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EXHIBIT 4.5
$235,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
May 30, 1995
among
Cabot Oil & Gas Corporation,
The Banks Parties Hereto
and
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Agent
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TABLE OF CONTENTS (1)
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.......................... 1
1.02 Accounting Terms and Determinations.. 15
1.03 Types of Borrowings.................. 15
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments to Lend.................. 15
2.02 Notice of Borrowings................. 16
2.03 Notes................................ 17
2.04 Maturity of Loans.................... 18
2.05 Interest Rates....................... 18
2.06 Fees................................. 21
2.07 Termination or Reduction of
Commitments........................ 22
2.08 Method of Electing Interest Rates.... 22
2.09 Optional Prepayments................. 24
2.10 General Provisions as to Payments.... 24
2.11 Funding Losses....................... 25
2.12 Computation of Interest and Fees..... 25
2.13 Extension of Revolving Credit
Period............................. 25
2.14 Withholding Tax Exemption............ 26
2.15 Regulation D Compensation............ 26
2.16 Maximum Interest Rate................ 27
ARTICLE III
CONDITIONS
SECTION 3.01 Effectiveness........................ 28
3.02 Borrowings........................... 29
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(1) The Table of Contents is not a part of this Agreement.
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PAGE
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power........ 30
4.02 Corporate and Governmental
Authorization; No Contravention.... 30
4.03 Binding Effect....................... 30
4.04 Financial and Other Information...... 30
4.05 Full Disclosure...................... 31
4.06 Litigation........................... 32
4.07 Compliance with ERISA................ 32
4.08 Environmental Matters................ 32
4.09 Taxes................................ 33
4.10 Titles, etc.......................... 33
4.11 Casualties; Taking of Properties..... 33
4.12 Use of Proceeds...................... 33
ARTICLE V
COVENANTS
SECTION 5.01 Information.......................... 34
5.02 Payment of Obligations............... 36
5.03 Maintenance of Property.............. 36
5.04 Conduct of Business and
Maintenance of Existence........... 37
5.05 Compliance with Laws................. 37
5.06 Inspection of Property, Books
and Records........................ 37
5.07 Insurance............................ 37
5.08 Covenant to Secure Indebtedness
Equally............................ 38
5.09 Engineering Reports.................. 38
5.10 Debt................................. 39
5.11 Liens................................ 41
5.12 Sales of Petroleum Properties........ 42
5.13 Annual Coverage Ratio................ 42
5.14 Restricted Payments.................. 43
5.15 Consolidations, Mergers and Sales
of Assets........................... 43
5.16 Subsidiary Debt...................... 43
5.17 Subsidiaries......................... 44
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ARTICLE VI
DEFAULTS
PAGE
SECTION 6.01 Events of Default.................... 44
6.02 Notice of Default.................... 47
ARTICLE VII
THE AGENT
SECTION 7.01 Appointment and Authorization........ 47
7.02 Agent and Affiliates................. 47
7.03 Action by Agent...................... 47
7.04 Consultation with Experts............ 48
7.05 Liability of Agent................... 48
7.06 Indemnification...................... 48
7.07 Credit Decision...................... 48
7.08 Successor Agent...................... 49
7.09 Agent's Fees......................... 49
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest
Rate Inadequate or Unfair.......... 49
8.02 Illegality........................... 50
8.03 Increased Cost and Reduced Return.... 50
8.04 Base Rate Loans Substituted for
Affected Fixed Rate Loans.......... 52
8.05 Substitution of Bank................. 53
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices.............................. 53
9.02 No Waivers........................... 53
9.03 Expenses; Documentary Taxes;
Indemnification.................... 54
9.04 Sharing of Set-Offs.................. 54
9.05 Amendments and Waivers............... 55
9.06 Successors and Assigns............... 55
9.07 Collateral........................... 57
9.08 New York Law; Submission to
Jurisdiction....................... 57
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PAGE
9.09 Counterparts......................... 57
9.10 Confidentiality...................... 57
9.11 No Unwritten Agreements.............. 58
Exhibit A - Note
Exhibit B - Extension Agreement
Exhibit C-1 - Opinion of Counsel for
the Borrower
Exhibit C-2 - Opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Exhibit D - Opinion of Special Counsel for
the Agent
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 30, 1995 among
CABOT OIL & GAS CORPORATION, the BANKS from time to time parties hereto and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
WHEREAS, Cabot Oil & Gas Corporation, the Banks and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as agent, are parties to a Credit Agreement dated as
of January 15, 1990 (as heretofore amended and/or restated, the "Original
Agreement"); and
WHEREAS, the parties to the Original Agreement desire to amend and
restate the Original Agreement as hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as
used herein, have the following meanings:
"Adjusted CD Rate" has the meaning set forth in Section
2.05(b).
"Administrative Questionnaire" means, with respect to each Bank, the
administrative questionnaire in the form submitted to such Bank by the Agent and
submitted to the Agent (with a copy to the Borrower) duly completed by such
Bank.
"Agent" means ▇▇▇▇▇▇ Guaranty Trust Company of New York in its
capacity as agent for the Banks hereunder, and its successors in such capacity.
"Agreement" means the Original Agreement, as amended and restated by
this Amended Agreement and as the same may be further amended or restated from
time to time in accordance with the terms hereof.
"Amended Agreement" means this Amended and Restated Credit Agreement
dated as of May 30, 1995 among Cabot Oil & Gas
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Corporation, the Banks and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office and (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Assessment Rate" has the meaning set forth in Section
2.05(b).
"Assignee" has the meaning set forth in Section
9.06(c).
"Available Commitment" means, at any time with respect to any Bank, an
amount (not to exceed such Bank's Commitment at such time) equal to the product
of (i) a fraction, the numerator of which shall be such Bank's Commitment and
the denominator of which shall be the aggregate Commitments of the Banks, times
(ii) the amount by which the Debt Limit in effect at such time exceeds the
aggregate principal amount of COGC Notes and, to the extent not excluded from
Borrower's Consolidated Debt at such time, Subordinated Debt outstanding at such
time.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means, at any time, a Loan which bears interest at
such time at a rate determined pursuant to Section 2.05(a) in accordance with
the applicable Notice of Borrowing or Notice of Interest Rate Election or
pursuant to Article VIII.
"Borrower" means Cabot Oil & Gas Corporation, a Delaware corporation,
and its successors.
"Borrowing" has the meaning set forth in Section 1.03.
"Borrower's Consolidated Debt" means, at any date, the aggregate
outstanding principal amount of Debt of the Borrower and its Subsidiaries,
determined on a consolidated basis as of such date (not including any
Non-Recourse Debt in an aggregate principal amount not to exceed $150,000,000 at
any such date incurred by the Borrower and its Subsidiaries to finance the
acquisition of Properties (other than Petroleum Properties)); provided that the
Borrower may request from time to time the exclusion from Borrower's
Consolidated Debt of any Subordinated
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Debt proposed to be incurred at such time by written notice to the Agent setting
forth the terms of such Subordinated Debt (such terms to include, without
limitation, the aggregate principal amount of such Subordinated Debt, the rate,
if any, at which interest is to accrue thereon, the dates of any scheduled
repayments thereof and the final maturity thereof), and the Agent shall promptly
thereafter notify each Bank of such request. The Borrower shall also furnish
each Bank with such other information with respect to such Subordinated Debt as
any Bank may reasonably request. Within 30 days of receipt of notice of such
request from the Agent, the Banks shall consult with one another to determine
the percentage, if any, acceptable to the Required Banks of the aggregate
principal amount of such Subordinated Debt which is to be excluded from
Borrower's Consolidated Debt. Such percentage as so determined by the Required
Banks shall be promptly notified in writing by the Agent to the Borrower, and
upon such notification, and for all purposes thereafter, an amount equal to such
percentage of the aggregate outstanding principal amount of such Subordinated
Debt shall be excluded from Borrower's Consolidated Debt until such Subordinated
Debt is repaid in full or, if applicable, converted into capital stock of the
Borrower.
"Borrower's 1994 Form 10-K" means the Borrower's annual report on Form
10-K for the fiscal year ended December 31, 1994, as filed with the Securities
and Exchange Commission.
"CD Base Rate" has the meaning set forth in Section
2.05(b).
"CD Loan" means, at any time, a Loan which bears interest at such time
at a rate determined pursuant to Section 2.05(b) in accordance with the
applicable Notice of Borrowing or Notice of Interest Rate Election.
"CD Margin" has the meaning set forth in Section
2.05(b).
"CD Reference Banks" means ▇▇▇▇▇▇ Guaranty Trust Company of New York
and any other Bank selected by the Agent to serve in such capacity and not
disapproved by the Borrower or the Required Banks.
"CFADS" or "Cash Flow Available for Debt Service" means, for any
period, gross cash operating revenues properly allocable to (i) Proved Reserves
and other assets consisting primarily of gas gathering and transmission
pipelines that are directly owned by the Borrower or its Subsidiaries or (ii)
any Section 29 Transaction PPI in Proved Reserves or other assets, which Proved
Reserves or other assets are in each case not subject to any Non-Recourse Debt
or any Lien except Excepted
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Liens and Liens permitted under Section 5.11(e) and located in the United States
of America or in Canada for such period, less (in the case of clause (i)) the
following cash items: royalties, operating costs, severance, wellhead taxes,
general and administrative expenses and current income and other taxes properly
allocable to such period and cash capital expenditures made during such period
and properly allocable to Petroleum Properties and such other assets. CFADS
shall be determined based on the most recent Reserve Report and financial
statements (and supplemental information) furnished to the Banks, subject to
approval of such Reserve Report and financial statements (and supplemental
information) by the Required Banks and, with respect to pipeline assets, shall
take into account the Borrower's end product sales value of natural gas as most
recently furnished by the Borrower in writing to the Banks (together with a
description of the applicable period of sales data from which such end product
sales value was derived) and derived from information set forth in financial
statements furnished to the Banks and shall be determined based on an assumption
that, for so long as substantially all of the natural gas moving through such
pipeline assets are produced from reserves (i) owned by the Borrower or any
Subsidiary or (ii) in which the Borrower has a Section 29 Transaction PPI, the
volumes of natural gas transported by such pipelines positively correlate with
the rate at which natural gas is produced from Proved Developed Producing
Reserves as determined according to such Reserve Report and financial statements
(and supplemental information). CFADS shall exclude amounts attributable to any
Subsidiary to the extent of any minority interest in such Subsidiary.
"COGC Notes" means the 10.18% Notes due 2002 issued by the Borrower
pursuant to the Note Purchase Agreement dated as of May 11, 1990 among the
Borrower and the purchasers listed on the signature pages thereof, as such notes
and agreement may be amended from time to time.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof as its Commitment,
as such amount may be reduced from time to time pursuant to Section 2.07, or the
obligation of such Bank to make Loans pursuant to Section 2.01(a) not to exceed
such amount, as the context may require, and "Commitments" means the aggregate
Commitments of all of the Banks.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements as if such statements were prepared as of
such date.
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"Conversion Date" means June 1, 1997, or a subsequent anniversary of
such date to which the Revolving Credit Period shall have been extended pursuant
to Section 2.13, or if any such date is not a Euro-Dollar Business Day, the next
succeeding Euro-Dollar Business Day.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under capital leases,
(v) all Debt of others secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person, and (vi) all Debt of others directly or
indirectly guaranteed by such Person or in respect of which such Person is
otherwise liable, contingently or otherwise.
"Debt Limit" means that dollar amount determined and periodically
adjusted in accordance with Section 5.10(b).
A "Debt Limit Excession" exists at any date if and to the extent that
Consolidated Debt at such date exceeds the Debt Limit at such date.
"Debt Percentage" means, at any date, the percentage equivalent of a
fraction the numerator of which is Borrower's Consolidated Debt at such date and
the denominator of which is the Debt Limit at such date and shall be determined
based on the certificate of the chief financial officer or chief accounting
officer of the Borrower furnished to the Banks as provided in Section 5.01(h).
"Default" means the occurrence of any of the events specified in
Section 6.01, whether or not any requirement for notice or lapse of time or
other condition precedent has been satisfied.
"Domestic Borrowing" means any Borrowing comprised of
Domestic Loans.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice
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to the Borrower and the Agent; provided that any Bank may so designate separate
Domestic Lending Offices for its Base Rate Loans, on the one hand, and its CD
Loans, on the other hand, in which case all references herein to the Domestic
Lending Office of such Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or
both.
"Domestic Reserve Percentage" has the meaning set forth
in Section 2.05(b).
"Effective Date" means the date this Amended Agreement becomes
effective in accordance with Section 3.01.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may
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hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower
and the Agent.
"Euro-Dollar Loan" means, at any time, a Loan which bears interest at
such time at a rate determined pursuant to Section 2.05(c) or (d) in accordance
with the applicable Notice of Borrowing or Notice of Interest Rate Election.
"Euro-Dollar Margin" has the meaning set forth in
Section 2.05(c).
"Euro-Dollar Reference Banks" means the principal London offices of
▇▇▇▇▇▇ Guaranty Trust Company of New York and any other Bank selected by the
Agent to serve in such capacity and not disapproved by the Borrower or the
Required Banks.
"Euro-Dollar Reserve Percentage" means, with respect to any Bank, for
any day that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for such Bank in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
"Event of Default" means any of the events specified in
Section 6.01.
"Excepted Liens" means: (i) Liens for taxes, assessments or other
governmental charges or levies not yet due or which are being contested in good
faith by appropriate action; (ii) Liens in connection with workmen's
compensation, unemployment insurance or other social security, old age pension
or public liability obligations; (iii) legal or equitable encumbrances deemed to
exist by reason of the existence of any litigation or other legal proceeding or
arising out of a judgment or award with respect to which an appeal is being
prosecuted, but only so long as execution of such judgment and enforcement of
such Lien is effectively stayed and the amount thereof (in excess of applicable
insurance coverage) does not exceed, individually or in the aggregate,
$5,000,000; (iv) vendors', carriers', warehousemen's, repairmen's, mechanics',
workmen's, materialmen's, construction or other like Liens (including, without
limitation, Liens arising in favor of sellers of hydrocarbons) arising by
operation of law in the ordinary course of business incident to obligations
which are not yet due or which are being contested in good faith by appropriate
proceedings by or on behalf of the Borrower or a Subsidiary; (v)
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Liens arising in the ordinary course of business under farm-out agreements, gas
sales contracts, operating agreements, unitization and pooling agreements, and
such other documents as are customarily found in connection with comparable
drilling and producing operations; (vi) letters of credit, pledges or deposits,
including bonds, required in the ordinary course of business to secure public or
statutory obligations or to secure performance in connection with bids or
contracts related to the exploration or development of Petroleum Properties, to
the extent that payment of the underlying obligations is not yet due or is being
contested in good faith by appropriate proceedings by or on behalf of the
Borrower or a Subsidiary and with respect to which appropriate reserves have
been established; and (vii) minor irregularities in title which do not
materially interfere with the occupation, use and enjoyment by the Borrower and
its Subsidiaries of their respective Properties in the normal course of business
as presently conducted or materially impair the value thereof for such business.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute. For purposes of Section 6.01(k), unless otherwise
defined in such Section, the terms enclosed in quotation marks as used therein
have the meanings ascribed to such terms under the Exchange Act and the rules
and regulations promulgated by the Securities and Exchange Commission
thereunder.
"Executive Officer" means, with respect to any Person, the president,
any vice president, the treasurer, the chief financial officer, the chief
accounting officer, the controller or the general counsel or any other person
performing similar functions.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to ▇▇▇▇▇▇ Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"Financing Documents" means this Agreement and the
Notes.
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"Fixed Rate Borrowing" means any Borrowing comprised of
Fixed Rate Loans.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans
or both.
"Group of Loans" means at any time, a group of Loans consisting of (i)
all Loans which are Base Rate Loans at such time (other than Base Rate Loans
arising under Section 8.02 or 8.04, which shall be included in the related Group
of Fixed Rate Loans) or (ii) all Loans which are the same Type of Fixed Rate
Loans having the same Interest Period at such time.
"Indebtedness" means any and all Loans and all other liabilities of
the Borrower to the Banks from time to time existing under the Financing
Documents and all renewals, extensions, rearrangements, amendments or
supplements to such documents.
"Interest Period" means: (1) with respect to each Euro-Dollar Loan, a
period beginning on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice of Interest Rate
Election and ending one, three or six months thereafter, as the Borrower may
elect in the applicable Notice; provided that:
(a) any Interest Period which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clauses (c) and (d) below, end on the last Euro-Dollar
Business Day of a calendar month;
(c) any Interest Period applicable to any Revolving Credit Loan which
begins before the Conversion Date and would otherwise end after the Conversion
Date shall end on the Conversion Date; and
(d) if any Interest Period for a Euro-Dollar Loan includes a date on
which a payment of principal of such Loan is required to be made but does not
end on such date, then (i) the principal amount of such Loan required to be
repaid on such date shall have an Interest Period ending on such date
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and (ii) the remainder (if any) of such Loan shall have an Interest Period
determined as set forth above.
(2) with respect to each CD Loan, a period beginning on the date of borrowing
specified in the applicable Notice of Borrowing or on the date specified in the
applicable Notice of Interest Rate Election and ending 30, 90 or 180 days
thereafter, as the Borrower may elect in the applicable Notice; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (c)(i) below) which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day;
(b) any Interest Period applicable to any Revolving Credit Loan which
begins before the Conversion Date and would otherwise end after the Conversion
Date shall end on the Conversion Date; and
(c) if any Interest Period for a CD Loan includes a date on which a
payment of principal of such Loan is required to be made but does not end on
such date, then (i) the principal amount of such Loan required to be repaid on
such date shall have an Interest Period ending on such date and (ii) the
remainder (if any) of such Loan shall have an Interest Period determined as
set forth above;
Notwithstanding the foregoing (x) all Interest Periods at any one time
outstanding with respect to Term Loans (exclusive of Interest Periods determined
solely pursuant to clause (1)(d)(i) or (2)(c)(i) above) shall end on not more
than four different dates and (y) the duration of any Interest Period which
would otherwise violate the limitation in clause (x) shall be adjusted to
coincide with the remaining term of such other then current Interest Period with
respect to a Fixed Rate Loan of the same Type as the Borrower shall specify in
the related Notice of Borrowing or Notice of Interest Rate Election.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
(including without limitation any Production Payment, advance payment, gas
imbalances, take or pay or similar arrangement with respect to minerals in
place) or any other arrangement the economic effect of which is to give a
creditor preferential access to such asset to satisfy its claim, whether or not
filed, recorded or otherwise perfected under applicable law. For the purposes of
this Agreement, the Borrower
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or any Subsidiary shall be deemed to own subject to a Lien (i) any asset that it
has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset or any capitalized lease obligation or (ii) any account
receivable transferred by it with recourse (including any such transfer subject
to a holdback or similar arrangement which effectively imposes the risk of
collectibility upon the transferor).
"Loan" means any loan made or to be made by a Bank hereunder, which
will be (i) either a Domestic Loan (i.e., a Base Rate Loan or a CD Loan) or a
Euro-Dollar Loan and (ii) either a Revolving Credit Loan or a Term Loan. "Loans"
means all or any combination of the foregoing, as the context may require.
"London Interbank Offered Rate" has the meaning set
forth in Section 2.05(c).
"Material Debt" means Debt (other than Non-Recourse Debt) of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, in an aggregate principal amount exceeding
$7,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $3,000,000.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Non-Recourse Debt" of any Person means Debt of such Person in respect
of which (i) the recourse of the holder of such Debt, whether direct or indirect
and whether contingent or otherwise, is effectively limited to the assets
directly securing such Debt; (ii) such holder may not collect by levy of
execution against assets of such Person generally (other than the assets
directly securing such Debt) if such Person fails to pay such Debt when due and
the holder obtains a judgment with respect thereto; and (iii) such holder has
waived, to the extent such holder may effectively do so, such holder's right to
elect recourse treatment under 11 U.S.C. { 1111(b).
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
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"Notice of Borrowing" has the meaning set forth in
Section 2.02.
"Notice of Interest Rate Election" has the meaning set
forth in Section 2.08.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section
9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Petroleum Property" means (i) any interest of the Borrower or any
Subsidiary in oil and gas reserves and assets consisting primarily of gas
gathering and transmission pipelines which is, or is to be, taken into account
in the determination of the Debt Limit pursuant to Section 5.10 or the annual
coverage ratio pursuant to Section 5.13 and (ii) any Section 29 Transaction PPI
provided that (a) such Section 29 Transaction PPI constitutes a production
payment within the meaning of the Bankruptcy Reform Act of 1994 and (b) such
Section 29 Transaction PPI is filed, recorded or otherwise perfected under
applicable law so as to be fully protected from all creditors and transferees of
the grantor thereof.
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by ▇▇▇▇▇▇
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Production Payment" means an interest in a Petroleum Property that
(i) is not subject to the costs of production and
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(ii) terminates at such time as the interest-holder has realized a specified sum
from the sale of oil or gas attributable to such interest.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Proved Reserves" means "proved oil and gas reserves" as specified
under Rule 4-10(a)(2) of Regulation S-X of the Securities and Exchange
Commission.
"Quarterly Date" means the first day of each March, June, September
and December or if any such date is not a Euro-Dollar Business Day, the next
succeeding Euro-Dollar
Business Day.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Commitments then in effect, or, if the Commitments
shall have been terminated, holding Notes evidencing at least 66 2/3% of the
aggregate principal amount of the Loans then outstanding.
"Reserve Report" means a report delivered by the
Borrower pursuant to Section 5.09(a), Section 5.09(b) or Section
5.09(c).
"Restricted Payment" means (i) any dividend or other distribution on
any shares of the Borrower's capital stock (except dividends payable solely in
shares of its capital stock) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Borrower's
capital stock or (b) any option, warrant or other right to acquire shares of the
Borrower's capital stock.
"Revolving Credit Period" means the period from and including the
Effective Date to but not including the Conversion Date.
"Revolving Credit Loan" means a loan made by a Bank pursuant to
Section 2.01(a)(i).
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"Section 29 Transaction" means the transaction outlined in the letter
dated March 20, 1995 from State Street Bank and Trust Company to the Borrower,
copies of which have heretofore been delivered to the Banks.
"Section 29 Transaction PPI" means a volumetric production payment
interest arising from the Section 29 Transaction.
"Subordinated Debt" means indebtedness of the Borrower for borrowed money
which (i) is not guaranteed by any other Person, (ii) requires no payment of
principal to be made prior to the seventh anniversary of the Conversion Date (as
in effect at the time such Subordinated Debt is incurred or as requested to be
extended by the Borrower and approved by the banks at such time, and without
giving effect to any extensions of the Conversion Date agreed to by the Banks
after the incurrence of such Subordinated Debt) and (iii) is subordinated in
right of payment to the Indebtedness by subordination provisions in form and
substance satisfactory to the Required Banks.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
"Tenor" refers to the determination whether a Loan is a Revolving
Credit Loan or a Term Loan.
"Term Loan" means a loan made by a Bank pursuant to
Section 2.01(a)(ii).
"Type" refers to the determination whether a Loan is a Base Rate
Loan, a CD Loan or a Euro-Dollar Loan (or a Borrowing comprised of such Loans).
"Unavailable Commitment" means, at any time with respect to any Bank,
the amount, if any, by which such Bank's Commitment at such time exceeds the
greater of (i) its Available Commitment at such time and (ii) the aggregate
outstanding principal amount of such Bank's Loans at such time.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefits under such
Plan exceeds (ii) the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of the Borrower or any Subsidiary
(whether direct or joint and several
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with one or more affiliates) to the PBGC or any other Person under Title IV of
ERISA.
"Wholly-Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used in this Agreement shall be
interpreted, all accounting determinations hereunder shall be made and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes concurred in by the
Borrower's independent public accountants) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Borrower notifies the
Agent that the Borrower wishes to amend any covenant in Article V to eliminate
the effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Borrower that the
Required Banks wish to amend Article V for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of generally
accepted accounting principles in effect immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" means a
borrowing of the same Tenor and Type by the Borrower from one or more Banks
pursuant to Article II on a given date and, in the case of Fixed Rate Loans, for
the same Interest Period. Borrowings are classified for purposes of this
Agreement by Type (e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend.
(a) Loans.
(i) Revolving Credit Loans. During the Revolving Credit Period each
Bank severally agrees, on the terms and
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conditions set forth in this Agreement, to make Loans to the Borrower pursuant
to this subsection (a)(i) from time to time in amounts such that the aggregate
principal amount of Revolving Credit Loans by such Bank at any one time
outstanding shall not exceed the amount of its Commitment at such time. Within
the foregoing limits, the Borrower may borrow under this subsection (a)(i),
prepay Revolving Credit Loans and reborrow at any time during the Revolving
Credit Period under this subsection (a)(i).
(ii) Term Loans. On the Conversion Date, each Bank severally agrees,
on the terms and conditions set forth in this Agreement, to make a Loan or Loans
to the Borrower pursuant to this subsection (a)(ii) in an aggregate amount up to
but not exceeding the amount of its Commitment on such date.
(b) Borrowings Ratable. Each Borrowing under this Section shall be
made from the several Banks ratably in proportion to their respective
Commitments.
SECTION 2.02. Notice of Borrowings. (a) The Borrower shall give the
Agent notice (a "Notice of Borrowing") not later than 10:00 A.M. (New York City
time) on (x) the Domestic Business Day of each Base Rate Borrowing, (y) the
second Domestic Business Day next preceding each CD Borrowing and (z) the third
Euro-Dollar Business Day next preceding each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing, which shall be $3,000,000
or any larger multiple of $1,000,000 (except that any Borrowing may be in the
aggregate amount available hereunder in accordance with Section 3.01(b)),
(iii) whether the Loans comprising such Borrowing are initially to be
CD Loans, Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
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(c) Not later than 12:00 Noon (New York City time) on the date of each
Borrowing, each Bank shall make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address specified in or pursuant to Section 9.01. Unless the Agent
determines that any applicable condition specified in Article III has not been
satisfied, the Agent will make the funds so received from the Banks available to
the Borrower at the Agent's aforesaid address.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsection (c) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Agent, such Bank and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, a rate per annum equal to the higher of the Federal Funds
Rate and the interest rate applicable thereto pursuant to Section 2.05 and (ii)
in the case of such Bank, the Federal Funds Rate. If such Bank shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Loan included in such Borrowing for purposes of this Agreement. The
failure of any Bank to make the Loan to be made by it as part of any Borrowing
shall not relieve any other Bank of its obligation, if any, hereunder to make
its Loan, and no Bank shall be responsible for the failure of any other Bank to
make any Loan to be made by such other Bank hereunder.
SECTION 2.03. Notes. (a) The Loans of each Bank shall be evidenced by
a single Note payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans.
(b) Upon receipt of each Bank's Note pursuant to Section 3.01(a), the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount and type of each Loan made by it and the date and amount of each payment
of principal made by the Borrower with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note, endorse on
the schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding; provided
that the failure of any
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Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its Note and to attach to
and make a part of its Note a continuation of any such schedule as and when
required.
SECTION 2.04. Maturity of Loans. The Revolving Credit Loans of each
Bank shall mature, and the principal amount thereof shall be due and payable,
together with accrued interest thereon, on the Conversion Date. The Term Loan of
each Bank shall mature, and the principal amount thereof shall be due and
payable, together with accrued interest thereon, in twenty-four equal quarterly
installments on each Quarterly Date from and including the first such date
following the Conversion Date to and including the Quarterly Date coinciding
with the sixth anniversary of the Conversion Date.
SECTION 2.05. Interest Rates. (a) Subject to Section 2.16, each Base
Rate Loan shall bear interest on the outstanding principal amount thereof, for
each day from the date such Loan is made until it becomes due, at a rate per
annum equal to the Base Rate for such day. Such interest shall be payable
quarterly in arrears on each Quarterly Date and, in the case of any Base Rate
Loan converted to a Fixed Rate Loan, on the date of such conversion. Subject to
Section 2.16, any overdue principal of and overdue interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise applicable to Base Rate
Loans for such day.
(b) Subject to Section 2.16, each CD Loan shall bear interest on the
outstanding principal amount thereof, for each Interest Period applicable
thereto, at a rate per annum equal to the sum of the CD Margin plus the
applicable Adjusted CD Rate; provided that if any CD Loan or any portion thereof
shall, as a result of clause (2)(b) or (2)(c)(i) of the definition of Interest
Period, have an Interest Period of less than 30 days, such portion shall bear
interest during such Interest Period at the rate applicable to Base Rate Loans
during such period. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than 90 days, 90
days after the first day thereof. Subject to Section 2.16, any overdue principal
of and overdue interest on any CD Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 2% plus the
higher of (i) the sum of the CD Margin plus the Adjusted CD Rate applicable to
such Loan and (ii) the rate applicable to Base Rate Loans for such day.
"CD Margin" means 0.875%.
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The "Adjusted CD Rate" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upwards, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
unpaid principal amount of the CD Loan of such CD Reference Bank to which such
Interest Period applies and having a maturity comparable to such Interest
Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4(a) (or any successor provision) to the
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Federal Deposit Insurance Corporation (or any successor) for such Corporation's
(or such successor's) insuring time deposits at offices of such institution in
the United States. The Adjusted CD Rate shall be adjusted automatically on and
as of the effective date of any change in the Assessment Rate.
(c) Subject to Section 2.16, each Euro-Dollar Loan shall bear interest
on the outstanding principal amount thereof, for each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin plus the
applicable London Interbank Offered Rate. Such interest shall be payable for
each Interest Period on the last day thereof and, if such Interest Period is
longer than three months, three months after the first day thereof.
"Euro-Dollar Margin" means 0.75%
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
(d) Subject to Section 2.16, any overdue principal of and overdue
interest on any Euro-Dollar Loan shall bear interest, payable on demand, for
each day from and including the date payment thereof was due to but excluding
the date of actual payment, at a rate per annum equal to the sum of 2% plus the
higher of (i) the sum of the Euro-Dollar Margin plus the London Interbank
Offered Rate applicable to such Loan and (ii) the Euro-Dollar Margin plus the
quotient obtained (rounded upwards, if necessary, to the next higher 1/100 of
1%) by dividing (x) the average (rounded upward, if necessary, to the next
higher 1/16 of 1%) of the respective rates per annum at which one day (or, if
such amount due remains unpaid more than three Euro-Dollar Business Days, then
for such other period of time not longer than six months as the Agent may
select) deposits in dollars in an amount approximately equal to such overdue
payment due to each of the Euro-Dollar Reference Banks are offered to such
Euro-Dollar Reference Bank in the London interbank market for the applicable
period determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day).
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(e) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(f) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is available on
a timely basis, the provisions of Section 8.01 shall apply.
SECTION 2.06. Fees.
(a) Commitment Fees. The Borrower shall pay to the Agent for the
account of each Bank a commitment fee at the rate of 3/8 of 1% per annum on the
daily average unused amount of its Available Commitment and an additional
commitment fee at the rate of 1/4 of 1% per annum on the daily average amount of
its Unavailable Commitment. Such commitment fees shall accrue from and including
the Effective Date to but excluding the date of termination of the Commitments
in their entirety. Accrued fees under this subsection (a) shall be payable
quarterly in arrears on each Quarterly Date and upon the date of termination of
the Commitments in their entirety.
(b) Additional Interest. (i) Except as otherwise provided herein, if
the Debt Percentage exceeds 80% for a period of 30 consecutive calendar days (as
determined on the basis of a certificate of the chief financial officer or the
chief accounting officer of the Borrower prepared in accordance with Section
5.01(h) and delivered to the Agent), the Borrower shall pay to the Agent subject
to Section 2.16, additional interest on all Loans at the rate of 1/4 of 1% per
annum, for the respective accounts of the Banks ratably in proportion to the
respective principal amounts of Loans made by them outstanding during the period
specified below. Such additional interest and fees shall accrue from and
including the first day of the 30-day period referred to above to but excluding
the date on which the Agent receives a certificate of the chief financial
officer or the chief accounting officer of the Borrower stating that the Debt
Percentage has not exceeded 80% during a subsequent period of 30 consecutive
calendar days and which certificate has been prepared in accordance with Section
5.01(h), and shall be payable in arrears on each Quarterly Date, starting with
the first such date more than 30 days after the commencement of the period first
referred to above in this subsection (b), upon termination of the Commitments in
their entirety and upon repayment of all
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outstanding Term Loans in their entirety. The additional interest under this
subsection (b)(i) shall cease to accrue from and including such date on which
the Agent receives such certificate.
SECTION 2.07. Termination or Reduction of Commitments.
(a) Mandatory. The Commitments shall terminate at the
close of business on the Conversion Date.
(b) Optional. The Borrower may, upon at least three Domestic Business
Days' notice to the Agent, (i) terminate the Commitments at any time, if no
Loans are outstanding at such time or (ii) ratably reduce from time to time by
an aggregate amount of $5,000,000 or any larger multiple thereof, the aggregate
amount of the Commitments in excess of the aggregate outstanding principal
amount of the Revolving Credit Loans.
SECTION 2.08. Method of Electing Interest Rates. (a) The Loans
comprising each Borrowing shall bear interest initially at the Type of rate
specified by the Borrower in the applicable Notice of Borrowing. Thereafter, the
Borrower may from time to time elect to change or continue the type of interest
rate borne by each Group of Loans (subject in each case to the provisions of
Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to CD Loans as of any Domestic Business Day or to Euro-Dollar
Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to convert
such Loans to Base Rate Loans or Euro-Dollar Loans, or may elect to continue
such Loans as CD Loans for an additional Interest Period, in each case beginning
on the last day of the then current Interest Period applicable to such Loans;
(iii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or CD Loans, or may elect to continue such
Loans as Euro-Dollar Loans for an additional Interest Period, in each case
beginning on the last day of the then current Interest Period applicable to such
Loans;
(iv) if such Loans are Base Rate Loans, the Borrower may elect to
designate such Loans as any combination of Base Rate Loans, CD Loans or
Euro-Dollar Loans as of any Domestic Business Day in the case of CD Loans and as
of any Euro-Dollar Business Day in the case of Euro-Dollar Loans (subject to the
definition of Interest Period); and
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(v) if such Loans are Fixed Rate Loans, the Borrower may elect to
designate such Loans as any combination of Base Rate Loans, CD Loans or
Euro-Dollar Loans as of the last day of the then current Interest Period
applicable to such Loans (subject to the definition of Interest Period).
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent at least three Domestic Business Days before the
conversion or continuation selected in such notice is to be effective (unless
any of such Loans are to be continued as or converted into Euro-Dollar Loans, in
which case such notice shall be delivered to the Agent at least three
Euro-Dollar Business Days before the Interest Period selected in such notice is
to begin).
A Notice of Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group and (ii) after giving effect to all Notices of Borrowing and other
Notices of Interest Rate Election delivered on such date, all Interest Periods
at any time outstanding with respect to Term Loans (exclusive of Interest
Periods determined pursuant to clauses (1)(d)(i) or (2)(c)(i) of the definition
of Interest Period) shall end on not more than four different dates.
(b) Each Notice of Interest Rate Election shall specify with respect
to the outstanding Borrowing to which such notice applies:
(i) the Group of Loans (or portion thereof) to which
such notice applies);
(ii) the date on which conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause of
subsection (a) above;
(iii) if such Group of Loans (or portion thereof) are to be converted,
the new type of Loans and, if such new Loans are CD Loans or Euro-Dollar Loans,
the duration of the initial Interest Period applicable thereto after such
conversion; and
(iv) if such Group of Loans (or portion thereof) are to be continued
as CD Loans or Euro-Dollar Loans for an additional Interest Period, the duration
of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
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(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by the Borrower. If the Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Borrowing comprised of Fixed Rate Loans, such
Loans shall be converted into Base Rate Loans on the last day of the then
current Interest Period applicable thereto.
SECTION 2.09. Optional Prepayments.
(a) Subject in the case of Fixed Rate Loans to the provisions of
Section 2.11, the Borrower may, upon at least three Domestic Business Days'
notice to the Agent, prepay any Group of Domestic Loans and upon at least three
Euro-Business Days' notice to the Agent, prepay any Group of Euro-Dollar Loans,
in whole at any time, or from time to time in part in amounts aggregating
$3,000,000 or any larger multiple of $1,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Loans of
the several Banks included in such Group.
(b) Upon receipt of a notice of prepayment pursuant to this Section
2.09(a), the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.10. General Provisions as to Payments. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the Agent
at its address referred to in Section 9.01. The Agent will promptly distribute
to each Bank its ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal of, or interest on,
the Domestic Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
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(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent that the Borrower shall not have so made such payment, each Bank shall
repay to the Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.11. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted to a Base Rate Loan (whether pursuant to this Article II or Article VI
or VIII or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or the end of an applicable period fixed pursuant to Section
2.05(d), or if the Borrower fails to borrow or prepay any Fixed Rate Loans after
notice has been given to any Bank in accordance with Section 2.02(b) or 2.09(a),
the Borrower shall reimburse each Bank within 15 days after demand for any
resulting loss or expense incurred with respect to such Loans, including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment or conversion or failure to borrow or prepay, provided that
such Bank shall have delivered to the Borrower a certificate as to the amount of
such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
SECTION 2.12. Computation of Interest and Fees. Interest based on the
Prime Rate and commitment fees hereunder shall be computed on the basis of a
year of 365 days (or 366 days in a leap year) and paid for the actual number of
days elapsed (including the first day but excluding the last day). All other
interest shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.13. Extension of Revolving Credit Period. The Revolving
Credit Period may be extended, in the manner set forth in this Section 2.13, on
June 1, 1996 and on each anniversary of such date occurring on or prior to the
Conversion Date (an "Extension Date") to the date that is the second anniversary
of such Extension Date. If the Borrower wishes to request an extension of the
Revolving Credit Period on any Extension Date it shall give notice to that
effect to the Agent not less than 60 days prior to such Extension Date,
whereupon the
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Agent shall notify each of the Banks of such request. Each Bank will use its
best efforts to respond to such request, whether affirmatively or negatively,
within 30 days prior to such Extension Date. If all Banks respond affirmatively,
then, subject to receipt by the Agent prior to such Extension Date of
counterparts of an Extension Agreement in substantially the form of Exhibit B
duly completed and signed by the Borrower, the Agent and all such Banks, the
Revolving Credit Period shall be extended, effective on such Extension Date, to
the second anniversary of such Extension Date.
SECTION 2.14. Withholding Tax Exemption. At least five Domestic
Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated under
the laws of the United States of America or a state thereof agrees that it will
deliver to each of the Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Bank is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Bank which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Borrower and the Agent two additional copies of such form
(or a successor form) on or before the date that such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the Agent, in
each case certifying that such Bank is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Borrower and the Agent that it
is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
SECTION 2.15. Regulation D Compensation. For so long as any Bank
maintains reserves against "Eurocurrency liabilities" (or any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of such Bank to United
States residents), then such Bank may require the Borrower to pay,
contemporaneously with each payment of interest on the Euro-Dollar Loans,
additional interest on the related Euro-Dollar Loan of such Bank at a rate per
annum up to but not
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exceeding the excess of (i) (A) the applicable London Interbank Offered Rate
divided by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the
applicable London Interbank Offered Rate. Any Bank wishing to require payment of
such additional interest (x) shall so notify the Borrower and the Agent, in
which case such additional interest on the Euro-Dollar Loans of such Bank shall
be payable to such Bank at the place indicated in such notice with respect to
each Interest Period commencing at least five Euro-Dollar Business Days after
the giving of such notice and (y) shall notify the Borrower at least five
Euro-Dollar Business Days prior to each date on which interest is payable on the
Euro-Dollar Loans of the amount to which such Bank is then entitled under this
Section.
SECTION 2.16. Maximum Interest Rate. (a) Nothing contained in this
Agreement or the Notes shall require the Borrower to pay interest at a rate
exceeding the maximum rate permitted by law.
(b) If the amount of interest, including amounts that would be deemed
to constitute interest under applicable law, payable for the account of any
Bank, would at any time exceed the maximum amount permitted by applicable law to
be charged by such Bank, the amount of interest payable for its account shall
ipso facto be automatically reduced to such maximum permissible amount, and any
amount constituting interest received by such Bank in excess of the maximum
permissible amount of interest which, under applicable law, could then be
collected by such Bank shall be credited by such Bank against and to the extent
of the unpaid principal amount of the Loans of such Bank outstanding at such
time, first against any Base Rate Loans and next against any Fixed Rate Loans as
selected by such Bank, with the remaining excess, if any, being promptly
refunded to the Borrower.
(c) If the amount of interest, including amounts that would be deemed
to constitute interest under applicable law, payable for the account of any Bank
in respect of any applicable computation period is reduced pursuant to clause
(b) of this Section and the amount of interest payable for its account in
respect of any subsequent computation period would be less than the maximum
amount permitted by applicable law to be charged by such Bank, then the amount
of interest payable for its account in respect of such subsequent computation
period shall be automatically increased to such maximum permissible amount;
provided that at no time shall the aggregate amount by which interest paid for
the account of any Bank has been increased pursuant to this clause (c) exceed
the aggregate amount by which interest paid for its account has theretofore been
reduced pursuant to clause (b) of this Section.
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ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. (a) This Amended Agreement shall become
effective on the date that each of the following conditions shall have
been satisfied (or waived in accordance with Section 9.05):
(i) receipt by the Agent of counterparts, signed by each of the
parties hereto (or, in the case of any party as to which any executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of facsimile or other written confirmation from such party of
execution of a counterpart hereof by such party);
(ii) receipt by the Agent as provided in Section 3.01(b) for the
account of each Bank of a Note duly executed on behalf of the Borrower and dated
on or before the Effective Date, complying with the provisions of Section 2.03;
(iii) receipt by the Agent of an opinion of ▇▇▇▇▇ & ▇▇▇▇▇, counsel for
the Borrower, substantially in the form of Exhibit C-1 hereto;
(iv) receipt by the Agent of an opinion of ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Corporate Attorney and Assistant Secretary of the
Borrower, substantially in the form of Exhibit C-2 hereto;
(v) receipt by the Agent of an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
special counsel for the Agent, substantially in the form of Exhibit D hereto;
(vi) receipt by the Agent of a certificate signed by the chief
financial officer, chief accounting officer or the treasurer of the Borrower, to
the effect set forth in clauses (b), (c) and (d) of Section 3.02; and
(vii) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Borrower, the corporate authority for and the
validity of the Financing Documents, and any other matters relevant hereto, all
in form and substance satisfactory to the Agent.
The certificate and opinions referred to in clauses (iii), (iv), (v) and (vi)
above shall be dated the Effective Date.
(b) Any Loans outstanding under the Original Agreement on the
Effective Date shall remain outstanding under this Amended Agreement and shall
bear interest for the balance of any Interest
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Period applicable thereto under the Original Agreement at the rate
determined under the Original Agreement with respect thereto; provided that the
applicable Euro-Dollar Margin or CD Margin shall from and after the Effective
Date be that specified in Section 2.05 of this Amended Agreement.
(c) On the Effective Date, this Agreement shall supersede, amend and
restate the Original Credit Agreement. The parties hereto agree that all rights
that may have accrued under the Original Credit Agreement prior to the Effective
Date, to the extent not previously extinguished through payment, shall continue
in full force and effect under this Agreement.
SECTION 3.02. Borrowings. The obligation of each
Bank to make a Loan to the Borrower on the occasion of any
Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Agent of notice of such Borrowing
as required by Section 2.02;
(b) the fact that, immediately after such Borrowing,
Borrower's Consolidated Debt will not exceed the Debt Limit;
(c) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the Borrower
contained in this Agreement (except, in the case of any Borrowing occurring
subsequent to the first Borrowing after the Effective Date, the representations
and warranties covering historical information in Sections 4.04(a) and (b) and
the first sentence of Section 4.05, and except to the extent the representations
and warranties would cover price and other economic assumptions furnished by the
Required Banks under Section 5.09(d)) shall be true and correct on and as of the
date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
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SECTION 4.01. Corporate Existence and Power. The Borrower and each
Subsidiary is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all governmental licenses, authorizations, consents and
approvals required to own its assets and to carry on its business as now
conducted and is duly qualified as a foreign corporation in good standing in
each jurisdiction where the nature of its business or the ownership or leasing
of its Properties requires such qualification, except where the failure to
qualify would not materially and adversely affect the conduct of its business or
the enforceability of contractual obligations of the Borrower. Neither the
Borrower nor any Subsidiary is subject to regulation under the Public Utility
Holding Company Act of 1935, the Investment Company Act of 1940, the Interstate
Commerce Act or any other law or regulation the application of which limits the
incurrence by the Borrower of Debt hereunder, including, but not limited to,
laws relating to common or contract carriers or the sale of electricity, gas,
steam, water or other public utility services.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of the
Financing Documents are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or (except as contemplated by the Registration Statement) filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement or
instrument evidencing or governing Debt of the Borrower or any Subsidiary or any
other agreement, instrument, judgment, injunction, order or decree binding upon
the Borrower or any Subsidiary or result in the creation or imposition of any
Lien on any asset of the Borrower pursuant to any such agreement, instrument,
judgment, injunction, order or decree.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and each of the other Financing Documents,
when executed and delivered in accordance with this Agreement, will constitute
valid and binding obligations of the Borrower, in each case enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by general
principles of equity.
SECTION 4.04. Financial and Other Information.
(a)(i) The combined balance sheet of the Borrower and its Subsidiaries
as of December 31, 1994 and the related combined
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statements of income and cash flows for the fiscal year then ended, reported on
by Coopers & ▇▇▇▇▇▇▇ and incorporated by reference in the Borrower's 1994 Form
10-K, a copy of which has been delivered to each of the Banks, fairly present,
in conformity with generally accepted accounting principles, the combined
financial position of the Borrower and its Subsidiaries as of such date and
their combined results of operations and cash flows for such fiscal year.
(ii) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of March 31, 1995 and the related unaudited
consolidated statements of income and cash flows for the three months then
ended, set forth in the Borrower's quarterly report for the fiscal quarter ended
March 31, 1995 as filed with the Securities and Exchange Commission on Form
10-Q, a copy of which has been delivered to each of the Banks fairly present, in
conformity with generally accepted accounting principles, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such
three-month period (subject to normal year-end adjustments).
(b) There are no statements or conclusions in the Cabot Oil & Gas
Corporation Reserve Summary as of January 1, 1995, a copy of which has been
delivered to each of the Banks (the "Reserve Report"), which are based upon or
include misleading information or fail to take into account material information
regarding the matters reported therein, it being understood that such statements
and conclusions are necessarily based upon professional opinions, estimates and
forecasts, and the Borrower does not warrant that such opinions, estimates and
forecasts will ultimately prove to have been accurate.
(c) Since March 31, 1995, there has been no material adverse change in
the business, Properties, financial position, results of operations or prospects
of the Borrower or of the Borrower and its Subsidiaries, considered as a whole.
SECTION 4.05. Full Disclosure. None of the financial statements and
other financial or factual information included in the financial statements
described in Section 4.04(a) or in the Reserve Report (excluding estimates,
financial projections and pro forma financial statements) contains any untrue
statement of material fact or omits to state a material fact necessary in order
to make the statements contained therein not misleading. All other financial and
reserve information, financial statements and other documents, estimates,
projections and pro forma financial information furnished by the Borrower to the
Banks in connection with the Financing Documents do not and will not contain any
untrue statement of material fact or omit to state a material fact necessary in
order to make the statements contained
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therein not misleading. The Borrower has disclosed to the Banks in writing any
and all facts which materially and adversely affect the business, properties,
operations or condition, financial or otherwise, of the Borrower or of the
Borrower and its Subsidiaries, considered as a whole, or the Borrower's ability
to perform its obligations under the Financing Documents.
SECTION 4.06. Litigation. Except as set forth in the Borrower's Form
10-K, there is no action, suit or proceeding pending against, or to the
knowledge of the Borrower threatened against or affecting, the Borrower or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business, Properties,
financial position, results of operations or prospects of the Borrower or of the
Borrower and its Subsidiaries, considered as a whole, or which in any manner
draws into question the validity of any Financing Document.
SECTION 4.07. Compliance with ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan, or made any amendment
to any Plan, which, in either case, has resulted or could result in the
imposition of a Lien on Property of the Borrower or any Subsidiary or the
posting of a bond or other security by the Borrower or any Subsidiary under
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA (other than a liability to the PBGC for premiums under Section 4007
of ERISA) which could cause the Borrower or any Subsidiary (whether directly or
jointly and severally with one or more affiliates) to incur any liability.
SECTION 4.08. Environmental Matters. In the ordinary course of its
business, the Borrower considers the effect of all existing and applicable
Environmental Laws on the business, operations and properties of the Borrower
and its Subsidiaries, in the course of which it identifies and evaluates
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
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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). The Borrower
has reasonably concluded that existing and applicable Environmental Laws are
unlikely to have a material adverse effect on the business, Properties,
financial condition, results of operations or prospects of the Borrower or of
the Borrower and its Subsidiaries, considered as a whole.
SECTION 4.09. Taxes. The Borrower and its Subsidiaries have filed all
United States Federal income tax and all other material tax returns which are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Borrower or any
Subsidiary. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of taxes or other governmental charges are adequate.
SECTION 4.10. Titles, etc. The Borrower and each Subsidiary has good,
valid and defensible title to its material (individually or in the aggregate)
Properties (including valid and defensible title to all of the oil and gas
Properties which such Borrower has identified to the Banks for use in
determining the Debt Limit and good title to other material Properties which are
not oil and gas Properties) free and clear of all Liens except (i) Excepted
Liens or (ii) Liens otherwise expressly permitted by Section 5.11.
SECTION 4.11. Casualties; Taking of Properties. Since the date of the
most recent Reserve Report, neither the business nor the Petroleum Properties of
the Borrower have been affected as a result of any fire, explosion, earthquake,
flood, drought, windstorm, accident, strike or other labor disturbance, embargo,
requisition or taking of Property or cancellation of contracts, permits or
concessions by any domestic or foreign government or any agency thereof, riot,
activities of armed forces or acts of God or of any public enemy, the occurrence
of which would have a material adverse effect on the business, Properties,
financial condition, results of operations or prospects of the Borrower or of
the Borrower and its Subsidiaries, considered as a whole.
SECTION 4.12. Use of Proceeds. The proceeds of the Loans will be used
for the Borrower's general corporate purposes, including without limitation the
payment of dividends as permitted hereunder and the financing of the
acquisition, exploration and development of Petroleum Properties, provided,
however, that such proceeds shall not be used by the Borrower to repurchase
shares of its Class A Common Stock as permitted under clause (iii) of the last
sentence of Section 5.14 at such time as
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any Default exists or is continuing. None of such proceeds will be used,
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, which violates or which would be inconsistent with Regulation U.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid, it will perform
and comply with each of the following covenants, unless such performance and
compliance shall have been specifically waived in writing by the Required Banks.
SECTION 5.01. Information. The Borrower will deliver
to each of the Banks:
(a) as soon as available and in any event within 95 days after the end
of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the Securities
and Exchange Commission by Coopers & ▇▇▇▇▇▇▇ or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income and
cash flows for such quarter and for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding portion of the
Borrower's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency by the chief financial officer or the chief
accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer of the Borrower (i) setting
forth in reasonable detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Section
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5.10 and Section 5.13 on the date of such financial statements, and (ii) stating
whether any Default exists on the date of such certificate and, if any Default
then exists, setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto;
(d) within five days after any Executive Officer of the Borrower
obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or any Executive Officer of
the Borrower or any Subsidiary knows that the plan administrator of any Plan has
given or is required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the PBGC; (ii)
receives notice of complete or partial withdrawal liability under Title IV of
ERISA or notice that any Multiemployer Plan is in reorganization, is insolvent
or has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal Revenue Code,
a copy of such application; (v) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice and other information
filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
required payment or contribution to any Plan or Multiemployer Plan or makes any
amendment to any Plan which has resulted or could result in the imposition of a
Lien on Property of the Borrower or any Subsidiary or the posting of a bond or
other security by the
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Borrower or any Subsidiary, a certificate of the chief financial officer or the
chief accounting officer of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member of the
ERISA Group is required or proposes to take;
(h) (i) as soon as available and in any event within five days after
any Executive Officer of the Borrower obtains knowledge that the Debt Percentage
has exceeded 80% for a period of 30 consecutive calendar days, a certificate of
the chief financial officer or the chief accounting officer of the Borrower
setting forth the dates on which the Debt Percentage exceeded 80% and in
reasonable detail the calculations, including the basis therefor, used in
determining the Debt Percentage in effect on such dates and (ii) if the notice
specified in clause (i) hereof has been previously delivered to the Banks, then
as soon as possible and in any event within five days after any Executive
Officer of the Borrower obtains knowledge that the Debt Percentage has been 80%
or less for a period of 30 consecutive calendar days, a certificate of the chief
financial officer or the chief accounting officer of the Borrower setting forth
the dates on which the Debt Percentage was 80% or less and in reasonable detail
the calculations, including the basis therefor, used in determining the Debt
Percentage in effect on such dates; and
(i) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as any Bank
may reasonably request; provided that, to the extent practicable (as determined
by the Agent in its sole discretion), requests from the Banks for written
reports shall be delivered to the Borrower by the Agent.
SECTION 5.02. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective material obligations and liabilities, including,
without limitation, tax liabilities, except where the same may be contested in
good faith by appropriate proceedings, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of the same.
SECTION 5.03. Maintenance of Property. The Borrower will keep, and
will cause each Subsidiary to keep, all property useful and necessary in its
business in good working order and condition, ordinary wear and tear excepted.
The Borrower will operate, or will use its best efforts to cause a third party
operator to operate, all Petroleum Properties in a prudent manner, and will
market or will cause to be marketed the
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production therefrom at the best price reasonably obtainable at the time the
applicable sales contract is executed. The Borrower will not abandon any
Petroleum Property capable of production in paying quantities.
SECTION 5.04. Conduct of Business and Maintenance of Existence. The
Borrower will continue, and will cause each Subsidiary to continue, to engage in
business of the same general type as now conducted by the Borrower and its
Subsidiaries, and will preserve, renew and keep in full force and effect, and
will cause each Subsidiary to preserve, renew and keep in full force and effect
their respective corporate existence and their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business; provided
that nothing in this Section shall prohibit (i) the merger of a Wholly-Owned
Subsidiary into the Borrower or the merger or consolidation of a Wholly-Owned
Subsidiary with or into another Person if the corporation surviving such
consolidation or merger is a Wholly-Owned Subsidiary and if, in each case, after
giving effect thereto, no Default shall have occurred and be continuing or (ii)
the termination of the corporate existence of any Subsidiary if the Borrower in
good faith determines that such termination is in the best interest of the
Borrower and is not materially disadvantageous to the Banks.
SECTION 5.05. Compliance with Laws. The Borrower will comply, and will
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder) except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings.
SECTION 5.06. Inspection of Property, Books and Records. The Borrower
will keep, and will cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries shall be made of all dealings
and transactions in relation to its business and activities; and will permit,
and will cause each Subsidiary to permit, representatives of any Bank at such
Bank's expense to visit and inspect any of their respective Properties, to
examine and make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all at such reasonable
times and as often as may reasonably be desired.
SECTION 5.07. Insurance. The Borrower and each Subsidiary now
maintains and will cause to be maintained with insurers which the Borrower
believes to be financially sound and reputable, insurance with respect to its
Properties and business
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against such liabilities, casualties, risks and contingencies and in such types
and amounts as is customary in the case of Persons engaged in the same or
similar businesses and similarly situated. Upon request of any Bank, the
Borrower will furnish or cause to be furnished to such Bank from time to time a
summary of the insurance coverage of the Borrower and its Subsidiaries in form
and substance satisfactory to the Required Banks. In the case of any fire,
accident or other casualty causing loss or damage to any Properties of the
Borrower, the proceeds of such policies shall be used to repair or replace the
damaged Property, or to prepay the Indebtedness.
SECTION 5.08. Covenant to Secure Indebtedness Equally.
If the Borrower or any Subsidiary shall create or assume any
Lien upon any of its Property, whether now owned or hereafter acquired, other
than Liens permitted by Section 5.11, the Borrower and such Subsidiary, if
applicable, shall make effective provision whereby the Indebtedness will be
concurrently secured by such Lien equally and ratably with any and all other
Debt thereby secured as long as any other Debt shall be so secured. The remedy
provided in this Section 5.08 shall not be exclusive and shall have no effect on
the availability or exercise of any other remedy that may be available to any
Bank under the Financing Documents.
SECTION 5.09. Engineering Reports.
(a) By April 1 and October 1 of each year, commencing October 1, 1995,
the Borrower shall furnish to each of the Banks a report in form and substance
reasonably satisfactory to the Required Banks which may be prepared by or under
the supervision of a petroleum engineer who may be an employee of the Borrower,
which shall evaluate all Proved Reserves owned by the Borrower and its
Subsidiaries as of the preceding December 31 or June 30, respectively (provided,
that each such report evaluating such Proved Reserves as of the preceding June
30 of each year shall be based upon the geologic and well data set forth in the
immediately preceding Reserve Report), and which shall, together with any other
information reasonably requested by any Bank, set forth the information
necessary to determine the Debt Limit as of such date.
(b) Together with the Reserve Report furnished pursuant to subsection
(a) as of December 31 of any year, the Borrower shall furnish to each of the
Banks a review report thereon in form and substance reasonably satisfactory to
the Required Banks by ▇▇▇▇▇▇ & ▇▇▇▇▇, Ltd. or other independent petroleum
engineers acceptable to the Required Banks (provided that such review report
shall not be required to comment on any price or other economic assumptions
furnished by the Required Banks to the Borrower under subsection (d) below).
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(c) At any time and upon request by the Required Banks, the Borrower
shall furnish to each of the Banks, within 30 days of such request, a report
which shall evaluate all Proved Reserves owned by the Borrower and its
Subsidiaries as of the date of the most recent Reserve Report or as of such
other date as the Required Banks specify, in form and substance reasonably
satisfactory to the Required Banks (a "Special Engineering Report"), together
with any other information reasonably requested by any Bank; provided, that such
evaluation shall be based upon the geologic and well data set forth in the
Reserve Report furnished as of the immediately preceding Reserve Report for
which a review report has been furnished under subsection (b). The Special
Engineering Report shall use production and cost profiles from the most recent
Reserve Report with such other information as supplied by the Required Banks.
(d) The reports contemplated by this Section shall be prepared on the
basis of price and other economic assumptions specified by the Required Banks to
the Borrower not less than 60 days prior to the date the related report is due
and in accordance with their customary oil and gas lending practices for Persons
engaged in the same or similar businesses and similarly situated as the
Borrower; provided that the natural gas price assumptions shall take into
account the Borrower's end product sales value for natural gas as most recently
furnished by the Borrower in writing to the Banks (together with a description
of the applicable period of sales data from which such end product sales value
was derived) and derived from the financial statements furnished to the Banks.
SECTION 5.10. Debt. (a) The Borrower's Consolidated Debt will at no
time exceed the Debt Limit; provided that if a Debt Limit Excession exists
solely by reason of a reduction of the Debt Limit pursuant to a redetermination
under subsection (b)(ii) below, no Default will arise hereunder until 180 days
following the date of such redetermination (during which time the Borrower or
any Subsidiary may reduce Debt or acquire additional Petroleum Properties so as
to restore compliance hereunder; provided further that the Debt Limit Excession
shall be reduced by an amount equal to 50% of such Debt Limit Excession no later
than 90 days following such redetermination).
(b) The Debt Limit will be determined and adjusted periodically as
follows:
(i) Prior to a determination pursuant to subsection (b)(ii) below on
the basis of the Reserve Report delivered as of December 31, 1995, and subject
to adjustment in accordance with subsections (b)(iii) and (b)(iv) below, the
Debt Limit shall be $315,000,000.
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(ii) The Agent will determine a proposed Debt limit in accordance with
its customary oil and gas lending practices (A) within 60 days of delivery of
each Reserve Report pursuant to Section 5.09, commencing January 1, 1996 or (B)
at any time if the Required Banks so elect by notice to the Borrower and the
Agent and, in either such case, notify such proposed Debt Limit to each of the
other Banks. Unless the Banks having more than 33 1/3% of the aggregate amount
of Commitments then in effect (or, if the Commitments have been terminated,
holding Notes evidencing more than 33 1/3% of the aggregate principal amount of
the Loans then outstanding) notify the Borrower and Agent that they disapprove
such proposed Debt Limit within 30 days of notice by the Agent as aforesaid,
such Debt Limit shall become effective on such 30th day. If the Debt Limit is so
disapproved, then the Banks shall consult with one another to determine a Debt
Limit acceptable to the Required Banks. The Debt Limit so determined by the
Required Banks shall be promptly notified in writing by the Agent to the
Borrower, and upon such notification shall be binding on all parties.
(iii) Upon any sale by the Borrower or any Subsidiary of any Petroleum
Property (other than (i) the sale of hydrocarbons after severance occurring in
the ordinary course of the Borrower's business as presently conducted, (ii) the
sale of any Petroleum Property pursuant to the Section 29 Transaction or (iii)
the sale of the Section 29 Transaction PPIs by reason of the rescission of the
Section 29 Transaction) or any direct or indirect transfer or other disposition
to any third party of a direct or indirect interest in any Subsidiary whose
assets were included in the most recent determination of the Debt Limit, the
Debt Limit shall be reduced, effective on the date of consummation of the sale
of such Petroleum Property or transfer of such interest in such Subsidiary, by
an amount equal to 60% of the net proceeds of or consideration for (whether
received in cash or otherwise) such sale or transfer; provided that no such
reduction shall be required with respect to aggregate net sales proceeds or
consideration received of up to $10,000,000 in any calendar year; and provided,
further, that all such sales of Petroleum Properties and transfers of interests
in Subsidiaries are subject to the provisions of Sections 5.12 and 5.15.
(iv) If the Debt Limit shall have been reduced pursuant to subsection
(b)(ii) or (b)(iii) above, then prior to the next redetermination of the Debt
Limit pursuant to subsection (b)(ii) above, and immediately upon notification by
the Borrower to the Agent of the development by the Borrower or any Subsidiary
of any Proved Reserves and other assets consisting primarily of gas gathering
and transmission pipelines located in the United States of America or in Canada
owned directly by the Borrower or any Subsidiary and not reflected in the most
recent Reserve
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Report, the Debt Limit shall be increased up to but not in excess of the amount
thereof prior to such reductions, by an amount equal to 50% of the net present
value of projected CFADS, determined on the basis of the price and other
economic assumptions reflected in the most recent Reserve Report, applicable to
such Proved Reserves (to the extent permitted to be included in the
determination of CFADS) and other assets.
(v) If prior to the next preparation of the Reserve Report pursuant to
Section 5.09 the Borrower notifies the Agent of the acquisition by the Borrower
or any Subsidiary of any Proved Reserves (to the extent permitted to be included
in the determination of CFADS) and other assets consisting primarily of gas
gathering and transmission pipelines located in the United States of America or
in Canada, the Agent shall promptly thereafter notify each Bank of such
acquisition and the Borrower shall as promptly as practicable thereafter deliver
to each of the Banks a report prepared by or under the supervision of a
petroleum engineer (who may be an employee of the Borrower) evaluating such
Proved Reserves and other assets. Within 60 days of delivery of such evaluation
report, the Agent, after consultation with the Borrower, will determine a
proposed increase in the Debt Limit and notify such proposed increase to each of
the Banks. Unless the Banks having more than 33 1/3% of the aggregate amount of
Commitments then in effect (or, if the Commitments have been terminated, holding
Notes evidencing more than 33 1/3% of the aggregate principal amount of the
Loans then outstanding) notify the Borrower and the Agent that they disapprove
such proposed increase within 30 days of notice by the Agent as aforesaid, the
Debt Limit as proposed to be increased shall become effective on such 30th day.
If such proposed increase in the Debt Limit is so disapproved, then the Banks
shall consult with one another to determine an increase in the Debt Limit
acceptable to the Required Banks. The Debt Limit as increased by the amount so
determined by the Required Banks shall be promptly notified in writing by the
Agent to the Borrower, and upon such notification shall be binding on all
parties.
(vi) The Borrower shall notify each Bank at the earliest practicable
time in advance of any transactions which entail a reasonable likelihood of an
adjustment to the Debt Limit pursuant to subsection (b)(iii), (b)(iv) or (b)(v)
above, and shall furnish each Bank with such information with respect thereto as
any Bank may reasonably request.
SECTION 5.11. Liens. The Borrower will not, and not permit any
Subsidiary to, create, incur, assume or suffer to exist any Lien on any of its
Properties (now owned or hereafter acquired), except:
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(a) Excepted Liens;
(b) Liens existing on Property owned by the Borrower or any Subsidiary
on the Effective Date, but not any renewals and extensions thereof; provided
that the aggregate amount of Debt secured by such Liens shall not exceed
$5,000,000;
(c) subject to Section 5.10, a Lien existing on any asset (other than
any Petroleum Property) prior to the acquisition thereof by a Borrower, but not
created in contemplation of such acquisition;
(d) subject to Section 5.10, a Lien on any asset securing Debt
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring such asset (other than any Petroleum Property), provided that such
Lien attaches to such asset concurrently with or within 90 days after the
acquisition thereof;
(e) Liens representing gas imbalances, take or pay or other
prepayments in the ordinary course of business with respect to any Petroleum
Properties which would require the Borrower or any Subsidiary to deliver
hydrocarbons produced from any Petroleum Properties at some future time without
then or thereafter receiving full payment therefor, which in the aggregate would
not exceed 3% of the Debt Limit and as adjusted to reflect any subsequent
adjustment of the Debt Limit pursuant to Section 5.10(b)(iii), (iv) or (v), all
as notified in writing by the Agent to the Borrower; and
(f) Liens securing other Debt of the Borrower or any Subsidiary the
aggregate principal amount of which does not exceed $3,000,000 at any time.
SECTION 5.12. Sales of Petroleum Properties. The Borrower will not,
and will not permit any Subsidiary to, sell, transfer or otherwise dispose of
any Petroleum Property for less than the fair market value of such Property
(other than (i) the sale of any Petroleum Property pursuant to the Section 29
Transaction or (ii) the sale of the Section 29 Transaction PPIs by reason of the
rescission of the Section 29 Transaction) and if, after giving effect thereto,
to any concurrent reduction in the Debt Limit pursuant to Section 5.10 and to
application of the proceeds of such disposition, Borrower's Consolidated Debt
would exceed the Debt Limit.
SECTION 5.13. Annual Coverage Ratio. The annual projected CFADS,
determined on the basis of each Reserve Report delivered pursuant to Section
5.09, will not be less than 120% of scheduled interest and principal payments on
all Borrower's
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Consolidated Debt during each of (i) the period from and excluding the date as
of which such Reserve Report is prepared to and including the first anniversary
of such date and (ii) the first succeeding one-year period ending on the second
anniversary of such date. No Default will arise under this Section 5.13 for a
period of 90 days after the delivery of the related Reserve Report, during which
time the Borrower or any Subsidiary may reschedule maturities of Debt or acquire
additional Petroleum Properties so as to restore compliance hereunder.
SECTION 5.14. Restricted Payments. The Borrower will not, and will not
permit any Subsidiary to, declare or make any Restricted Payment if, immediately
prior to or after giving effect to such Restricted Payment, (i) an Event of
Default shall have occurred and be continuing or (ii) the sum of all Restricted
Payments during the period from and excluding the date as of which the most
recent Reserve Report (for which a review report reasonably satisfactory to the
Required Banks was prepared by ▇▇▇▇▇▇ & ▇▇▇▇▇, Ltd. or other independent
petroleum engineers acceptable to the Required Banks) delivered pursuant to
Section 5.09 was prepared to and including the first anniversary of such date
would exceed 20% of the annual projected CFADS for such period, determined on
the basis of such Reserve Report or such other basis as determined by the
Required Banks and notified in writing by the Agent to the Borrower. Nothing in
this Section shall prohibit (i) the payment of any other dividend or
distribution within 45 days after the declaration thereof if such declaration
was not prohibited by this Section and (ii) any payments by the Borrower in
connection with its repurchase of up to an aggregate of 151,938 shares of Class
A Common Stock of the Borrower upon a "change of control" (as defined in certain
stock subscription agreements between the Borrower and certain of its executive
officers) in accordance with such agreements as described in the Registration
Statement, provided that any such payments made by the Borrower under this
clause (ii) on and after January 15, 1995 do not exceed $5,000,000 in the
aggregate.
SECTION 5.15. Consolidations, Mergers and Sales of Assets. The
Borrower will not, and will not permit any Subsidiary to, consolidate or merge
with or into any other Person or sell, lease or otherwise transfer, directly or
indirectly, all or substantially all of its assets to any other Person except as
otherwise permitted by Section 5.04.
SECTION 5.16. Subsidiary Debt. The Borrower will not permit any of its
Subsidiaries to incur, create, assume, guarantee or in any other manner become
liable with respect to, or extend the maturity of or become responsible for the
payment of any Debt other than (i) Debt owing to the Borrower or a Wholly-Owned
Subsidiary, (ii) Non-Recourse Debt in an aggregate principal amount not to
exceed $150,000,000 (together with any
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such Non-Recourse Debt incurred by the Borrower) at any time incurred to finance
the acquisition of Properties (other than Petroleum Properties) and (iii) other
Debt in an aggregate principal amount not to exceed at any time an amount equal
to 3% of the Debt Limit and as adjusted to reflect any subsequent adjustment of
the Debt Limit pursuant to Section 5.10(b)(iii), (iv) or (v), all as notified in
writing by the Agent to the Borrower.
SECTION 5.17. Subsidiaries. The Borrower will not, and will not permit
any Subsidiary to, directly or indirectly, create, incur, assume or suffer to
exist any restriction (other than any restriction imposed by applicable
corporate law) on (i) the ability of such Subsidiary to make intercompany
payments or advances to the Borrower or (ii) the ability of the Borrower to
direct the actions of such Subsidiary or to otherwise maintain or exercise
control over such Subsidiary's actions, subject to any fiduciary responsibility
under applicable law to any minority stockholders of such Subsidiary.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events not specifically waived in writing by the Required Banks shall have
occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Loan
or shall fail to pay within five Business Days of the due date thereof any
interest, fees or other amount payable under the Financing Documents;
(b) the Borrower shall fail to observe or perform any covenant or
agreement contained in Section 5.16 for 10 days after it shall have become aware
of such failure or any covenant or agreement contained in Sections 5.10 through
5.15;
(c) the Borrower shall fail to observe or perform any of its covenants
or agreements contained in any of the Financing Documents (other than those
covered by clause (a) or (b) above) for 30 days after it shall have become aware
of such failure;
(d) any representation, warranty, certification or statement made by
the Borrower in any of the Financing Documents or in any certificate, financial
statement or other document delivered pursuant to any of the Financing Documents
shall prove to have been incorrect in any material respect when made (or deemed
made);
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(e) the Borrower or any Subsidiary shall fail to make any payment in
respect of any Material Debt (other than the Notes) when due or within any
applicable grace period and such default has not been effectively waived by the
holders of such Debt;
(f) any event or condition shall occur which, after the expiration of
any applicable grace period with respect thereto, results in the acceleration of
the maturity of any Material Debt (other than the Notes) or enables the holder
of such Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof and such default has not been effectively waived by the holders
of such Debt (provided, that prior to the expiration of such grace period, the
occurrence of such event or condition shall constitute a Default hereunder);
(g) the Borrower or any Subsidiary shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(h) an involuntary case or other proceeding shall be commenced against
the Borrower or any Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $500,000 which it shall have become liable
to pay under Title IV of ERISA which failure to pay could cause the Borrower or
any Subsidiary (whether directly or jointly and severally with one or more
affiliates) to incur a liability in respect of such amount or amounts, except
for any such failure which is being contested in good faith through appropriate
proceedings, so long as such
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proceedings are diligently prosecuted and no Lien has been imposed on any
Property of the Borrower or any Subsidiary as a consequence of such failure; or
notice of intent to terminate a Material Plan shall be filed under Title IV of
ERISA by any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multi-employer Plans which could cause the
Borrower or any Subsidiary (whether directly or jointly and severally with one
or more affiliates) of the ERISA Group to incur a current payment obligation in
excess of $500,000;
(j) a judgment or order for the payment of money in excess of
$5,000,000 shall be rendered against the Borrower or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed pending appeal for a
period of 30 days or;
(k) (i) any "person" or "group" of persons shall have acquired
"beneficial ownership" of 35% or more of the outstanding shares of common stock
of the Borrower or (ii) during any period of 24 consecutive calendar months,
individuals who were directors of the Borrower on the first day of such period
and individuals who are "Qualifying Directors", in the aggregate, shall cease to
constitute a majority of the board of directors of the Borrower; for purposes of
this Section (k), a "Qualifying Director" shall mean any director who (a) is
elected by a majority of the members of the board of directors of the Borrower
who were directors immediately prior to the event that caused the change in
directorships and (b) is not a "person" or member of a "group" of persons, or an
"affiliate" or "associate" of any "person" or "group" member, or an "associate"
of an "affiliate" of any such "person" or "group" member, which "person" or
"group" of persons, together with all of their respective "affiliates" and
"associates" and all "associates" of their respective "affiliates" (other than a
"person" or "group" of persons or an "affiliate" or "associate" of such "person"
or "group" of persons or an "associate" of such "affiliate", in each case which
is affiliated with the Borrower or any Subsidiary comprise a majority of the
board of directors of the Borrower; or
then, and in every such event, the Agent shall (i) if requested by the Banks
holding 50% or more of the aggregate amount of the Commitments then in effect,
by notice to the Borrower terminate
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the Commitments and they shall thereupon terminate, and (ii) if requested by the
Banks holding 50% or more of the aggregate principal amount of the Loans then
outstanding, by notice to the Borrower declare the Notes (together with accrued
interest thereon) to be, and the Notes shall thereupon become, immediately due
and payable without presentment, demand, protest, notice of intent to accelerate
or other notice of any kind, all of which are hereby waived by the Borrower;
provided that in the case of any of the Events of Default specified in Section
6.01(g) or Section 6.01(h) with respect to the Borrower, without any notice to
the Borrower or any other act by the Agent or the Banks, the Commitments shall
thereupon terminate and the Notes (together with accrued interest thereon) shall
become immediately due and payable without presentment, demand, protest, notice
of intent to accelerate, notice of acceleration or other notice of any kind, all
of which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Borrower of a Default under Section 6.01(d) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. ▇▇▇▇▇▇ Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or affiliate of the Borrower as if
it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent hereunder
are only those expressly set forth herein. Without limiting the generality of
the foregoing, the Agent shall not be required to take any action with respect
to any Default, except as expressly provided in Article VI.
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SECTION 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable to the Banks for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or willful misconduct.
Neither the Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any Borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified in
Article III, except receipt of items required to be delivered to the Agent; or
(iv) the validity, effectiveness or genuineness of this Agreement, the Notes or
any other instrument or writing furnished in connection herewith. The Agent
shall not incur any liability by acting in reliance upon any notice, consent,
certificate, statement or other writing (which may be a bank wire, telex or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from such
indemnitees, gross negligence or willful misconduct) that such indemnitees may
suffer or incur in connection with this Agreement or any action taken or omitted
by such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, 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 Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
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SECTION 7.08. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right, with the consent of the
Borrower, to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks, and shall have accepted such appointment,
within 30 days after the retiring Agent gives notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be a commercial bank organized or licensed under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of its appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent.
SECTION 7.09. Agent's Fees. The Borrower shall pay to the Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Borrower and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any Group of
Fixed Rate Loans:
(a) the Agent is advised by the Reference Banks that deposits in
dollars (in the applicable amounts) are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) Banks holding Notes evidencing 50% or more of the aggregate
principal amount of the Loans comprising such Group advise the Agent that
the Adjusted CD Rate or the London Interbank Offered Rate, as the case
may be, as determined by the Agent will not adequately and fairly reflect
the cost to such Banks of funding their CD Loans or Euro-Dollar Loans, as
the case may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist,
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(a) the obligations of the Banks to make CD Loans or Euro-Dollar Loans, as the
case may be, or to convert outstanding Loans into CD Loans or Euro-Dollar Loans,
as the case may be, shall be suspended and (b) unless the Agent shall have
received a timely Notice of Interest Rate Election from the Borrower in
accordance with Section 2.08 requesting the conversion of CD Loans or
Euro-Dollar Loans, as the case may be, into a different Type of Fixed Rate
Loans, each outstanding CD Loan or Euro-Dollar Loan, as the case may be, shall
be converted into a Base Rate Loan on the last day of the then current Interest
Period applicable thereto. Unless the Borrower notifies the Agent at least one
Domestic Business Day before the date of any Fixed Rate Borrowing for which a
Notice of Borrowing has previously been given that it elects not to borrow on
such date, such Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans and
such Bank shall so notify the Agent, the Agent shall forthwith give notice
thereof to the other Banks and the Borrower, whereupon until such Bank notifies
the Borrower and the Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Bank to make Euro-Dollar Loans, or to
convert outstanding Loans into Euro-Dollar Loans, shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such notice is given, all Euro-Dollar
Loans of such Bank then outstanding shall be converted to Base Rate Loans either
(a) on the last day of the then current Interest Period applicable to such
Euro-Dollar Loans if such Bank may lawfully continue to maintain and fund such
Loans to such day or (b) immediately if such Bank may not lawfully continue to
maintain and fund such Loans to such day.
SECTION 8.03 Increased Cost and Reduced Return. (a) If on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
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56
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Fixed Rate Loans, its Note or its
obligation to make Fixed Rate Loans, or shall change the basis of taxation of
payments to any Bank (or its Applicable Lending Office) of the principal of or
interest on its Fixed Rate Loans or any other amounts due under this Agreement
in respect of its Fixed Rate Loans or its obligation to make Fixed Rate Loans
(except for any increase in franchise taxes imposed or changes in the rate of
tax on the overall net income of such Bank or its Applicable Lending Office
imposed by the jurisdiction in which such Bank's principal executive office or
Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System, but
excluding (A) with respect to any CD Loan any such requirement included in an
applicable Domestic Reserve Percentage and (B) with respect to any Euro-Dollar
Loan any such requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
Bank (or its Applicable Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, its Note or its obligation to make Fixed Rate
Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
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57
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such law, rule, regulation, change or compliance (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Agent), the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such Bank (or its Parent)
for such reduction; provided that the Borrower will not be obligated to
compensate any Bank for any such reduction attributable to a period commencing
more than 120 days prior to the giving of notice by such Bank to the Borrower of
its intention to seek compensation under this paragraph (b) and the making of
demand by such Bank for payment thereof in accordance herewith (except for any
period during which, because of the retroactive application of such statute,
regulation or other basis upon which the claimed compensation is based, such
Bank did not know that the amount of such reduction would arise or accrue).
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03(a) and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as (or
continued as or converted into) CD Loans or
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Euro-Dollar Loans, as the case may be, shall instead be Base Rate Loans, and
(b) after each of its outstanding CD Loans or Euro-Dollar Loans, as
the case may be, has been repaid (or converted), all payments of principal which
would otherwise be applied to repay such Fixed Rate Loans shall be applied to
repay its Base Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the Borrower shall elect that the principal amount of
each such Base Rate Loan shall be converted into a CD Loan or a Euro-Dollar
Loan, as the case may be, on the first day of the next succeeding Interest
Period applicable to the related CD Loans or Euro-Dollar Loans of the other
Banks.
SECTION 8.05. Substitution of Bank. If (i) the obligation of any Bank
to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii)
any Bank has demanded compensation under Section 8.03, the Borrower shall have
the right, with the assistance of the Agent, to seek a mutually satisfactory
substitute bank or banks (which may be one or more of the Banks) to purchase the
Note and assume the Commitment of such Bank.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address, facsimile number or
telex number set forth on the signature pages hereof, (y) in the case of any
Bank, at its address or telex number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address, facsimile
number or telex number as such party may hereafter specify for the purpose by
notice to the Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answerback is received (ii) or if given by any other means, when received;
provided that notices given by telex to the Agent under Article II or Article
VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any Bank
in exercising any right, power or privilege
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under any Financing Document shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies therein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses of the Agent,
including fees and disbursements of special counsel for the Agent, in connection
with the preparation of the Financing Documents, any waiver or consent
thereunder or any amendment thereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Agent or any Bank, including fees and disbursements of counsel, in
connection with such Event of Default and collection and other enforcement
proceedings resulting therefrom. The Borrower shall indemnify each Bank against
any transfer taxes, documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and delivery of any Financing
Document.
(b) The Borrower agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) relating to or arising out
of this Agreement or any actual or proposed use of proceeds of Loans hereunder;
provided that no Indemnitee shall have the right to be indemnified hereunder for
such Indemnitees own gross negligence or willful misconduct as determined by a
court of competent jurisdiction.
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest due with
respect to any Note held by it which is greater than the proportion received by
any other Bank in respect of the aggregate amount of principal and interest due
with respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall
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impair the right of any Bank to exercise any right of set-off or counterclaim it
may have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes. The
Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Note acquired pursuant to the
foregoing arrangements may exercise rights of set-off or counterclaim and other
rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Agent are affected thereby, by the Agent); provided that
no such amendment or waiver shall, unless signed by all the Banks, (i) increase
or decrease the Commitment of any Bank or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for any reduction or termination
of any Commitment or (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement. Without limiting the
generality of the foregoing, this Agreement may be amended by the Borrower and
the Required Banks to permit the inclusion of assets owned by an entity other
than a Subsidiary in the calculation of CFADS, upon such terms and conditions as
agreed at such time.
SECTION 9.06. 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, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks. Any assignment or transfer hereunder shall
be made in accordance with applicable law, including without limitation federal
and/or state securities laws, if applicable.
(b) Any Bank may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or any or all of its Loans. In the event of any such grant by a Bank
of a participating interest to a Participant, whether or not upon notice to the
Borrower and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with
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such Bank in connection with such Bank's rights and obligations under this
Agreement. The rights and entitlements of any Bank under Sections 2.11 and 2.15
and Article VIII shall be determined for purposes of this Agreement on the basis
of what such Bank would be entitled to receive under this Agreement had it not
granted any participating interest to any Participant, whether or not such Bank
has in fact done so. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii) or (iii) of
Section 9.05 without the consent of the Participant and may contain any other
provisions, or such participation may take place on such other terms, as such
Bank deems appropriate. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
financial institutions (each an "Assignee") all or a portion of its rights and
obligations under the Financing Documents, and such Assignee shall assume such
rights and obligations, pursuant to an instrument executed by such Assignee and
such transferor Bank, with (and subject to) notice to, and the consent of, the
Borrower and the Agent; provided that if an Assignee is an affiliate of such
transferor Bank, such notice shall be given but no such consent shall be
required; and provided, further, that no assignment representing less than
$5,000,000 in Commitments shall be permitted. Upon execution and delivery of
such an instrument and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Agent and the Borrower
shall make appropriate arrangements so that, if required, new Notes are issued
to the Assignee. In connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing such assignment in
the amount of $2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall, prior to the first date
on which interest or fees are
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62
payable hereunder for its account, deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 2.14.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee or other transferee of any Bank's rights (not
including Participants) shall be entitled to receive any greater payment under
Section 8.03 than such Bank would have been entitled to receive with respect to
the rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.02 or 8.03 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 9.07. Collateral. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. NEW YORK LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
AND EACH NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. THE BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. THE BORROWER IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
SECTION 9.09. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 9.10. Confidentiality. Each of the Agent and the Banks agrees
to maintain the confidentiality of any information of a confidential nature
which it has or shall acquire during the term of this Agreement relating to the
business, operations and financial or other condition of the Borrower or its
Subsidiaries or, with respect to ERISA matters, any other
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63
member of the ERISA Group, except and to the extent that (i) the Agent or such
Bank may be required to disclose such information (a) at the request of a bank
regulatory agency or in connection with an examination of the Agent or such Bank
by bank examiners, (b) pursuant to subpoena or other court process, (c) at the
express direction of any other authorized government agency, (d) to its
independent auditors or (e) otherwise as required by law or (ii) such
information is disclosed in connection with the prospective or actual
assignment, grant of a participation interest or other transfer by a Bank of or
in any of its interests in this Agreement, the Notes or the other Financing
Documents, provided that such prospective or actual Assignee, Participant or
other transferee shall have agreed to keep such information confidential on the
terms and conditions set forth herein.
SECTION 9.11. No Unwritten Agreements. THIS AGREEMENT AND THE NOTES
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO, SUPERSEDING ANY AND
ALL PRIOR AGREEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER HEREOF,
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF ORAL AGREEMENTS OF THE PARTIES
HERETO, WHETHER MADE BEFORE, ON OR AFTER THE DATE OF THIS AGREEMENT. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES HERETO.
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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.
CABOT OIL & GAS CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
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65
Commitments:
$39,166,666.67 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
$39,166,666.67 TEXAS COMMERCE BANK, N.A.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
$39,166,666.67 NATIONSBANK OF TEXAS, N.A.
By /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
$39,166,666.67 THE FIRST NATIONAL BANK OF BOSTON
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
$39,166,666.66 THE CHASE MANHATTAN BANK,
NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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66
$39,166,666.66 CITIBANK, N.A.
By /s/ ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
------------
Total Commitments
$235,000,000
============
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67
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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68
EXHIBIT A
NOTE
New York, New York
May 30, 1995
For value received, Cabot Oil & Gas Corporation, a Delaware
corporation (the "Borrower"), promises to pay to the order of (the "Bank"), for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the date or dates provided for in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of each such
Loan on the dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
▇▇▇▇▇▇ Guaranty Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Bank, the respective Tenors and Types thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is one of the Notes referred to in the Amended and Restated
Credit Agreement dated as of May 30, 1995 among the Borrower, the banks parties
thereto and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent (as the same may
be amended from time to time, the "Credit Agreement"). Terms
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69
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
CABOT OIL & GAS CORPORATION
By________________________
Title:
2
70
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------
Tenor Amount of
Amount of and Type Principal Notation
Date Loan of Loan Repaid Made By
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
3
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EXHIBIT B
EXTENSION AGREEMENT
Cabot Oil & Gas Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
under the Credit Agreement
referred to below
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
The undersigned hereby agree to extend, effective [Extension Date],
the Revolving Credit Period under the Amended and Restated Credit Agreement
dated as of May 30, 1995 among, the Banks parties thereto and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Agent (the "Credit Agreement") for one year to
[date to which the Revolving Credit Period is extended]. Terms defined in the
Credit Agreement are used herein as therein defined.
This Extension Agreement shall be construed in accordance with and
governed by the law of the State of New York.
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By___________________________
Title:
[NAME OF BANK]
By___________________________
Title:
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Agreed and accepted:
CABOT OIL & GAS CORPORATION
By_________________________
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By_________________________
Title:
2
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EXHIBIT C-1
OPINION OF
COUNSEL FOR THE BORROWER
[Effective Date]
To the Banks and the Agent
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have acted as counsel for Cabot Oil & Gas Corporation (the
"Borrower") in connection with the Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of May 30, 1995 among the Borrower, the banks
parties thereto and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Agent.
This opinion is delivered to you pursuant to Section 3.01(a)(iii) of
the Credit Agreement. Unless otherwise defined herein, capitalized terms used
in this opinion are used as defined in, or by reference in, the Credit
Agreement.
In connection with this opinion, we have examined copies of the
following documents:
i. The Credit Agreement;
ii. The Notes; and
iii. The certificate of incorporation and bylaws,
as amended or restated to the date hereof, of the
Borrower.
The documents described in Paragraphs (i) and (ii)
above are herein called the "Loan Documents."
74
In addition, we have reviewed the originals or copies, certified or
otherwise identified to our satisfaction, of such documents and corporate
records furnished to us by the Borrower, certificates of public officials and
of representatives of the Borrower, statutes and other instruments and
documents and (except as otherwise stated herein) have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion. In giving such opinion, we have relied upon
certificates of officers of the Borrower with respect to the accuracy of the
factual matters contained in such certificates copies of which are attached
hereto.
In our examination of the Loan Documents, we have assumed, without
independent investigation, (i) the genuineness of all signatures of, and the
authority of, all Persons signing all documents examined by us in connection
with this opinion on behalf of parties thereto, other than the Borrower, (ii)
the capacity of each signing party, and (iii) the authenticity of all
documents submitted to us as originals and the conformity to authentic
original documents of all copies submitted to us as certified, conformed or
photostatic copies.
Based upon and subject to the foregoing and other qualifications and
assumptions set forth below and upon such other matters as we deem
appropriate, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, and has all
corporate powers and to our knowledge after due inquiry has all material
governmental licenses, authorizations and consents required to carry on its
business as now conducted and is in good standing and is duly qualified as a
foreign corporation in the jurisdictions set forth on Schedule I attached
hereto. Neither the Borrower nor any Subsidiary is subject to regulation under
the Public Utility Holding Company Act of 1935, the Investment Company Act of
1940 or the Interstate Commerce Act, in each case such that the application
thereof would limit the incurrence by the Borrower of Debt under the Credit
Agreement.
2. The Borrower has taken all necessary corporate action to
authorize the execution, delivery and performance of each of the Loan
Documents. The Borrower has corporate power and authority to execute and
deliver the Loan Documents and to perform its obligations thereunder.
3. The execution and delivery by the Borrower of the Loan Documents,
and the performance of its obligations thereunder do not and will not conflict
with any of the terms,
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conditions or provisions of the certificate of incorporation or bylaws of the
Borrower; or to our knowledge after due inquiry, (A) require any action by or
in respect of, or filing with, any Texas or United States federal governmental
body, agency or official other than the filing of the Credit Agreement with
the Securities and Exchange Commission as contemplated by the Registration
Statement, (B) violate any provision of any existing Texas, Delaware corporate
or United States federal law or regulation applicable to the Borrower, or
conflict with or result in a breach of any order, judgment, injunction or
decree which is binding upon the Borrower, (C) create (with or without the
giving of notice or the lapse of time, or both) a default under or a breach of
any instrument or document evidencing indebtedness for borrowed money to which
the Borrower is a party or by which it is bound or any other material
agreement listed on Schedule II attached hereto, or (D) result in the creation
or imposition of any Lien on any asset of the Borrower pursuant to any such
agreement or instrument. We call to your attention the fact that in the event
the Borrower or a Subsidiary grants liens to its creditors, it may be required
to grant equal and ratable liens to creditors of Cabot Corporation under
provisions governing indebtedness of Cabot Corporation which require the
granting of equal and ratable liens to creditors of Cabot Corporation.
4. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and the Notes constitute valid and binding obligations of the
Borrower, in each case enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
The foregoing opinions are subject to the following additional
assumptions and qualifications:
A. Our opinion in paragraph 1 as to the qualification and good
standing of the Borrower is based solely on a review of certificates of the
public officials of the jurisdictions listed on Schedule I.
B. We have not been called upon to, and accordingly do not, express
any opinion as to the various state and Federal Laws (other than Regulations
G, U or X promulgated by the Board of Governors of the Federal Reserve System,
as in effect on the date hereof) regulating banks or the conduct of their
business that may relate to the Loan Documents and the transactions
contemplated thereby.
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C. We express no opinion in paragraph 3 above as to whether the conduct
of the Borrower's business in the ordinary course is in compliance with the
laws, rules and regulations governing the same.
D. For purposes of our opinion in paragraph (4) above, we have with
your consent (i) assumed that a court would apply the substantive laws of
either Texas or New York and (ii) assumed (without examining the laws of New
York) that the substantive laws of New York do not differ in any material
respect from the substantive laws of Texas.
E. We express no opinion as to the enforceability under Texas law of
(i) Section 6.01 of the Credit Agreement to the extent it purports to waive
any defense to the performance of contract obligations which cannot, as a
matter of law, be effectively waived, or (ii) any indemnity provisions
contained in the Credit Agreement or the Notes.
F. In rendering the opinions herein we have assumed that any transfer
of an interest in the Notes, or in subsequent Notes issued by the Borrower in
replacement and substitution thereof, will be made in compliance with any
federal and state securities laws which may be applicable.
G. For the purpose of rendering the opinions expressed in Paragraph 4
above we have assumed that the Agent and each Bank will at all times comply
strictly with the provisions of Section 2.16 of the Credit Agreement. If any
Bank fails to comply with the usury savings clause provisions under Section
2.16 of the Credit Agreement prohibiting the collections of amounts
constituting interest payable under or in connection with the Credit Agreement
and the Notes in excess of the highest lawful rate, we express no opinion as
to whether the refunding of such amounts, or the crediting of any outstanding
principal as provided in Section 2.16 of the Credit Agreement with such amount
which has been contracted for, charged or collected in violation of any
applicable usury laws is sufficient to avoid violation of such laws.
We are qualified to practice law in the State of Texas only and do not
hold ourselves out as experts on, or express any opinion herein concerning,
the laws of any jurisdiction other than the laws of the State of Texas, the
General Corporation Law of the State of Delaware and applicable federal law of
the United States. This opinion is being furnished to the Banks and the Agent
for the use of their counsel. No other use or distribution of this opinion may
be made without our prior written consent.
Very truly yours,
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EXHIBIT C-2
OPINION OF
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ESQ.
[Effective Date]
To the Banks and The Agent
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
I am Corporate Attorney and Assistant Secretary of Cabot Oil & Gas
Corporation (the "Borrower") and am familiar with the Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of May 30, 1995 among the
Borrower, the banks parties thereto and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Agent.
This opinion is delivered to you pursuant to Section 3.01(a)(iv) of
the Credit Agreement. Unless otherwise defined herein, capitalized terms used
in this opinion are used as defined in, or by reference in, the Credit
Agreement.
In Connection with this opinion, I have examined copies of the
following documents:
i. The Credit Agreement; and
ii. The Notes.
The documents described in Paragraphs (i) and (ii)
above are herein called the "Loan Documents."
In addition, I have reviewed the originals or copies, certified or
otherwise identified to my satisfaction, of such documents and corporate
records furnished to me by the
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Borrower, certificates of public officials and of representatives of the
Borrower, statutes and other instruments and documents and (except as
otherwise stated herein) have conducted such other investigations of fact and
law as I have deemed necessary or advisable for purposes of this opinion. In
giving such opinion, I have relied upon certificates of officers of the
Borrower with respect to the accuracy of the factual matters contained in such
certificates copies of which are attached hereto.
In my examination of the Loan Documents, I have assumed, without
independent investigation, (i) the genuineness of all signatures of, and the
authority of, all Persons signing all documents examined by me in connection
with this opinion on behalf of parties thereto, (ii) the capacity of each
signing party, and (iii) the authenticity of all documents submitted to me as
certified, conformed or photostatic copies.
I have not been requested to opine, and I have not opined, as to any
issues other than those expressly set forth herein. It is my understanding
that as to such other matters, you are relying on the respective opinions of
even date herewith of ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Borrower; and ▇▇▇▇▇, Polk
& ▇▇▇▇▇▇▇▇, special counsel for the Agent.
Based upon and subject to the foregoing, I am of the opinion that:
1. Except as described in the Registration Statement, there is not
action, suit or proceeding pending against, or to my knowledge threatened
against or affecting, the Borrower or any of its Subsidiaries of Affiliates
before any court or arbitrator or any governmental body, agency or official in
which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business, Properties, financial position,
results of operations or prospects of the Borrower or of the Borrower and its
Subsidiaries, taken as a whole, or which in any manner draws into question the
validity of any of the Loan Documents.
I am qualified to practice law in the State of Texas only and I do
not hold myself out as an expert on, or express any opinion herein concerning,
the laws of any jurisdiction other than the laws of the State of Texas and
applicable federal law of the United States. This opinion is being furnished
to the Banks and the Agent for their use of their counsel. No other use or
distribution of this opinion may be made without my prior written consent.
Very truly yours,
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EXHIBIT D
OPINION OF
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, SPECIAL COUNSEL
FOR THE AGENT
May 30, 1995
To the Banks and the Agent
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have participated in the preparation of the Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of May 30, 1995 among Cabot
Oil & Gas Corporation, a Delaware corporation (the "Borrower"), the banks
parties thereto and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent (the
"Agent"), and have acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 3.01 of the Credit Agreement. Terms
defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
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1. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower's corporate powers and
have been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and each Note constitutes a valid and binding obligation of the
Borrower, in each case enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction (except the State of New York)
in which any Bank is located which limits the rate of interest that such Bank
may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
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