunder.
"Welfare Plan" means a "welfare plan," as such term is defined in
Section3(1) of ERISA.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.3. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument
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or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 1.4. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if Borrower notifies the Global Administrative Agent that Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Global Administrative Agent notifies
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.1. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans in U.S. Dollars to
Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (a) such Lender's Revolving Credit
Exposure exceeding such Lender's Commitment or (b) the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans exceeding the total Commitments. Within the foregoing limits
and subject to the terms and conditions set forth herein, Borrower may borrow,
prepay and reborrow Revolving Loans.
SECTION 2.2. Loans and Borrowings.
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance with
their respective Commitments. Each Competitive Loan shall be made in
accordance with the procedures set forth in Section 2.4. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
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Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as Borrower may request in
accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 (including any
continuation or conversion of existing Revolving Loans made in connection
therewith). At the time that each ABR Revolving Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 (including any continuation or
conversion of existing Revolving Loans made in connection therewith); provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments. Each Competitive Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and
not less than $5,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of ten (10) Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement,
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.3. Requests for Revolving Borrowings. To request a
Revolving Borrowing, Borrower shall notify the Global Administrative Agent of
such request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 1:00 p.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Global Administrative Agent of a
written Borrowing Request in a form approved by the Global Administrative Agent
and signed by Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
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(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) in the case of a Eurodollar Borrowing, the
initial Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest Period".
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Global Administrative Agent shall advise each Lender of the
details thereof and of the amount of such Lender's Loan to be made as part of
the requested Borrowing.
SECTION 2.4. Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth herein, from
time to time during the Availability Period, Borrower may request Competitive
Bids and may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans; provided that the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive Loans
at any time shall not exceed the total Commitments. To request Competitive
Bids, Borrower shall notify the Global Administrative Agent of such request by
telephone, in the case of a Eurodollar Borrowing, not later than noon, New York
City time, four Business Days before the date of the proposed Borrowing and, in
the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City
time, one Business Day before the date of the proposed Borrowing; provided that
Borrower may submit up to (but not more than) five (5) Competitive Bid Requests
on the same day, but a Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request, unless
any and all such previous Competitive Bid Requests shall have been withdrawn or
all Competitive Bids received in response thereto rejected. Each such
telephonic Competitive Bid Request shall be confirmed promptly by hand delivery
or telecopy to the Global Administrative Agent of a written Competitive Bid
Request and signed by Borrower. Each such telephonic and written Competitive
Bid Request shall specify the following information in compliance with Section
2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
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(iii) whether such Borrowing is to be a Eurodollar
Borrowing or a Fixed Rate Borrowing; and
(iv) the Interest Period to be applicable to such
Borrowing, which shall be a period contemplated by the definition of
the term "Interest Period".
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Global Administrative Agent shall notify the Lenders of the
details thereof by telecopy to each Lender of a Notice of Competitive Bid Quote
Request inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make
one or more Competitive Bids to Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Global Administrative Agent and must be received by the Global Administrative
Agent by telecopy, in the case of a Eurodollar Competitive Borrowing, not later
than noon, New York City time, three Business Days before the proposed date of
such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not
later than 10:00 a.m., New York City time, on the proposed date of such
Competitive Borrowing. Competitive Bids that do not conform substantially to
the form approved by the Global Administrative Agent may be rejected by the
Global Administrative Agent, and the Global Administrative Agent shall notify
the applicable Lender as promptly as practicable. Each Competitive Bid shall
specify (i) the principal amount (which shall be a minimum of $5,000,000 and an
integral multiple of $1,000,000 and which may equal the entire principal amount
of the Competitive Borrowing requested by Borrower) of the Competitive Loan or
Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or
Rates at which the Lender is prepared to make such Loan or Loans (expressed as
a percentage rate per annum in the form of a decimal to no more than four
decimal places) and (iii) the Interest Period applicable to each such Loan and
the last day thereof.
(c) The Global Administrative Agent shall promptly notify Borrower
by telecopy of a summary of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall
have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, Borrower may
accept or reject any Competitive Bid. Borrower shall notify the Global
Administrative Agent by telephone, confirmed by telecopy, in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject each Competitive Bid, in the case of a Eurodollar
Competitive Borrowing, not later than 1:00 p.m., New York City time, three
Business Days before the date of the proposed Competitive Borrowing, and in the
case of a Fixed Rate Borrowing, not later than 11:00 a.m., New York City time,
on the proposed date of the Competitive Borrowing; provided that (i) the
failure of Borrower to give such notice shall be deemed to be a rejection of
each
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Competitive Bid, (ii) Borrower shall not accept a Competitive Bid made at a
particular Competitive Bid Rate if Borrower rejects a Competitive Bid made at a
lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid Request, (iv) to
the extent necessary to comply with clause (iii) above, Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; provided further
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by Borrower.
A notice given by Borrower pursuant to this paragraph shall be irrevocable.
(e) The Global Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Global Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to Borrower at least one quarter of an hour earlier than the time
by which the other Lenders are required to submit their Competitive Bids to the
Global Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.5. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the Global Administrative
Agent most recently designated by it for such purpose by notice to the Lenders.
The Global Administrative Agent will make such Loans available to Borrower by
promptly crediting the amounts so received, in like funds, to an account of
Borrower designated by Borrower from time to time in a written notice to the
Global Administrative Agent executed by two Authorized Officers.
(b) Unless the Global Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Global Administrative Agent such Lender's
share of such Borrowing, the Global Administrative
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Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable Borrowing
available to the Global Administrative Agent, then the applicable Lender and
Borrower severally agree to pay to the Global Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to Borrower to but excluding
the date of payment to the Global Administrative Agent, at (i) in the case of
such Lender, the greater of the Federal Funds Effective Rate or a rate
determined by the Global Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of Borrower, the
interest rate applicable to Loans made in such Borrowing. If such Lender pays
such amount to the Global Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.6. Extension of Maturity Date and of Commitments.
(a) Subject to the other provisions of this Agreement and provided
that no Event of Default has occurred and is continuing, the total Commitments
shall be effective for an initial period from the Global Effective Date to the
Original Maturity Date; provided that the Maturity Date, and concomitantly the
total Commitments, may be extended for successive one year periods expiring on
the date which is one (1) year from the then scheduled Maturity Date. If
Borrower shall request in an Annual Certificate of Extension delivered to the
Global Administrative Agent at least 45 days prior to the date which is four
years prior to the Maturity Date that the Maturity Date be extended for one
year from the then scheduled Maturity Date, then the Global Administrative
Agent shall promptly notify each Lender of such request and each Lender shall
notify the Global Administrative Agent, no later than 30 days prior to the date
which is four years prior to the Maturity Date, whether such Lender, in the
exercise of its sole discretion, will extend the Maturity Date for such one
year period. Any Lender which shall not timely notify the Global
Administrative Agent whether it will extend the Maturity Date shall be deemed
to not have agreed to extend the Maturity Date. No Lender shall have any
obligation whatsoever to agree to extend the Maturity Date. Any agreement to
extend the Maturity Date by any Lender shall be irrevocable, except as provided
in Section 2.6(c).
(b) If all Lenders notify the Global Administrative Agent pursuant
to clause (a) of this Section 2.6 of their agreement to extend the Maturity
Date, then the Global Administrative Agent shall so notify each Lender and
Borrower, and such extension shall be effective without other or further action
by any party hereto for such additional one year period.
(c) If Lenders constituting at least the Required Lenders approve
the extension of the then scheduled Maturity Date (such Lenders agreeing to
extend the Maturity Date herein called the "Accepting Lenders") and if one or
more Lenders shall notify, or be deemed to notify, the Global Administrative
Agent pursuant to clause (a) of this Section 2.6 that they will not extend
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the then scheduled Maturity Date (such Lenders herein called the "Declining
Lenders"), then (A) the Global Administrative Agent shall promptly so notify
Borrower and the Accepting Lenders, (B) the Accepting Lenders shall, upon
Borrower's election to extend the then scheduled Maturity Date in accordance
with clause (i) or (ii) below, extend the then scheduled Maturity Date and (C)
Borrower shall, pursuant to a notice delivered to the Global Administrative
Agent, the Accepting Lenders and the Declining Lenders, no later than the tenth
(10th) day following the date by which each Lender is required, pursuant to
Section 2.6(a), to approve or disapprove the requested extension of the total
Commitments, either:
(i) elect to extend the Maturity Date with respect to
the Accepting Lenders and direct the Declining Lenders to terminate
their Commitments, which termination shall become effective on the
date which would have been the Maturity Date except for the operation
of this Section 2.6. On such date, (x) Borrower shall deliver a
notice of the effectiveness of such termination to the Declining
Lenders with a copy to the Global Administrative Agent and (y)
Borrower shall pay in full in immediately available funds all
Obligations of Borrower owing to the Declining Lenders, including any
amounts required pursuant to Section 2.15, and (z) upon the occurrence
of the events set forth in clauses (x) and (y), the Declining Lenders
shall each cease to be a Lender hereunder for all purposes, other than
for purposes of Sections 2.14 through 2.17, Section 2.19 and Section
10.3, and shall cease to have any obligations or any Commitment
hereunder, other than to the Agents pursuant to Article IX, and the
Global Administrative Agent shall promptly notify the Accepting
Lenders and Borrower of the new Commitments; or
(ii) elect to extend the Maturity Date with respect to
the Accepting Lenders and, prior to or no later than the then
scheduled Maturity Date, (A) to replace one or more of the Declining
Lender or Declining Lenders with another lender or lenders reasonably
acceptable to the Global Administrative Agent (such lenders herein
called the "Replacement Lenders") and (B) Borrower shall pay in full
in immediately available funds all Obligations of Borrower owing to
any Declining Lenders which are not being replaced, as provided in
clause (i) above; provided that (x) the Replacement Lender or
Replacement Lenders shall purchase, and the Declining Lender or
Declining Lenders shall sell, the Declining Lender's or Declining
Lenders' rights and obligations hereunder without recourse or expense
to, or warranty by, such Declining Lender or Declining Lenders being
replaced for a purchase price equal to the aggregate outstanding
principal amount of the Obligations payable to such Declining Lender
or Declining Lenders plus any accrued but unpaid interest on such
Obligations and accrued but unpaid fees or other amounts owing in
respect of such Declining Lender's or Declining Lenders' Loans and
Commitments hereunder, and (y) upon the payment of such amounts
referred to in clause(x) and the execution of an Assignment and
Acceptance by the Replacement Lender or Replacement Lenders and the
Declining Lender or Declining Lenders, the Replacement Lender or
Replacement Lenders shall each constitute a Lender hereunder and the
Declining Lender
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or Declining Lenders being so replaced shall no longer constitute a
Lender (other than for purposes of Sections 2.14 through 2.17, Section
2.19 and Section 10.3), and shall no longer have any obligations
hereunder, other than to the Agents pursuant to Article IX; or
(iii) elect to revoke and cancel the extension request
in such Annual Certificate of Extension by giving notice of such
revocation and cancellation to the Global Administrative Agent (which
shall promptly notify the Lenders thereof) no later than the tenth
(10th) day following the date by which each Lender is required,
pursuant to Section 2.6(a), to approve or disapprove the requested
extension of the Maturity Date, and concomitantly the total
Commitments.
If Borrower fails to timely provide the election notice referred to in
this clause(c), Borrower shall be deemed to have revoked and cancelled the
extension request in the Annual Certificate of Extension and to have elected
not to extend the Maturity Date, and the concomitant total Commitments, with
respect to the Accepting Lenders, and, on the then scheduled Maturity Date,
Borrower shall repay in full all Obligations under the Loan Documents.
SECTION 2.7. Interest Elections.
(a) Each Revolving Borrowing initially shall be of the Type
specified in the applicable Borrowing Request (or an ABR Borrowing if no Type
is specified) and, in the case of a Eurodollar Revolving Borrowing, shall have
an initial Interest Period as specified in such Borrowing Request (or one month
if no Interest Period is specified). Thereafter, Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Revolving Borrowing, may elect Interest Periods therefor,
all as provided in this Section. Borrower may, subject to the requirements of
Section 2.2(c), elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Competitive Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section, Borrower shall
notify the Global Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.3 if Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Global Administrative Agent of a written
Interest Election Request signed by Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.2:
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(i) the Borrowing to which such Interest Election
Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information
to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant
to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then Borrower shall be deemed to have selected
an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Global Administrative Agent shall advise each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Global
Administrative Agent, at the request of the Required Lenders, so notifies
Borrower, then, so long as an Event of Default is continuing, (i) no
outstanding Revolving Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid and provided the Indebtedness has
not been accelerated pursuant to Section 8.3, each Eurodollar Revolving
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.8. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate
on the Maturity Date.
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(b) Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 and (ii) Borrower shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.10, the sum of the Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans would exceed the total
Commitments.
(c) Borrower shall notify the Global Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least two Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Global Administrative
Agent shall advise the Lenders of the contents thereof. Each notice delivered
by Borrower pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Commitments delivered by Borrower may state that
such notice is conditioned upon the effectiveness of other credit facilities,
in which case such notice may be revoked by Borrower (by notice to the Global
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.9. Repayment of Loans; Evidence of Debt.
(a) Borrower hereby unconditionally promises to pay (i) to the
Global Administrative Agent for the account of each Lender the then unpaid
principal amount of each Revolving Loan on the Maturity Date and (ii) to the
Global Administrative Agent for the account of each Lender the then unpaid
principal amount of each Competitive Loan on the last day of the Interest
Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of 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 Global Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Global Administrative Agent hereunder for the account of the Lenders and
each Lender's share thereof.
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(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 Global Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of
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
one or more promissory notes. In such event, Borrower shall prepare, execute
and deliver to such Lender promissory notes 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 Global Administrative Agent). Thereafter, the Loans
evidenced by such promissory notes and interest thereon shall at all times
(including after assignment pursuant to Section 10.4) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if any such promissory note is a registered note, to such payee
and its registered assigns).
SECTION 2.10. Prepayment of Loans.
(a) Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section; provided that Borrower shall not
have the right to prepay any Competitive Loan without the prior consent of the
Lender thereof and compensation for break funding, to the extent required by
Section 2.15.
(b) Borrower shall notify the Global Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurodollar Revolving Borrowing, not later than 1:00 p.m.,
New York City time, three Business Days before the date of prepayment or (ii)
in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00
a.m., New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.8, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.8. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Global Administrative Agent shall advise the Lenders
of the contents thereof. Each partial prepayment of any Revolving Borrowing
shall be in an amount that would be permitted in the case of an advance of a
Revolving Borrowing of the same Type as provided in Section 2.2. Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.
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SECTION 2.11. Fees.
(a) Borrower agrees to pay to the Global Administrative Agent for
the account of each Lender a facility fee (the "Facility Fee"), which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the Global
Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure
after its Commitment terminates, then such Facility Fee shall continue to
accrue on the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure. Accrued
Facility Fees shall be payable in arrears on the first day of, April, July and
October and the second day of January of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any Facility Fees accruing after the date on which
the Commitments terminate shall be payable on demand. All Facility Fees shall
be computed on the basis of a year of 365 days (or 366 days in a leap year) and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
(b) Borrower agrees to pay to the Global Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between Borrower and the Global Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Global Administrative Agent for
distribution, in the case of Facility Fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.12. Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest at
the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest (i) in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate, or (ii) in the case of a Eurodollar Competitive Loan, at the LIBO Rate
for the Interest Period in effect for such Borrowing plus (or minus, as
applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by Borrower hereunder is not
paid when due, whether at stated
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maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR
Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan, accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to (i) the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate and (ii) the Fixed Rate, shall be computed on the basis of a year of 365
days (or 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate
shall be determined by the Global Administrative Agent, and such determination
shall be conclusive absent demonstrable error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(i) the Global Administrative Agent determines (which
determination shall be conclusive absent demonstrable error) that
adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period; or
(ii) the Global Administrative Agent is advised by the
Required Lenders that the Adjusted LIBO Rate for such Interest Period
will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in such Borrowing for such
Interest Period; then the Global Administrative Agent shall give
notice thereof to Borrower and the Lenders by telephone or telecopy as
promptly as practicable thereafter and, until the Global
Administrative Agent notifies Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any
Revolving Borrowing to, or continuation of any Revolving Borrowing as,
a Eurodollar Borrowing shall be
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ineffective, (ii) if any Borrowing Request requests a Eurodollar
Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing
and (iii) any request by Borrower for a Eurodollar Competitive
Borrowing shall be ineffective; provided that (A) if the circumstances
giving rise to such notice do not affect all the Lenders, then
requests by Borrower for Eurodollar Competitive Borrowings may be made
to Lenders that are not affected thereby and (B) if the circumstances
giving rise to such notice affect only one Type of Borrowings, then
the other Type of Borrowings shall be permitted.
SECTION 2.14. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (except
any such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank
market any other condition affecting this Agreement or Eurodollar
Loans or Fixed Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of
any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.
(b) If any Lender reasonably determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's capital or on the capital of such Lender's
holding company, if any, as a consequence of this Agreement or the Loans made
by such Lender, to a level below that which such Lender or such Lender's
holding company could have achieved but for such Change in Law (taking into
consideration such Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy), then from time to time Borrower will
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section (together with the
calculation thereof) shall be delivered to Borrower and
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shall be conclusive absent demonstrable error. Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that Borrower shall not be
required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan if the Change in Law that would otherwise
entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than
on the last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any Eurodollar Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.10(b) and is revoked in accordance therewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan
other than on the last day of the Interest Period applicable thereto as a
result of a request by Borrower pursuant to either Section 2.6, or Section 2.18
then, in any such event, Borrower shall compensate each Lender for the loss,
cost and expense attributable to such event. In the case of a Eurodollar Loan,
such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable
to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of
a comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive, together with the calculation thereof, pursuant to this
Section shall be delivered to Borrower and the Global Administrative Agent and
shall be conclusive absent demonstrable error. Borrower shall pay to the
Global Administrative Agent for
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the account of such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.16. Taxes.
(a) Any and all payments by or on account of any obligation of
Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Global Administrative Agent or Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) Borrower shall make such deductions and (iii)
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Borrower shall pay the Global Administrative Agent and each
Lender, within 10 days after written demand therefor, the full amount of any
Indemnified Taxes or Other Taxes paid by the Global Administrative Agent or
such Lender, as the case may be, on or with respect to any payment by or on
account of any obligation of Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto (other than any such penalties or interest
arising through the failure of the Global Administrative Agent or Lender to act
as a reasonably prudent agent or lender, respectively), whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to Borrower by a Lender, or by the Global
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent demonstrable error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by Borrower to a Governmental Authority, Borrower shall deliver
to the Global Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Global Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to Borrower (with a copy
to the Global Administrative Agent), at the time or times prescribed by
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applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by Borrower as will permit such
payments to be made without withholding or at a reduced rate.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or of amounts payable under
Section 2.14, 2.15 or 2.16, or otherwise) prior to 1:00 p.m., New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. All such payments shall be made to the Global Administrative
Agent, c/o Loan & Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, except that payments pursuant to Sections 2.14, 2.16
and 10.3 shall be made directly to the Persons entitled thereto. The Global
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Global Administrative Agent to pay fully all amounts of
principal, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of
principal then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties. If
insufficient funds are received due to Borrower's entitlement to withhold
amounts on account of Excluded Taxes in relation to a particular Lender, such
insufficiency shall not be subject to this Section 2.17(b) but shall be
withheld from and shall only affect payments made to such Lender.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply
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to any payment made by Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans to any
assignee or participant, other than to Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of Borrower in the amount of such participation.
(d) Unless the Global Administrative Agent shall have received
notice from Borrower prior to the date on which any payment is due to the
Global Administrative Agent for the account of the Lenders hereunder that
Borrower will not make such payment, the Global Administrative Agent may assume
that Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders the amount
due. In such event, if Borrower has not in fact made such payment, then each
of the Lenders severally agrees to repay to the Global Administrative Agent
forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Global Administrative Agent, at
the greater of the Federal Funds Effective Rate and a rate determined by the
Global Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.17(d), then the Global Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Global Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Section
until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14, or if
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender. Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment.
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(b) If any Lender requests compensation under Section 2.14, or if
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then
Borrower may upon notice to such Lender and the Global Administrative Agent,
require such Lender to assign and delegate, without recourse or expense to, or
warranty by, such Lender (in accordance with and subject to the restrictions
contained in Section 10.4), all its interests, rights and obligations under
this Agreement (other than any outstanding Competitive Loans held by it) to an
assignee designated by Borrower which meets the requirements of Section 10.4(b)
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) Borrower shall have received
the prior written consent of the Global Administrative Agent, which consent
shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other
than Competitive Loans), accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or Borrower (in the case
of all other amounts), (iii) the assignee and assignor shall have entered into
an Assignment and Acceptance, and (iv) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a reduction
in such compensation or payments.
SECTION 2.19. Currency Conversion and Currency Indemnity.
(a) Payments in Agreed Currency. Borrower shall make payment
relative to any Obligation in the currency (the "Agreed Currency") in which the
Obligation was effected. If any payment is received on account of any
Obligation in any currency (the "Other Currency") other than the Agreed
Currency (whether voluntarily or pursuant to an order or judgment or the
enforcement thereof or the realization of any security or the liquidation of
Borrower or otherwise howsoever), such payment shall constitute a discharge of
the liability of Borrower hereunder and under the other Loan Documents in
respect of such obligation only to the extent of the amount of the Agreed
Currency which the relevant Lender or Agent, as the case may be, is able to
purchase with the amount of the Other Currency received by it on the Business
Day next following such receipt in accordance with its normal procedures and
after deducting any premium and costs of exchange.
(b) Conversion of Agreed Currency into Judgment Currency. If, for
the purpose of obtaining or enforcing judgment in any court in any
jurisdiction, it becomes necessary to convert into a particular currency (the
"Judgment Currency") any amount due in the Agreed Currency then the conversion
shall be made on the basis of the rate of exchange prevailing on the next
Business Day following the date such judgment is given and in any event
Borrower shall be obligated to pay the Agents and the Lenders any deficiency in
accordance with Section 2.19(c). For the foregoing purposes "rate of exchange"
means the rate at which the relevant Lender or Agent, as
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applicable, in accordance with its normal banking procedures is able on the
relevant date to purchase the Agreed Currency with the Judgment Currency after
deducting any premium and costs of exchange.
(c) Circumstances Giving Rise to Indemnity. If (i) any Lender or
any Agent receives any payment or payments on account of the liability of
Borrower hereunder pursuant to any judgment or order in any Other Currency, and
(ii) the amount of the Agreed Currency which the relevant Lender or Agent, as
applicable, is able to purchase on the Business Day next following such receipt
with the proceeds of such payment or payments in accordance with its normal
procedures and after deducting any premiums and costs of exchange is less than
the amount of the Agreed Currency due in respect of such obligations
immediately prior to such judgment or order, then Borrower on demand shall, and
Borrower hereby agrees to, indemnify and save the Lenders and the Agents
harmless from and against any loss, cost or expense arising out of or in
connection with such deficiency.
(d) Indemnity Separate Obligation. The agreement of indemnity
provided for in Section 2.19(c) shall constitute an obligation separate and
independent from all other obligations contained in this Agreement, shall give
rise to a separate and independent cause of action, shall apply irrespective of
any indulgence granted by the Lenders or Agents or any of them from time to
time, and shall continue in full force and effect notwithstanding any judgment
or order for a liquidated sum in respect of an amount due hereunder or under
any judgment or order.
ARTICLE III
Representations and Warranties
In order to induce the Lenders and the Agents to enter into this
Agreement and the Lenders to make Loans hereunder, Borrower represents and
warrants unto the Agents and each Lender as set forth in this Article III.
SECTION 3.1. Organization. Borrower is a corporation, and
each of its Subsidiaries is a corporation or other legal entity, in either case
duly incorporated or otherwise properly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization
and has all requisite authority, permits and approvals, and is in good standing
to conduct its business in each jurisdiction in which its business is conducted
where the failure to so qualify would have a Material Adverse Effect.
SECTION 3.2. Authorization and Validity. The execution,
delivery and performance by Borrower of this Agreement and each other Loan
Document executed or to be executed by it, are within Borrower's corporate
powers, have been duly authorized by all necessary corporate action on behalf
of it, and do not (a) contravene Borrower's articles of incorporation or other
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organizational documents, as the case may be; (b) contravene any material
contractual restriction, law or governmental regulation or court decree or
order binding on or affecting Borrower or any Subsidiary; or (c) result in, or
require the creation or imposition of, any Lien, not permitted by Section 7.1,
on any of Borrower's or any Subsidiary's properties. This Agreement
constitutes, and each other Loan Document executed by Borrower will, on the due
execution and delivery thereof, constitute, the legal, valid and binding
obligations of Borrower enforceable in accordance with their respective terms
subject as to enforcement only to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditor rights
generally and to general principles of equity.
SECTION 3.3. Government Approval and Regulation. 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 Borrower of this Agreement or any
other Loan Document. Neither 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 3.4. 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
under Section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which would result in the incurrence
by Borrower or any member of the Controlled Group of any liability, fine or
penalty in excess of $25,000,000. Neither 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 3.5. Regulation U. Borrower is not 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. Terms for which meanings are
provided in Regulations U are used in this Section with such meanings.
SECTION 3.6. Taxes. Borrower and each of its Subsidiaries has
to the best knowledge of Borrower after due investigation 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 contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set aside
on its books or which the failure to file or pay could not reasonably be
expected to have a Material Adverse Effect.
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SECTION 3.7. Subsidiaries; Restricted Subsidiaries. Schedule
3.7 hereto contains an accurate list of all of the presently existing
Subsidiaries, including, without limitation, Restricted Subsidiaries, of
Borrower as of the date of this Agreement, setting forth their respective
jurisdictions of incorporation or organization and the percentage of their
respective capital stock or, the revenue share attributable to the general and
limited partnership interests, as the case may be, owned by Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital stock of
such Subsidiaries which are corporations have been duly authorized and issued
and are fully paid and non-assessable.
ARTICLE IV
Conditions
SECTION 4.1. Initial Loan. The obligations of the Lenders to
make the initial Loan shall be subject to the prior or concurrent satisfaction
of each of the conditions precedent set forth in this Section 4.1.
(a) Resolutions and Officers Certificates. The Global
Administrative Agent shall have received from Borrower a
certificate, dated the Closing Date, of the Secretary or
Assistant Secretary of Borrower as to (a) resolutions of its
governing board, then in full force and effect authorizing the
execution, delivery and performance of this Agreement and each
other Loan Document to be executed by it; (b) the incumbency
and signatures of those of its officers authorized to act with
respect to this Agreement and each other Loan Document
executed by it; and (c) its articles of incorporation and
bylaws; upon which certificates each Lender may conclusively
rely until it shall have received a further certificate of an
authorized officer of Borrower canceling or amending such
prior certificate.
(b) Existing Facilities. The Global Administrative Agent shall
have received a certificate, signed by an Authorized Officer
of Borrower, stating that Borrower or its Subsidiaries have
repaid in full and terminated the Existing Global Credit
Facilities concurrently with the initial Combined Loans under
the Combined Credit Agreements.
(c) Opinions of Counsel. The Global Administrative Agent shall
have received opinions, dated the Closing Date, addressed to
the Global Administrative Agent, the other Agents and all
Lenders, from (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq., Vice President
and General Counsel of Borrower, in substantially the form
attached hereto as Exhibit A-1, (ii) Chamberlain, Hrdlicka,
White, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to Borrower, in
substantially the form attached hereto as Exhibit A-2, and
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(iii) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Global
Administrative Agent, in substantially the form attached
hereto as Exhibit B.
(d) Closing Fees and Expenses. The Global Administrative Agent
shall have received for its own account, or for the account of
each Lender and other Agent, as the case may be, all fees,
costs and expenses due and payable pursuant hereto.
(e) Financial Statements. The Global Administrative Agent shall
have received a certificate, signed by an Authorized Officer
of Borrower, stating that the audited consolidated financial
statements of Borrower and its Subsidiaries for fiscal year
1996 (the "1996 Financials") fairly present Borrower's
financial condition and results of operations and that prior
to the Global Effective Date no material adverse change in the
condition or operations of Borrower and its Subsidiaries,
taken as a whole, from that reflected in the 1996 Financials
has occurred and is continuing.
(f) Environmental Warranties. In the ordinary course of its
business, Borrower conducts an ongoing review of the effect of
existing Environmental Laws on the business, operations and
properties of Borrower and its Subsidiaries, in the course of
which it attempts to identify and evaluate associated
liabilities and costs (including, without limitation, any
capital or operating expenditures required for clean-up or
closure of properties presently or previously owned, any
capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards
imposed by law or as a condition of any license, permit or
contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility
or reduction in the level of or change in the nature of
operations conducted thereat and any actual or potential
liabilities to third parties, including employees, and any
related costs and expenses). On the basis of this review, the
Global Administrative Agent shall have received a certificate,
signed by an Authorized Officer of Borrower, stating that
after such review Borrower has reasonably concluded that
existing Environmental Laws are unlikely to have a Material
Adverse Effect, or that Borrower has established adequate
reserves in respect of any required clean-up.
(g) Global Effectiveness Notice. The Global Administrative Agent
shall have received the Global Effectiveness Notice.
(h) Australian Credit Agreement and Canadian Credit Agreement.
The Global Administrative Agent shall have received copies of
the executed Australian Credit Agreement and the other
Australian Loan Documents and the executed Canadian Credit
Agreement and the other Canadian Loan Documents.
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(i) Litigation. The Global Administrative Agent shall have
received a certificate, signed by an Authorized Officer of
Borrower, stating that no litigation, arbitration,
governmental proceeding, Tax claim, dispute or administrative
or other proceeding shall be pending or, to the knowledge of
Borrower, threatened against Borrower or any of its
Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which purports to affect the
legality, validity or enforceability of this Agreement or any
other Loan Document.
(j) Other Documents. The Global Administrative Agent shall have
received such other instruments and documents as any of the
Agents or their counsel may have reasonably requested.
The Global Administrative Agent shall notify Borrower, the other Agents and the
Lenders of the Global Effective Date, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lenders to make
Loans hereunder shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 10.2) at or prior to
3:00 p.m., New York City time, on June 30, 1997 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
SECTION 4.2. All Loans. The obligation of each Lender to fund
any Loan which results in an increase in the aggregate outstanding principal
amount of Loans under this Agreement on the occasion of any Borrowing shall be
subject to the satisfaction of each of the conditions precedent set forth in
this Section 4.2.
(a) Compliance with Warranties and No Default. Both before and
after giving effect to any Borrowing, the following statements
shall be true and correct: (1) the representations and
warranties set forth in Article III 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.
(b) Borrowings. The Global Administrative Agent shall have
received a Borrowing Request for any Revolving Borrowing, or a
Competitive Borrowing Request and a Competitive Bid
Accept/Reject Letter for any Competitive Borrowing.
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ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and all
Obligations shall have been paid in full and unless the Required Lenders shall
otherwise consent in writing, Borrower covenants and agrees with the Lenders
that:
SECTION 5.1. Financial Reporting and Notices. Borrower will
furnish, or will cause to be furnished, to each Lender and the Global
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) within 90 days after the end of each Fiscal Year of Borrower,
a copy of the audited annual report for such fiscal year for
Borrower and its Subsidiaries, including therein consolidated
balance sheets of Borrower and its Subsidiaries as of the end
of such fiscal year and consolidated statements of earnings
and cash flow of Borrower and its Subsidiaries for such fiscal
year, in each case certified (without qualification) by
independent public accountants of nationally recognized
standing selected by Borrower;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of Borrower commencing with the
fiscal quarter ending June 30, 1997, unaudited consolidated
balance sheets of Borrower and its Subsidiaries as of the end
of such fiscal quarter and consolidated statements of earnings
and cash flow of 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 an Authorized Officer of Borrower;
(c) together with the financial statements described in (a) and
(b) above a compliance certificate, in substantially the form
of Exhibit C or any other form approved by the Global
Administrative Agent, executed by an Authorized Officer of
Borrower;
(d) within five (5) days after the occurrence of each Default, a
statement of an Authorized Officer of Borrower setting forth
details of such Default and the action which Borrower has
taken and proposes to take with respect thereto;
(e) promptly after the sending or filing thereof, copies of all
material public filings, reports and communications from
Borrower, and all reports and registration statements which
Borrower or any of its Subsidiaries files with the Securities
and Exchange Commission or any national securities exchange;
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(f) immediately upon becoming aware of the institution of any
steps by 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 would reasonably
be expected to result in the requirement that 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 would reasonably be expected to result in the incurrence
by Borrower of any liability, fine or penalty in excess of
$25,000,000, or any material increase in the contingent
liability of Borrower with respect to any postretirement
Welfare Plan benefit, notice thereof; and
(g) such other information respecting the financial condition or
operations of Borrower or any of its Subsidiaries as any
Lender through the Global Administrative Agent may from time
to time reasonably request.
SECTION 5.2. Compliance with Laws. Borrower will, and will
cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders where noncompliance therewith
may reasonably be expected to have a Material Adverse Effect, except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings.
SECTION 5.3. Maintenance of Properties. Borrower will, and
will cause each of its Subsidiaries to, maintain, preserve, protect and keep
valid title to, or valid leasehold interest in, all of its properties and
assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights),
free and clear of all Liens, charges or claims (including infringement claims
with respect to patents, trademarks, copyrights and the like) except as
permitted pursuant to Section 7.1 and except for imperfections and other
burdens of title thereto as do not in the aggregate materially detract from the
value thereof or for the use thereof in their businesses (taken as a whole).
SECTION 5.4. Insurance. Borrower will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies (subject to self-insured retentions) 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.
SECTION 5.5. Books and Records. Borrower will, and will cause
each of its Subsidiaries to, keep books and records which accurately reflect
all of its business affairs and transactions and permit the Global
Administrative Agent and the other Agents and each Lender through the Global
Administrative Agent or any of their respective authorized representatives,
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during normal business hours and at reasonable intervals, to visit all of its
offices, to discuss its financial matters with its officers and to examine
(and, at the expense of the Global Administrative Agent or such other Agent or
Lender or, if a Default or Event of Default has occurred and is continuing, at
the expense of Borrower, photocopy extracts from) any of its books or other
records.
SECTION 5.6. Minimum Book Value for Assets of Borrower and its
Restricted Subsidiaries. Borrower shall maintain an aggregate book value for
assets of the Borrower and its Restricted Subsidiaries (without duplication and
excluding the aggregate book value attributable to the Borrower or any
Restricted Subsidiary arising in connection with any Subsidiary which is not a
Restricted Subsidiary) as of the end of any fiscal quarter, commencing with the
quarter ending March 31, 1997, equal to or greater than the difference of (i)
US $2,000,000,000 less (ii) the aggregate amount of any non-cash write downs
(other than for recurring depletion or depreciation) made by Borrower and any
Restricted Subsidiary; provided that, if as of the end of any fiscal quarter
Borrower is not in compliance with this Section, Borrower, for a period of 30
days following the delivery of the financial statements for such fiscal
quarter, shall be entitled to cure such non-compliance by delivering a notice
to the Global Administrative Agent designating certain Unrestricted
Subsidiaries as Restricted Subsidiaries for the purposes of this Agreement at
which time the Global Administrative Agent shall redetermine compliance with
this Section using such newly-designated Restricted Subsidiaries in such
redetermination.
SECTION 5.7. Use of Proceeds. Borrower will, and will cause
each Subsidiary to, use the proceeds of the Loans (i) to refinance existing
Indebtedness of Borrower and its Subsidiaries, (ii) for Borrower's and its
Subsidiaries' general corporate purposes, including any non-hostile
acquisitions, or (iii) to backup Borrower's commercial paper facilities.
ARTICLE VI
Financial Covenants
Until the Commitments have expired or been terminated and all
Obligations shall have been paid in full and unless the Required Lenders shall
otherwise consent in writing, Borrower covenants and agrees with the Lenders
that:
SECTION 6.1. Minimum Tangible Net Worth. Borrower will not
permit its Consolidated Tangible Net Worth as of the end of any fiscal quarter,
commencing with the quarter ending March 31, 1997, to be less than (i)
$1,000,000,000 plus (ii) an amount equal to 50% of the sum of Borrower's and
its Subsidiaries' consolidated net income for each fiscal quarter, beginning
with the fiscal quarter ending June 30, 1997, during which such consolidated
net income is greater than $0.
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SECTION 6.2. Ratio of Total Debt to Capital. Borrower will
not permit its ratio (expressed as a percentage) of (i) the consolidated Debt
of Borrower and its Subsidiaries to (ii) Capital to be greater than 60% at the
end of any fiscal quarter, commencing with the fiscal quarter ending March 31,
1997.
ARTICLE VII
Negative Covenants
Until the Commitments have expired or terminated and all Obligations
have been paid in full and unless the Required Lenders shall otherwise consent
in writing, Borrower covenants and agrees with the Lenders that:
SECTION 7.1. Liens. Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon the stock, assets, or indebtedness of Borrower or any of its Subsidiaries
to secure Indebtedness of Borrower or any other Person except:
(i) Liens on any property or assets owned or leased by Borrower or
any Subsidiary existing at the time such property or asset was
acquired (or at the time such Person became a Subsidiary);
provided that in the case of the acquisition of a Subsidiary
such Lien only encumbers property or assets immediately prior
to, or at the time of, the acquisition by Borrower of such
Subsidiary;
(ii) purchase money Liens so long as such Liens only encumber
property or assets acquired with the proceeds of the purchase
money indebtedness incurred in connection with such Lien;
(iii) Liens granted by an Unrestricted Subsidiary on its assets to
secure Indebtedness incurred by such Unrestricted Subsidiary;
(iv) Liens on assets of a Restricted Subsidiary securing
Indebtedness of a Restricted Subsidiary owing to Borrower or
to another Restricted Subsidiary or Liens on assets of an
Unrestricted Subsidiary securing Indebtedness of an
Unrestricted Subsidiary owing to Borrower, to a Restricted
Subsidiary or to another Unrestricted Subsidiary;
(v) Liens existing on the Closing Date set forth on Schedule 7.1;
(vi) Liens arising under operating agreements;
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(vii) Liens reserved in oil, gas and/or mineral leases for bonus
rental payments and for compliance with the terms of such
leases;
(viii) Liens pursuant to partnership agreements, oil, gas and/or
mineral leases, farm-out agreements, division orders,
contracts for the sale, delivery, purchase, exchange, or
processing of oil, gas and/or other hydrocarbons, unitization
and pooling declarations and agreements, operating agreements,
development agreements, area of mutual interest agreements,
forward sales of oil, natural gas and natural gas liquids, and
other agreements which are customary in the oil, gas and other
mineral exploration, development and production business and
in the business of processing of gas and gas condensate
production for the extraction of products therefrom;
(ix) Liens on the stock or other ownership interests of or in any
Unrestricted Subsidiary;
(x) Liens for taxes, assessments or similar charges, incurred in
the ordinary course of business, that are not yet due and
payable or that are being contested as set forth in Section
3.6;
(xi) pledges or deposits made in the ordinary course of business to
secure payment of worker's compensation, or to participate in
any fund in connection with worker's compensation,
unemployment insurance, old-age pensions or other social
security programs;
(xii) Liens imposed by mandatory provisions of law such as for
mechanics', materialmen's, warehousemen's, carriers', or other
like Liens, securing obligations incurred in the ordinary
course of business that are not yet due and payable;
(xiii) Liens in renewal or extension of any of the foregoing
permitted Liens, so long as limited to the property or assets
encumbered and the amount of Indebtedness secured immediately
prior to such renewal or extension; and
(xiv) in addition to Liens permitted by clauses (i) through (xiii)
above, Liens on property or assets if the aggregate
Indebtedness secured thereby does not exceed $100,000,000.
SECTION 7.2. Mergers. Borrower will not liquidate or
dissolve, consolidate with, or merge into or with, any other Person, or sell,
lease or otherwise transfer all or substantially all of its assets unless (a)
Borrower is the survivor of such merger or consolidation, and (b) no Default or
Event of Default has occurred and is continuing or would occur after giving
effect thereto.
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SECTION 7.3. Asset Dispositions. Borrower will not, and will
not permit any of its Restricted Subsidiaries to, sell, transfer, lease,
contribute or otherwise convey, or grant options, warrants or other rights with
respect to all or substantially all of its assets. Notwithstanding the
foregoing, nothing herein shall prohibit any transfer of any assets from
Borrower to any Subsidiary of Borrower, from any Subsidiary of Borrower to
Borrower or from a Subsidiary of Borrower to another Subsidiary of Borrower.
SECTION 7.4. Transactions with Affiliates. Borrower will not,
and will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
unless such arrangement or contract or group of arrangements or contracts, as
the case may be, are conducted on an arms-length basis; provided, however, that
this Section shall not apply to Producers Energy Marketing, LLC, a Delaware
limited liability company, Apache Series 1996-A Trust, a Delaware business
trust, Apache Offshore Investment Partnership, a Delaware general partnership,
Apache Offshore Petroleum Limited Partnership, a Delaware limited partnership,
Main Pass 151 Pipeline Company, a Texas general partnership, Tranpache
Partnership, a Texas general partnership, and Apache 681/682 Joint Venture, a
Texas joint venture.
SECTION 7.5. Restrictive Agreements. Borrower will not, and
will not permit any of its Subsidiaries to, enter into any agreement (excluding
this Agreement, or any other Loan Document) limiting the ability of Borrower to
amend or otherwise modify this Agreement or any other Loan Document. Borrower
will not, and will not permit any of its Restricted Subsidiaries to, enter into
any agreement which restricts or prohibits the ability of any Restricted
Subsidiary to make any payments, directly or indirectly, to 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 agreement or arrangement which restricts
the ability of any such Restricted Subsidiary to make any payment, directly or
indirectly, to Borrower.
SECTION 7.6. Guaranties. Borrower will not, and will not
permit any of its Restricted Subsidiaries to, guaranty any Indebtedness not
included in the consolidated Debt of Borrower and its Subsidiaries in an
aggregate outstanding principal amount at any time exceeding $100,000,000.
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":
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(a) Non-Payment of Obligations. Borrower shall default in the
payment or prepayment when due of any principal of any Loan,
or Borrower shall default (and such default shall continue
unremedied for a period of five (5) Business Days) in the
payment when due of any interest, fee or of any other
obligation hereunder.
(b) Breach of Warranty. Any representation or warranty of
Borrower made or deemed to be made hereunder or in any other
Loan Document or any other writing or certificate furnished by
or on behalf of Borrower to the Global Administrative Agent,
any other Agent or any Lender for the purposes of or in
connection with this Agreement or any such other Loan Document
is or shall be false or misleading when made in any material
respect.
(c) Non-Performance of Covenants and Obligations. Borrower shall
default in the due performance and observance of any of its
obligations under Section 5.6, Section 7.2 or under Article
VI.
(d) Non-Performance of Other Covenants and Obligations. Borrower
shall default in the due performance and observance of any
other agreement contained herein or in any other Loan
Document, and such default shall continue unremedied for a
period of 30 days after notice thereof shall have been given
to Borrower by the Global Administrative Agent or the Required
Lenders.
(e) 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 direct payment
obligation of Borrower or any of its Restricted Subsidiaries
in any amount in excess of $25,000,000.
(f) Pension Plans. Any of the following events shall occur with
respect to any Pension Plan: (a) the institution of any steps
by Borrower, any member of its Controlled Group or any other
Person to terminate a Pension Plan if, as a result of such
termination, Borrower or any such member could be required to
make a contribution to such Pension Plan, or would reasonably
expect to incur a liability or obligation to such Pension
Plan, in excess of $25,000,000; 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.
(g) Bankruptcy and Insolvency. 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
generally 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 Borrower, or any
of its Restricted Subsidiaries, or any substantial
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part 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 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 Borrower and each Restricted Subsidiary hereby expressly
authorizes the Global Administrative Agent, each other 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 Borrower
or any of its Restricted Subsidiaries, and, if any such case
or proceeding is not commenced by Borrower or such Restricted
Subsidiary, such case or proceeding shall be consented to or
acquiesced in by 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 Borrower and
each Restricted Subsidiary hereby expressly authorizes the
Global Administrative 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 or
partnership action authorizing, or in furtherance of, any of
the foregoing.
(h) Judgments. Any judgment or order for the payment of money in
an amount of $25,000,000 or more in excess of valid and
collectible insurance in respect thereof or in excess of an
indemnity with respect thereto reasonably acceptable to the
Required Lenders shall be rendered against Borrower or any of
its Restricted Subsidiaries and either (a) enforcement
proceedings shall have been commenced by any creditor upon
such judgment or order, or (b) such judgment shall have become
final and non-appealable and shall have remained outstanding
for a period of 60 consecutive days.
(i) Change in Control. Any Person or group of Persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act)
shall acquire beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission
under the Securities Exchange Act) of 33 1/3% or more of the
outstanding shares of common stock of Borrower.
(j) Event of Default under Australian Loan Documents or Canadian
Loan Documents. Any "Event of Default" as defined in the
Australian Loan Documents or the
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Canadian Loan Documents shall occur; provided that the
occurrence of a "Default" as defined in the Australian Loan
Documents or the Canadian Loan Documents shall constitute a
Default under this Agreement; provided further that if such
"Default" is cured or waived under the Australian Loan
Documents or the Canadian Loan Documents, as applicable, then
such "Default" shall no longer constitute a Default under this
Agreement.
SECTION 8.2. Action if Bankruptcy. If any Event of Default
described in Section 8.1(g) shall occur, the Commitments (if not theretofore
terminated) shall automatically terminate and the outstanding principal amount
of all outstanding Loans and all other obligations hereunder 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 8.2) shall
occur for any reason, whether voluntary or involuntary, and be continuing, the
Global Administrative Agent, upon the direction of the Required Lenders, shall
by notice to Borrower declare all of the outstanding principal amount of the
Loans and all other obligations hereunder to be due and payable and the
Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of such Loans and other obligations shall be and become
immediately due and payable, without further notice, demand or presentment, and
the Commitments shall terminate.
ARTICLE IX
Agents
Each of the Lenders hereby irrevocably appoints The Chase Manhattan
Bank as the Global Administrative Agent, ▇▇▇▇▇▇ Guaranty Trust Company as
Global Documentation Agent and U.S. Syndication Agent, The First National Bank
of Chicago as U.S. Documentation Agent, NationsBank of Texas, N.A. as Co-Agent,
and Union Bank of Switzerland, Houston Agency, as Co-Agent, and authorizes each
such Agent to take such actions on its behalf and to exercise such powers as
are delegated to such Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
Any bank serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not an Agent, and such bank and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of
business with Borrower or any Subsidiary or other Affiliate thereof as if it
were not an Agent hereunder.
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The Agents shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(a) the Agents shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) each Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that such Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.2), and (c) except
as expressly set forth herein, the Agents shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating
to Borrower or any of its Subsidiaries that is communicated to or obtained by
the bank serving as such Agent or any of its Affiliates in any capacity. Each
Agent shall not be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. Each Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof is given to such Agent by
Borrower or a Lender, and such Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to such Agent.
The Global Administrative Agent and the other Agents shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person. The Global Administrative Agent and the other Agents also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Global Administrative Agent and the other Agents may consult with
legal counsel (who may be counsel for Borrower), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.
Any Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by such Agent.
Any Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of such Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as an Agent.
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Subject to the appointment and acceptance of a successor Global
Administrative Agent as provided in this paragraph, the Global Administrative
Agent may resign at any time by notifying the Lenders and Borrower. Upon any
such resignation, Borrower shall have the right, in consultation with the
Combined Required Lenders, to appoint one of the Lenders as a successor. If no
successor shall have been so appointed by Borrower and shall have accepted such
appointment within 30 days after the retiring Global Administrative Agent gives
notice of its resignation, then the retiring Global Administrative Agent may,
on behalf of the Lenders, appoint a successor Global Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Global Administrative
Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Global Administrative Agent, and the retiring Global Administrative Agent shall
be discharged from its duties and obligations hereunder. The fees payable by
Borrower to a successor Global Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between Borrower and such
successor. After the Global Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.3 shall continue in effect for the
benefit of such retiring Global Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Global Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
ARTICLE X
Miscellaneous
SECTION 10.1. 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 Borrower, to:
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Manager, Banking and Cash Management
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and with copy to:
Vice President and General Counsel
Apache Corporation
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Global Administrative Agent, to:
The Chase Manhattan Bank
Loan & Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Chase Manhattan Bank
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(c) if to any other Lender, to it at its address (or telecopy
number) provided to the Global Administrative Agent and 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 10.2. Waivers; Amendments.
(a) No failure or delay by the Global Administrative Agent or any
Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Global Administrative Agent and
the Lenders hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by Borrower therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default, regardless of whether the Global Administrative Agent or
any Lender may have had notice or knowledge of such Default at the time.
(b) Any of the Combined Loan Documents or any provision thereof
may be waived, amended or modified pursuant to an agreement or agreements in
writing entered into by Borrower and the Combined Required Lenders or by
Borrower and the Global Administrative Agent with the consent of the Combined
Required Lenders; provided that the same waiver, amendment or modification is
requested by Borrower in connection with each of the Combined Credit
Agreements; and provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of (i) the Lenders described in the first
proviso of Section 10.2(c) without the prior written consent of each Lender
affected thereby and (ii) the Global Administrative Agent without the prior
written consent of the Global Administrative Agent.
(c) Except as provided for in Section 10.2(b) above, neither this
Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by Borrower and
the Required Lenders or by Borrower and the Global Administrative Agent with
the consent of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender or the Commitments without the written
consent of such Lender or each Lender, respectively, (ii) reduce the principal
amount of any Loan or reduce the rate of interest thereon, or reduce any fees
payable hereunder,
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without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, or
(v) change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Global Administrative Agent
hereunder without the prior written consent of the Global Administrative Agent.
SECTION 10.3. Expenses; Indemnity; Damage Waiver.
(a) Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Agents and their Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Agents, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated) and (ii) all reasonable out-of-pocket expenses
incurred by the Agents or any Lender, including the fees, charges and
disbursements of any counsel for the Agents or any Lender, in connection with
the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or this
Agreement.
(b) Borrower shall indemnify the Agents and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or
the actual or proposed use of the proceeds therefrom, (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property
owned or operated by Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to Borrower or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such
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indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (i) resulted from the
gross negligence or willful misconduct of such Indemnitee or (ii) arise in
connection with any issue in litigation commenced by Borrower or any of its
Subsidiaries against any Indemnitee for which a final judgment is entered in
favor of Borrower or any of its Subsidiaries against such Indemnitee.
(c) To the extent that Borrower fails to pay any amount required
to be paid by it to the Global Administrative Agent under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Global
Administrative Agent, such Lender's Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Global Administrative Agent.
(d) To the extent permitted by applicable law, Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions or any Loan or the use of the proceeds thereof, except for any
such claim arising from such Indemnitee's gross negligence or willful
misconduct.
(e) All amounts due under this Section shall be payable not later
than thirty (30) days after written demand therefor.
SECTION 10.4. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each
of the Global Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided
that (i) except in the case of an assignment to a Lender or an Affiliate of a
Lender, each of Borrower and the Global Administrative Agent must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except
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in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Global Administrative Agent)
shall be in increments of $1,000,000 and not less than $10,000,000 unless each
of Borrower and the Global Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this Agreement, except
that this clause (iii) shall not apply to rights in respect of outstanding
Competitive Loans, (iv) the parties to each assignment shall execute and
deliver to the Global Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and (v) the assignee,
if it shall not be a Lender, shall deliver to the Global Administrative Agent
an Administrative Questionnaire; and provided further that any consent of
Borrower otherwise required under this paragraph shall not be required if an
Event of Default under Section 8.1 has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section,
from and after the effective date specified in each Assignment and Acceptance
the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.14, 2.15, 2.16, 2.17, 2.19 and 10.3). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Global Administrative Agent, acting for this purpose as an
agent of Borrower, shall maintain at one of its offices in The City of New York
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall
be conclusive, and Borrower, the Global Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to
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in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Global Administrative Agent
shall accept such Assignment and Acceptance and record the information
contained therein in the Register and will provide prompt written notice to
Borrower of the effectiveness of such Assignment. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Any Lender may, without the consent of Borrower or the Global
Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) Borrower, the Global Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
(iv) if such Participant is not a Lender or an Affiliate of a Lender, such
Lender shall have given notice to Borrower of the name of the Participant and
the amount of such participation. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.2(c) that affects such
Participant. Subject to paragraph (f) of this Section, Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and
2.16 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.8
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14, 2.15 or 2.16 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless Borrower shall expressly agree otherwise in writing. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.16 unless Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of Borrower, to comply with Section 2.16(e) as though it were a Lender.
(g) 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 to a Federal Reserve Bank or, in the case of a
Lender organized in a jurisdiction outside of the United States, a comparable
Person, 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
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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 10.5. Survival. All covenants, agreements,
representations and warranties made by Borrower herein and in the certificates
or other instruments delivered in connection with or pursuant to this Agreement
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of this Agreement and the making of
any Loans, regardless of any investigation made by any such other party or on
its behalf and notwithstanding that the Global Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.14, 2.15, 2.16, 2.17, 2.19
and 10.3 and Article IX shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 10.6. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the Global
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.1, this Agreement shall become effective when it shall
have been executed by the Global Administrative Agent and when the Global
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 10.7. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 10.8. Right of Setoff. If an Event of Default shall
have occurred and be continuing and the Obligations of Borrower shall have been
accelerated, each Lender and each of
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its Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of Borrower against any of and all the obligations of
Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 10.9. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF NEW YORK.
(b) BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT
OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE AGENTS OR ANY LENDER
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
AGAINST BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN
PARAGRAPH (b) OF THIS SECTION.
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EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN
OR WITHOUT THE STATE OF NEW YORK. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
SECTION 10.10. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.11. 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 the enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (g) with the consent
of Borrower or (h) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this Section by any Person or
(B) becomes available to any Agent or any Lender on a nonconfidential basis
from a source other than Borrower or any Person obligated to maintain the
confidentiality of such Information. Prior to disclosing any Information under
clause (c) above, the Agent or Lender required or asked to make such disclosure
shall make a good faith effort to give Borrower prior notice of such proposed
disclosure to permit Borrower to attempt to obtain a protective order or other
appropriate injunctive relief. For the purposes of this Section, "Information"
means all information received from Borrower relating to Borrower or its
business, other than any publicly available information and such information
that is available to any Agent or any Lender on a nonconfidential basis prior
to disclosure by Borrower; provided that, in the case of information received
from Borrower after the date hereof, such information is clearly identified at
the time of delivery as confidential. 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
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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 10.12. Interest Rate Limitation. It is the intention of
the parties hereto to conform strictly to applicable interest, usury and
criminal laws and, anything herein to the contrary notwithstanding, the
obligations of Borrower to a Lender or any Agent 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 such Lender or Agent limiting rates of interest which may be
charged or collected by such Lender or Agent. Accordingly, if the transactions
contemplated hereby would be illegal, unenforceable, usurious or criminal under
laws applicable to a Lender or Agent (including the laws of any jurisdiction
whose laws may be mandatorily applicable to such Lender or Agent
notwithstanding anything to the contrary in this Agreement or any other Loan
Document but subject to Section 2.12 hereof) then, in that event,
notwithstanding anything to the contrary in this Agreement or any other Loan
Document, it is agreed as follows:
(i) the provisions of this Section shall govern and
control;
(ii) the aggregate of all consideration which
constitutes interest under applicable law that is contracted for,
taken, reserved, charged or received under this Agreement, or under
any of the other aforesaid agreements or otherwise in connection with
this Agreement by such Lender or Agent shall under no circumstances
exceed the maximum amount of interest allowed by applicable law (such
maximum lawful interest rate, if any, with respect to each Lender and
the Agent herein called the "Highest Lawful Rate"), and any excess
shall be cancelled automatically and if theretofore paid shall be
credited to Borrower by such Lender or Agent (or, if such
consideration shall have been paid in full, such excess refunded to
Borrower);
(iii) all sums paid, or agreed to be paid, to such
Lender or Agent for the use, forbearance and detention of the
indebtedness of Borrower to such Lender or Agent hereunder or under
any Loan Document shall, to the extent permitted by laws applicable to
such Lender or Agent, as the case may be, be amortized, prorated,
allocated and spread throughout the full term of such indebtedness
until payment in full so that the actual rate of interest is uniform
throughout the full term thereof;
(iv) if at any time the interest provided pursuant to
this Section or any other clause of this Agreement or any other Loan
Document, together with any other fees or compensation payable
pursuant to this Agreement or any other Loan Document and deemed
interest under laws applicable to such Lender or Agent, exceeds that
amount which would have accrued at the Highest Lawful Rate, the amount
of interest and any such fees or compensation to accrue to such Lender
or Agent pursuant to this Agreement shall be
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limited, notwithstanding anything to the contrary in this Agreement or
any other Loan Document, 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 such Lender or Agent
pursuant to this Agreement below the Highest Lawful Rate until the
total amount of interest accrued pursuant to this Agreement or such
other Loan Document, as the case may be, and such fees or compensation
deemed to be interest equals the amount of interest which would have
accrued to such Lender or Agent if a varying rate per annum equal to
the interest provided pursuant to any other relevant Section hereof
(other than this Section), as applicable, had at all times been in
effect, plus the amount of fees which would have been received but for
the effect of this Section; and
(v) with the intent that the rate of interest herein
shall at all times be lawful, and if the receipt of any funds owing
hereunder or under any other agreement related hereto (including any
of the other Loan Documents) by such Lender or Agent would cause such
Lender to charge Borrower a criminal rate of interest, the Lenders and
the Agents agree that they will not require the payment or receipt
thereof or a portion thereof which would cause a criminal rate of
interest to be charged by such Lender or Agent, as applicable, and if
received such affected Lender or Agent will return such funds to
Borrower so that the rate of interest paid by Borrower shall not
exceed a criminal rate of interest from the date this Agreement was
entered into.
SECTION 10.13. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG
THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
APACHE CORPORATION
By: /S/ Apache Corporation
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 1
70
THE CHASE MANHATTAN BANK,
as Global Administrative Agent
By: /S/ The Chase Manhattan Bank
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 2
71
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY, as Global Documentation
Agent and U.S. Syndication Agent
By: /S/ ▇▇▇▇▇▇ Guaranty Trust Company
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 3
72
THE FIRST NATIONAL BANK OF
CHICAGO, as U.S. Documentation Agent
By: /S/ The First National Bank of Chicago
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 4
73
NATIONSBANK OF TEXAS, N.A., as
Co-Agent
By: /S/ Nationsbank of Texas, N.A.
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 5
74
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY, as Co-Agency
By: /S/ Union Bank of Switzerland, Houston Agency
---------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 6
75
THE CHASE MANHATTAN BANK, as
Lender
By: /S/ The Chase Manhattan Bank
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
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76
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY, as Lender
By: /S/ ▇▇▇▇▇▇ Guaranty Trust Company
---------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 8
77
THE FIRST NATIONAL BANK
OF CHICAGO, as Lender
By: /S/ The First National Bank of Chicago
--------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
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78
NATIONSBANK OF TEXAS, N.A., as
Lender
By: /S/ Nationsbank of Texas, N.A.
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 10
79
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY, as Lender
By: /S/ Union Bank of Switzerland Houston Agency
--------------------------------------------
Name:
Title:
By: /S/ Union Bank of Switzerland Houston Agency
--------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
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80
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Lender
By: /S/ Bank of America National Trust and Savings
Association
----------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 12
81
BANK OF MONTREAL, as Lender
By: /S/ Bank of Montreal
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 13
82
CITIBANK, N.A., as Lender
By: /S/ Citibank, N.A.
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 14
83
ROYAL BANK OF CANADA, as Lender
By: /S/ Royal Bank of Canada
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 15
84
ABN-AMRO BANK N.V. - HOUSTON
AGENCY, as Lender
By: /S/ ABN-AMRO Bank N.V. - Houston Agency
---------------------------------------
Name:
Title:
By: /S/ ABN-AMRO Bank N.V. - Houston Agency
---------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 16
85
THE BANK OF NOVA SCOTIA,
ATLANTA AGENCY, as Lender
By: /S/ The Bank of Nova Scotia Atlanta Agency
------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 17
86
CIBC INC. as Lender
By: /S/ CIBC, Inc.
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 18
87
CHRISTIANIA BANK OG
KREDITKASSE, ASA, as Lender
By: /S/ Christiania Bank Og Kreditkasse, ASA
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 19
88
SOCIETE GENERALE, SOUTHWEST
AGENCY, as Lender
By: /S/ Societe Generale, Southwest Agency
--------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 20
89
BANQUE PARIBAS, as Lender
By: /S/ Banque Paribas
-----------------------------------
Name:
Title:
By: /S/ Banque Paribas
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 21
90
COLORADO NATIONAL BANK, as
Lender
By: /S/ Colorado National Bank
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 22
91
THE FUJI BANK, LIMITED -
HOUSTON AGENCY, as Lender
By: /S/ The Fuji Bank, Limited - Houston Agency
-------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 23
92
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By: /S/ Union Bank of California, N.A.
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 24
93
BANQUE NATIONALE DE PARIS, as
Lender
By: /S/ Banque Nationale de Paris
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 25
94
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., as Lender
By: /S/ The Long-Term Credit Bank of Japan, Ltd.
-------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 26
95
ISTITUTO BANCARIO SAN PAOLO
DI TORINO SPA, as Lender
By: /S/ Istituto Bancario San Paolo Di Torino SpA
---------------------------------------------
Name:
Title:
By: /S/ Istituto Bancario San Paolo Di Torino SpA
----------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 27
96
THE SUMITOMO BANK, LIMITED,
as Lender
By: /S/ The Sumitomo Bank, Limited
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 28
97
TORONTO DOMINION (TEXAS),
INC., as Lender
By: /S/ Toronto Dominion (Texas), Inc.
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
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