EXHIBIT 10.1
SENIOR TERM LOAN AGREEMENT
Dated as of October 28, 2005
Among
EOG RESOURCES, INC.
as Parent Guarantor
EOGI INTERNATIONAL COMPANY
as Borrower
and
THE BANK OF NOVA SCOTIA
as Administrative Agent
DEUTSCHE BANK SECURITIES INC.
as Syndication Agent
SOCIETE GENERALE, SUNTRUST BANK and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents
and
THE BANKS NAMED HEREIN
as Banks
THE BANK OF NOVA SCOTIA and DEUTSCHE BANK SECURITIES INC.
as Joint Lead Arrangers and Book Managers
Table of Contents
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms 1
Section 1.2 Computation of Time Periods 11
Section 1.3 Accounting Terms 11
Section 1.4 Miscellaneous 11
Section 1.5 Ratings 11
ARTICLE II
AMOUNT AND TERMS OF THE ADVANCES
Section 2.1 The Advances 12
Section 2.2 Making the Advances 12
Section 2.3 Fees 13
Section 2.4 Repayment 13
Section 2.5 Interest 13
Section 2.6 Additional Interest on Eurodollar Advances 14
Section 2.7 Interest Rate Determination and Protection 14
Section 2.8 Voluntary Conversion of Borrowings; Continuation
of Eurodollar Borrowings 16
Section 2.9 Prepayments 16
Section 2.10 Increased Costs; Capital Adequacy, Etc. 17
Section 2.11 Illegality 18
Section 2.12 Payments and Computations 18
Section 2.13 Taxes 19
Section 2.14 Sharing of Payments, Etc. 21
Section 2.15 Optional Reduction or Termination of the Commitments 21
Section 2.16 Scheduled Reduction and Termination of Commitments 22
Section 2.17 Termination; Replacement of Bank 22
ARTICLE III
CONDITIONS TO ADVANCES
Section 3.1 Initial Conditions Precedent 24
Section 3.2 Additional Conditions Precedent to Each Advance 25
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties 25
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants 28
Section 5.2 Negative Covenants 31
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 Events of Default 33
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.1 Authorization of the Administrative Agent 35
Section 7.2 Delegation of Duties 36
Section 7.3 Liability of the Administrative Agent 36
Section 7.4 Reliance by the Administrative Agent 36
Section 7.5 Notice of Default 37
Section 7.6 Credit Decision; Disclosure of Information by the
Administrative Agent 37
Section 7.7 Indemnification of the Administrative Agent 38
Section 7.8 The Administrative Agent in its Individual Capacity 38
Section 7.9 Successor Administrative Agent 38
Section 7.10 The Administrative Agent May File Proofs of Claim 39
Section 7.11 Other Agents; Arrangers and Managers 39
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendments, Etc. 40
Section 8.2 Notices, Etc. 40
Section 8.3 No Waiver; Remedies 41
Section 8.4 Costs and Expenses 42
Section 8.5 Payments Set Aside; Right of Set-Off 43
Section 8.6 Assignments and Participations 44
Section 8.7 Governing Law; Entire Agreement, Integration;
Jurisdiction 47
Section 8.8 Interest 47
Section 8.9 Captions 48
Section 8.10 Confidentiality 48
Section 8.11 Survival; Term; Reinstatement 48
Section 8.12 Severability 48
Section 8.13 Time of the Essence 49
Section 8.14 Execution in Counterparts 49
Section 8.15 Effectiveness 49
Section 8.16 Tax Forms 49
Section 8.17 Waiver of Right to Trial by Jury 51
Section 8.18 USA Patriot Act Notice 51
SCHEDULES AND EXHIBITS
Schedule I Applicable Margin
Schedule II Banks, Commitments and Administrative Information
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.,
New York Counsel to the Parent Guarantor and the
Borrower
Exhibit D - Form of Opinion of Senior Vice President and
General Counsel of the Parent Guarantor
Exhibit E - Form of Opinion of ▇▇▇▇▇▇ and Calder, Cayman Islands
Counsel to the Borrower
Exhibit F - Form of Notice of Conversion
Exhibit G - Terms of Negative Pledge
Exhibit H - Form of Assignment and Assumption
Exhibit I - Form of Parent Guaranty
SENIOR TERM LOAN AGREEMENT
Dated as of October 28, 2005
EOG Resources, Inc., a Delaware corporation, EOGI
International Company, a Cayman Islands corporation, the Banks,
The Bank of Nova Scotia, as Administrative Agent for the Banks,
Deutsche Bank Securities Inc., as Syndication Agent, and Societe
Generale, SunTrust Bank and Wachovia Bank, National Association,
as co-documentation agents, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to
be equally applicable to both the singular and the plural forms of the
terms defined):
"Administrative Agent" means The Bank of Nova Scotia in its
capacity as administrative agent under this Agreement, together
with any successor thereto pursuant to Section 7.9.
"Advance" means an advance by a Bank to the Borrower
pursuant to Article II (as divided or combined from time to time
as contemplated in the definition herein of "Borrowing"), and
refers to a Base Rate Advance or a Eurodollar Advance (each of
which shall be a "Type" of Advance).
"Advance Period" means the period commencing on the date of
this Agreement and ending on and including December 31, 2006.
"Affiliate" means, with respect to any Person, another
Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. "Control" means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract
or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto.
"Agent-Related Persons" means the Administrative Agent,
together with its Affiliates, and the officers, directors,
employees and agents of such Persons and Affiliates.
"Agreement" means this Senior Term Loan Agreement, as
amended, supplemented or modified from time to time.
"Applicable Lending Office" means, with respect to each
Bank, such Bank's Domestic Lending Office in the case of a Base
Rate Advance and such Bank's Eurodollar Lending Office in the
case of a Eurodollar Advance.
"Applicable Margin" means, for each Rating Level, the
percentage set forth adjacent to the captioned term "Applicable
Margin", as each of the foregoing is set forth in Schedule I, and
for any Interest Period for each Eurodollar Advance, the
percentage per annum applicable to such Interest Period for such
Advance as shown in Schedule I and being based on the Rating
Level, which for the purposes of determining such respective
Applicable Margins shall be the Rating Level in effect on the
first day of such Interest Period.
"Assignment and Assumption" means an assignment and
assumption entered into by a Bank and an Eligible Assignee, and
accepted by the Administrative Agent, in substantially the form
of Exhibit H.
"Attorney Costs" means and includes all reasonable fees,
expenses and disbursements of any law firm or other external
counsel.
"Bankruptcy Code" means Title 11 of the United States Code,
as now or hereafter in effect, or any successor thereto.
"Banks" means each Person a signatory to this Agreement, and
shall include any Person that becomes a Bank pursuant to Section
2.17 or Section 8.6, in each case, however, so long as it shall
hold a Commitment or an Advance.
"Base Rate" means, for any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1%
and (b) the rate of interest in effect for such day as publicly
announced from time to time by Scotia Capital as its "prime
rate." The "prime rate" is a rate set by Scotia Capital based
upon various factors including Scotia Capital's costs and desired
return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in
such rate announced by Scotia Capital shall take effect at the
opening of business on the day specified in the public
announcement of such change.
"Base Rate Advance" means an Advance which bears interest as
provided in Section 2.5(a).
"Borrower" means EOGI International Company, a Cayman
Islands corporation, and any successor thereto pursuant to
Section 5.2(e).
"Borrowing" means a borrowing hereunder consisting of
Advances of the same Type made on the same day by the Banks
pursuant hereto and, in the case of Eurodollar Advances, having
the same Interest Period; provided that (a) all Base Rate
Advances outstanding at any time shall thereafter be deemed to be
one Borrowing, and (b) subject to the limitations in Section
2.2(a) as to the number of permitted Interest Periods and subject
to the provisions of Section 2.7, Section 2.8(c) and Section 2.11
on the last day of an Interest Period for a Borrowing comprised
of Eurodollar Advances, such Borrowing may be divided ratably to
form multiple Borrowings comprised of Eurodollar Advances (with
the result that each Bank's Advance as a part of each such
multiple Borrowing is proportionately the same as its Advance as
a part of such divided Borrowing) or combined with all or a
ratable portion of the Base Rate Advances or all or a ratable
portion of one or more other Borrowings, the Interest Period for
which also ends on such day, to form a new Borrowing comprised of
Eurodollar Advances, such division or combination to be made by
notice from the Borrower given to the Administrative Agent not
later than 11:00 A.M. on the third Business Day prior to the
proposed division or combination specifying the date of such
division or combination (which shall be a Business Day) and all
other relevant information (such as the Borrowings to be divided
or combined, the respective amounts of the Borrowings resulting
from any such division, the relevant Interest Periods, the amount
of the Base Rate Advances or other Borrowings to be so combined
and such other information as the Administrative Agent may
request), but in no event shall any Borrowing resulting from, or
remaining after, any such division or combination be less than
$5,000,000, and in all cases each Bank's Advance as a part of
each such combined, resultant or remaining Borrowing shall be
proportionately the same as its Advances as a part of the
relevant Borrowings prior to such division or combination and
each combined, resultant or remaining Borrowing shall be in an
integral multiple of $1,000,000. Each Borrowing comprised of a
Type of Advance shall be that "Type" of Borrowing.
"Business Day" means (a) any day of the year except
Saturday, Sunday and any day on which banks are required or
authorized to close in Houston, Texas, New York, New York, or the
state in which the Payment Office is located, and (b) if the
applicable Business Day relates to any Eurodollar Advances, any
day which is a "Business Day" described in clause (a) and which
is also a day for trading by and between banks in the applicable
interbank Eurodollar market.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to
time, set forth at 42 U.S.C. Sections 9601 et seq (1988), state and
local analogs and all rules and regulations promulgated
thereunder, in each case as now or hereafter in effect.
"Change of Control" means any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries, and any person or entity acting
in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be
deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire (such right, an "option
right"), whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 30% or
more of the equity securities of the Parent Guarantor entitled to
vote for members of the board of directors or equivalent
governing body of the Parent Guarantor on a fully-diluted basis
(and taking into account all such securities that such person or
group has the right to acquire pursuant to any option right).
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the Treasury regulations promulgated
thereunder, or any successor Federal tax code or regulations, and
any reference to any statutory provision of the Code shall be
deemed to be a reference to any successor provision or
provisions.
"Commitment" means, as to each Bank, its obligation to make
Advances to the Borrower pursuant to Section 2.1, in an aggregate
principal amount at any one time outstanding not to exceed the
amount set forth opposite such Bank's name on Schedule II or in
the Assignment and Assumption pursuant to which such Bank becomes
a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Consolidated" refers to the consolidation of the accounts
of the Parent Guarantor and its Subsidiaries in accordance with
GAAP.
"Consolidated Net Worth" means at any date the Consolidated
stockholders' equity of the Parent Guarantor and its Consolidated
Subsidiaries.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances or a Borrowing of one Type into Advances
or a Borrowing, as the case may be, of another Type pursuant to
Section 2.7, Section 2.8(a) or Section 2.10(b).
"Debt" of any Person means, at any date, without
duplication, (a) obligations for the repayment of money borrowed
which (i) are evidenced by bonds, notes, debentures, loan
agreements, credit agreements or similar instruments or
agreements and (ii) are or should be shown on a balance sheet as
debt in accordance with GAAP, (b) obligations as lessee under
leases which, in accordance with GAAP, are capital leases (and
monetary obligations under so-called synthetic or off-balance
sheet leases), (c) all obligations of such Person to deliver
commodities, goods or services, including hydrocarbons, in
consideration of one or more advance payments, other than gas
balancing arrangements, take or pay arrangements or other similar
arrangements in each case in the ordinary course of business, (d)
the undischarged balance of any production payment created by
such Person or for the creation of which such Person directly or
indirectly received payment, and (e) guaranties of payment or
collection of any obligations described in clauses (a) through
(d) of other Persons, provided, that clauses (a) through (d)
include, in the case of obligations of the Parent Guarantor or
any Subsidiary, only such obligations as are or should be shown
as debt, deferred revenues (in the case of clause (d)) or capital
lease liabilities on a Consolidated balance sheet in accordance
with GAAP; provided, further, that none of the following shall
constitute Debt: (A) transfers of accounts receivable pursuant
to a receivables purchase facility considered as a sale under
GAAP (and indemnification, recourse or repurchase obligations
thereunder as are reasonable given market standards for
transactions of similar type) and (B) the liability of any Person
as a general partner of a partnership for Debt of such
partnership, if the partnership is not a Subsidiary of such
Person.
"Defaulting Bank" means any Bank that (a) has failed to fund
any Advance required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder,
(b) has otherwise failed to pay over to the Administrative Agent
or any other Bank any other amount required to be paid by it
hereunder within one Business Day of the date when due, unless
the subject of a good faith dispute, and such failure is
continuing or (c) has been deemed insolvent or become the subject
of a bankruptcy, insolvency or receivership proceeding.
"Dollar" or "$" mean lawful money of the United States.
"Domestic Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Domestic Lending
Office" under its name on Schedule II or in the Assignment and
Assumption or other document pursuant to which it became a party
hereto as contemplated by Section 2.17 or Section 8.6, or such
other office of such Bank as such Bank may from time to time
specify to the Borrower and the Administrative Agent.
"Eligible Assignee" has the meaning specified in Section
8.6(g).
"Environment" has the meaning specified in 42 U.S.C. Section
9601(8) (1988).
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of
the Obligors or any of their respective Subsidiaries directly or
indirectly resulting from or based upon (a) violation of any
Environmental Protection Statute, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d)
the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
"Environmental Protection Statute" means any law, statute,
ordinance, rule, regulation, order, decision, decree, judgment,
permit, license, authorization or agreement (all as amended from
time to time) arising from, in connection with, or relating to
the pollution, protection or regulation of the Environment or the
protection or regulation of health or safety, whether the
foregoing are required or promulgated by any government or agency
or other authority of or in the United States (whether local,
state, or federal) or any foreign country or subdivision thereof,
including without limitation, CERCLA, RCRA and other laws,
statutes, ordinances, rules and regulations relating to the
disposal, removal, remediation, production, storing, refining,
handling, transferring, processing, recycling or transporting of
or exposure to any material or substance, wherever located, and
any rule, regulation or decision issued or promulgated in
connection with such laws, statutes, ordinances, rules or
regulations by any government, agency or other authority of or in
the United States (whether local, state or federal) or of any
foreign country or subdivision thereof, in each case as now or
hereafter in effect.
"EPA" means the United States Environmental Protection
Agency, or any successor thereto.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute of
similar import, together with the regulations thereunder, as in
effect from time to time.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) which is a member of a group of which the
Parent Guarantor is a member and which is under common control
within the meaning of the regulations under Section 414 of the
Code.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board, as in effect
from time to time.
"Eurodollar Advance" means an Advance which bears interest
as provided in Section 2.5(b).
"Eurodollar Borrowing" means a Borrowing comprised of
Eurodollar Advances.
"Eurodollar Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Eurodollar Lending
Office" under its name on Schedule II or in the Assignment and
Assumption or other document pursuant to which it became a party
hereto as contemplated by Section 2.17 or Section 8.6, or such
other office of such Bank as such Bank may from time to time
specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period with
respect to any Eurodollar Advance:
(a) the rate per annum equal to the rate determined
by the Administrative Agent to be the offered rate that
appears on the page of the Telerate screen (or any
successor thereto) that displays an average British Bankers
Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest
Period, or
(b) if the rate referenced in the preceding clause
(a) does not appear on such page or service or such page or
service shall not be available, the rate per annum equal to
the rate determined by the Administrative Agent to be the
offered rate on such other page or other service that
displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on
the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses
(a) and (b) are not available, the rate per annum
reasonably determined by the Administrative Agent as the
rate of interest at which deposits in Dollars for delivery
on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Advance being
made, continued or Converted by Scotia Capital and with a
term equivalent to such Interest Period would be offered by
Scotia Capital's London Branch to major banks in the London
interbank eurodollar market at their request at
approximately 4:00 p.m. (London time) two Business Days
prior to the first day of such Interest Period.
"Events of Default" has the meaning specified in Section
6.1.
"FDIC" means the Federal Deposit Insurance Corporation, or
any federal agency or authority of the United States from time to
time succeeding to its function.
"Federal Funds Rate" means, for any day, the rate per annum
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 for
such day by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day, and (b) if
no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average
rate (rounded upward, if necessary, to a whole multiple of 1/100
of 1%) charged to Scotia Capital on such day on such transactions
as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any federal agency or authority of the
United States from time to time succeeding to its function.
"GAAP" means accounting principles generally accepted in the
United States consistent with those applied in the preparation of
the audited consolidated financial statements referred to in
Section 4.1(d).
"Hazardous Materials" means (a) any substance or material
identified as a hazardous substance pursuant to CERCLA; (b) any
substance or material regulated as a hazardous or solid waste
pursuant to RCRA; (c) any other material or substance regulated
under any Environmental Protection Statute; and (d) all
pollutants, contaminants, toxic substances, radioactive
materials, refined products, natural gas liquids, crude oil,
petroleum and petroleum products, polychlorinated biphenyls and
asbestos.
"Highest Lawful Rate" means, on any day and with respect to
each Bank, as the case may be, the maximum non-usurious rate of
interest that such Bank is permitted under Federal, New York or
other applicable law to contract for, charge, receive, take or
reserve for with respect to obligations of the Borrower
hereunder, stated as a rate per annum. All determinations herein
of the Highest Lawful Rate, or of any interest rate determined by
reference to the Highest Lawful Rate, shall be made separately
for each Bank, as appropriate to assure that the Loan Documents
are not construed to obligate any Person to pay interest to any
Bank, at a rate in excess of the Highest Lawful Rate applicable
to it.
"Indemnified Liabilities" has the meaning specified in
Section 8.4(c).
"Indenture" means that certain Indenture dated as of
September 1, 1991 between the Parent Guarantor, as issuer, and
JPMorgan Chase Bank, N.A., as successor to JPMorgan Chase Bank,
successor-in-interest to Texas Commerce Bank National
Association, as Trustee, without giving effect to any amendment,
modification or discharge thereof.
"Insufficiency" means, with respect to any Plan, the amount,
if any, by which the present value of the accrued benefits under
such Plan exceeds the fair market value of the assets of such
Plan allocable to such benefits.
"Interest Period" means, with respect to each Eurodollar
Advance, in each case comprising part of the same Borrowing, the
period commencing on the date of such Advance or the date of the
Conversion of any Advance into (or a division or combination of
any Borrowing resulting in) such an Advance and ending on the
last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below except that any
Interest Period for Eurodollar Advances which commences on any
day for which there is no numerically corresponding day in the
appropriate subsequent calendar month shall end on the last
Business Day of the appropriate subsequent calendar month. The
duration of each such Interest Period shall be one, two, three or
six months, in each case as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. on
the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(a) Interest Periods commencing on the same date for
Advances comprising part of the same Borrowing shall be of
the same duration;
(b) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day,
the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided, in the
case of any Interest Period for a Eurodollar Advance, that
if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next
preceding Business Day; and
(c) no Interest Period may end after the Termination Date.
"Loan Document" means this Agreement, each Note, each Notice
of Borrowing, the Parent Guaranty, each Notice of Conversion and
each other document or instrument executed and delivered in
connection with this Agreement.
"Majority Banks" means, if no Advances are outstanding,
Banks having in the aggregate more than 50% of the Total
Committed Amount, or, if any Advances are outstanding, Banks
holding in the aggregate more than 50% of the Total Outstanding
Amount; provided that the Total Committed Amount of, and the
portion of the Total Outstanding Amount held by, any Defaulting
Bank shall be excluded for purposes of making a determination of
Majority Banks.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Parent Guarantor or
any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.
"Multiple Employer Plan" means an employee benefit plan,
other than a Multiemployer Plan, subject to Title IV of ERISA to
which the Parent Guarantor or any ERISA Affiliate, and more than
one employer other than the Parent Guarantor or an ERISA
Affiliate, is making or accruing an obligation to make
contributions or, in the event that any such plan has been
terminated, to which the Parent Guarantor or any ERISA Affiliate
made or accrued an obligation to make contributions during any of
the five plan years preceding the date of termination of such
plan.
"Note" means a promissory note of the Borrower payable to
the order of any Bank, in substantially the form of Exhibit A,
evidencing the aggregate indebtedness of the Borrower to such
Bank resulting from the Advances owed to such Bank.
"Notice of Borrowing" has the meaning specified in Section
2.2(a).
"Obligor" means the Borrower and the Parent Guarantor, or
either of them as the context requires.
"Other Taxes" has the meaning specified in Section 2.13(c).
"Parent Guarantor" means EOG Resources, Inc., a Delaware
corporation, and any successor thereto pursuant to Section
5.2(e).
"Parent Guaranty" means the Parent Guaranty to be executed
and delivered by the Parent Guarantor, substantially in the form
of Exhibit I.
"Payment Office" means the office of the Administrative
Agent located at The Bank of Nova Scotia, Atlanta Agency, Suite
2700, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other
office as the Administrative Agent may designate by written
notice to the other parties hereto.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any federal agency or authority of the United States from time to
time succeeding to its function.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, firm or other
entity, or a government or any political subdivision or agency,
department or instrumentality thereof.
"Plan" means an employee benefit plan (other than a
Multiemployer Plan) which is (or, in the event that any such plan
has been terminated within five years after a transaction
described in Section 4069 of ERISA, was) maintained for employees
of the Parent Guarantor or any ERISA Affiliate and covered by
Title IV of ERISA.
"Prescribed Forms" means such duly executed form(s) or
statement(s), including the forms described in Section 8.16(a),
and in such number of copies, which may, from time to time, be
prescribed by law and which, pursuant to applicable provisions of
(a) an income tax treaty between the United States and the
country of residence of the Bank providing the form(s) or
statement(s), (b) the Code, or (c) any applicable rule or
regulation under the Code or the tax law of the applicable
jurisdiction, permit the Borrower to make payments hereunder for
the account of such Bank free of, or at a reduced rate of,
deduction or withholding of income or similar taxes (except for
any deduction or withholding of income or similar taxes as a
result of any change in or in the interpretation of any such
treaty, the Code or any such rule or regulation).
"Principal Subsidiary" means (a) the Borrower, (b) EOG
Resources Trinidad Limited, (c) EOG Resources Canada Inc., an
Alberta corporation, but only so long as it has any commitments,
loans, letters or credit or bankers' acceptances outstanding
under the Revolving Credit Agreement, (d) EOG Resources United
Kingdom Limited, but only so long as it has any commitments,
loans or letters or credit outstanding under the Revolving Credit
Agreement and (e) any other Subsidiary having total assets in
excess of $200,000,000, excluding (i) intercompany loans and
advances to and from the Parent Guarantor and its Subsidiaries,
(ii) investments in Subsidiaries of such Subsidiary, and (iii)
equity interests in Subsidiaries of such Subsidiary. For
purposes of this definition, total assets shall be determined
based on the most recent quarterly or annual financial statements
available prior to such determination.
"Rating Level" means the applicable category of rating level
contained in Schedule I which is based on the rating of the
Parent Guarantor's senior unsecured long-term debt as classified
by ▇▇▇▇▇'▇ and/or Standard & Poor's and which shall be the
highest applicable Rating Level I, Rating Level II, Rating Level
III, Rating Level IV, Rating Level V or Rating Level VI, as the
case may be, as set forth in Schedule I (with Rating Level I
being the highest and Rating Level VI being the lowest).
"RCRA" means the Resource Conservation Act of 1976, as
amended from time to time, set forth at 42 U.S.C. Sections 6901
et seq (1988), state and local analogs and all rules and regulations
promulgated thereunder, in each case as now or hereafter in
effect.
"Reg U Limited Assets" means assets that are subject to any
arrangement (as contemplated by Regulation U) with any Bank or
the Administrative Agent (a) that restricts the right or ability
of the Borrower or (to the extent relevant to the compliance with
Regulation U or Regulation X by any of the Banks or the Borrower
in connection with this Agreement or any of the Advances) its
Subsidiaries to sell, pledge or otherwise dispose of (within the
meaning of Regulation U) such assets or (b) that provides that
the exercise of such right is or may be cause for accelerating
the maturity of all or any portion of the Advances or any other
amount payable hereunder or under such arrangement.
"Register" has the meaning specified in Section 8.6(c).
"Regulation U" means Regulation U of the Federal Reserve
Board, as the same is from time to time in effect, and all
rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Federal Reserve
Board, as the same is from time to time in effect, and all
rulings and interpretations thereunder or thereof.
"Responsible Officer" of a Person means such Person's chief
executive officer, president, chief financial officer, vice
president-finance, treasurer or assistant treasurer. Unless
otherwise specified, all references herein to a "Responsible
Officer" shall refer to a Responsible Officer of the Parent
Guarantor.
"Revolving Credit Agreement" means that certain Revolving
Credit Agreement dated as of June 28, 2005 among the Parent
Guarantor, as borrower, EOG Resources Canada Inc., as Canadian
borrower, EOG Resources United Kingdom Limited, as UK borrower,
and the agents and the banks parties thereto, as the same may be
amended, modified, waived, refinanced or replaced.
"Scheduled Maturity Date" means December 31, 2008.
"Scotia Capital" means The Bank of Nova Scotia and any
successor thereto.
"Standard & Poor's" and "S&P" each means Standard & Poor's
Ratings Group, a division of McGraw Hill, Inc. on the date
hereof.
"Subsidiary" means any corporation, partnership, joint
venture or other entity (a) of which more than 50% of the
outstanding capital stock or other equity interests having
ordinary voting power (irrespective of whether or not at the time
capital stock or other equity interest of any other class or
classes of such corporation, partnership, joint venture or other
entity shall or might have voting power upon the occurrence of
any contingency) is at the time directly or indirectly owned by
the Parent Guarantor and (b) which is a Consolidated Subsidiary
in accordance with GAAP; provided, that the definition of
"Subsidiary" in Exhibit G shall apply in Section 5.2(a) only.
"Taxes" has the meaning specified in Section 2.13(a).
"Termination Date" means, the earlier of (i) the Scheduled
Maturity Date and (ii) the date of termination in whole of the
Total Committed Amount pursuant to Section 2.15 or Section 6.1.
"Termination Event" means (a) a "reportable event", as such
term is described in Section 4043 of ERISA (other than a
"reportable event" not subject to the provision for 30-day notice
to the PBGC), or an event described in Section 4062(e) of ERISA,
or (b) the withdrawal of the Parent Guarantor or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in
which it was a "substantial employer", as such term is defined in
Section 4001(a)(2) of ERISA, or the incurrence of liability by
the Parent Guarantor or any ERISA Affiliate under Section 4064 of
ERISA upon the termination of a Multiple Employer Plan, or (c)
the distribution of a notice of intent to terminate a Plan
pursuant to Section 4041(a)(2) of ERISA or the treatment of a
Plan amendment as a termination under Section 4041 of ERISA, or
(d) the institution of proceedings to terminate a Plan by the
PBGC under Section 4042 of ERISA, or (e) any other event or
condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"Total Capitalization" means, at any time, the sum (without
duplication) of (a) Total Debt plus (b) Consolidated Net Worth
less any amount thereof attributable to "minority interests" (as
defined below). For the purpose of this definition, "minority
interests" means any investment or interest of the Parent
Guarantor in any corporation, partnership or other entity to the
extent that the total amount thereof owned by the Parent
Guarantor (directly or indirectly) constitutes 50% or less of all
outstanding interests or investments in such corporation,
partnership or entity.
"Total Committed Amount" means, at any time, the aggregate
amount of the Commitments at such time.
"Total Debt" means, at any time, all Consolidated Debt of
the Parent Guarantor and its Consolidated Subsidiaries.
"Total Outstanding Amount" means, at any time, the sum of
the outstanding Advances.
"Type" has the meaning specified in the definition of the
term "Advance".
"Withdrawal Liability" shall have the meaning given such
term under Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and
the words "to" and "until" each means "to but excluding". Unless
otherwise indicated, all references to a particular time are references
to Houston, Texas time.
Section 1.3 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with,
and certificates of compliance for the financial covenant shall be
based on, GAAP; provided, however, the financial statements and
reports required pursuant to Section 5.1(a)(i) and (xi) shall be
prepared in accordance with generally accepted accounting principles
in effect at the time of application thereof except to the extent
stated therein.
Section 1.4 Miscellaneous. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Article, Section, Schedule and Exhibit
references are to Articles and Sections of and Schedules and Exhibits to
this Agreement, in each case as then amended, revised or
otherwise modified and then in effect, unless otherwise
specified. The term "including" shall mean "including, without
limitation," and the term "or" is not exclusive. The term
"United States" when used in any Loan Document shall refer to and
mean the United States of America.
Section 1.5 Ratings. A rating, whether public or private,
by Standard & Poor's or ▇▇▇▇▇'▇ shall be deemed to be in effect on
the date of announcement or publication by Standard & Poor's or
▇▇▇▇▇'▇, as the case may be, of such rating or, in the absence of such
announcement or publication, on the effective date of such rating
and will remain in effect until the date when any change in such
rating is deemed to be in effect. In the event any of the rating
categories used by ▇▇▇▇▇'▇ or Standard & Poor's is revised or
designated differently (such as by changing letter designations
to different letter designations or to numerical designations),
the references herein to such rating shall be changed to the
revised or redesignated rating for which the standards are
closest to, but not lower than, the standards at the date hereof
for the rating which has been revised or redesignated. Long-term
debt supported by a letter of credit, guaranty, insurance or
other similar credit enhancement mechanism shall not be
considered as senior unsecured long-term debt.
ARTICLE II
AMOUNT AND TERMS OF THE ADVANCES
Section 2.1 The Advances. Each Bank severally agrees, on the
terms and conditions hereinafter set forth, to make one or more Advances
as part of a term loan Borrowing to the Borrower from time to time on any
Business Day during the Advance Period in an aggregate amount not
to exceed at any time outstanding such Bank's Commitment. Each
Borrowing shall be in an aggregate amount not less than
$5,000,000, shall be in an integral multiple of $1,000,000 and
shall, when made, consist of Advances of the same Type having (in
the case of a Borrowing comprised of Eurodollar Advances) the
same Interest Period, made on the same day by the Banks ratably
according to their respective Commitments. The Commitments are
not revolving in nature, and amounts borrowed hereunder and
prepaid may not be reborrowed. Subject to the terms and
conditions hereof, more than one Borrowing may be made on a
Business Day (including, for example, a Borrowing comprised of
Eurodollar Advances having one Interest Period and another
Borrowing comprised of Eurodollar Advances having a different
Interest Period).
Section 2.2 Making the Advances. (a) Each Borrowing shall be
made on notice, given not later than 11:00 A.M. (i) in the case of a
proposed Borrowing comprised of Eurodollar Advances, at least three
Business Days prior to the date of the proposed Borrowing, and (ii)
in the case of a proposed Borrowing comprised of Base Rate Advances,
on the day of the proposed Borrowing, by the Borrower to the Administrative
Agent, which shall give to each Bank prompt notice thereof by
telecopy. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be by telecopy, confirmed immediately in
writing, in substantially the form of Exhibit B, duly signed by a
Responsible Officer, specifying therein the requested (A) date of
such Borrowing, (B) Type of Advances comprising such Borrowing,
(C) aggregate amount of such Borrowing, and (D) in the case of a
Borrowing comprised of Eurodollar Advances, initial Interest
Period for each such Advance, provided that the Borrower may not
specify Eurodollar Advances for any Borrowing if, after giving
effect to such Borrowing, Eurodollar Advances having more than
ten (10) different Interest Periods shall be outstanding. In the
case of a proposed Borrowing comprised of Eurodollar Advances,
the Administrative Agent shall promptly notify each Bank and the
Borrower of the applicable interest rate under Section 2.5(b).
Each Bank shall, before 11:00 A.M. (1:00 P.M. in the case of a
Borrowing comprised of Base Rate Advances) on the date of such
Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at its Payment Office,
in same day funds, such Bank's ratable portion of such Borrowing.
After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to
the Borrower at the Administrative Agent's aforesaid address.
The Borrower may make no more than twelve Borrowings.
(b) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing which the related
Notice of Borrowing specifies is to be comprised of Eurodollar
Advances, the Borrower shall, subject to Section 8.8, indemnify
each Bank against any loss, cost or expense incurred by such Bank
as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III or to make the
Borrowing specified in such Notice of Borrowing on the date
specified, including any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Bank
to fund the Advance to be made by such Bank as part of such
Borrowing when such Advance, as a result of such failure, is not
made on such date.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to the time it is required to make available
its ratable portion of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's ratable portion
of such Borrowing, the Administrative Agent may assume that such
Bank has made such portion available to the Administrative Agent
on the date of such Borrowing in accordance with subsection (a)
of this Section 2.2 and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date
a corresponding amount. If and to the extent that such Bank
shall not have so made such ratable portion available to the
Administrative Agent, such Bank and the Borrower severally agree
to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at
(i) in the case of the Borrower, the interest rate applicable at
the time to Advances comprising such Borrowing and (ii) in the
case of such Bank, the Federal Funds Rate. If such Bank shall
repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Advance as part of
such Borrowing for purposes of this Agreement.
(d) The failure of any Bank to make the Advance 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 Advance on the date of
such Borrowing, but no Bank shall be responsible for the failure
of any other Bank to make the Advance to be made by such other
Bank on the date of any Borrowing.
Section 2.3 Fees.
(a) Commitment fee. Subject to Section 8.8, the Borrower agrees
to pay without duplication to each Bank a commitment fee at a
rate per annum equal to 0.09% on the average daily amount of the
undrawn portion of such Bank's Commitment available for
Borrowings from January 1, 2006 until December 31, 2006 (the
"Commitment Period"). The commitment fee, during the Commitment
Period, is due on the last Business Day of each March, June,
September and December during the term of such Bank's Commitment,
commencing March 31, 2006, and on the date such Bank's Commitment
is terminated.
(b) Administrative Agent's Fee. Subject to Section 8.8, the
Borrower shall pay to the Administrative Agent such fees as may
be separately agreed to by it, the Parent Guarantor and the
Administrative Agent.
Section 2.4 Repayment. The Borrower shall repay the unpaid
principal amount of each Advance owed to each Bank on the Termination Date.
Section 2.5 Interest. Subject to Section 8.8, the Borrower
shall pay interest on the unpaid principal amount of each Advance owed
to each Bank from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the
Base Rate in effect from time to time, due quarterly on the last
Business Day of each March, June, September and December,
commencing December 31, 2005, during such periods and on the date
such Base Rate Advance shall be Converted (in whole or in part),
changed (in whole or in part) as a result of any division or
combination of any Borrowing, or paid in full; provided that any
such Advance not paid when due shall bear interest on the
principal amount thereof from time to time outstanding, payable
upon demand, until paid in full at a rate per annum equal at all
such times to 2% above the Base Rate in effect from time to time.
(b) Eurodollar Advances. During such periods as such Advance
is a Eurodollar Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of the
Eurodollar Rate for such Interest Period for such Advance plus
the Applicable Margin per annum for such Interest Period, due on
the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on the day which occurs
during such Interest Period three months from the first day of
such Interest Period (each Eurodollar Advance to bear interest
from and including the first day of the Interest Period for such
Advance to (but not including) the last day of such Interest
Period); provided that any such Advance not paid when due shall
bear interest on the principal amount thereof from time to time
outstanding, payable upon demand, until paid in full at a rate
per annum equal at all such times to the greater of (x) 2% above
the Base Rate in effect from time to time and (y) 2% above the
rate per annum required to be paid on such Advance immediately
prior to the date on which such Event of Default occurred.
(c) Other Obligations. If any amount payable by the Borrower
(other than any Advance) under any Loan Document is not paid when
due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount from
time to time outstanding shall thereafter bear interest on the
principal amount thereof from time to time outstanding, payable
upon demand, until paid in full, at a fluctuating interest rate
per annum at all such times equal to 2% above the Base Rate in
effect from time to time.
Section 2.6 Additional Interest on Eurodollar Advances. If
any Bank is required under regulations of the Federal Reserve Board
to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities, and if as a result thereof
there is an increase in the cost to such Bank of agreeing to make or
making, funding or maintaining Eurodollar Advances, the Borrower shall,
subject to Section 8.8, from time to time, within 20 Business Days
following its receipt of the certificate hereinbelow referenced (with
a copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Bank additional amounts, as
additional interest hereunder, sufficient to compensate such Bank
for such increased cost. A certificate in reasonable detail as
to the basis for and the amount of such increased cost, and
certifying that such costs are generally being charged by it to
other similarly situated borrowers under similar credit
facilities shall be submitted to the Borrower and the
Administrative Agent by such Bank, shall be conclusive and
binding for all purposes, absent manifest error; provided,
however, no Bank shall be permitted to recover increased costs
incurred or accrued pursuant to this Section 2.6 more than 180
days prior to the date it sends such certificate to the Borrower;
provided further that, if any such requirement (or change in
requirement) giving rise to such increased costs is retroactive,
then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
Section 2.7 Interest Rate Determination and Protection.
(a) If, prior to the commencement of any selected Interest
Period for a Eurodollar Advance, the Administrative Agent is
unable to obtain timely information for determining the
Eurodollar Rate for such Interest Period:
(i) the Administrative Agent shall forthwith notify the
Borrower and the Banks that the interest rate cannot be determined for
such Interest Period,
(ii) each such Advance for which such Interest Period was
selected will, on the last day of the then existing Interest
Period therefor, either (A) Convert into a Base Rate Advance (or
if such Advance is then a Base Rate Advance, will continue as a
Base Rate Advance) or (B) continue as one or more Eurodollar
Advances of Interest Periods not affected by such notice of the
Majority Banks, as selected by the Borrower, and
(iii) the obligation of the Banks to make, or to Convert
Advances or Borrowings into, or to make divisions or combinations
of Borrowings resulting in, Eurodollar Advances or Eurodollar
Borrowings of such Interest Periods shall be suspended until the
Administrative Agent shall notify the Borrower and the Banks that
the circumstances causing such suspension no longer exist.
(b) If, with respect to any Eurodollar Advances, the Majority
Banks notify the Administrative Agent that the applicable
interest rate for any Interest Period for such Advances will not
adequately reflect the cost to such Majority Banks of making,
funding or maintaining their respective portions of such
Eurodollar Advances for such Interest Period, the Administrative
Agent shall forthwith so notify the Borrower and the Banks,
whereupon
(i) each such Advance will, on the last day of the then
existing Interest Period therefor, either (A) Convert into a Base Rate
Advance (or, if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance) or (B) continue as one or more
Eurodollar Advances of Interest Periods not affected by such
notice of the Majority Banks, as selected by the Borrower, and
(ii) the obligation of the Banks to make, or to Convert
Advances or Borrowings into, or to make divisions or combinations of
Borrowings resulting in, Eurodollar Advances or Eurodollar
Borrowings of such Interest Periods shall be suspended until the
Administrative Agent shall notify the Borrower and the Banks that
the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Advances in accordance with
the provisions contained in the definition of "Interest Period"
in Section 1.1 or fails to give a timely Notice of Conversion
with respect to any Eurodollar Advances in accordance with the
provisions contained in Section 2.8(a), the Administrative Agent
will forthwith so notify the Borrower and the Banks and such
Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(d) If the aggregate unpaid principal amount of Advances
comprising any Eurodollar Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such
Advances shall automatically Convert, on the last day of the then
existing Interest Period for such Advances, into Base Rate
Advances, unless the Borrower has elected to continue such
Advances as Eurodollar Advances by selecting a new Interest
Period therefor in accordance with the provisions hereof
commencing on such day and the sum of the outstanding principal
amount of such Advances plus the outstanding principal amount of
each other Borrowing that is being Converted into, or continued
as, a Eurodollar Borrowing on such day with the same Interest
Period as such Advances is at least $5,000,000.
(e) Any Bank may, if it so elects, fulfill its Commitment as to
any Eurodollar Advance by causing a branch, foreign or otherwise,
or Affiliate of such Bank to make such Advance and may transfer
and carry such Advance at, to or for the account of any branch
office or Affiliate of such Bank; provided that in such event,
for the purposes of this Agreement, such Advance shall be deemed
to have been made by such Bank and the obligation of the Borrower
to repay such Advance shall nevertheless be to such Bank and
shall be deemed to be held by such Bank, to the extent of such
Advance, for the account of such branch or Affiliate; provided
further that for U.S. federal income tax purposes if such branch
or Affiliate is the beneficial owner of such interest, or if such
Bank is regarded as acting as an intermediary for such branch or
Affiliate, then such Bank, or such branch or Affiliate, shall
provide to the Borrower and the Administrative Agent the required
forms and documentation as set forth in Section 8.16(a)(i) or
(ii), as appropriate.
Section 2.8 Voluntary Conversion of Borrowings; Continuation
of Eurodollar Borrowings. (a) The Borrower may on any Business Day,
upon notice given to the Administrative Agent not later than 11:00 A.M.
(i) in the case of a proposed Conversion into a Eurodollar Borrowing, on
the third Business Day prior to the date of the proposed Conversion,
and (ii) in the case of a proposed Conversion into a Base Rate
Borrowing, on the date of the proposed Conversion, and subject to
the limitations in Section 2.2(a) as to the number of permitted
Interest Periods and subject to the provisions of Section 2.7,
Section 2.8(c) and Section 2.11, Convert all or any portion of a
Borrowing of one Type into a Borrowing of another Type; provided,
however, that any Conversion of any Eurodollar Borrowing shall be
made on, and only on, the last day of an Interest Period for such
Eurodollar Borrowing. Each such notice of a Conversion (a
"Notice of Conversion") shall be by telecopy, confirmed
immediately in writing, in substantially the form of Exhibit F,
duly signed by a Responsible Officer, and shall, within the
restrictions specified above, specify (x) the date of such
Conversion, (y) the Borrowing (or identified portion thereof) to
be Converted and the Type into which it is to be Converted, and
(z) if such Conversion is into a Eurodollar Borrowing, the
duration of the Interest Period for each Advance comprising such
Borrowing.
(b) The Borrower may continue all or any portion of any
Eurodollar Borrowing as a Eurodollar Borrowing for an additional
Interest Period that complies with the requirements set forth in
the definition herein of "Interest Period," by giving notice of
such Interest Period as set forth in such definition, subject to
the limitations in Section 2.2(a) as to the number of permitted
Interest Periods and subject to the provisions of Section 2.7,
Section 2.8(c) and Section 2.11.
(c) All Borrowings, Conversions and continuations under this
Agreement shall be effected in a manner that (i) treats all Banks
ratably (including, for example, effecting Conversions of any
portion of a Borrowing in a manner that results in each Bank
retaining its same ratable percentage of both the Converted
portion and the remaining portion not Converted), and (ii)
results in each Borrowing (including, in the case of any
Conversion of a portion of a Borrowing, both the Converted
portion and the remaining portion not Converted) being in an
amount not less than $5,000,000 and in an integral multiple of
$1,000,000. Upon Conversion of any Borrowing, or portion
thereof, into a particular Type, all Advances comprising such
Borrowing or portion thereof, as the case may be, will be deemed
Converted into Advances of such Type.
Section 2.9 Prepayments. The Borrower may (a) in respect of
Eurodollar Advances, upon at least three Business Days' notice, and
(b) in respect of Base Rate Advances, upon notice by 11:00 A.M. on the
day of the proposed prepayment, to the Administrative Agent (which shall
promptly notify each Bank) stating the proposed date and
aggregate principal amount of the prepayment and the Types of
Advances to be prepaid, and in the case of Eurodollar Advances,
the specific Borrowing or Borrowings pursuant to which made, and
if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Advances comprising part of
the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal
amount prepaid without premium or penalty; provided, however,
that each partial prepayment shall be in an aggregate principal
amount not less than $5,000,000, and provided further, that if
the Borrower prepays any Eurodollar Advance on any day other than
the last day of an Interest Period therefor, the Borrower shall
compensate the Banks pursuant to Section 8.4(b). Any amounts
prepaid pursuant to this Section 2.9 may not be reborrowed.
Section 2.10 Increased Costs; Capital Adequacy, Etc.
(a) Subject to Section 8.8, if, due to either (i) the
introduction of or any change in or in the interpretation of any
law or regulation by any governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, in each case after the date of this
Agreement, or (ii) the compliance with any guideline or request
from any governmental authority, central bank or comparable
agency (whether or not having the force of law) in each case made
or issued after the date of this Agreement, there shall be any
increase in the cost to any Bank of agreeing to make or making,
funding or maintaining Eurodollar Advances (other than increased
costs described in Section 2.6 or in clause (c) below), the
Borrower shall from time to time, within 20 Business Days
following its receipt of the certificate hereinbelow referenced
(with a copy of such certificate from the requesting Bank to the
Administrative Agent), pay to the Administrative Agent for the
account of such Bank additional amounts sufficient to compensate
such Bank for such increased cost. A certificate in reasonable
detail stating the basis for and the amount of such increased
cost, showing in reasonable detail the calculation of such
additional amounts as shall be required to compensate it for the
increased costs to it as a result of such events and certifying
that such costs are generally being charged by it to other
similarly situated borrowers under similar credit facilities
shall be submitted to the Borrower and the Administrative Agent
by such Bank, which certificate shall be conclusive and binding
for all purposes, absent manifest error. Promptly after any Bank
becomes aware of any such introduction, change or proposed
compliance, such Bank shall notify the Borrower thereof. No Bank
shall be permitted to recover increased costs incurred or accrued
pursuant to this Section 2.10(a) more than 180 days prior to the
date it sends the certificate to the Borrower which is referred
to in this Section 2.10(a); provided, however, that if any such
introduction, change, interpretation, guideline or request
referred to above giving rise to such increased costs is
retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(b) If the Borrower so notifies the Administrative Agent of
any increased cost pursuant to the provisions of Section 2.10(a), the
Borrower shall have the right to Convert all Advances of the Type
affected by such increased cost of all Banks then outstanding
into Advances of another Type in accordance with Section 2.8 and,
additionally, reimburse such Bank for such increased cost in
accordance with Section 2.10(a).
(c) If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule, regulation or
treaty regarding capital adequacy, or any change therein, 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, in each case
after the date hereof, or compliance by any such Bank (or its
lending office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency (except to the
extent such request or directive arises as a result of the
individual creditworthiness of such Bank, in each case made or
issued after the date hereof), has or would have the effect of
increasing the amount of capital required or expected to be
maintained as a result of its Commitment or Advance hereunder,
such Bank shall have the right to give prompt written notice
thereof to the Borrower with a copy to the Administrative Agent,
which notice shall show in reasonable detail the calculation of
such additional amounts as shall be required to compensate it for
the increased cost to it as a result of such increase in capital
and shall certify that such costs are generally being charged by
it to other similarly situated borrowers under similar credit
facilities, which notice shall be conclusive and binding for all
purposes, absent manifest error, although the failure to give any
such notice shall not, unless such notice fails to set forth the
information required above or except as otherwise expressly
provided in Section 2.17(a), release or diminish any of the
Borrower's obligations to pay additional amounts pursuant to
Section 2.17(a). No Bank shall be permitted to recover increased
costs incurred or accrued pursuant to this Section 2.10(c) more
than 180 days prior to the date it sends the certificate to the
Borrower which is referred to in this Section 2.10(c); provided,
however, that if any such adoption or change in any applicable
law, rule, regulation or treaty, or any request or directive,
giving rise to such increased costs is retroactive, then the 180-
day period referred to above shall be extended to include the
period of retroactive effect thereof.
(d) Each Bank shall use its reasonable efforts (consistent with
its internal policies and legal and regulatory restrictions) to
select a jurisdiction for its Applicable Lending Office, or
change the jurisdiction of its Applicable Lending Office so as to
avoid the imposition of any increased costs under Section 2.6 or
this Section 2.10 or to eliminate the amount of any such
increased cost which may thereafter accrue; provided that no such
selection or change of the jurisdiction for its Applicable
Lending Office shall be made if, in the reasonable judgment of
such Bank, such selection or change would be disadvantageous to
it.
Section 2.11 Illegality. Notwithstanding any other provision of
this Agreement, if the introduction of or any change in or in the
interpretation of or compliance with any law or regulation, in each case
after the date hereof, shall make it unlawful, or any governmental
authority, central bank or comparable agency shall, after the
date hereof, assert that it is unlawful, for any Bank or its
Eurodollar Lending Office to perform its respective obligations
hereunder to make Eurodollar Advances or to continue to fund or
maintain Eurodollar Advances hereunder and demand therefor by
such Bank to the Borrower through the Administrative Agent, (a)
the obligation of such Bank to make, or to Convert Advances or
Borrowings into, or to make divisions or combinations of
Borrowings resulting in, Eurodollar Advances or Eurodollar
Borrowings shall terminate, as the case may be, and (b) if then
required by the provisions of such event, the Borrower shall
forthwith Convert all affected Eurodollar Advances of all Banks
then outstanding into Advances of another Type in accordance with
Section 2.8 (other than the requirement that Conversions be made
only on the last day of an Interest Period).
Section 2.12 Payments and Computations. (a) The Borrower shall
make each payment under any Loan Document not later than 11:00 A.M. on
the day when due in dollars to the Administrative Agent at its Payment
Office in same day funds without setoff, deduction or counterclaim. The
Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or
interest or the commitment fee ratably (other than amounts
payable pursuant to Section 2.6, Section 2.10, Section 2.13 or
Section 8.4(b)) to the Banks for the account of their respective
Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Bank to such Bank for
the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement.
(b) All computations of interest based on the Base Rate (except
during such times as the Base Rate is determined pursuant to
clause (a) of the definition thereof) shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and, subject to Section 8.8, all computations
of interest based on the Eurodollar Rate, the Federal Funds Rate
or, during such times as the Base Rate is determined pursuant to
clause (a) of the definition thereof, the Base Rate and all
computations of the commitment fee shall be made by the
Administrative Agent, and all computations of interest pursuant
to Section 2.6 shall be made by a Bank, on the basis of a year of
360 days, in each case for the actual number of days (including
the first day but excluding the last day) occurring in the period
for which such interest or commitment fee is payable. Each
determination by the Administrative Agent (or, in the case of
Section 2.6, by a Bank) of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the
computation of payment of interest or the commitment fee, as the
case may be; provided, however, if such extension would cause
payment of interest on or principal of Eurodollar Advances to be
made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Banks hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the
Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank.
If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each Bank shall,
subject to Section 8.8, repay to the Administrative 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 earlier of (i) the date such
Bank repays such amount to the Administrative Agent and (ii) the
date two Business Days after the date such amount is so
distributed, at the Federal Funds Rate and thereafter until the
date such Bank repays such amount to the Administrative Agent at
the Federal Funds Rate plus 2%.
Section 2.13 Taxes. (a) Any and all payments by the Obligors
hereunder or under the Notes shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges, fees, duties or withholdings, and all
liabilities with respect thereto, excluding, in the case of each
Bank and the Administrative Agent, (i) taxes imposed on its
income or capital (including any branch profits tax imposed by
the United States of America or by the jurisdiction in which the
Borrower is located), (ii) franchise taxes imposed on it by the
jurisdiction under the laws of which (or by a jurisdiction under
the laws of a political subdivision of which) such Bank or the
Administrative Agent, as the case may be, is organized or any
political subdivision thereof and, in the case of each Bank,
franchise taxes imposed on it by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof
and (iii) any withholding taxes imposed by the United States of
America if and to the extent that such taxes shall be in effect
and shall be applicable on the date hereof (or with respect to
any entity that becomes a Bank after the date hereof, on the date
such entity becomes a Bank), to payments to be made to such Bank
or the Administrative Agent (all such non-excluded taxes, levies,
imposts, deductions, charges, fees, duties, withholdings and
liabilities being hereinafter referred to as "Taxes"). Subject
to Section 8.8, if any Obligor shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or
under any Note to any Bank or the Administrative Agent, (x) the
sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable
to additional sums payable under this Section 2.13) such Bank or
the Administrative Agent receives an amount equal to the sum it
would have received had no such deductions been made, (y) the
relevant Obligor shall make such deductions and (z) such Obligor
shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) Intentionally left blank.
(c) In addition, the Obligors agree to pay or reimburse any
present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies which arise from any
payment made hereunder or under the Notes or from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(d) The Borrower, to the fullest extent permitted by law, will
indemnify each Bank and the Administrative Agent for the full
amount of Taxes or Other Taxes paid by such Bank or the
Administrative Agent, as the case may be, and any liability
(including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. This indemnification shall
be made within 45 days from the date such Bank or the
Administrative Agent, as the case may be, makes written demand
therefor from the Borrower and provides the Borrower a reasonably
detailed written explanation of the nature and amount of such
claim, together with copies of all demands and other
communications received by such Bank or the Administrative Agent,
as the case may be, from related taxing authorities. No Bank nor
the Administrative Agent shall be indemnified for Taxes or Other
Taxes (i) incurred or accrued more than 180 days prior to the
date that such Bank or the Administrative Agent notifies the
Borrower thereof or (ii) arising out of a failure by a Bank or
the Administrative Agent to provide the Prescribed Forms or other
comparable document prescribed by any applicable law to the
applicable Obligor and the Administrative Agent; provided,
however, that any such adoption, change, change in interpretation
or administration referred to in this Section 2.13 giving rise to
such Taxes or Other Taxes is retroactive, then the 180-day period
referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Within 45 days after the date of any payment of Taxes by or
at the direction of any Obligor (or, in the case of clause (i) of
this Section 2.13(e), within 10 Business Days after the Borrower
has received a receipt from the relevant taxing authority), the
Borrower will furnish to the Administrative Agent at the relevant
address referred to in Section 8.2, (i) the original or a
certified copy of a receipt evidencing payment thereof if the
relevant taxing authority provides a receipt or (ii) if the
relevant taxing authority does not provide a receipt, other
reasonable evidence of payment thereof. Should any Bank or the
Administrative Agent ever receive any refund, credit or deduction
from any taxing authority to which it would not be entitled but
for the payment by such Obligor of Taxes as required by this
Section 2.13 (it being understood that the decision as to whether
or not to claim, and if claimed, as to the amount of any such
refund, credit or deduction shall be made by such Person in its
sole discretion), such Person, as the case may be, thereupon
shall repay to such Obligor, as appropriate, an amount with
respect to such refund, credit or deduction equal to any net
reduction in taxes actually obtained by such Person, as the case
may be, and determined by it, as the case may be, to be
attributable to such refund, credit or deduction.
(f) Each Bank shall use its reasonable efforts (consistent with
its internal policies and legal and regulatory restrictions) to
select a jurisdiction for its Applicable Lending Office, or
change the jurisdiction of its Applicable Lending Office, as the
case may be, so as to avoid the imposition of any Taxes or Other
Taxes or to eliminate the amount of any such additional amounts
which may thereafter accrue; provided that no such selection or
change of the jurisdiction for its Applicable Lending Office
shall be made if, in the reasonable judgment of such Bank, such
selection or change would be disadvantageous to such Bank.
(g) Each Bank also agrees to deliver to the Borrower and to the
Administrative Agent such forms or documentation, including the
Prescribed Forms referred to in Section 8.16, as may at any time
be required in order to confirm or maintain in effect its
entitlement to exemption from, or reduction of, withholding tax,
as the case may be, on any payments hereunder, provided that, at
the relevant time, applicable laws permit such Bank to do so.
Without prejudice to the survival of any other agreement of
the Obligors hereunder, but subject to the expiration of any
applicable statute of limitations, the agreements and obligations
of the Obligors contained in this Section 2.13 shall survive the
payment in full of principal and interest hereunder and under the
Notes.
Section 2.14 Sharing of Payments, Etc. If any Bank shall obtain
any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Total Outstanding
Amount made by it (other than pursuant to Section 2.6, Section 2.10,
Section 2.13, Section 2.17 or Section 8.4(b)) in excess of its ratable
share of payments on account of the Total Outstanding Amount obtained by
all Banks with respect to the Total Outstanding Amount, such Bank
receiving a greater proportion of the payments shall forthwith
purchase from the applicable Banks participations in the Total
Outstanding Amount made by them as shall be necessary to cause
such purchasing Bank to share the excess payment ratably with
each of them, provided, however, that if all or any portion of
such excess payment is thereafter recovered from such purchasing
Bank, such purchase from each Bank shall be rescinded and such
Bank shall repay to the purchasing Bank the purchase price to the
extent of its ratable share (according to the proportion of (a)
the amount of the participation purchased from such Bank as a
result of such excess payment to (b) the total amount of such
excess payment) of such recovery together with an amount equal to
such Bank's ratable share (according to the proportion of (i) the
amount of such Bank's required repayment to (ii) the total amount
so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the
total amount so recovered. Each Obligor agrees that any Bank so
purchasing a participation from another Bank pursuant to this
Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-
off) with respect to such participation as fully as if such Bank
were its direct creditor in the amount of such participation.
Section 2.15 Optional Reduction or Termination of the
Commitments. The Borrower shall have the right, upon at least three
Business Days' notice to the Administrative Agent, to terminate
in whole or reduce ratably in part the unused portions of the
respective Commitments of the Banks; provided that each partial
reduction shall be in the aggregate amount of at least
$10,000,000 or the Total Committed Amount; provided, further, no
such termination or reduction shall reduce the Total Committed
Amount to an amount less than the Total Outstanding Amount. Any
reduction or termination of any Commitment (whether pursuant to
this Section 2.15, Section 2.16 or Section 2.17) shall be
irrevocable. Upon and at all times after any Commitment of any
Bank is terminated in whole pursuant to any provision of this
Agreement, such Commitment shall be zero and such Bank shall have
no further obligation to make any Advances.
Section 2.16 Scheduled Reduction and Termination of Commitments.
At 5:00 p.m., New York, New York time on December 31, 2005,
the Total Committed Amount shall be permanently reduced to an
amount equal to the lesser of (i) $100,000,000 and (ii) the
remaining undrawn portion of the Total Committed Amount and each
Bank's Commitment shall be ratably reduced. At 5:00 p.m., New
York, New York time on December 31, 2006, the Total Committed
Amount shall be permanently reduced to zero.
Section 2.17 Termination; Replacement of Bank.
(a) Each Bank agrees that, upon the Borrower's receipt of the
notice and certificate specified in Section 2.10(c) or making a
claim under Section 2.13, at the request of the Borrower, it will
promptly enter into good faith negotiations with the Borrower
with respect to the method of reimbursement or payment for the
costs or other amounts specified in such notice. No later than
20 Business Days after the date of the giving of any such notice,
and assuming the Bank giving same has made itself available for
the aforesaid good faith negotiations, the Borrower shall have
the option, to be exercised in writing, to (i) subject to Section
8.8, compensate such Bank for the specified costs or other
amounts on the basis, if any, negotiated between it and the
Borrower, (ii) terminate such Bank's Commitment to the extent,
and on the terms and conditions, specified in Section 2.17(b) or
(iii) replace such Bank with another commercial bank or other
financial institution to the extent, and on the terms and
conditions, specified in Section 2.17(c); provided that if the
Borrower fails to so exercise either of options (ii) or (iii), it
shall be deemed to have agreed to reimburse such Bank from time
to time as herein provided the costs or other amounts specified
in its notice and certificate delivered pursuant to Section
2.10(c). Notwithstanding the foregoing, the Borrower shall not
be obligated to reimburse any Bank pursuant to this or Section
2.17(b) or (c) for any costs or other amounts under Section
2.10(c) or Section 2.13 incurred or accruing more than 180 days
prior to the date on which it gave the written notice and
certificate specified in Section 2.10(c) or Section 2.13, as the
case may be; provided, further that such 180-day period shall be
subject to the provisos at the end of each of Section 2.10(c) and
Section 2.13(d).
(b) In the event that the Borrower has given notice to a Bank
pursuant to Section 2.17(a) that it elects to terminate such
Bank's Commitment (a copy of which notice shall be sent to the
Administrative Agent who will promptly notify each Bank), such
termination shall become effective 20 Business Days thereafter
unless such Bank withdraws its request for costs or other
amounts. On the date of the termination of the Commitment of any
Bank pursuant to this Section 2.17(b), (i) the Borrower shall
deliver notice of the effectiveness of such termination to such
Bank and to the Administrative Agent, (ii) the Borrower shall pay
all amounts owed by the Borrower to such Bank under this
Agreement or under the Note payable to it by such Bank (including
principal of and interest on the Advances owed to such Bank,
accrued commitment fees and amounts specified in its notice and
certificate delivered pursuant to Section 2.10(c) or Section 2.13
with respect to the period prior to such termination) and (iii)
upon the occurrence of the events set forth in clauses (i) and
(ii), such Bank shall cease to be a "Bank" hereunder for all
purposes except for rights under Section 2.6, Section 2.10,
Section 2.13 and Section 8.4 arising out of events and
occurrences before or concurrently with its ceasing to be a
"Bank" hereunder. The Borrower may elect to terminate a Bank's
Commitment pursuant to Section 2.17(a) only if at such time:
(i) no Event of Default is then in existence or would
be in existence but for requirement that notice be given or time
elapse or both; and
(ii) the Borrower has elected, or is then electing, to
terminate the Commitments of all Banks which have made similar
requests for costs or other similar amounts under Section 2.10(c)
or under Section 2.13, which requests have not been withdrawn,
provided, that requests may be determined by the Borrower to be
dissimilar based on the negotiation of materially dissimilar
rates of compensation under clause (i) of Section 2.10(a).
(c) In the event that any Bank shall claim payment of any
additional amounts pursuant to Section 2.6, Section 2.10(a),
Section 2.11 or Section 2.17(a) or (b), or makes a claim under
Section 2.13, the Borrower shall have the right to replace such
Bank with another commercial bank or other financial institution,
including any then existing Bank; provided that such replacement
commercial bank or other financial institution, (i) if it is not
a Bank shall be reasonably acceptable to the Administrative
Agent, (ii) shall unconditionally offer in writing (with a copy
to the Administrative Agent) to purchase all of such Bank's
rights and assume all of such Bank's obligations hereunder and
interest in the Advances owing to such Bank and the Note held by
such Bank without recourse at the principal amount of such Note
plus interest accrued thereon, and accrued commitment fees, to
the date of such purchase on a date therein specified, and (iii)
shall execute and deliver to the Administrative Agent a document
satisfactory to the Administrative Agent pursuant to which such
replacement commercial bank or other financial institution
becomes a party hereto with a Commitment equal to that of the
Bank being replaced (plus, if such replacement commercial bank or
other financial institution is already a Bank, the amount of its
Commitment prior to such replacement), which document, if such
replacement commercial bank or other financial institution is not
already a Bank shall (among other matters) specify the Domestic
Lending Office and Eurodollar Lending Office of such replacement
commercial bank or other financial institution; provided,
further, that no Bank shall have any obligation to increase its
Commitment or otherwise to replace, in whole or in part, any
Bank. Upon satisfaction of the requirements set forth in the
first sentence of this Section 2.17(c), acceptance of such offer
to purchase by the Bank to be replaced, payment to such Bank of
the purchase price in immediately available funds, and the
payment by the Borrower of all requested costs accruing to the
date of purchase which the Borrower is obligated to pay under
Section 8.4 and all other amounts owed by such Obligor to such
Bank (other than the principal of and interest on the Advances of
such Bank, and accrued commitment fees, purchased by the
replacement commercial bank or other financial institution), the
replacement commercial bank or other financial institution shall
constitute a "Bank" hereunder, as the case may be, with a
Commitment as so specified and the Bank being so replaced shall
no longer constitute a "Bank" hereunder, as the case may be, and
its Commitment shall be deemed terminated, except that the rights
under Section 2.6, Section 2.10, Section 2.13 and Section 8.4 of
the Bank being so replaced shall continue with respect to events
or occurrences before or concurrently with its ceasing to be a
"Bank" hereunder. If, however, (x) a Bank accepts such an offer
and such commercial bank or other financial institution fails to
purchase such rights and interest on such specified date in
accordance with the terms of such offer, the Borrower shall
continue to be obligated to pay the increased costs to such Bank
pursuant to Section 2.10 or the additional amounts pursuant to
Section 2.13, as the case may be, or (y) the Bank proposed to be
replaced fails to accept such purchase offer, the Borrower shall
not be obligated to pay to such Bank such increased costs or
additional amounts incurred or accrued from and after the date of
such purchase offer.
ARTICLE III
CONDITIONS TO ADVANCES
Section 3.1 Initial Conditions Precedent. The obligation of
each Bank to make Advances pursuant to the terms and conditions of this
Agreement is subject to the conditions precedent that the Administrative
Agent shall have received the following, each dated on or before the
date hereof, in form and substance satisfactory to the Administrative Agent:
(a) This Agreement, executed by the Borrower, the Parent
Guarantor and each Bank, the executed Notes payable to the order
of the Banks, respectively, and the Parent Guaranty executed by
the Parent Guarantor.
(b) Certified copies of the resolutions of the Board of
Directors of each of the Parent Guarantor and the Borrower
approving this Agreement, each Note and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to each such Loan Document and
certified copies of the restated certificate of incorporation and
bylaws of the Parent Guarantor and the memorandum and articles of
association of the Borrower.
(c) A certificate of the Secretary or an Assistant Secretary of
each of the Parent Guarantor and the Borrower certifying the
names and true signatures of the officers of the Borrower
authorized to sign each Loan Document to which it is a party and
the other documents to be delivered hereunder.
(d) A favorable opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., special
New York counsel for the Parent Guarantor and the Borrower, to be
delivered to, and for the benefit of, the Banks and the
Administrative Agent, at the express instruction of the Parent
Guarantor, substantially in the form of Exhibit C and as to such
other matters as any Bank through the Administrative Agent may
reasonably request.
(e) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., Senior Vice
President and General Counsel of the Parent Guarantor, to be
delivered to, and for the benefit of, the Banks and the
Administrative Agent, at the express instruction of the Parent
Guarantor, in substantially the form of Exhibit D and as to such
other matters as any Bank through the Administrative Agent may
reasonably request.
(f) A favorable opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇, special Cayman
Islands counsel to the Borrower, to be delivered to, and for the
benefit of, the Banks and the Administrative Agent, at the
express instruction of the Parent Guarantor, in substantially the
form of Exhibit E and as to such other matters as any Bank
through the Administrative Agent may reasonably request.
(g) A certificate of a Responsible Officer of the Parent
Guarantor certifying (i) there has not occurred a material
adverse change since December 31, 2004 in the consolidated
financial condition of the Parent Guarantor and its Subsidiaries
taken as a whole, (ii) there has not occurred a material adverse
change since June 30, 2005 in the business, assets, liabilities
(actual or contingent), operations, condition (other than
financial) or prospects of the Parent Guarantor and its
Subsidiaries taken as a whole, and (iii) compliance with the
financial covenant set forth in Section 5.2(c)as of June 30,
2005.
Section 3.2 Additional Conditions Precedent to Each Advance.
The obligation of each Bank to make any Advance shall be subject to
the additional conditions precedent that on the date of such Advance
(a) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing and the acceptance by the Borrower
of the proceeds of such Advance shall constitute a representation and
warranty by the Parent Guarantor and the Borrower that on the date of
such Advance such statements are true):
(i) The representations and warranties contained in Section 4.1
of this Agreement are correct on and as of the date of such
Advance (other than those representations and warranties that
expressly speak solely as of an earlier date, which remain
correct as of such earlier date), before and after giving effect
to such Advance and the Borrowing of which such Advance is a part
and to the application of the proceeds therefrom, as though made
on and as of such date, and
(ii) No event has occurred and is continuing, or would result
from such Advance or the Borrowing of which such Advance is a
part or from the application of the proceeds therefrom, which
constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time
elapse or both;
and (b) the Administrative Agent shall have received the Notice
of Borrowing required by Section 2.2(a) and such other approvals,
opinions or documents as any Bank through the Administrative
Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties. The Borrower, for
itself, and the Parent Guarantor represent and warrant to the Banks as
follows:
(a) The Parent Guarantor and each Principal Subsidiary are duly
organized or validly formed, validly existing and (if applicable)
in good standing, in each case under the laws of its jurisdiction
of incorporation or formation. The Parent Guarantor and each
Principal Subsidiary have all requisite powers and all material
governmental licenses, authorizations, consents and approvals
required in each case to carry on its business as now conducted.
(b) The execution, delivery and performance by each of the
Obligors of each Loan Document to which it is or will be a party:
(i) are within its corporate or equivalent powers, (ii) have been
duly authorized by all necessary corporate or equivalent action
of each such Obligor, (iii) require, in respect of each such
Obligor, no action by or in respect of, or filing with, any
governmental body, agency or official and (iv) do not contravene,
or constitute a default under, any provision of law or regulation
(including Regulation X and Regulation U) applicable to it or the
restated certificate of incorporation or by-laws of the Parent
Guarantor or the memorandum and articles of association of the
Borrower or except as disclosed to the Administrative Agent
pursuant to this Agreement, any material judgment, injunction,
order, decree or agreement binding upon it or result in the
creation or imposition of any lien, security interest or other
charge or encumbrance on any material asset of the Parent
Guarantor or any of its Subsidiaries ("material" for the purposes
of this representation meaning creating a liability of
$50,000,000 or more).
(c) This Agreement and each Note are, and each other Loan
Document to which any Obligor is or will be a party, when
executed and delivered in accordance with this Agreement will be,
the legal, valid and binding obligation of such Obligor, to the
extent a party thereto, enforceable against it, as the case may
be, in accordance with their respective terms, except as the
enforceability thereof may be limited by the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general
principles of equity.
(d) The audited consolidated balance sheet of the Parent
Guarantor and its Subsidiaries as of December 31, 2004 and the
related audited consolidated statements of income, cash flows and
changes in stockholders' equity accounts for the fiscal year then
ended and the unaudited consolidated balance sheet of the Parent
Guarantor and its Subsidiaries as of June 30, 2005, and the
related unaudited consolidated statements of income and cash
flows for the fiscal quarter then ended, in each case as filed
with the Securities and Exchange Commission in its Form 10-K for
the year ended December 31, 2004 and Form 10-Q for the quarter
ended June 30, 2005, respectively, fairly present, in conformity
with GAAP except as otherwise expressly noted therein, the
consolidated financial position of the Parent Guarantor and its
Subsidiaries as of such dates and their consolidated results of
operations and changes in financial position for such fiscal
periods, subject (in the case of the unaudited balance sheet and
statements) to changes resulting from audit and normal year-end
adjustments. As of June 30, 2005, the Parent Guarantor was in
compliance with the financial covenant set forth in Section
5.2(c).
(e) From December 31, 2004 to the date of this Agreement, there
has been no material adverse change in the consolidated financial
condition of the Parent Guarantor and its Subsidiaries,
considered as a whole; from June 30, 2005 to the date of this
Agreement, there has been no material adverse change in the
business, assets, liabilities (actual or contingent), operations,
condition (other than financial) or prospects of the Parent
Guarantor and its Subsidiaries considered as a whole.
(f) Except as disclosed in the Parent Guarantor's Form 10-K for
the year ended December 31, 2004 or the Parent Guarantor's Form
10-Q for the quarter ended June 30, 2005 in each case, as filed
with the Securities and Exchange Commission prior to the date
hereof, or as otherwise disclosed to the Administrative Agent
pursuant to this Agreement, there is no action, suit or
proceeding pending against the Parent Guarantor or any of its
Subsidiaries, or to the knowledge of the Parent Guarantor
threatened against the Parent Guarantor 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 consolidated financial position or
consolidated results of operations of the Parent Guarantor and
its Subsidiaries taken as a whole or which in any manner draws
into question the validity of this Agreement or any other Loan
Document to which the Parent Guarantor or the Borrower is or will
be a party.
(g) Except as disclosed to the Administrative Agent pursuant to
this Agreement, no Termination Event has occurred or is
reasonably expected to occur with respect to any Plan for which
an Insufficiency in excess of $50,000,000 exists. Except as
disclosed to the Administrative Agent pursuant to this Agreement,
neither the Parent Guarantor nor any ERISA Affiliate has received
any notification (or has knowledge of any reason to expect) that
any Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, for which a
Withdrawal Liability in excess of $50,000,000 exists.
(h) United States federal income tax years of the Parent
Guarantor and its Subsidiaries have been closed through the
fiscal year ended December 31, 2001 or such subsequent date as
disclosed to the Administrative Agent pursuant to this Agreement.
The Parent Guarantor and its Subsidiaries have filed or caused to
be filed all United States federal income tax returns and all
other material domestic tax returns which to the knowledge of the
Parent Guarantor are due prior to the date of this Agreement
(considering any extensions filed by the Parent Guarantor and its
Subsidiaries) required to be filed by them and have paid or
provided for the payment, before the same become delinquent, of
all taxes due pursuant to such returns or pursuant to any
assessment received by the Parent Guarantor or any Subsidiary,
other than those taxes contested in good faith by appropriate
proceedings. The charges, accruals and reserves on the books of
the Parent Guarantor and its Subsidiaries in respect of taxes
are, in the opinion of the Parent Guarantor, adequate to the
extent required by GAAP.
(i) Neither the Parent Guarantor nor any Subsidiary is an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(j) Each of the Parent Guarantor and the Subsidiaries is not
subject to, or is exempt from, regulation as a "holding company"
or a "subsidiary company" of a "holding company", in each case as
such terms are defined in the Public Utility Holding Company Act
of 1935, as amended.
(k) Following application of the proceeds of each Advance, no
more than 25% of the value of the Reg U Limited Assets of the
Borrower and the Parent Guarantor will consist of margin stock
(as defined in Regulation U) and, to the extent relevant to the
compliance with Regulation U or Regulation X by any of the Banks
or the Borrower and the Parent Guarantor in connection with this
Agreement or any of the Advances, no more than 25% of the value
of the Reg U Limited Assets of the Parent Guarantor and its
Subsidiaries on a consolidated basis will consist of margin stock
(as defined in Regulation U).
(l) Except as disclosed to the Administrative Agent pursuant to
this Agreement, the Parent Guarantor and each of its Subsidiaries
are in compliance in all respects with all laws, rules,
regulations and orders applicable to each of them (including
applicable laws, rules, regulations and orders pertaining to
ERISA and applicable Environmental Protection Statutes), except
to the extent that failure to comply with such laws, rules,
regulations and orders could not reasonably be expected to have a
material adverse effect on the consolidated financial position or
consolidated results of operations of the Parent Guarantor and
its Subsidiaries taken as a whole. Except as disclosed to the
Administrative Agent pursuant to this Agreement, there is (i) no
presently outstanding allegation by government officials or other
third parties that the Parent Guarantor or any of its
Subsidiaries or any of their respective properties is now, or at
any time prior to the date hereof was, in violation of any
applicable Environmental Protection Statute, (ii) no
administrative or judicial proceeding presently pending against
the Parent Guarantor or any of its Subsidiaries or against any of
their respective properties pursuant to any Environmental
Protection Statute, and (iii) no claim presently outstanding
against the Parent Guarantor or any of its Subsidiaries or
against any of their respective properties, businesses or
operations which was asserted pursuant to any applicable
Environmental Protection Statute that, in the case of all matters
described in clauses (i), (ii) or (iii) above in the aggregate,
could reasonably be expected to have a material adverse effect on
the consolidated financial position or consolidated results of
operations of the Parent Guarantor and its Subsidiaries taken as
a whole. Except as disclosed to the Administrative Agent
pursuant to this Agreement, there are no facts or conditions or
circumstances known to the Parent Guarantor that the Parent
Guarantor reasonably believes could form the basis for any
action, lawsuit, claim or proceeding (regulatory or otherwise)
involving the Parent Guarantor or any of its Subsidiaries or
their respective past or present properties, businesses or
operations relating to the Environment or environmental matters,
including any action, lawsuit, claim or proceeding arising from
past or present practices or operations asserted under any
Environmental Protection Statute, that in the aggregate could
reasonably be expected to have a material adverse effect on the
consolidated financial position or consolidated results of
operations of the Parent Guarantor and its Subsidiaries taken as
a whole.
(m) No information (other than Projections) furnished to the
Administrative Agent or any Bank by the Parent Guarantor in
connection with its entering into or becoming a party to any Loan
Document or the preparation or negotiation of any Loan Document,
to the best of the Parent Guarantor's knowledge, is incomplete or
incorrect in any material respect, and no such information
contained, as of the date of delivery thereof to the
Administrative Agent or such Bank, as the case may be, any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading, as
of such date, when taken as a whole. All such information
consisting of financial projections, oil and gas reserves
estimates and projections and other information identified by the
Parent Guarantor as estimates or projections (collectively,
"Projections") have been prepared by the Parent Guarantor in good
faith based on assumptions the Parent Guarantor deemed
reasonable.
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants. The Parent Guarantor covenants
and agrees that so long as any Bank shall have any Commitment hereunder,
the Parent Guarantor will:
(a) Reporting Requirements. Furnish to each Bank:
(i) (A) promptly after the sending or filing thereof,
a copy of each of the Parent Guarantor's reports on Form 8-K (or any
comparable form), (B) promptly after the filing or sending
thereof, and in any event within 50 days after the end of each of
the first three fiscal quarters of each fiscal year of the Parent
Guarantor, a copy of the Parent Guarantor's report on Form 10-Q
(or any comparable form) for such quarter, which report will
include the Parent Guarantor's quarterly unaudited consolidated
financial statements as of the end of and for such quarter, and
(C) promptly after the filing or sending thereof, and in any
event within 90 days after the end of each fiscal year of the
Parent Guarantor, a copy of the Parent Guarantor's report on Form
10-K (or any comparable form) for such year, which report will
include the Parent Guarantor's annual audited consolidated
financial statements as of the end of and for such year;
(ii) promptly following the delivery of each of the annual
or quarterly financial reports referred to in clause (i) above, but
in any event within 10 Business Days thereafter, a certificate of
a Responsible Officer of the Parent Guarantor in a form
acceptable to the Administrative Agent (A) setting forth in
reasonable detail the calculations required to establish whether
the Parent Guarantor was in compliance with the requirement (to
the extent applicable) of Section 5.2(c) on the date of the
financial statements contained in such report, and (B) stating
whether there exists on the date of such certificate any Event of
Default or event which, with the giving of notice or lapse of
time, or both, would constitute an Event of Default, and, if so,
setting forth the details thereof and the action which the Parent
Guarantor has taken and proposes to take with respect thereto;
(iii) as soon as is possible and in any event within five
days after a change in, or issuance of, any rating of any of the
Parent Guarantor's senior unsecured long-term debt by Standard &
Poor's or ▇▇▇▇▇'▇ which causes a change in the applicable Rating
Level, notice of such change;
(iv) as soon as possible and in any event within five days
after an executive officer of the Parent Guarantor having obtained
knowledge thereof, notice of the occurrence of any Event of
Default or any event which, with the giving of notice or lapse of
time, or both, would constitute an Event of Default, continuing
on the date of such notice, and a statement of a Responsible
Officer of the Parent Guarantor setting forth details of such
Event of Default or event and the action which the Parent
Guarantor has taken and proposes to take with respect thereto;
(v) as soon as possible and in any event (A) within 30
Business Days after the Parent Guarantor or any ERISA Affiliate knows or
has reason to know that any Termination Event described in clause
(a) of the definition of Termination Event with respect to any
Plan for which an Insufficiency in excess of $50,000,000 exists,
has occurred and (B) within 10 Business Days after the Parent
Guarantor or any ERISA Affiliate knows or has reason to know that
any other Termination Event with respect to any Plan for which an
Insufficiency in excess of $50,000,000 exists, has occurred or is
reasonably expected to occur, a statement of a Responsible
Officer of the Parent Guarantor describing such Termination Event
and the action, if any, which the Parent Guarantor or such ERISA
Affiliate proposes to take with respect thereto;
(vi) promptly and in any event within five Business Days
after receipt thereof by the Parent Guarantor or any ERISA Affiliate,
copies of each notice received by the Parent Guarantor or any
ERISA Affiliate from the PBGC stating its intention to terminate
any Plan for which an Insufficiency in excess of $50,000,000
exists or to have a trustee appointed to administer any Plan for
which an Insufficiency in excess of $50,000,000 exists;
(vii) promptly and in any event within five Business Days
after receipt thereof by the Parent Guarantor or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a copy of
each notice received by the Parent Guarantor or any ERISA
Affiliate indicating liability in excess of $50,000,000 incurred
or expected to be incurred by the Parent Guarantor or any ERISA
Affiliate in connection with (A) the imposition of a Withdrawal
Liability by a Multiemployer Plan, (B) the determination that a
Multiemployer Plan is, or is expected to be, in reorganization
within the meaning of Title IV of ERISA, or (C) the termination
of a Multiemployer Plan within the meaning of Title IV of ERISA;
(viii) promptly, and in any event within five Business Days
after an executive officer of the Parent Guarantor having
obtained knowledge thereof, notice of the filing of any
litigation against the Parent Guarantor or any of the Principal
Subsidiaries which, if adversely determined to the Parent
Guarantor or such Principal Subsidiary, could reasonably be
expected to have a material adverse effect on the consolidated
financial position or consolidated results of operations of the
Parent Guarantor and its Subsidiaries taken as a whole, setting
forth the material details of such litigation;
(ix) promptly, and in any event within five Business Days
after an executive officer of the Parent Guarantor having obtained
knowledge thereof, notice of the filing of any governmental
proceedings against the Parent Guarantor or any of the Principal
Subsidiaries which, if adversely determined to the Parent
Guarantor or such Principal Subsidiary, could reasonably be
expected to have a material adverse effect on the consolidated
financial position or consolidated results of operations of the
Parent Guarantor and its Subsidiaries taken as a whole, setting
forth the material details of such proceeding;
(x) promptly upon the receipt thereof by the Parent Guarantor or
any Subsidiary, a copy of any form of notice, complaint, request
for information under CERCLA or summons or citation received from
the EPA, or any other domestic or foreign governmental agency or
instrumentality, federal, state or local, in any way concerning
any action or omission on the part of the Parent Guarantor or any
of its present or former Subsidiaries in connection with
Hazardous Materials or the Environment if the amount involved
could reasonably be expected to result in a liability of the
Parent Guarantor or any Subsidiary in excess of $75,000,000 in
the aggregate, or concerning the filing of a lien on or against
any property of the Parent Guarantor or any Subsidiary if such
lien could reasonably be expected to secure a liability of the
Parent Guarantor or any Subsidiary in excess of $75,000,000; and
(xi) such other information respecting the consolidated
financial position or consolidated results of operations (including an
annual report or reports on oil and gas reserves of the Parent
Guarantor and its Subsidiaries) of the Parent Guarantor that any
Bank through the Administrative Agent may from time to time
reasonably request.
Documents required to be delivered pursuant to Section 5.1(a)(i),
(a)(iv) or (a)(xi) (to the extent any such documents are included
in materials otherwise filed with the Securities and Exchange
Commission) may be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i) on which
the Parent Guarantor posts such documents, or provides a link
thereto, on the Parent Guarantor's website on the Internet at the
website address listed in Section 8.2 or (ii) on which such
documents are posted on the Parent Guarantor's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to
which each Bank and the Administrative Agent have access (whether
a commercial, third-party website or whether sponsored by the
Administrative Agent), whichever shall first occur; provided
that: the Parent Guarantor shall notify (which may be by
facsimile or electronic mail) the Administrative Agent of the
posting of any such documents. Notwithstanding anything
contained herein, in every instance the Parent Guarantor shall be
required to deliver paper copies of the certificates required by
Section 5.1(a)(ii) to the Administrative Agent, and such delivery
shall be deemed a delivery thereof to each of the Banks. Except
for such certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Parent Guarantor with
any such request for delivery, and each Bank shall be solely
responsible for requesting delivery to it or maintaining its
copies of such documents.
(b) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules,
regulations and orders (including applicable laws, rules,
regulations and orders pertaining to ERISA and applicable
Environmental Protection Statutes) to the extent noncompliance
therewith would have a material adverse effect on the Parent
Guarantor and its Subsidiaries taken as a whole.
(c) Use of Proceeds. Cause the Borrower to use the proceeds of
each Advance for working capital and general corporate purposes
of the Borrower and its subsidiaries, including, in the event the
Borrower is able to declare distributions in accordance with
Cayman Islands law, funding one or more such distributions for
ultimate distribution to the Parent Guarantor and paying related
fees and expenses. However, no part of the proceeds of the
Advances shall be used for any purpose not permitted by Section
5.2(g).
(d) Maintenance of Insurance. Maintain, and cause each of the
Principal Subsidiaries to maintain, insurance with responsible
and reputable insurance companies or associations in such amounts
and covering such risks as is usually carried by companies
engaged in similar businesses and owning similar properties as
the Parent Guarantor or such Principal Subsidiary, provided, that
self-insurance by the Parent Guarantor or any such Principal
Subsidiary shall not be deemed a violation of this covenant to
the extent that companies engaged in similar businesses and
owning similar properties as the Parent Guarantor or such
Principal Subsidiary self-insure. The Parent Guarantor may
maintain the Principal Subsidiaries' insurance on behalf of them.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of the Principal Subsidiaries to
preserve and maintain, its corporate existence, rights (charter
and statutory), and franchises; provided, however, that this
Section 5.1(e) shall not apply to any transactions permitted by
Section 5.2(d) or (e) and shall not prevent the termination of
existence, rights and franchises of any Principal Subsidiary
(other than the Borrower) pursuant to any merger or consolidation
to which such Principal Subsidiary is a party, and provided,
further, that the Parent Guarantor or any Principal Subsidiary
shall not be required to preserve any right or franchise if the
Parent Guarantor or such Principal Subsidiary shall determine
that the preservation thereof is no longer desirable in the
conduct of the business of the Parent Guarantor or such Principal
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Banks.
(f) Visitation Rights. At any reasonable time and from time to
time, after reasonable notice, permit the Administrative Agent or
any of the Banks or any agents or representatives thereof to
examine the records and books of account of, and visit the
properties of, the Parent Guarantor and any of the Principal
Subsidiaries and to discuss the affairs, finances and accounts of
the Parent Guarantor and any of the Principal Subsidiaries with
any of the officers or directors of the Parent Guarantor.
(g) Payment of Taxes, Etc. Pay and discharge, and cause each of
the Principal Subsidiaries to pay and discharge, before the same
shall become delinquent (after taking into account any extensions
filed), all taxes, assessments, governmental charges and like
governmental levies imposed upon it or upon its income, profits
or property, except where failure to pay such taxes, assessments,
charges and levies could not reasonably be expected to have a
material adverse effect on the consolidated financial position or
consolidated results of operations of the Parent Guarantor and
its Subsidiaries considered as a whole; provided, that neither
the Parent Guarantor nor any Principal Subsidiary shall be
required by this Section 5.1(g) to pay and discharge any such
tax, assessment, charge or levy which is being contested in good
faith and, if required by such contest. by appropriate
proceedings and with respect to which reserves in conformity with
GAAP have been provided.
Section 5.2 Negative Covenants. So long as any Bank shall have
any Commitment hereunder, the Parent Guarantor will not at any time:
(a) Negative Pledge. Fail to perform and observe any term,
covenant or agreement contained in Section 1007 of the Indenture
(as modified for purposes hereof as set forth in this Section
5.2(a)). For purposes of this Section 5.2(a), Section 1007 and
the definitions of all terms defined in the Indenture and used in
or otherwise applicable to such Section 1007 are set forth on
Exhibit G and are hereby incorporated in this Agreement by
reference as if such provisions and definitions were set forth in
full herein; provided, however, that solely for purposes of this
Section 5.2(a), the word "Securities" used in the Indenture shall
mean the Notes, the word "Company" used therein shall mean the
Parent Guarantor, the phrases "the last paragraph of Section
1007" and "Section 1007" used therein shall mean this Section
5.2(a), the word "Trustee" as used therein shall mean the
Administrative Agent, the phrase "Board of Directors" used in the
Indenture shall mean the management of the Parent Guarantor, the
phrase "Section 301" used therein shall mean Section 301 of the
Indenture, Section 301 of the Indenture shall not apply to any
Note, and the phrase "so long as any of the Securities are
outstanding" used therein shall mean so long as any Note shall
remain unpaid or any Bank shall have any Commitment hereunder.
(b) Transactions with Affiliates. Enter into any material
transaction of any kind with any Affiliate of the Parent
Guarantor, whether or not in the ordinary course of business,
other than on fair and reasonable terms no less favorable to the
Parent Guarantor than would be obtainable by the Parent Guarantor
at the time in a comparable arm's length transaction with a
Person other than an Affiliate, provided that the foregoing
restriction shall not apply to any of the following: (i)
transactions between or among the Parent Guarantor and any of its
wholly-owned Subsidiaries; (ii) transactions involving the
purchase or sale of crude oil, natural gas and other
hydrocarbons, in the ordinary course of business, so long as such
transactions are priced in line with industry accepted benchmark
prices and the pricing of such transactions are equivalent to the
pricing of comparable transactions with unrelated third parties;
(iii) any employment, equity award, equity option or equity
appreciation agreement or plan, agreement or other similar
compensation plan or arrangement; (iv) the performance of any
agreement in effect on June 28, 2005; (v) loans or advances to
officers, directors and employees for moving, entertainment and
travel expenses, drawing accounts and similar expenditures and
other purposes; (vi) maintenance of customary benefit programs or
arrangements for employees, officers or directors, including
vacation plans, health and life insurance plans, deferred
compensation plans and retirement or savings plans and similar
plans; (vii) fees and compensation paid to, and indemnity
provided on behalf of, officers, directors, employees or
consultants in their capacity as such; and (viii) sales of equity
interests of the Parent Guarantor to its Affiliates.
(c) Total Debt to Capitalization. As of the end of any fiscal
quarter of the Parent Guarantor, have a ratio of (i) Total Debt
to (ii) Total Capitalization greater than 0.65 to 1.00.
(d) Disposition of Assets. Lease, sell, transfer or otherwise
dispose of, voluntarily or involuntarily, all or substantially
all of its assets.
(e) Mergers, Etc. Merge, consolidate or amalgamate with or
into, any Person (or, permit the Borrower to amalgamate with or
into, any Person), unless (i) the Parent Guarantor (or, with
respect to such amalgamation to which the Borrower is a party,
the Borrower) is the survivor, or (ii) (A) with respect to the
Parent Guarantor, the surviving Person, if not the Parent
Guarantor, is organized under the laws of the United States or a
state thereof, has a Rating Level of Rating Level IV or higher
and assumes by agreement or operation of law all obligations of
the Parent Guarantor under this Agreement and the Parent Guaranty
(and upon completion of such events, the predecessor Parent
Guarantor shall be released from its obligations under its Parent
Guaranty) or (B) with respect to the Borrower, the continuing
Person is organized under the laws of the Cayman Islands and
assumes by agreement or operation of law all obligations of the
Borrower under this Agreement and the Parent Guarantor re-affirms
its obligations under the Parent Guaranty; provided, in each case
under clause (i) or (ii), that both immediately before and after
giving effect to such proposed transaction, no Event of Default
or event which, with the giving of notice or the lapse of time,
or both, would constitute an Event of Default exists, or would
exist or result.
(f) Compliance with ERISA. (i) Terminate, or permit any ERISA
Affiliate to terminate, any Plan so as to result in any liability
in excess of $50,000,000 of the Parent Guarantor or any ERISA
Affiliate to the PBGC, or (ii) permit circumstances which give
rise to a Termination Event described in clauses (b), (d) or (e)
of the definition of Termination Event with respect to a Plan so
as to result in any liability in excess of $50,000,000 of the
Parent Guarantor or any ERISA Affiliate to the PBGC.
(g) Use of Proceeds. Permit the Borrower to use the proceeds of
any Advance for any purpose other than for working capital and
general corporate purposes of the Borrower and its subsidiaries,
including, in the event the Borrower is able to declare
distributions in accordance with Cayman Islands law, funding one
or more such distributions for ultimate distribution to the
Parent Guarantor, or use, or permit the Borrower to use, any such
proceeds (i) in any manner that violates or results in any
violation of any law or regulation, or (ii) except with respect
to such share exchange, to purchase or carry any margin stock (as
defined in Regulation U) or to extend credit to others for the
purpose of purchasing or carrying any margin stock (as defined in
Regulation U).
(h) Unlawful Distributions. Permit the Borrower to make any
distribution in violation of Cayman Islands law applicable to it.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay (i) any principal on any
Note, in each case when due and payable or (ii) any interest on
any Note for more than five days after such interest becomes due
and payable or (iii) any commitment fee set forth in Section 2.3
or any other amount due hereunder for more than 15 days after
such fee or other amount becomes due and payable; or
(b) Any representation or warranty made by any Obligor (or any
of their respective officers) (including representations and
warranties deemed made pursuant to Section 3.2) under or in
connection with any Loan Document shall prove to have been
incorrect in any material respect when made or deemed made; or
(c) The Parent Guarantor shall fail to perform or observe any
term, covenant or agreement contained in Section 5.2, or any
Obligor shall fail to perform or observe any other term, covenant
or agreement contained in any Loan Document, in each case on its
part required to be performed or observed by it if, in the case
of such other term, covenant or agreement, such failure shall
remain unremedied for 30 days after written notice thereof shall
have been given to the Parent Guarantor by the Administrative
Agent at the request of any Bank; or
(d) The Parent Guarantor or any Principal Subsidiary shall (i)
fail to pay any principal of or premium or interest on any Debt
(other than Debt described in clause (e) of the definition of
Debt) which is outstanding in the principal amount of at least
$100,000,000 in the aggregate of the Parent Guarantor or such
Principal Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure
shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt;
or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or
condition is to accelerate the maturity of such Debt; or any such
Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment
or as a result of the giving of notice of a voluntary
prepayment), prior to the stated maturity thereof, or (ii) with
respect to Debt described in clause (e) of the definition of
Debt, fail to pay any such Debt which is outstanding in the
principal amount of at least $100,000,000 in the aggregate, of
the Parent Guarantor or such Principal Subsidiary (as the case
may be), when the same becomes due and payable, and such failure
shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt;
or
(e) The Parent Guarantor or any Principal Subsidiary shall
generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Parent
Guarantor or any Principal Subsidiary seeking to adjudicate it as
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it),
shall remain undismissed or unstayed for a period of 60 days; or
the Parent Guarantor or any Principal Subsidiary shall take any
corporate action to authorize any of the actions set forth above
in this subsection (e); or
(f) Any judgment, decree or order for the payment of money in
excess of $100,000,000 shall be rendered against the Parent
Guarantor or any Principal Subsidiary and shall remain
unsatisfied and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment, decree or
order or (ii) there shall be any period longer than (A) 60
consecutive days or (B) such longer period as allowed by
applicable law during which a stay of enforcement of such
judgment, decree or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) Any Termination Event as defined in clauses (b), (d) or (e)
of the definition thereof with respect to a Plan shall have
occurred and, 30 days after notice thereof shall have been given
to the Parent Guarantor by the Administrative Agent, (i) such
Termination Event shall still exist and (ii) the sum (determined
as of the date of occurrence of such Termination Event) of the
liabilities to the PBGC resulting from all such Termination
Events is equal to or greater than $100,000,000; or
(h) The Parent Guarantor or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan in an
amount which, when aggregated with all other amounts required to
be paid to Multiemployer Plans in connection with Withdrawal
Liabilities (determined as of the date of such notification),
exceeds $100,000,000 or requires payments exceeding $50,000,000
in any year; or
(i) The Parent Guarantor or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, if as a result of such
reorganization or termination the aggregate annual contributions
of the Parent Guarantor and its ERISA Affiliates to all
Multiemployer Plans which are then in reorganization or being
terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the respective plan
years which include the date hereof by an amount exceeding
$50,000,000; or
(j) Any provision requiring the payment of principal, interest
or fees by an Obligor, or other material provision, of any Loan
Document, after its execution and delivery hereunder, for any
reason is not or ceases to be legal, valid and binding, or the
Borrower or the Parent Guarantor shall so state in writing, in
each case other than in accordance with the express provisions of
any Loan Document or as the appropriate parties may otherwise
agree under Section 8.1; or
(k) Any Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of the Majority Banks,
by notice to the Borrower, declare the obligation of each Bank to
make Advances to be suspended or terminated (as so notified by
the Administrative Agent), whereupon the same shall forthwith be
suspended or terminated, as applicable, and (ii) shall at the
request, or may with the consent, of the Majority Banks, by
notice to the Borrower, declare the principal balance of the
Total Outstanding Amount, all interest accrued thereon and all
other related accrued amounts payable under this Agreement to be
forthwith due and payable, whereupon the principal balance
thereof, all such accrued interest and all such accrued amounts
shall become and be forthwith due and payable, without
presentment, demand, protest, notice of intent to accelerate or
further notice of any kind, all of which are, to the extent
permitted by law, hereby expressly waived by each Obligor;
provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to the Parent Guarantor or
the Borrower under the Bankruptcy Code or other applicable
insolvency laws, the obligation of each Bank to make its Advances
shall automatically be terminated and the principal balance of
the Total Outstanding Amount, all such accrued interest and all
such accrued amounts shall automatically become and be due and
payable, without presentment, demand, protest, notice of intent
to accelerate or any notice of any kind, all of which are, to the
extent permitted by law, hereby expressly waived by the Parent
Guarantor or the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.1 Authorization of the Administrative Agent. Each
Bank hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated
to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere
herein or in any other Loan Document, the Administrative Agent shall
not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Bank or participant, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in the
other Loan Documents with reference to the Administrative Agent
is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any
applicable law, rule, regulation or order. Instead, such term is
used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between
independent contracting parties.
Section 7.2 Delegation of Duties. The Administrative Agent
may execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact, and
shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any
agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct of such agent or attorney-in-
fact.
Section 7.3 Liability of the Administrative Agent. No Agent-Related
Person shall (a) be liable for any action taken or omitted to be taken by
any of them under or in connection with this Agreement or any other Loan
Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner
to any Bank or participant for any recital, statement,
representation or warranty made by any Obligor or any officer
thereof, contained herein or in any other Loan Document, or in
any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under
or in connection with, this Agreement or any other Loan Document,
or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for
any failure of any Obligor or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank or
participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Obligors or any Affiliate
thereof.
Section 7.4 Reliance by the Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal
counsel (including counsel to each Obligor), independent
accountants and other experts selected by it. The Administrative
Agent shall be fully justified in failing or refusing to take any
action under any Loan Document unless it shall first receive such
advice or concurrence of the Majority Banks as it deems
appropriate and, if it so requests, it shall first be indemnified
to its satisfaction by the Banks, against any and all liability
and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Majority Banks (or
such greater number of Banks as may be expressly required hereby
in any instance) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 3.1, each Bank that has signed this
Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or
acceptable or satisfactory to a Bank unless the Administrative
Agent shall have received notice from such Bank prior to the date
hereof specifying its objection thereto.
Section 7.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default,
except with respect to defaults in the payment of principal, interest and
fees required to be paid to the Administrative Agent for the account
of the Banks, unless the Administrative Agent shall have received
written notice referring to this Agreement, describing such
Default and stating that such notice is a "notice of default."
The Administrative Agent will notify the Banks of its receipt of
any such notice. The Administrative Agent shall take such action
with respect to such Default as may be directed by the Majority
Banks in accordance with Article VI; provided, however, that
unless and until the Administrative Agent has received any such
direction, it may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such
Default as it shall deem advisable or in the best interest of the
Banks.
Section 7.6 Credit Decision; Disclosure of Information by the
Administrative Agent. Each Bank acknowledges that no Agent-Related Person
has made any representation or warranty to it, and that no act by the
Administrative Agent hereafter taken, including any consent to
and acceptance of any assignment or review of the affairs of the
Obligors or any Affiliate thereof, shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any
Bank as to any matter, including whether Agent-Related Persons
have disclosed material information in their possession. Each
Bank represents to the Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person
and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other
condition and creditworthiness of the Obligors and their
respective Subsidiaries, and all applicable bank or other
regulatory laws. rules, regulations or orders relating to the
transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the Obligors.
Each Bank also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Obligors. Except for notices, reports
and other documents expressly required to be furnished to the
Banks by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the
business, prospects, operations, property, financial and other
condition or creditworthiness of the Obligors or any of their
respective Affiliates which may come into the possession of any
Agent-Related Person.
Section 7.7 Indemnification of the Administrative Agent. Whether
or not the transactions contemplated hereby are consummated, the Banks
shall indemnify upon demand the Administrative Agent and each Agent-Related
Person (to the extent not reimbursed by or on behalf of the Obligors and
without limiting the obligation of the Obligors to do so), pro rata, and
hold harmless the Administrative Agent and each Agent-Related
Person from and against any and all Indemnified Liabilities
incurred by the Administrative Agent in its capacity as such and
each Agent-Related Person while acting on behalf of the
Administrative Agent in such capacity; provided, however, that no
Bank shall be liable for the payment to any Agent-Related Person
of any portion of such Indemnified Liabilities to the extent
determined in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions
of the Majority Banks shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Bank shall reimburse
the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein,
to the extent that the Administrative Agent is not reimbursed for
such expenses by or on behalf of any Obligor. The undertaking in
this Section shall survive termination of the Commitments, the
payment of all Advances and all other sums payable hereunder or
under any other Loan Document, and the resignation of the
Administrative Agent.
Section 7.8 The Administrative Agent in its Individual
Capacity. The Administrative Agent and its Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other
business with the Obligors and their respective Affiliates as
though it were not the Administrative Agent hereunder and without
notice to or consent of the Banks. The Banks acknowledge that,
pursuant to such activities, the Administrative Agent or its
Affiliates may receive information regarding the Obligors or
their respective Affiliates (including information that may be
subject to confidentiality obligations in favor of an Obligor or
such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them.
With respect to its Advances, the Administrative Agent shall have
the same rights and powers under this Agreement as any other Bank
and may exercise such rights and powers as though it were not the
Administrative Agent, and the term "Bank" includes the
Administrative Agent in its individual capacity.
Section 7.9 Successor Administrative Agent. The Administrative
Agent may resign as the Administrative Agent upon 30 days' notice to the
Banks and the Borrower. If the Administrative Agent resigns under this
Agreement, the Majority Banks shall appoint from among the Banks a successor
administrative agent for the Banks, which successor shall be
consented to by the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed). If no successor
is appointed prior to the effective date of the resignation, the
resigning Administrative Agent may appoint, as the case may be,
after consulting with the Banks and Borrower, a successor
Administrative Agent, as the case may be, from among the Banks.
Upon the acceptance of its appointment as successor hereunder,
the Person acting as such successor shall succeed to all the
rights, powers and duties of the retiring Administrative Agent,
and the retiring Administrative Agent's appointment, powers and
duties as Administrative Agent shall be terminated, and without
any other or further act or deed on the part of any Person.
After any retiring Administrative Agent's resignation hereunder,
the provisions of this Article VII and Section 8.4 shall inure
to its benefit as to any actions taken or omitted to be taken by
it while it was the Administrative Agent under this Agreement.
If no successor agent has accepted appointment by the date which
is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation
shall nevertheless thereupon become effective and the Banks shall
perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Majority Banks appoint a
successor as provided for above.
Section 7.10 The Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to an Obligor,
the Administrative Agent (irrespective of whether the principal
of any Advance shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on such Obligor)
shall be entitled and empowered, by intervention in such
proceeding or otherwise.
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the
Advances and all other indebtedness and liabilities that are
owing by such Obligor under the Loan Documents and unpaid and to
file such other documents as may be necessary or advisable in
order to have the claims of the Banks and the Administrative
Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Banks and the
Administrative Agent and their respective agents and counsel and
all other amounts due the Banks and the Administrative Agent
under Section 2.3) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Bank to make such
payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments
directly to the Banks to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative
Agent under Section 2.3 and Section 8.4(a).
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Bank any plan of reorganization,
arrangement, adjustment or composition affecting the outstanding
Advances or other indebtedness or liabilities of an Obligor under
the Loan Documents, or the rights of any Bank or to authorize the
Administrative Agent to vote in respect of the claim of any Bank
in any such proceeding.
Section 7.11 Other Agents; Arrangers and Managers. None of the
Banks or other Persons identified on the facing page or signature pages
of this Agreement as a "syndication agent," "co-documentation agent,"
"co-agent," "book manager," "joint lead manager," "arranger," "lead arranger"
or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the
case of such Banks, those applicable to all Banks as such.
Without limiting the foregoing, none of the Banks or other
Persons so identified shall have or be deemed to have any
fiduciary relationship with any Banks. Each Bank acknowledges
that it has not relied, and will not rely, on any of the Banks or
other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendments, Etc. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by the
Borrower or the Parent Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Majority
Banks, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by each Bank directly affected
thereby, do any of the following: (a) waive any of the
conditions specified in Article III, (b) increase such Bank's
Commitment or subject it to any additional obligations, (c)
forgive or reduce the principal of, or interest on, the Total
Outstanding Amount or any fees or other amounts payable hereunder
to such Bank, (d) postpone any date fixed for any payment of
principal of, or interest on, the Total Outstanding Amount,
including the Scheduled Maturity Date, or any fees or other
amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the
Notes which shall be required for the Banks or any of them to
take any action under any Loan Document, (f) release the Parent
Guarantor from its obligations under the Parent Guaranty other
than in accordance with the express terms of any Loan Documents;
(g) amend this Section 8.1 or (h) change Section 2.12(a) or
Section 2.14 in a manner that would alter the pro rata sharing of
payments required thereby; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Banks required
above to take such action, affect the rights or duties of the
Administrative Agent under any Loan Document. Notwithstanding
anything to the contrary herein, no Defaulting Bank shall have
any right to approve or disapprove, and its approval or
disapproval shall not be required in connection with, any
amendment, waiver or consent hereunder, except that its
Commitment may not be increased or extended without its consent.
Section 8.2 Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier
communication) and mailed, telecopied or delivered, if to any Obligor,
to the Borrower and the Parent Guarantor, care of the Parent Guarantor,
at its address or telecopier numbers set forth below:
EOG Resources, Inc.
Three ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇, Treasurer
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier Nos. (communications must be sent to
both these numbers): ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Website: ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
if to any Bank, at its Domestic Lending Office; if to the
Administrative Agent, except as provided in Section 2.2(a) and
Section 2.8 (in which case notice shall be sent to the address
listed in Exhibits B and E, unless the Administrative Agent
designates a different address as provided below), at its address
or telecopier number set forth below:
The Bank of Nova Scotia
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
or, as to the Parent Guarantor or the Administrative Agent, at
such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a
written notice to the Parent Guarantor and the Administrative
Agent. All such notices and communications shall be effective,
if mailed, two Business Days after deposit in the mails; if sent
by overnight courier, one Business Day after delivery to the
courier company; and if sent by telecopier, when received by the
receiving telecopier equipment, respectively; provided, however,
that (a) notices and communications to the Administrative Agent
shall not be effective until received by the Administrative Agent
and (b) telecopied notices received by any party after its normal
business hours (or on a day other than a Business Day) shall be
effective on the next Business Day. The notices contemplated by
the definitions of "Borrowing" and "Interest Period" and by
Section 2.8 may be combined in one notice, if all required
information is provided in the combined notice and the combined
notice meets the requirements as to timeliness set forth in each
definition and Section to which the combined notice pertains.
The Administrative Agent and the Banks shall be entitled to
reasonably rely and act upon any notices (including telephonic
Notices of Borrowing) purportedly given by or on behalf of any
Obligor even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from
any confirmation thereof. Each Obligor shall indemnify each
Agent-Related Person and each Bank from all losses, costs,
expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of such
Obligor; provided, such indemnity shall not be available to the
extent such losses, costs, expenses or liabilities result from
the gross negligence or willful misconduct of such indemnitee.
All telephonic notices to and other communications between any
parties hereto may be recorded by any party to such
communication, and each of the parties hereto hereby consents to
such recording by any other party hereto. Any disclosure or
notice received by the Administrative Agent pursuant to Section
4.1(f), (g), (l) or Section 5.1(a) hereof will be posted to
Intralinks by the Administrative Agent.
Section 8.3 No Waiver; Remedies. No failure on the part of
any Bank or the Administrative Agent to exercise, and no delay in
exercising, and no course of dealing with respect to, any right under
any Loan Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The
remedies provided in the Loan Documents are cumulative and not exclusive
of any remedies provided by law or in equity.
Section 8.4 Costs and Expenses.
(a) The Borrower agrees (i) to pay or reimburse the
Administrative Agent for all reasonable costs and expenses
incurred in connection with the preparation, negotiation and
execution of this Agreement and the other Loan Documents and any
amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions
contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated
hereby and thereby, including all Attorney Costs, and (ii) to pay
or reimburse the Administrative Agent and each Bank for all costs
and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies
under this Agreement or the other Loan Documents (including all
such costs and expenses incurred during any "workout" or
restructuring in respect hereof and during any legal proceeding,
including any proceeding under the Bankruptcy Code or any other
law relating to bankruptcy, insolvency or reorganization or
relief of debtors), including all Attorney Costs.
(b) If any payment or purchase of principal of, or Conversion
of, any Eurodollar Advance or Eurodollar Borrowing is made other
than on the last day of an Interest Period relating to such
Advance, as a result of a payment, purchase or Conversion
pursuant to Section 2.9, Section 2.10, Section 2.11 or Section
2.17 or acceleration of the maturity of the Total Outstanding
Amount pursuant to Section 6.1 or for any other reason, the
Borrower, subject to Section 8.8, shall, upon demand by any Bank
(with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Person any
amounts required to compensate it for any additional losses,
costs or expenses which it may reasonably incur as a result of
such payment, purchase or Conversion, including, without
limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Person
to fund or maintain such Advance. A certificate in reasonable
detail as to the basis for and the amount of such loss, costs or
expense, submitted to the Borrower and the Administrative Agent
by such Person, shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify and hold harmless each
Agent-Related Person, each Bank and their respective Affiliates,
directors, officers, employees and agents (collectively the
"Indemnitees") from and against any and all liabilities,
obligations, losses (other than losses for anticipated profits),
damages, penalties, claims, demands, actions, judgments, suits,
costs, expenses and disbursements (including Attorney Costs) of
any kind or nature whatsoever which may at any time be imposed
on, incurred by or asserted against any such Indemnitee (other
than by any other Indemnitee) in any way relating to or arising
out of or in connection with (i) the execution, delivery,
enforcement, performance or administration of any Loan Document
or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (ii) any
Commitment, Advance or the use or proposed use of the proceeds
therefrom, or (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property currently or formerly
owned or operated by any Obligor or any Environmental Liability
related in any way to any Obligor or any Subsidiary of the Parent
Guarantor, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending
or threatened claim, investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"), IN ALL
CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART,
OUT OF THE NEGLIGENCE OF THE INDEMNITEE; provided that such
indemnity shall not, as to any Indemnitee, be available to the
extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such
Indemnitee. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other
materials obtained through IntraLinks or other similar
information transmission systems in connection with this
Agreement, provided such Indemnitee has taken and maintains
commercially reasonable efforts and controls to safeguard the use
and access of such material and information, nor shall any
Indemnitee have any liability for any indirect or consequential
damages relating to this Agreement or any other Loan Document or
arising out of its activities in connection herewith or therewith
(whether before or after the date hereof).
(d) The Parent Guarantor and the Borrower represent, warrant and
acknowledge that each has, in connection with its negotiation,
execution and delivery of the Loan Documents, not sought,
received or relied upon, directly or indirectly, any
representations, advice or guidance of any nature whatsoever
(whether written or oral) of The Bank of Nova Scotia and Deutsche
Bank Securities Inc., as arrangers (in such capacity, the
"Arrangers"), any Bank or any of their respective Affiliates in
relation to the Borrower's use of loan proceeds of the Advances,
including any use for the contemplated distribution or
distributions, as the case may be, by the Borrower for the
ultimate distribution to the Parent Guarantor, and in connection
therewith, each of them further represents, warrants and
acknowledges that: (i) each has the knowledge and sophistication
to independently appraise and understand the financial and legal
terms and conditions of such transaction and to assume the
economic consequences and risks thereof; (ii) to the extent it
deemed necessary, each has consulted with its own financial,
legal or other advisors and has made its own corporate, tax and
other decisions in connection with such transactions based upon
its own judgment and the advice of such advisors and not upon any
view expressed by any Arrangers, Bank or any of their respective
Affiliates; and (iii) neither has obtained from any Arrangers,
Bank or any of their respective Affiliates (directly or
indirectly) any advice, counsel or assurances as to the expected
or projected success, profitability, performance, results or
benefits (tax or otherwise) of such transactions.
(e) All amounts due under this Section 8.4 shall be payable
within 20 Business Days after the Borrower's receipt of a
reasonably detailed invoice therefor. The agreements in this
Section shall survive the resignation of the Administrative
Agent, the replacement of any Bank, the termination of the
Commitments, and the repayment, satisfaction or discharge of all
sums payable hereunder or under any other Loan Document.
Section 8.5 Payments Set Aside; Right of Set-Off.
(a) To the extent that any payment by or on behalf of any
Obligor under this Agreement or a Person entitled to under this
Agreement exercises its right of set-off, and such payment or the
proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under the Bankruptcy
Code or any other laws relating to bankruptcy, insolvency or
reorganization or relief of debtors or otherwise, then (i) to the
extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not
been made or such set-off had not occurred, and (ii) each Bank
severally agrees to pay to the Administrative Agent, as the case
may be, upon demand its applicable share of any amount so
recovered from or repaid, plus interest thereon from the date of
such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
(b) Upon (i) the occurrence and during the continuance of any
Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.1 to authorize the
Administrative Agent to declare the Notes due and payable
pursuant to the provisions of Section 6.1, each Bank is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness, whether or not
such obligations may be unmatured, at any time owing by such Bank
to or for the credit or the account of the relevant Obligor
against any and all of the obligations of such Obligor now or
hereafter existing under this Agreement and the Note held by such
Bank, irrespective of whether or not the Administrative Agent or
such Bank shall have made any demand under this Agreement or such
Note. Each Bank agrees promptly to notify the Borrower after any
such set-off and application made by such Bank; provided that the
failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Bank under this
Section 8.5(b) are in addition to other rights and remedies
(including other rights of set-off) which such Bank may have.
Section 8.6 Assignments and Participations.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that no Obligor
may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Bank then
committed to make Advances (other than an assignment effectuated
by a merger or consolidation permitted by Section 5.2(e) to the
surviving Person referred to herein). No Bank may assign or
otherwise transfer any of its rights or obligations hereunder
except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section 8.6, (ii) by way of
participation in accordance with the provisions of subsection (d)
of this Section 8.6, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f)
or (h) of this Section 8.6 (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this Section 8.6 and,
to the extent expressly contemplated hereby, the Indemnitees) any
legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Bank may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and
the Advances at the time owing to it); provided that (i) except
in the case of an assignment of the entire remaining amount of
the assigning Bank's Commitment and the Advances at the time
owing to it, the aggregate amount of the Commitment (which for
this purpose includes Advances outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal
outstanding balance of the Advances of the assigning Bank subject
to each such assignment, determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date shall not be less
than $10,000,000 unless the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrower
otherwise consent (each such consent not to be unreasonably
withheld or delayed); (ii) each partial assignment shall be made
as an assignment of a proportionate part of all the assigning
Bank's rights and obligations under this Agreement with respect
to the Advances or the Commitment assigned; (iii) any assignment
of a Commitment must be approved by the Administrative Agent,
unless the Person that is the proposed assignee is itself a Bank
or an Affiliate of a Bank (whether or not the proposed assignee
would otherwise qualify as an Eligible Assignee); and (iv) the
parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500 and the Eligible
Assignee, if not a Bank, shall deliver to the Administrative
Agent an administrative questionnaire and to the Borrower all
relevant information for notices under the Loan Documents to such
assignee. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to subsection (c) of this Section
8.6, from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee thereunder shall
be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and
obligations of a Bank under this Agreement, and the assigning
Bank thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Bank's rights and
obligations under this Agreement, such Bank shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Section 2.10, Section 2.13 and Section 8.4 with respect to facts
and circumstances occurring while such Person was a Bank, as the
case may be, as applicable, prior to the effective date of such
assignment). Upon request, any Obligor (at its expense) shall
execute and deliver a Note to the assignee Bank, as applicable.
Any assignment or transfer by a Bank of rights or obligations
under this Agreement that does not comply with this subsection
(b) shall be null and void.
(c) The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative
Agent's Office a copy of each Assignment and Assumption delivered
to it. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower shall maintain, a register for the
recordation of the names and addresses of the Banks and the
Commitments of, and principal amounts of the Advances owing to,
each Bank pursuant to the terms hereof from time to time (each, a
"Register"). The entries in the Registers shall be conclusive,
absent manifest error, and the Obligors, the Administrative Agent
and the Banks may treat each Person whose name is recorded in a
Register pursuant to the terms hereof as a Bank hereunder for all
purposes of this Agreement, notwithstanding notice to the
contrary. Each Register shall be available for inspection by the
Borrower and any Bank, at any reasonable time and from time to
time upon reasonable prior notice.
(d) Any Bank may at any time, without the consent of, or notice
to, the Obligors or the Administrative Agent, sell participations
to any Person (other than a natural person or the Obligors or any
of the Parent Guarantor's Affiliates or Subsidiaries) (each, a
"Participant") in all or a portion of such Bank's rights and/or
obligations under this Agreement (including all or a portion of
its Commitment and/or the Advances owing to it); provided that
(i) such Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the
other parties hereto for the performance of such obligations and
(iii) the Obligors, the Administrative Agent and the other Banks
shall continue to deal solely and directly with such Bank in
connection with its rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Bank sells such a
participation shall provide that such Bank shall retain the sole
right to enforce, and to participate in any related decision to
enforce, this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such
Bank will not, without the consent of the Participant, agree to
any amendment, waiver or other modification described in clause
(b), (c), (d), (e) or (g) of the first proviso to Section 8.1
that directly affects such Participant. Subject to subsection
(e) of this Section 8.6, each Obligor agrees that each
Participant shall be entitled to the benefits of Section 2.10,
Section 2.13 and Section 8.4(b) if it actually incurs any loss or
expense pursuant to such sections, and then, solely to the same
extent as if it were the Bank from which it had acquired its
interest by assignment pursuant to subsection (b) of this Section
8.6. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 8.5(b) as though it were a
Bank, provided such Participant agrees to be subject to Section
2.14 as though it were a Bank.
(e) A Participant shall not be entitled to receive any greater
payment under Section 2.6, Section 2.7, Section 2.10, Section
2.13 or Section 8.4(b) than the applicable Bank would have been
entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent, as
the case may be. A Participant that would be a Foreign Bank if
it were a Bank shall not be entitled to the benefits of Section
2.13 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of
the Borrower, to comply with Section 2.13, Section 2.14 and
Section 8.16 as though it were a Bank.
(f) Any Bank may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such
Bank to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Bank from any of its obligations
hereunder or substitute any such pledgee or assignee for such
Bank as a party hereto.
(g) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Bank; (b) an Affiliate
of a Bank; (c) an Approved Fund; and (d) any other Person
(other than a natural person) approved by (i) the
Administrative Agent, and (ii) unless an Event of Default
has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible
Assignee" shall not include the Parent Guarantor or any of
the Parent Guarantor's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person)
that is (or will be) engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its
business.
"Approved Fund" means any Fund (that, so long as no
Event of Default has occurred and is continuing, is
approved by the Borrower, such approval not to be
unreasonably withheld or delayed) that is administered or
managed by (a) a Bank, (b) an Affiliate of a Bank or (c) an
entity or an Affiliate of an entity that administers or
manages a Bank.
(h) Notwithstanding anything to the contrary contained herein,
any Bank that is a Fund may create a security interest in all or
any portion of the Loans owing to it and the Note, if any, held
by it to the trustee for holders of obligations owed, or
securities issued, by such Fund as security for such obligations
or securities; provided, so long as no Event of Default has
occurred and is continuing, such security interest is approved by
the Borrower, such approval not to be unreasonably withheld;
provided, further, that unless and until such trustee actually
becomes a Bank in compliance with the other provisions of this
Section 8.6, (i) no such pledge shall release the pledging Bank
from any of its obligations under the Loan Documents and (ii)
such trustee shall not be entitled to exercise any of the rights
of a Bank under the Loan Documents even though such trustee may
have acquired ownership rights with respect to the pledged
interest through foreclosure or otherwise.
Section 8.7 Governing Law; Entire Agreement, Integration;
Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
without giving effect to the Conflict of Laws principles thereof,
other than Sections 5-1401 and 5-1402 of the General Obligations
law of the State of New York. This Agreement, the Notes, the
other Loan Documents and any related fee letters signed by the
Parent Guarantor and the Borrower comprise the complete and
integrated agreement of the parties on the subject matter hereof
and thereof and supersede all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control;
provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or any Bank in any other Loan
Document shall not be deemed a conflict with this Agreement.
Each Loan Document was drafted with the joint participation of
the respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance with
the fair meaning thereof.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ SITTING IN MANHATTAN, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY JOINDER
AGREEMENT, EACH PARTY, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
PARTY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY
LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE
LAW OF SUCH STATE. EACH PARTY IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT THE
ADDRESS FOR NOTICES PURSUANT TO SECTION 8.2 HEREOF, SUCH SERVICE
TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
Section 8.8 Interest. Notwithstanding anything to the contrary
contained in any Loan Document, the interest contracted for, charged,
received, reserved, taken or paid under the Loan Documents shall not exceed
the Highest Lawful Rate. If the Administrative Agent or any Bank
shall contract for, charge, take, reserve or receive interest in
an amount or at a rate that exceeds the Highest Lawful Rate, the
excess interest shall be applied to the principal of the Advances
and if such excess exceeds such unpaid principal, such interest
shall be refunded to the relevant Obligor. In determining
whether the interest contracted for, charged, received, reserved,
taken or paid by the Administrative Agent or a Bank exceeds the
Highest Lawful Rate, such Person may, to the extent permitted by
applicable law, rule, regulation or order (a) characterize any
payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread
in equal or unequal parts the total amount of interest throughout
the contemplated term of the amounts payable hereunder and under
the other Loan Documents.
The provisions of this Section 8.8 shall govern and control over
every other provision of any other Loan Document which conflicts
or is inconsistent with this Section, even if such provision
declares that it shall control or govern.
Section 8.9 Captions. Captions and section headings appearing
herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
Section 8.10 Confidentiality. Each Bank agrees that it will use
reasonable efforts not to disclose without the prior consent of the Parent
Guarantor (other than to its employees, auditors or counsel, to another Bank,
or to such Bank's own holding or parent company and its Affiliates,
in each case if the disclosing Bank or its holding or parent
company in its sole discretion determines that any such party
should have access to such information, each of whom shall be
instructed and shall agree to maintain such information as
confidential) any information with respect to the Parent
Guarantor or its Subsidiaries which is furnished pursuant to this
Agreement or any other Loan Document and which is designated by
the Parent Guarantor to the Banks in writing as confidential;
provided that any Bank may disclose any such information (a) as
has become generally available to the public, (b) as may be
required or appropriate in any report, statement or testimony
submitted to any municipal, state or federal regulatory body
having or claiming to have jurisdiction over such Bank or its
Affiliates or to the Federal Reserve Board or the FDIC or similar
organizations (whether in the United States or elsewhere), (c) as
may be required or appropriate in response to any summons or
subpoena or in connection with any litigation, (d) in order to
comply with any law, order, regulation or ruling applicable to
such Bank, and (e) to any assignee, participant, prospective
assignee or prospective participant, if such assignee,
participant, prospective assignee or prospective participant
agrees to be bound by this Section 8.10.
Section 8.11 Survival; Term; Reinstatement. In addition to the
other provisions of this Agreement expressly stated to survive the
termination of this Agreement, the obligations of the Borrower under
Section 2.6, Section 2.10, Section 2.13, Section 2.17 and Section 8.4
and the last sentence of this Section 8.11 and the obligations of the
Banks under Section 2.13 and Section 8.10 shall survive the termination of
this Agreement. The Borrower agrees that if at any time all or
any part of any payment previously applied by any Bank to any
Advance or other sum hereunder is or must be returned by or
recovered from such Bank for any reason (including the order of
any bankruptcy court), the Loan Documents shall automatically be
reinstated to the same effect as if the prior application had not
been made, and the Borrower hereby agrees to indemnify such Bank
against, and to save and hold such Bank harmless from, any
required return by or recovery from such Bank of any such
payment.
Section 8.12 Severability. Whenever possible, each provision of
the Loan Documents shall be interpreted in such manner as to be effective
and valid under applicable law. If any provision of any Loan Document
shall be invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of the
remaining provisions of such Loan Document shall not be affected
or impaired thereby.
Section 8.13 Time of the Essence. Time is of the essence of the
Loan Documents.
Section 8.14 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and
the same agreement. Loan Documents may be transmitted and/or signed by
facsimile. The effectiveness of any such documents and
signatures shall, subject to applicable law, have the same force
and effect as manually-signed originals and shall be binding on
all parties hereto. The Administrative Agent may also require
that any such documents and signatures be confirmed by a manually-
signed original thereof; provided, however, that the failure to
request or deliver the same shall not limit the effectiveness of
any facsimile document or signature.
Section 8.15 Effectiveness. This Agreement shall become effective
when it shall have been executed by the Parent Guarantor, the Borrower and
the Administrative Agent and when the Administrative Agent shall
have, as to each Bank, either received a copy of a signature page
hereof executed by such Bank or been notified by such Bank that
such Bank has executed it and thereafter shall be binding upon
and inure to the benefit of and be enforceable by the Parent
Guarantor, the Borrower, the Administrative Agent and each Bank
and their respective successors and permitted assigns.
Section 8.16 Tax Forms.
(a) (i) Concurrent with the date hereof or the date of an
Assignment and Assumption, as applicable, each Bank shall, in
accordance with applicable law, deliver to each of the Borrower
and the Administrative Agent, a duly signed completed copy of any
appropriate Prescribed Form or such other documentation as
required by law or as reasonably requested by the Borrower (but
only if such Bank is legally entitled to do so) relating to such
Bank and indicating that such Bank is entitled to an exemption
from, or reduction of, withholding tax on any or all payments to
be made to such Bank by the Borrower pursuant to this Agreement.
Thereafter and from time to time, each such Bank shall (A)
promptly submit to each of the Borrower and the Administrative
Agent, respectively, such additional duly completed and signed
copies of such forms (or such successor forms as shall be adopted
from time to time by the relevant taxing authorities) as may be
reasonably requested by the Borrower or the Administrative Agent
or as may then be available or required under then current laws
and regulations to entitle it to an exemption from or reduction
of, withholding taxes in respect of any or all payments to be
made to such Bank by the Borrower pursuant to this Agreement (but
only if such Bank is legally entitled to do so), (B) promptly
notify the Borrower and the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of
such Bank, and as may be reasonably necessary (including the re-
designation of its Applicable Lending Office) to avoid any
requirement of applicable laws, rules, regulations or orders
that the Borrower make any deduction or withholding for taxes
from amounts payable to such Bank.
(ii) Each Bank, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid
or payable to such Bank under any of the Loan Documents (for
example, in the case of a typical participation by such Bank),
shall deliver to each of the Borrower and the Administrative
Agent on the date when such Bank ceases to act for its own
account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the
determination of the Borrower or the Administrative Agent (in the
reasonable exercise of its discretion), (A) a duly signed
completed copy of any forms or statements required to be provided
by such Bank as set forth above, to establish the portion of any
such sums paid or payable with respect to which such Bank acts
for its own account that is not subject to U.S. withholding tax,
and (B) a duly signed completed copy of any forms or statements
required by applicable law to establish that such Bank is not
acting for its own account with respect to a portion of any such
sums payable to such Bank. Thereafter and from time to time,
each such Bank shall (A) promptly submit to each of the Borrower
and the Administrative Agent, respectively (if it is legally
entitled to do so), such additional duly completed and signed
copies of such form (or such successor form as shall be adopted
from time to time by the relevant taxing authorities) as may be
reasonably requested by the Borrower or the Administrative Agent
or as may then be available or required under then current laws
and regulations, (B) promptly notify the Borrower and the
Administrative Agent of any change in circumstances which would
modify or render invalid any information provided on such form,
and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Bank,
and as may be reasonably necessary (including the redesignation
of its Applicable Lending Office) to avoid any requirement of
applicable laws, rules, regulations or orders that the Borrower
make any deduction or withholding for taxes from amounts payable
to such Bank.
(iii) The Borrower shall not be required to pay any
additional amounts to any Bank under Section 2.13 with respect to
any Taxes that would not have been required to be deducted or
withheld if such Bank had satisfied the foregoing provisions of
this Section 8.16(a); provided that, nothing in this Section
8.16(a) shall relieve the Borrower of its obligation to pay any
amounts pursuant to Section 2.13 in the event that, as a result
of any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, after the date hereof or
the date of an Assumption and Assignment, as applicable, such
Bank is no longer properly entitled to deliver forms,
certificates or other evidence establishing the fact that such
Bank or other Person for the account of which such Bank receives
any sums payable under any of the Loan Documents is not subject
to withholding or is subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment
under any of the Loan Documents with respect to which the
Borrower is not required to pay additional amounts under this
Section 8.16(a).
(b) [Intentionally left blank]
(c) If any governmental authority, central bank or comparable
agency asserts that the Borrower or the Administrative Agent did
not properly withhold any tax or other amount from payments made
to or for the account of any Bank on the basis that (i) the forms
or other documents provided by the Bank were inaccurate or
incomplete, or (ii) that the Bank failed to provide the
appropriate forms or other documents, such Bank shall indemnify
the Borrower or the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on
the amounts payable to the Borrower or the Administrative Agent
under this Section, and costs and expenses (including Attorney
Costs) of the Borrower or the Administrative Agent. The
obligation of the Banks under this Section shall survive the
termination of the Commitments, repayment of all amounts payable
hereunder and under the other Loan Documents and the resignation
of the Administrative Agent.
Section 8.17 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 8.18 USA Patriot Act Notice. Each Bank hereby notifies each
Obligor that pursuant to the requirements of the USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is
required to obtain, verify and record information that identifies each
Obligor, which information includes the name and address of each
Obligor and other information that will allow such Bank to
identify each Obligor in accordance with the Act.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
EOG RESOURCES, INC., Parent Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇ ▇. ▇▇▇
Treasurer
EOGI INTERNATIONAL COMPANY,
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇ ▇. ▇▇▇
Treasurer