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EXHIBIT 10.23
BURLINGTON RESOURCES INC.
$600,000,000
SECOND AMENDED AND RESTATED
LONG-TERM REVOLVING CREDIT AGREEMENT
Dated as of
July 12, 1996
CITIBANK, N.A., as Agent
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. . . . . . . . . . . . . . . . 1
SECTION 1.02. Computation of Time Periods . . . . . . . . . . . . . 10
SECTION 1.03. Accounting Terms . . . . . . . . . . . . . . . . . . 10
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances . . . . . . . . . . . . . . . . . . . 11
SECTION 2.02. Making the A Advances . . . . . . . . . . . . . . . . 11
SECTION 2.03. Fees . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.04. Reduction of the Commitments . . . . . . . . . . . . 12
SECTION 2.05. Repayment of A Advances . . . . . . . . . . . . . . . 13
SECTION 2.06. Interest on A Advances . . . . . . . . . . . . . . . 13
SECTION 2.07. Additional Interest on Eurodollar Rate Advances . . . 13
SECTION 2.08. Interest Rate Determination . . . . . . . . . . . . . 14
SECTION 2.09. Voluntary Conversion of A Advances . . . . . . . . . 15
SECTION 2.10. Prepayments . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.11. Increased Costs . . . . . . . . . . . . . . . . . . . 16
SECTION 2.12. Increased Capital . . . . . . . . . . . . . . . . . . 16
SECTION 2.13. Illegality . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.14. Payments and Computations . . . . . . . . . . . . . . 17
SECTION 2.15. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.16. Sharing of Payments, Etc . . . . . . . . . . . . . . 20
SECTION 2.17. Evidence of Debt . . . . . . . . . . . . . . . . . . 21
SECTION 2.18. Use of Proceeds . . . . . . . . . . . . . . . . . . . 21
SECTION 2.19. The B Advances . . . . . . . . . . . . . . . . . . . 21
SECTION 2.20. Increase of Commitments . . . . . . . . . . . . . . . 24
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of this
Agreement . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.02. Conditions Precedent to Each A Borrowing . . . . . . 26
SECTION 3.03. Conditions Precedent to Each B Borrowing . . . . . . 26
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower . . . 27
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01 Affirmative Covenants . . . . . . . . . . . . . . . . 29
SECTION 5.02. Negative Covenants . . . . . . . . . . . . . . . . . 31
SECTION 5.03. Reporting Requirements . . . . . . . . . . . . . . . 33
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . 35
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action . . . . . . . . . . . . . . 38
SECTION 7.02. Agent's Reliance, Etc . . . . . . . . . . . . . . . . 38
SECTION 7.03. Citibank and Affiliates . . . . . . . . . . . . . . . 39
SECTION 7.04. Lender Credit Decision . . . . . . . . . . . . . . . 39
SECTION 7.05. Indemnification . . . . . . . . . . . . . . . . . . . 39
SECTION 7.06. Successor Agent . . . . . . . . . . . . . . . . . . . 40
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . 40
SECTION 8.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . 41
SECTION 8.04. Costs and Expenses; Indemnity . . . . . . . . . . . . 41
SECTION 8.05. Right of Set-off . . . . . . . . . . . . . . . . . . 42
SECTION 8.06. Binding Effect . . . . . . . . . . . . . . . . . . . 42
SECTION 8.07. Assignments and Participations . . . . . . . . . . . 42
SECTION 8.08. Confidentiality . . . . . . . . . . . . . . . . . . . 45
SECTION 8.09. Consent to Jurisdiction . . . . . . . . . . . . . . . 46
SECTION 8.10. Governing Law . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.11. Execution in Counterparts . . . . . . . . . . . . . . 47
SECTION 8.12. Waiver of Jury Trial . . . . . . . . . . . . . . . . 47
EXHIBITS
Exhibit A Form of A Promissory Note
Exhibit B Form of B Promissory Note
Exhibit C Form of Notice of A Borrowing
Exhibit D Form of Notice of B Borrowing
Exhibit E Form of Assignment and Acceptance
Exhibit F-1 Form of Commitment Increase Agreement
Exhibit F-2 Form of New Lender Agreement
Exhibit G Form of Opinion of Vice President, Law for
Borrower
Exhibit H Form of Opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇,
New York Counsel for Borrower
Exhibit I Form of Opinion of Counsel to Citibank, N.A.,
as Agent
Exhibit J Form of Process Agent Letter
Exhibit K Form of Designation Agreement
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SCHEDULES
Schedule I -- Domestic and Eurodollar Lending Offices
Schedule II -- Material Subsidiaries
Schedule III -- Pricing Grid
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SECOND AMENDED AND RESTATED
LONG-TERM REVOLVING CREDIT AGREEMENT
Dated as of July 12, 1996
BURLINGTON RESOURCES INC., a Delaware corporation (the
"Borrower"), the financial institutions (the "Initial Lenders") listed on the
signature pages hereof, and CITIBANK, N.A. ("Citibank") as agent (the "Agent")
for the Lenders hereunder, agree as follows:
PRELIMINARY STATEMENTS
1. The Borrower, the Agent and certain Lenders are parties to the
Amended and Restated Long-Term Revolving Credit Agreement dated as of July 14,
1995 (the "1995 Credit Agreement").
2. The parties hereto have agreed to amend (effective as of July
12, 1996) certain provisions of, and Exhibits to, the 1995 Credit Agreement
and, as so amended, to restate it in its entirety and the Lenders and the Agent
have agreed to do so on the terms and conditions set forth herein. The 1995
Credit Agreement, as so amended, is hereby being restated in its entirety for
the convenience of the parties and the provisions that are not so amended shall
continue. Accordingly, each reference herein or in any other document to an A
Advance or a B Advance shall include each A Advance or B Advance, respectively,
heretofore made under the 1995 Credit Agreement as well as each A Advance or B
Advance, respectively, made from time to time under this Second Amended and
Restated Long-Term Revolving Credit Agreement. Furthermore, the fees payable
pursuant to Section 2.03 of the 1995 Credit Agreement, and interest payable
pursuant to the 1995 Credit Agreement, shall be determined in accordance with
the 1995 Credit Agreement to July 12, 1996 and shall be payable on the dates
contemplated in the 1995 Credit Agreement, and fees and interest accruing on or
after July 12, 1996 shall be determined and payable in accordance with this
Second Amended and Restated Long-Term Revolving Credit Agreement. Inasmuch as
the Commitments of Credit Lyonnais New York Branch ("CLNY") and The Bank of
Tokyo - Mitsubishi, Ltd. ("BOT") are being changed from those in effect under
the 1995 Credit Agreement, if any A Advances are outstanding on July 12, 1996,
then on such date BOT will purchase from CLNY, without recourse, 17/42 of each
A Advance owed to CLNY on such date, which purchased amounts will be thereafter
deemed part of the corresponding A Advances of BOT.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. 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 plural forms of the terms defined):
"A Advance" means an advance by a Lender to the Borrower as
part of an A Borrowing, and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a "Type" of A
Advance).
"A Borrowing" means a borrowing consisting of A Advances of
the same Type made on the same day by the Lenders pursuant to Section
2.01 and, in the case of Eurodollar Rate Advances, having Interest
Periods of the same duration, it being understood that there may be
more than one A Borrowing on a particular day.
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"A Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the A Advances made by such Lender.
"Advance" means an A Advance or a B Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
The term "controls" (including the terms "controlled by" or "under
common control with") means, with respect to any Person, the
possession, direct or indirect, of the power to vote 10% or more (or
in the case of an "Affiliate" of any Lender, 5% or more) of the
securities having ordinary voting power for the election of directors
of such Person or to direct or cause the direction of the management
and policies of such Person, whether through ownership of voting
securities or by contract or otherwise.
"Agreement" means the 1995 Credit Agreement (defined above),
as amended and restated by this Second Amended and Restated Long-Term
Revolving Credit Agreement, together with all exhibits and schedules
hereto, as may be amended or otherwise modified from time to time
pursuant to the terms hereof.
"Applicable Lending Office" means, with respect to each
Lender, (i) in the case of an A Advance, such Lender's Domestic
Lending Office in respect of Base Rate Advances and such Lender's
Eurodollar Lending Office in respect of Eurodollar Rate Advances and
(ii) in the case of a B Advance, the office of such Lender notified by
such Lender to the Agent as its Applicable Lending Office with respect
to such B Advance.
"Arranger" means Citicorp Securities, Inc.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender (other than a Designated Bidder) and an
Eligible Assignee, and accepted by the Agent, in substantially the
form of Exhibit E hereto.
"B Advance" means an advance by a Lender to the Borrower as
part of a B Borrowing resulting from the auction bidding procedure
described in Section 2.19.
"B Borrowing" means a borrowing consisting of simultaneous B
Advances to the Borrower from each of the Lenders whose offer to make
one or more B Advances as part of such borrowing has been accepted by
the Borrower under the auction bidding procedure described in Section
2.19, it being understood that there may be more than one B Borrowing
on a particular day.
"B Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit B
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a B Advance made by such Lender.
"B Reduction" has the meaning specified in Section 2.01.
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"Base Rate" means, for each day in any period, a fluctuating
interest rate per annum as shall be in effect from time to time which
rate per annum shall at all times for such day be equal to the highest
of:
(a) The rate of interest announced publicly by
the Agent in the United States with respect to loans made in
the United States, from time to time, as the Agent's base or
prime rate as in effect for such day;
(b) The sum (adjusted to the nearest 1/16 of one
percent or, if there is no nearest 1/16 of one percent, to the
next higher 1/16 of one percent) of (i) 1/2 of one percent per
annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of
365 or 366 days, as the case may be) being determined weekly
on each Monday (or, if any such day is not a Business Day, on
the next succeeding Business Day) for the three-week period
ending on the previous Friday by the Agent on the basis of
such rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by the Agent from three New
York certificate of deposit dealers of recognized standing
selected by the Agent, by (B) a percentage equal to 100% minus
the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for the Agent in respect of liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
nonpersonal time deposits in the United States each in the
amount of $100,000 or more, plus (iii) the average during such
three-week period of the annual assessment rates estimated by
the Agent for determining the then current annual assessment
payable by the Agent to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar
deposits of the Agent in the United States; and
(c) 0.50% per annum above the Effective Federal
Funds Rate for such day.
"Base Rate Advance" means an A Advance which bears interest as
provided in Section 2.06(a)(i).
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York, New York and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Capitalization" means the sum (without duplication) of (i)
consolidated Debt of the Borrower and its consolidated Subsidiaries,
plus (ii) the aggregate amount of Guaranties by the Borrower or its
consolidated Subsidiaries and letters of credit issued for the account
of the Borrower or any consolidated Subsidiary of the Borrower, plus
(iii) the sum of the preferred stock and common stockholders' equity
of the Borrower.
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"Commitment" has the meaning specified in Section 2.01.
"Consolidated Tangible Net Worth" means, on a consolidated
basis, the excess of (i) the sum of the preferred stock and common
stockholders' equity of the Borrower, over (ii) the intangible assets
of the Borrower and its consolidated Subsidiaries.
"Convert", "Conversion" and "Converted" each refers to a
conversion of A Advances of one Type into A Advances of another Type
pursuant to Section 2.08, 2.09 or 2.13.
"Debt" of any Person means, without duplication (i)
indebtedness of such Person for borrowed money, (ii) obligations of
such Person (other than any portion of any trade payable obligation of
such Person which shall not have remained unpaid for 91 days or more
from the original due date of such portion) to pay the deferred
purchase price of property or services, and (iii) obligations of such
Person as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as
capital leases, except that where any such indebtedness or obligation
of such Person is made jointly, or jointly and severally, with any
third party or parties, which are not the Borrower or any of its
consolidated Subsidiaries, the amount thereof for the purposes of this
definition only shall be the pro rata portion thereof payable by such
Person, so long as such third party or parties have not defaulted on
its or their joint and several portions thereof.
"Designated Bidder" means (a) an Affiliate of a Lender or (b)
a special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial
paper rated at least "Prime-1" by ▇▇▇▇▇'▇ or "A-1" by S&P or a
comparable rating from the successor of either of them, that, in the
case of either clause (a) or (b) above, (i) is organized under the
laws of the United States or any state thereof, (ii) shall have become
a party hereto pursuant to subsections (e), (f) and (g) of Section
8.07, and (iii) is not otherwise a Lender. Notwithstanding the
foregoing, each Designated Bidder shall be subject to the written
consent of the Borrower and the Agent, such consent not to be
unreasonably withheld.
"Designation Agreement" means a designation agreement entered
into by the Borrower, a Lender (other than a Designated Bidder) and a
Designated Bidder, and accepted by the Agent, in substantially the
form of Exhibit K hereto.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance or Increase Agreement pursuant to which it became a Lender,
or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Effective Federal Funds Rate" means, for any day, the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
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"Eligible Assignee" means, with respect to any particular
assignment under Section 8.07, any bank or other financial institution
approved in writing by the Borrower expressly with respect to such
assignment and, except as to such an assignment by Citibank so long as
Citibank is the Agent hereunder, the Agent as an Eligible Assignee for
purposes of this Agreement, provided that neither the Agent's nor the
Borrower's approval shall be unreasonably withheld.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued from time to time thereunder.
"ERISA Affiliate" means any Person who is a member of the
Borrower's controlled group within the meaning of Section
4001(a)(14)(A) of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to each
Lender, the office of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment
and Acceptance or Increase Agreement pursuant to which it became a
Lender (or, if no such office is specified, its Domestic Lending
Office) or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing, the
interest rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in U.S.
dollars are offered by the principal office of each of the Reference
Banks in London, England, to prime banks in the London interbank
market at 11:00 A.M. (London, England time) two Business Days before
the first day of such Interest Period in an amount comparable to the
amount of such A Borrowing and for a period equal to such Interest
Period. The Eurodollar Rate for the Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing shall
be determined by the Agent on the basis of applicable rates furnished
to and received by the Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject, however,
to the provisions of Section 2.08.
"Eurodollar Rate Advance" means an A Advance which bears
interest determined by reference to the Eurodollar Rate, as provided
in Section 2.06(a)(ii).
"Eurodollar Rate Margin" means for any date the percentage per
annum applicable on such date as set forth in the row labelled "LIBOR
Applicable Margin" on Schedule III hereto, which is based on the
ratings (or lack thereof) by ▇▇▇▇▇'▇ or S&P or both of the public
long-term senior unsecured debt securities of the Borrower.
"Eurodollar Reserve Percentage" of any Lender for any Interest
Period for any Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or if more than one such percentage shall be so applicable, the daily
average of such percentages for those days in such Interest Period
during which any such percentage shall be
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so applicable) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) for such Lender with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Facility Fee Percentage" means for any date the percentage
per annum applicable on such date as set forth in the row labelled
"Facility Fee" on Schedule III hereto, which is based on the ratings
(or lack thereof) by ▇▇▇▇▇'▇ or S&P or both of the public long-term
senior unsecured debt securities of the Borrower.
"Guaranty", "Guaranteed" and "Guaranteeing" each means any act
by which a Person assumes, guarantees, endorses or otherwise incurs
direct or contingent liability in connection with, or agrees to
purchase or otherwise acquire or otherwise assures a creditor against
loss in respect of, any Debt of any Person other than the Borrower or
any of its consolidated Subsidiaries (excluding (i) any liability by
endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business, and (ii) any
liability in connection with obligations of the Borrower or any of its
consolidated Subsidiaries, including, without limitation, obligations
under any conditional sales agreement or equipment lease); provided,
however, that for the purposes of this definition the liability of the
Borrower or any of its Subsidiaries with respect to any obligation as
to which a third party or parties are jointly, or jointly and
severally, liable as a guarantor or otherwise as contemplated hereby
and have not defaulted on its or their portions thereof, shall be only
its pro rata portion of such obligation.
"Increase Agreement" means an agreement entered into by the
Borrower and a Lender increasing such Lender's Commitment pursuant to
Section 2.20, and accepted by the Agent, in substantially the form of
Exhibit F-1 hereto or an agreement entered into by the Borrower and a
bank or other financial institution becoming a Lender pursuant to
Section 2.20, and accepted by the Agent, in substantially the form of
Exhibit F-2 hereto.
"Indemnified Party" means any or all of the Lenders, the
Arranger and the Agent.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same A Borrowing, the period beginning on the
date of such Advance or the date of the Conversion of any Advance into
such 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. The
duration of each such Interest Period for a Eurodollar Rate Advance
shall be one, two, three or six months, or, subject to availability to
each Lender, nine or twelve months, in each case as the Borrower may,
upon notice received by the Agent not later than 12:00 noon (New York
City time) on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
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(i) the duration of any Interest Period which commences
before the Termination Date and would otherwise end after the
Termination Date shall end on the Termination Date;
(ii) if the last day of such Interest Period would
otherwise occur on a day which is not a Business Day, such
last day shall be extended to the next succeeding Business
Day, except if such extension would cause such last day to
occur in a new calendar month, then such last day shall occur
on the next preceding Business Day;
(iii) Interest Periods commencing on the same date for A
Advances comprising the same A Borrowing shall be of the same
duration; and
(iv) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall, subject to clause (i)
above, end on the last Business Day of a calendar month.
"Lenders" means the Initial Lenders, each bank or other
financial institution that shall become a party hereto pursuant to
Section 2.20, each Eligible Assignee that shall become a party hereto
pursuant to Section 8.07(a), (b) and (d) and, except when used in
reference to an A Advance, an A Borrowing, an A Note, a Commitment or
a term related to any of the foregoing, each Designated Bidder.
"Lien" means any lien, security interest or other charge or
encumbrance, or any assignment of the right to receive income, or any
other type of preferential arrangement, in each case to secure any
Debt or any Guaranty of any Person.
"Majority Lenders" means at any time Lenders holding at least
51% of the then aggregate unpaid principal amount of the A Notes held
by Lenders, or, if no such principal amount is then outstanding,
Lenders having at least 51% of the Commitments.
"Margin Stock" means "margin stock" as defined in Regulation U
of the Board of Governors of the Federal Reserve System, as in effect
from time to time.
"Material Adverse Effect" means a material adverse effect on
the financial condition or operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis.
"Material Plan" means any Plan the assets of which exceed
$50,000,000 or the liabilities of which for unfunded vested benefits
determined on a plan termination basis (in accordance with Title IV of
ERISA) exceed $10,000,000.
"Material Subsidiary" means, from time to time, any Subsidiary
of the Borrower then owning assets (determined on a consolidated
basis) that equal or exceed 5% of the book value of the consolidated
assets of the Borrower and its consolidated Subsidiaries at such time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making or accruing an obligation
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to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions, such plan
being maintained pursuant to one or more collective bargaining
agreements.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which (i) is maintained for
employees of the Borrower or an ERISA Affiliate and at least one
Person other than the Borrower and its ERISA Affiliates or (ii) was so
maintained and in respect of which the Borrower or an ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section
2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.19(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Assets" means (i) hydrocarbon or other reserves
(including, without limitation, proved, probable, possible or
speculative reserves), (ii) properties, assets, rights or business
related to reserves (including, without limitation, real property,
gathering systems, plants, pipelines, equipment and processing and
treatment facilities), (iii) other fixed or operating assets and (iv)
the stock of any and all companies that are or become Subsidiaries of
the Borrower owning assets referred to in any of the foregoing
clauses.
"Permitted Liens" means
(a) inchoate Liens and charges imposed by law and
incidental to construction, maintenance, development or operation of
properties, or the operation of business, in the ordinary course of
business if payment of the obligation secured thereby is not yet
overdue or if the validity or amount of which is being contested in
good faith by the Borrower or any Subsidiary of the Borrower;
(b) Liens for taxes, assessments, obligations under
workers' compensation or other social security legislation or other
governmental requirements, charges or levies, in each case not yet
overdue;
(c) Liens reserved in any oil, gas or other mineral lease
entered into in the ordinary course of business for rent, royalty or
delay rental under such lease and for compliance with the terms of
such lease;
(d) easements, servitudes, rights-of-way and other
rights, exceptions, reservations, conditions, limitations, covenants
and other restrictions which do not materially interfere with the
operation, value or use of the properties affected thereby;
(e) conventional provisions contained in any contracts or
agreements affecting properties under which the Borrower or a
Subsidiary of the Borrower is required immediately before the
expiration, termination or abandonment of a particular property to
reassign to the
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Borrower's or a Subsidiary's predecessor in title all or a portion of
the Borrower's or such Subsidiary's rights, titles and interests in
and to all or a portion of such property;
(f) any Lien reserved in a grant or conveyance in the
nature of a farm-out or conditional assignment to the Borrower or any
of its Subsidiaries entered into in the ordinary course of business on
reasonable terms to secure undertakings of the Borrower or such
Subsidiary in such grant or conveyance; and
(g) any Lien consisting of (i) statutory landlord's liens
under leases to which the Borrower or any Subsidiary of the Borrower
is a party or other Liens on leased property reserved in leases
thereof for rent or for compliance with the terms of such leases, (ii)
rights reserved to or vested in any municipality or governmental,
statutory or public authority to control or regulate any property of
the Borrower or any of its Subsidiaries or to use such property in any
manner which does not materially impair the use of such property for
the purposes for which it is held by the Borrower or any such
Subsidiary, (iii) obligations or duties to any municipality or public
authority with respect to any franchise, grant, license, lease or
permit and the rights reserved or vested in any governmental authority
or public utility to terminate any such franchise, grant, license,
lease or permit or to condemn or expropriate any property, and (iv)
zoning laws and ordinances and municipal regulations.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
country or any political subdivision thereof or any agency or
instrumentality of such country or subdivision.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Process Agent" has the meaning specified in Section 8.09(a).
"Reference Banks" means Citibank, ▇▇▇▇▇▇ Guaranty Trust
Company of New York and Union Bank of Switzerland.
"Register" has the meaning specified in Section 8.07(c).
"S&P" means Standard and Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc. on the date hereof.
"Short-Term Revolving Credit Agreement" means the Short-Term
Revolving Credit Agreement dated as of July 20, 1994 among the
Borrower, the financial institutions party thereto and Citibank, N.A.,
as agent for such financial institutions, as amended by the First
Amendment to Short-Term Credit Agreement dated as of July 14, 1995 and
by the Second Amendment to Short-Term Credit Agreement dated as of
July 12, 1996, and as such credit agreement may be further amended or
otherwise modified from time to time.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for
employees of the Borrower or an ERISA Affiliate and no Person other
than the Borrower and its ERISA Affiliates or (ii) was so maintained
and in respect of which the Borrower or an ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
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"Subsidiary" means, as to any Person, any corporation of which
at least a majority of the outstanding stock having by the terms
thereof ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall or
might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly beneficially owned or controlled
by such Person or one or more of its Subsidiaries or by such Person
and one or more of the Subsidiaries of such Person.
"Termination Date" means the earlier of (i) July 20, 2001 and
(ii) the date of termination in whole of the Commitments pursuant to
Section 2.04 or 6.01.
"Termination Event" means (i) 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 (ii) the withdrawal
of the Borrower 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 Borrower or any ERISA Affiliate under Section 4064 of
ERISA upon the termination of a Multiple Employer Plan, or (iii) the
filing of a notice of intent to terminate a Plan or the treatment of a
Plan amendment as a termination under Section 4041 of ERISA, or (iv)
the institution of proceedings to terminate a Plan by the PBGC under
Section 4042 of ERISA, or (v) the conditions set forth in Section
302(f)(1)(A) and (B) of ERISA to the creation of a lien upon property
or rights to property of the Borrower or any ERISA Affiliate for
failure to make a required payment to a Plan are satisfied, or (vi)
the adoption of an amendment to a Plan requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA, or (vii) 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.
"Type" has the meaning specified in the definition of "A
Advance".
"Withdrawal Liability" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. Unless otherwise
stated in this Agreement, in the computation of a period 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."
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles either (i) consistent with those principles
applied in the preparation of the annual financial statements referred to in
Section 4.01(e), or (ii) not so materially inconsistent with such principles
that a covenant contained in Section 5.01 or 5.02 would be calculated or
construed in a materially different manner or with materially different results
than if such covenant were calculated or construed in accordance with clause
(i) of this Section 1.03.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make A Advances to the
Borrower from time to time on any Business Day during the period from the date
hereof to and including the Termination Date in an aggregate amount not to
exceed at any time outstanding the amount set forth opposite such Lender's name
on the signature pages hereof under the caption "Commitments", or, if such
Lender has entered into any Assignment and Acceptance or Increase Agreement,
set forth for such Lender in the Register maintained by the Agent pursuant to
Section 8.07(c), as such amount may be reduced pursuant to Section 2.04 (such
Lender's "Commitment"), provided that the aggregate amount of the Commitments
of the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the B Advances then outstanding and such deemed use of the
aggregate amount of such Commitments shall be applied to all the Lenders
ratably according to their respective Commitments (such deemed use of the
aggregate amount of the Commitments being a "B Reduction"). Each A Borrowing
shall be in an aggregate amount of $10,000,000 in the case of an A Borrowing
comprised of Base Rate Advances and $25,000,000 in the case of an A Borrowing
comprised of Eurodollar Rate Advances, or, in either case an integral multiple
of $1,000,000 in excess thereof (or, in the case of an A Borrowing of Base Rate
Advances, the aggregate unused Commitments, if less) and shall consist of A
Advances of the same Type made on the same day by the Lenders ratably according
to their respective Commitments. Within the limits of each Lender's
Commitment, the Borrower may make more than one Borrowing on any Business Day
and may borrow, prepay pursuant to Section 2.10, and reborrow under this
Section 2.01.
SECTION 2.02. Making the A Advances.
(a) Each A Borrowing shall be made on notice by the
Borrower to the Agent (a "Notice of A Borrowing") received by the Agent, (i) in
the case of a proposed A Borrowing comprised of Base Rate Advances, not later
than 10:00 A.M. (New York City time) on the Business Day of such proposed A
Borrowing, and (ii) in the case of a proposed A Borrowing comprised of
Eurodollar Rate Advances, not later than 12:00 noon (New York City time) on the
third Business Day prior to the date of such proposed A Borrowing. Each Notice
of A Borrowing shall be by telecopy, telefax or other teletransmission or by
telephone (and if by telephone, confirmed promptly by telecopier, telefax or
other teletransmission), in substantially the form of Exhibit C hereto,
specifying therein the requested (w) date of such A Borrowing, (x) Type of A
Advances comprising such A Borrowing, (y) aggregate amount of such A Borrowing,
and (z) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the
initial Interest Period for each such A Advance. Each Lender shall, before 1:00
p.m. (New York City time) on the date of such A Borrowing, make available for
the account of its Applicable Lending Office to the Agent at its address at
Citibank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Reference: Burlington
Resources Inc., or at such other location designated by notice from the Agent to
the Lenders pursuant to Section 8.02, in same day funds, such Lender's ratable
portion of such A Borrowing. Immediately after the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Agent will make such funds available to the Borrower at Citibank, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at any account of the Borrower maintained by
the Agent (or any successor Agent) designated by the Borrower and agreed to by
the Agent (or such successor Agent), in same day funds.
(b) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrower. In the case of any A Borrowing which the related
Notice of A Borrowing specified is to be comprised
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of Eurodollar Rate Advances, if such A Advances are not made as a result of any
failure to fulfill on or before the date specified for such A Borrowing the
applicable conditions set forth in Article III, the Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a
result of such failure, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the A Advance to be made by such
Lender as part of such A Borrowing.
(c) Unless the Agent shall have received notice from a
Lender prior to the date of any A Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such A Borrowing, the
Agent may assume that such Lender has made such portion available to the Agent
on the date of such A Borrowing in accordance with subsection (a) of this
Section 2.02 and the Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent such Lender shall not have so made such ratable portion available to the
Agent, such Lender and the Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Agent, at the Effective Federal Funds
Rate for such day. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's A Advance to the
Borrower as part of such A Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the A Advance to be
made by it as part of any A Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the A Advance to be made by such other Lender on the date of any
A Borrowing.
SECTION 2.03. Fees.
(a) Facility Fee. The Borrower agrees to pay to each Lender
(other than a Designated Bidder) a facility fee on the average daily amount of
such Lender's Commitment, whether or not used or deemed used, from the date
hereof in the case of each Initial Lender and from the effective date specified
in the Assignment and Acceptance or Increase Agreement pursuant to which it
became a Lender in the case of each other Lender, in each case until the
Termination Date, payable quarterly in arrears on the last day of each March,
June, September and December during the term of such Lender's Commitment and on
the Termination Date, at a rate per annum equal to the Facility Fee Percentage
in effect from time to time.
(b) Agency Fee. The Borrower agrees to pay to the Agent, for
its own account, such agency fees as may be separately agreed to in writing by
the Borrower and the Agent, such fees to be in the amounts and payable on the
dates as may be so agreed to.
(c) Arrangement Fee. The Borrower agrees to pay to the
Agent, for its own account, an arrangement fee in the amount and payable on the
date separately agreed to in writing by the Agent and the Borrower.
SECTION 2.04. Reduction of the Commitments. The Borrower
shall have the right, upon at least three Business Days' notice to the Agent,
to terminate in whole or reduce ratably in part the unused portions of the
Commitments of the Lenders (being the amount by which such Commitments exceed
the aggregate outstanding principal amount of all Advances), provided that each
partial
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reduction shall be in the aggregate amount of $20,000,000 or any whole multiple
of $1,000,000 in excess thereof.
SECTION 2.05. Repayment of A Advances. The Borrower shall
repay to each Lender on the Termination Date the aggregate principal amount of
the A Advances then owing to such Lender.
SECTION 2.06. Interest on A Advances.
(a) Ordinary Interest. The Borrower shall pay interest on
the unpaid principal amount of each A Advance owing to each Lender from the
date of such A Advance until such principal amount is due (whether at stated
maturity, by acceleration or otherwise), at the following rates:
(i) Base Rate Advances. During such periods as such A
Advance is a Base Rate Advance, a rate per annum equal at all times to
the Base Rate in effect from time to time, payable quarterly in
arrears on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or due (whether at stated maturity, by acceleration or
otherwise).
(ii) Eurodollar Rate Advances. During such periods as such A
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such A Advance to the sum of the
Eurodollar Rate for such Interest Period plus the Eurodollar Rate
Margin in effect from time to time, payable on the last day of each
such Interest Period and, if any such Interest Period has a duration
of more than three months, on each day which occurs during such
Interest Period every three months from the first day of such Interest
Period and, if such A Advance is Converted into a Base Rate Advance on
any date other than the last day of any Interest Period for such A
Advance, on the date of such Conversion or, if later, the Business Day
on which the Borrower shall have received at least one Business Day's
prior notice from the Agent or the applicable Lender of the amount of
unpaid interest accrued on such A Advances to the date of such
Conversion.
(b) Default Interest. The Borrower shall pay interest on the
unpaid principal amount of each Advance that is not paid when due (whether at
stated maturity, by acceleration or otherwise) from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times (i) from such due date to the last day of the then
existing Interest Period therefor, in the case of each Eurodollar Rate Advance,
to 1% per annum above the interest rate per annum required to be paid on such A
Advance immediately prior to the date on which such amount became due and (ii)
from and after the last day of the then existing Interest Period therefor, in
the case of each Eurodollar Rate Advance, and at all times in the case of each
Base Rate Advance or B Advance, to 1% per annum above the Base Rate in effect
from time to time.
SECTION 2.07. Additional Interest on Eurodollar Rate
Advances. If any Lender shall determine in good faith that reserves under
regulations of the Board of Governors of the Federal Reserve System are
required to be maintained by it in respect of, or a portion of its costs of
maintaining reserves under such regulations is properly attributable to, one or
more of its Eurodollar Rate Advances, the Borrower shall pay to such Lender
additional interest on the unpaid principal amount of each such Eurodollar Rate
Advance (other than any such additional interest accruing to a particular
Lender in respect of periods prior to the 30th day preceding the date notice of
such interest is given by such Lender as provided in this Section 2.07),
payable on the same day or days on which interest is payable on such A Advance,
at an interest rate per annum equal at all times during each Interest Period
for such
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A Advance to the excess of (i) the rate obtained by dividing the Eurodollar
Rate for such Interest Period by a percentage equal to 100% minus the
Eurodollar Reserve Percentage, if any, for such Lender for such Interest Period
over (ii) the Eurodollar Rate for such Interest Period. The amount of such
additional interest (if any) shall be determined by each Lender, and such
Lender shall furnish written notice of the amount of such additional interest
to the Borrower and the Agent, which notice shall be conclusive and binding for
all purposes, absent manifest error.
SECTION 2.08. Interest Rate Determination.
(a) Each Reference Bank agrees to furnish to the Agent
timely information for the purpose of determining each Eurodollar Rate. If any
one or more of the Reference Banks shall not furnish such timely information to
the Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks.
(b) The Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.06(a)(i) or (ii), and the applicable rate, if any,
furnished by each Reference Bank for the purpose of determining the applicable
interest rate under Section 2.06(a)(ii).
(c) If fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurodollar Rate for any applicable
A Advances,
(i) the Agent shall give the Borrower and each Lender prompt
notice by telephone (confirmed in writing) that the interest rate
cannot be determined for such applicable A Advances,
(ii) each such A Advance that is a Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance (or if such A Advance is
then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligations of the Lenders to make, or to Convert A
Advances into, Eurodollar Rate Advances, as the case may be, shall be
suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders determine and give notice to the Agent that as a result of
conditions in or generally affecting the relevant market, the rates of interest
determined on the basis of the Eurodollar Rate for any Interest Period for such
A Advances will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon,
(i) each such Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert A
Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
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(e) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Agent will forthwith so notify the Borrower and the Lenders and such
Eurodollar Rate Advances will automatically, on the last day of the then
existing Interest Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal
amount of A Advances comprising any A Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $10,000,000, such A Advances shall, if
they are Eurodollar Rate Advances, automatically Convert into Base Rate
Advances, and on and after such date the right of the Borrower to Convert such
A Advances into Eurodollar Rate Advances shall terminate; provided, however,
that if and so long as each such A Advance shall be, or be elected to be
Converted to, Eurodollar Rate Advances having the same Interest Period as
Eurodollar Rate Advances comprising another A Borrowing or other A Borrowings,
and the aggregate unpaid principal amount of all such Eurodollar Rate Advances
shall, or upon such Conversion will, equal or exceed $20,000,000, the Borrower
shall have the right to continue all such Eurodollar Rate Advances as, or to
Convert all such A Advances into, Eurodollar Rate Advances having such Interest
Period.
SECTION 2.09. Voluntary Conversion of A Advances. The
Borrower may on any Business Day, upon notice given to the Agent, not later
than 10:00 A.M. (New York City time) on the Business Day of the proposed
Conversion of Eurodollar Rate Advances to Base Rate Advances, and not later
than 12:00 noon (New York City time) on the third Business Day prior to the
date of the proposed Conversion in the case of a Conversion of Base Rate
Advances to Eurodollar Rate Advances, and subject to the provisions of Section
2.08, 2.11 and 2.13, Convert all A Advances of one Type comprising the same A
Borrowing into A Advances of the other Type; provided, however, that any
Conversion of any Eurodollar Rate Advances into Base Rate Advances made on any
day other than the last day of an Interest Period for such Eurodollar Rate
Advances shall be subject to the provisions of Section 8.04(b). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the A Advances to be Converted, and (iii)
if such Conversion is into Eurodollar Rate Advances, the duration of the
Interest Period for each such Eurodollar Rate Advance.
SECTION 2.10. Prepayments. The Borrower may, upon (i) in the
case of Eurodollar Rate Advances, at least two Business Days notice or (ii) in
the case of Base Rate Advances, telephonic notice not later than 12:00 noon
(New York City time) on the date of prepayment, to the Agent which specifies
the proposed date and aggregate principal amount of the prepayment and the Type
of A Advances to be prepaid, and if such notice is given the Borrower shall,
prepay the outstanding principal amounts of the A Advances comprising the same
A Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in
the event of any such prepayment of Eurodollar Rate Advances on any day other
than the last day of an Interest Period for such Eurodollar Rate Advances, the
Borrower shall be obligated to reimburse the Lenders in respect thereof
pursuant to, and to the extent required by, Section 8.04(b); provided, further,
however, that the Borrower will use its best efforts to give notice to the
Agent of the proposed prepayment of Base Rate Advances on the Business Day
prior to the date of such proposed prepayment.
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SECTION 2.11. Increased Costs.
(a) If, due to either (i) the introduction after the date of
this Agreement of or any change after the date of this Agreement (including any
change by way of imposition or increase of reserve requirements or assessments
other than those referred to in the definition of "Eurodollar Reserve
Percentage" contained in Section 1.01) in or in the interpretation of any law
or regulation or (ii) the compliance with any guideline or request issued or
made after the date of this Agreement from or by any central bank or other
governmental authority (whether or not having the force of law), in each case
above other than those referred to in Section 2.12, there shall be any increase
in the cost to any Lender of agreeing to make, fund or maintain, or of making,
funding or maintaining, Eurodollar Rate Advances funded in the interbank
Eurodollar market, then the Borrower shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to reimburse such Lender
for all such increased costs (except those incurred more than 60 days prior to
the date of such demand; for the purposes hereof any cost or expense allocable
to a period prior to the publication or effective date of such an introduction,
change, guideline or request shall be deemed to be incurred on the later of
such publication or effective date). Each Lender agrees to use its best
reasonable efforts promptly to notify the Borrower of any event referred to in
clause (i) or (ii) above, provided that the failure to give such notice shall
not affect the rights of any Lender under this Section 2.11(a) (except as
otherwise expressly provided above in this Section 2.11(a)). A certificate as
to the amount of such increased cost, submitted to the Borrower and the Agent
by such Lender, shall be conclusive and binding for all purposes, absent
manifest error. After one or more Lenders have notified the Borrower of any
increased costs pursuant to this Section 2.11, the Borrower may specify by
notice to the Agent and the affected Lenders that, after the date of such
notice whenever the election of a Eurodollar Rate Advance by the Borrower for
an Interest Period or portion thereof would give rise to such increased costs,
such election shall not apply to the A Advances of such Lender or Lenders
during such Interest Period or portion thereof, and, in lieu thereof, such A
Advances shall during such Interest Period or portion thereof be Base Rate
Advances. Each Lender agrees to use its best reasonable efforts (including,
without limitation, a reasonable effort to change its Applicable Lending Office
or to transfer its affected A Advances to an Affiliate of such Lender) to
avoid, or minimize the amount of, any demand for payment from the Borrower
under this Section 2.11.
(b) In the event that any Lender shall change its Eurodollar
Lending Office and such change results (at the time of such change) in
increased costs to such Lender, the Borrower shall not be liable to such Lender
for such increased costs incurred by such Lender to the extent, but only to the
extent, that such increased costs shall exceed the increased costs which such
Lender would have incurred if the Eurodollar Lending Office of such Lender had
not been so changed, but, subject to subsection (a) of this Section 2.11 and to
Section 2.13, nothing herein shall require any Lender to change its Eurodollar
Lending Office for any reason.
SECTION 2.12. Increased Capital. If either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) compliance by any Lender with any guideline or request from
any central bank or other governmental authority (whether or not having the
force of law) affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender and such Lender determines that the amount of such capital is increased
by or based upon the existence of such Lender's commitment to lend hereunder
and other commitments of this type, then, within ten days after demand, and
delivery to the Borrower of the certificate referred to in the last sentence of
this Section 2.12 by such Lender (with a copy of such demand to the Agent), the
Borrower shall pay to the Agent for the account of such Lender, from time to
time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such
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corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder (except any such increase in
capital incurred more than, or compensation attributable to the period before,
90 days prior to the date of such demand; for the purposes hereof any increase
in capital allocable to, or compensation attributable to, a period prior to the
publication or effective date of such an introduction, change, guideline or
request shall be deemed to be incurred on the later of such publication or
effective date). Each Lender agrees to use its best reasonable efforts
promptly to notify the Borrower of any event referred to in clause (i) or (ii)
above, provided that the failure to give such notice shall not affect the
rights of any Lender under this Section 2.12 (except as otherwise expressly
provided above in this Section 2.12). A certificate in reasonable detail as to
the basis for, and the amount of, such compensation submitted to the Borrower
and the Agent by such Lender shall, in the absence of manifest error, be
conclusive and binding for all purposes.
SECTION 2.13. Illegality. Notwithstanding any other
provision of this Agreement, if the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for any
Lender or its Applicable Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to continue to fund or maintain such Advances
hereunder, such Lender may, by notice to the Borrower and the Agent, suspend
the right of the Borrower to elect Eurodollar Rate Advances from such Lender
and, if necessary in the reasonable opinion of such Lender to comply with such
law or regulation, Convert all such Eurodollar Rate Advances of such Lender to
Base Rate Advances at the latest time permitted by the applicable law or
regulation, and such suspension and, if applicable, such Conversion shall
continue until such Lender notifies the Borrower and the Agent that the
circumstances making it unlawful for such Lender to perform such obligations no
longer exist (which such Lender shall promptly do when such circumstances no
longer exist). So long as the obligation of any Lender to make Eurodollar Rate
Advances has been suspended under this Section 2.13, all Notices of A Borrowing
specifying A Advances of such Type shall be deemed, as to such Lender, to be
requests for Base Rate Advances. Each Lender agrees to use its best reasonable
efforts (including, without limitation, a reasonable effort to change its
Applicable Lending Office or to transfer its affected A Advances to an
affiliate) to avoid any such illegality.
SECTION 2.14. Payments and Computations.
(a) The Borrower shall make each payment hereunder
(including, without limitation, under Section 2.03, 2.05 or 2.06) and under the
Notes, whether the amount so paid is owing to any or all of the Lenders or to
the Agent, not later than 1:00 P.M. (New York City time) without setoff,
counterclaim, or any other deduction whatsoever, on the day when due in U.S.
dollars to the Agent at Citibank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
Reference: Burlington Resources Inc., or at such other location designated by
notice to the Borrower from the Agent and agreed to by the Borrower, in same
day funds. Each such payment made by the Borrower for the account of any
Lender hereunder, when so made to the Agent, shall be deemed duly made for all
purposes of this Agreement and the A Notes, except that if at any time any such
payment is rescinded or must otherwise be returned by the Agent or any Lender
upon the bankruptcy, insolvency or reorganization of the Borrower or otherwise,
such payment shall be deemed not to have been so made. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or fees ratably (other than amounts payable pursuant to
Section 2.07, 2.11, 2.12, 2.13, 2.15, 2.19 or 8.04(b)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance
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of an Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 8.07(d), from and after the
effective date specified in such Assignment and Acceptance, the Agent shall
make all payments hereunder and under the A Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Base Rate
and of facility fees shall be made by the Agent on the basis of a year of 365
or 366 days, as the case may be, and all computations of interest based on the
Eurodollar Rate, or the Effective Federal Funds Rate shall be made by the
Agent, and all computations of interest pursuant to Section 2.07 shall be made
by each Lender with respect to its own Eurodollar Rate Advances, 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 fees are payable. Each determination by the Agent (or, in the
case of Section 2.07, 2.11, 2.12, 2.13, 2.15, 2.19 or 8.04(b), by each Lender
with respect to its own Advances) of an interest rate or an increased cost,
loss or expense or increased capital or of illegality or taxes hereunder shall
be conclusive and binding for all purposes if made reasonably and in good
faith.
(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
facility fees, as the case may be; provided, however, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender
repays such amount to the Agent, at a rate equal to the Effective Federal Funds
Rate for such day.
SECTION 2.15. Taxes.
(a) Any and all payments by the Borrower hereunder or under
the Notes shall be made in accordance with Section 2.14, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding in the case of each Indemnified Party, (i) all taxes, levies,
imposts, deductions, charges, or withholdings, and all liabilities with respect
thereto, imposed on or determined by reference to its income, and all franchise
taxes, and (ii) all other taxes, levies, imposts, deductions, charges, or
withholdings in effect at the time that such Indemnified Party executed this
Agreement or otherwise became an "Indemnified Party" hereunder, and liabilities
with respect thereto, imposed on it by reason of the jurisdiction in which such
Indemnified Party is organized, domiciled, resident or doing business, or any
political subdivision thereof, or by reason of the jurisdiction of its
Applicable Lending Office or any other office from which it makes or maintains
any extension of credit hereunder or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
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liabilities in respect of payments under this Agreement or under the Notes
being herein referred to as "Taxes"). If the Borrower shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note to any Indemnified Party, (i) 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 2.15) such
Indemnified Party receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower (or the Agent, as
applicable) shall make such deductions at the applicable statutory rate and
(iii) the Borrower (or the Agent, as applicable) shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law, provided that the Borrower shall not be required to pay
any additional amount (and shall be relieved of any liability with respect
thereto) pursuant to this subsection (a) (or pursuant to Section 2.15(c),
except to the extent Section 2.15(c) relates to Other Taxes) to any Indemnified
Party that either (x) on the date such Indemnified Party executed this
Agreement or otherwise became an "Indemnified Party" hereunder, both (A) was
not entitled to submit a U.S. Internal Revenue Service form 1001 (relating to
such Indemnified Party, and entitling it to a complete exemption from
withholding on all amounts to be received by such Indemnified Party, including
fees, pursuant to this Agreement or the Advances) or a U.S. Internal Revenue
Service form 4224 (relating to all amounts to be received by such Indemnified
Party, including fees, pursuant to this Agreement and the Advances) and (B) is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Internal Revenue Code), or (y) has failed to submit any form or certificate
that it was required to file or provide pursuant to subsection (d) of this
Section 2.15 and is entitled to file or give, as applicable, under applicable
law, provided, further, that should an Indemnified Party become subject to
Taxes because of its failure to deliver a form required hereunder, the Borrower
shall take such administrative steps as such Indemnified Party shall reasonably
request to assist such Indemnified Party to recover such Taxes, and provided
further, that each Indemnified Party, with respect to itself, agrees to
indemnify and hold harmless the Borrower from any taxes, penalties, interest
and other expenses, costs and losses incurred or payable by the Borrower as a
result of the failure of the Borrower to comply with its obligations under
clauses (ii) or (iii) above in reliance on any form or certificate provided to
it by such Indemnified Party pursuant to this Section 2.15. If any Indemnified
Party receives a net credit or refund in respect of such Taxes or amounts so
paid by the Borrower, it shall promptly notify the Borrower of such net credit
or refund and shall promptly pay such net credit or refund to the Borrower,
provided that the Borrower agrees to return such net credit or refund if the
Indemnified Party to which such net credit or refund is applicable, is required
to repay it.
(b) In addition, the Borrower agrees to pay 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").
(c) The Borrower will indemnify each Indemnified Party for
the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.15) paid by such Indemnified Party and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto
except as a result of the gross negligence (which shall in any event include
the failure of such Indemnified Party to provide to the Borrower any form or
certificate that it was required to provide pursuant to subsection (d) below)
or willful misconduct of such Indemnified Party, whether or not such Taxes or
Other Taxes were correctly or legally asserted. This indemnification shall be
made within 30 days from the date such Indemnified Party makes written demand
therefor.
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(d) On or prior to the date on which each Indemnified Party
organized under the laws of a jurisdiction outside the United States executes
this Agreement or otherwise becomes an "Indemnified Party" hereunder, such
Indemnified Party shall provide the Borrower and the Agent with U.S. Internal
Revenue Service form 1001 or 4224, as appropriate, or any successor form
prescribed by the U.S. Internal Revenue Service, certifying that such
Indemnified Party is fully exempt from United States withholding taxes with
respect to all payments to be made to such Indemnified Party hereunder, or
other documents satisfactory to the Borrower indicating that all payments to be
made to such Indemnified Party hereunder are fully exempt from such taxes.
Thereafter and from time to time, each such Indemnified Party shall submit to
the Borrower and the Agent such additional duly completed and signed copies of
one or the other of such forms (or such successor forms as shall be adopted
from time to time by the relevant United States taxing authorities) as may be
(i) notified by the Borrower to such Indemnified Party and (ii) required under
then-current United States law or regulations to avoid United States
withholding taxes on payments in respect of all amounts to be received by such
Indemnified Party pursuant to this Agreement or the Notes, including without
limitation fees. Upon the request of the Borrower from time to time, each
Indemnified Party that is a United States person (as such term is defined in
Section 7701(a)(30) of the Internal Revenue Code) shall submit to the Borrower
a certificate to the effect that it is such a United States person. If any
Indemnified Party determines, as a result of any change in applicable law,
regulation or treaty, or in any official application or interpretation thereof,
that it is unable to submit to the Borrower any form or certificate that such
Indemnified Party is obligated to submit pursuant to this subsection (d), or
that such Indemnified Party is required to withdraw or cancel any such form or
certificate previously submitted, such Indemnified Party shall promptly notify
the Borrower and the Agent of such fact.
(e) Any Indemnified Party claiming any additional amounts
payable pursuant to this Section 2.15 shall use its best reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if the making of such
a change would avoid the need for, or reduce the amount of, any such additional
amounts which may thereafter accrue and would not, in the reasonable judgment
of such Indemnified Party, be otherwise disadvantageous to such Indemnified
Party.
(f) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower and
each Indemnified Party contained in this Section 2.15 shall survive the payment
in full of principal and interest hereunder and under the Notes.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the A Advances made by it (other
than pursuant to Section 2.07, 2.11, 2.12, 2.13, 2.15 or 8.04(b)) in excess of
its ratable share of payments on account of the A Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the A Advances made by them as shall be necessary to cause
such purchasing Lender 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 Lender, such purchase from each
Lender shall be rescinded and each Lender shall repay to the purchasing Lender
the purchase price to the extent of such Lender's ratable share (according to
the proportion of (i) the amount of the participation purchased from such
Lender as a result of such excess payment to (ii) the total amount of such
excess payment) of such recovery together with an amount equal to such Lender's
ratable share (according to the proportion of (i) the amount of such Lender's
required repayment to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower agrees that
any Lender so purchasing a participation
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from another Lender pursuant to this Section 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 Lender were the
direct creditor of the Borrower in the amount of such participation.
SECTION 2.17. Evidence of Debt. The indebtedness of the
Borrower to each Lender in respect of principal of and interest on the A
Advances shall be evidenced by an A Note payable to the order of such Lender
and delivered hereunder by the Borrower. Notwithstanding the provisions of the
A Notes for notations to be made on the grid attached thereto, any Lender may
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower resulting from A Advances and
payments made from time to time hereunder and under the A Note payable to its
order. In any legal action or proceeding in respect of this Agreement or such
A Note, the entries made in such account or accounts shall be conclusive
evidence of the existence and amounts of the obligations of the Borrower
therein recorded, absent manifest error.
SECTION 2.18. Use of Proceeds. Proceeds of the Advances may
be used for general corporate purposes of the Borrower and its Subsidiaries,
including, without limitation, for acquisitions and for payment of commercial
paper issued by the Borrower.
SECTION 2.19. The B Advances.
(a) Each Lender severally agrees that the Borrower may
make B Borrowings under this Section 2.19 from time to time on any Business Day
during the period from the date hereof until the earlier of (I) the Termination
Date or (II) June 15, 2001, in the manner set forth below; provided that (x)
each B Borrowing shall be in an aggregate amount of $25,000,000 or an integral
multiple of $5,000,000 in excess thereof and (y) following the making of each B
Borrowing, the aggregate number of outstanding B Borrowings shall not exceed
seven and the aggregate amount of all Advances then outstanding shall not exceed
the aggregate amount of the Commitments of the Lenders (computed without regard
to any B Reduction).
(i) The Borrower may request a B Borrowing under this Section
2.19 by delivering to the Agent, by telecopy, telefax or other
teletransmission, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit D hereto, specifying
the date and aggregate amount of the proposed B Borrowing, the
maturity date for repayment of each B Advance to be made as part of
such B Borrowing (which maturity date may not be earlier than the date
occurring 30 days after the date of such B Borrowing or later than the
earlier of (x) 180 days after the date of such B Borrowing or (y) July
15, 2001), the interest payment date or dates relating thereto, and
any other terms to be applicable to such B Borrowing, not later than
10:00 A.M. (New York City time) (A) at least one Business Day prior to
the date of the proposed B Borrowing, if the Borrower shall specify in
the Notice of B Borrowing that the rates of interest to be offered by
the Lenders shall be fixed rates per annum and (B) at least four
Business Days prior to the date of the proposed B Borrowing, if the
Borrower shall instead specify in the Notice of B Borrowing the basis
to be used by the Lenders in determining the rates of interest to be
offered by them. The Agent shall in turn promptly notify each Lender
of each request for a B Borrowing received by it from the Borrower by
sending such Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if in its sole and absolute discretion
it elects to do so, irrevocably offer to make one or more B Advances to
the Borrower as part of such proposed B Borrowing at a rate or rates
of interest specified by such Lender in its sole discretion, by
notifying the Agent (which shall give prompt notice thereof to the
Borrower), before 10:00 A.M. (New York City
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time) (x) on the date of such proposed B Borrowing in the case of a
Notice of B Borrowing delivered pursuant to clause (A) of paragraph (i)
above, and (y) three Business Days before the date of such proposed B
Borrowing in the case of a Notice of B Borrowing delivered pursuant to
clause (B) of paragraph (i) above, of the minimum amount and maximum
amount of each B Advance which such Lender would be willing to make as
part of such proposed B Borrowing (which amounts may, subject to clause
(y) of the proviso to the first sentence of this Section 2.19(a),
exceed such Lender's Commitment), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to
such B Advance; provided that if the Agent in its capacity as a Lender
shall, in its sole discretion, elect to make any such offer, it shall
notify the Borrower of such offer before 9:45 A.M. (New York City time)
on the date on which notice of such election is to be given to the
Agent by the other Lenders. If any Lender shall elect not to make such
an offer, such Lender shall so notify the Agent, before 10:00 A.M. (New
York City time) on the date on which notice of such election is to be
given to the Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any B Advance as part of such B
Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any B Advance as
part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, before 11:00 A.M. (New York
City time) (x) on the date of such proposed B Borrowing, in the case
of a Notice of B Borrowing delivered pursuant to clause (A) of
paragraph (i) above and (y) three Business Days before the date of
such proposed B Borrowing in the case of a Notice of B Borrowing
delivered pursuant to clause (B) of paragraph (i) above, either
A. cancel such B Borrowing by giving the Agent
notice to that effect, or
B. accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in order
of the lowest to highest rates of interest or margins (or, if
two or more Lenders bid at the same rates of interest, and the
amount of accepted offers is less than the aggregate amount of
such offers, the amount to be borrowed from such Lenders as
part of such B Borrowing shall be allocated among such Lenders
pro rata on the basis of the maximum amount offered by such
Lenders at such rates or margin in connection with such B
Borrowing), in any aggregate amount up to the aggregate amount
initially requested by the Borrower in the relevant Notice of
B Borrowing, by giving notice to the Agent of the amount of
each B Advance (which amount shall be equal to or greater than
the minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the Agent on behalf of
such Lender for such B Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such B Borrowing,
and reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Agent notice to that
effect.
(iv) If the Borrower notifies the Agent that such B Borrowing
is cancelled pursuant to paragraph (iii)(A) above, the Agent shall
give prompt notice thereof to the Lenders and such B Borrowing shall
not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(B) above, the Agent
shall in turn promptly notify (A) each Lender that has made an offer
as described in paragraph (ii) above, of the date and aggregate amount
of such B Borrowing and whether or not any offer or offers made by
such Lender pursuant to
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paragraph (ii) above have been accepted by the Borrower, (B) each
Lender that is to make a B Advance as part of such B Borrowing, of the
amount of each B Advance to be made by such Lender as part of such B
Borrowing, and (C) each Lender that is to make a B Advance as part of
such B Borrowing, upon receipt, that the Agent has received forms of
documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a B Advance as part of such
B Borrowing shall, before 12:00 noon (New York City time) on the date
of such B Borrowing specified in the notice received from the Agent
pursuant to clause (A) of the preceding sentence or any later time
when such Lender shall have received notice from the Agent pursuant to
clause (C) of the preceding sentence, make available for the account
of its Applicable Lending Office to the Agent at its address referred
to in Section 8.02 such Lender's portion of such B Borrowing, in same
day funds. Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Agent of such funds, the Agent
will make such funds available to the Borrower at the Agent's
aforesaid address. Promptly after each B Borrowing the Agent will
notify each Lender of the amount of the B Borrowing, the consequent B
Reduction and the dates upon which such B Reduction commenced and will
terminate.
(b) Within the limits and on the conditions set forth in
this Section 2.19, the Borrower may from time to time borrow under this Section
2.19, repay or prepay pursuant to subsection (c) below, and reborrow under this
Section 2.19.
(c) The Borrower shall repay to the Agent for the account
of each Lender which has made a B Advance, or each other holder of a B Note, on
the maturity date of each B Advance (such maturity date being that specified by
the Borrower for repayment in the related Notice of B Borrowing and provided in
the B Note evidencing such B Advance), the then unpaid principal amount of such
B Advance. The Borrower shall have no right to prepay any B Advance unless, and
then only on the terms, specified by the Borrower for such B Advance in the
related Notice of B Borrowing delivered pursuant to Section 2.19(a)(i) and set
forth in the B Note evidencing such B Advance or unless the holder of such B
Advance otherwise consents in writing to such prepayment.
(d) The Borrower shall pay interest on the unpaid
principal amount of each B Advance from the date of such B Advance to the date
the principal amount of such B Advance is repaid in full at the rate of
interest for such B Advance specified by the Lender making such B Advance in
its notice delivered pursuant to subsection (a)(ii) above on the interest date
or dates specified by the Borrower for such B Advance in the related Notice of
B Borrowing and set forth in the B Note evidencing such B Advance, subject to
Section 2.06(b).
(e) The indebtedness of the Borrower in respect of
principal of and interest on each B Advance made to the Borrower as part of a B
Borrowing shall be evidenced by a separate B Note of the Borrower payable to
the order of the Lender making such B Advance.
(f) Each time that the Borrower gives a Notice of B
Borrowing, the Borrower shall pay to the Agent for its own account such fee as
may be agreed between the Borrower and the Agent from time to time, whether or
not any B Borrowing is in fact made.
(g) Following the making of each B Borrowing, the
Borrower agrees that it will be in compliance with the limitations set forth in
clause (y) of the proviso to the first sentence of Section 2.19(a).
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(h) The failure of any Lender to make the B Advance to be
made by it as part of any B Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its B Advance on the date of such B
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the B Advance to be made by such other Lender on the date of any
B Borrowing. If any Designated Bidder fails to make the B Advance to be made
by it as part of any B Borrowing, such Designated Bidder shall not thereafter
have the right to offer to make any B Advance without the prior written consent
of the Borrower and the Agent.
SECTION 2.20. Increase of Commitments. The Borrower shall
have the right, without the consent of the Lenders or the Agent (except as
contemplated in clauses (d) and (e) of this sentence), to effectuate from time
to time, on any Business Day (but not on more than one Business Day in any
calendar quarter) an increase in the total Commitments under this Agreement (an
"Increase") by adding to this Agreement one or more banks or other financial
institutions (who shall, upon completion of the requirements stated in this
Section 2.20, constitute Lenders hereunder), or by allowing one or more Lenders
to increase their Commitments hereunder, or both, provided that (a) no Increase
in Commitments pursuant to this Section 2.20 shall result in the total
Commitments exceeding $800,000,000 or shall result in the aggregate amount of
the Increases in the Commitments effectuated pursuant to this Section 2.20
since the date of this Agreement exceeding $200,000,000, (b) any Increase in
Commitments pursuant to this Section 2.20 shall be in the amount of $20,000,000
or an integral multiple of $1,000,000 in excess thereof, (c) on the effective
date of each Increase in the Commitments pursuant to this Section 2.20, (i) the
Borrower shall have outstanding public long-term senior unsecured debt
securities that are rated by S&P or ▇▇▇▇▇'▇, (ii) either (1) the lowest such
rating by ▇▇▇▇▇'▇ shall be A3 or better or (2) the lowest such rating by S&P
shall be A- or better, and (iii) no event shall have occurred and be continuing
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, (d) no
Lender's Commitment amount shall be increased without the consent of such
Lender, (e) each new bank or other financial institution, if any, both is
acceptable to the Agent and provides a Commitment of at least $20,000,000, (f)
simultaneously with each increase in the Commitment of any Lender pursuant to
this Section 2.20, the Borrower will cause such Lender's "Commitment" (under
and as defined in the Short-Term Revolving Credit Agreement) to be increased
pursuant to Section 2.20 thereof by the same percentage as such Lender's
Commitment is being increased pursuant to this Section 2.20, unless the Short-
Term Revolving Credit Agreement has been terminated, (g) simultaneously with
the addition of any bank or financial institution pursuant to this Section
2.20, the Borrower will cause such bank or financial institution to become a
party to the Short-Term Revolving Credit Agreement pursuant to Section 2.20
thereof with a "Commitment" (under and as defined in the Short-Term Revolving
Credit Agreement) that constitutes the same percentage of all "Commitments"
thereunder as the percentage that its Commitment hereunder constitutes of all
Commitments hereunder, unless the Short-Term Revolving Credit Agreement has
been terminated, and (h) immediately prior to, or simultaneously with, any
Increase pursuant to this Section 2.20, the Borrower will prepay in accordance
with the terms of this Agreement, all outstanding A Advances, if any
(including, without limitation, prepayment from the proceeds of any A Borrowing
from the Lenders made on the date of such Increase in accordance with this
Agreement and in accordance with their respective Commitments after giving
effect to such Increase). The Borrower shall give the Agent ten Business Days'
notice of the Borrower's intention to effect any Increase in the total
Commitments pursuant to this Section 2.20. Such notice shall specify each new
bank or other financial institution, if any, the changes in amounts of
Commitments that will result, if any, and such other information as is
reasonably requested by the Agent. Each new bank or other financial
institution, and each Lender agreeing to increase its Commitment, shall execute
and deliver to the Agent an Increase Agreement, substantially in the form of
Exhibit F-1 hereto or Exhibit F-2 hereto, as the case may be, pursuant to which
it becomes a party hereto or increases its
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Commitment, as the case may be. In addition, the Borrower shall execute and
deliver an A Note in the principal amount of the Commitment of each new bank or
other financial institution, or a replacement A Note in the principal amount of
the increased Commitment of each Lender agreeing to increase its Commitment, as
the case may be. Such A Notes and other documents of the nature referred to in
Section 3.01 shall be furnished to the Agent in form and substance as may be
reasonably required by it. Upon execution and delivery of such documents, such
new bank or other financial institution shall constitute a "Lender" hereunder
with a Commitment as specified therein, or such Lender's Commitment shall
increase as specified therein, as the case may be. Before effecting any
Increase by addition of any new bank or other financial institution, the
Borrower will first offer the Lenders, by notice to them, the right to
participate in such Increase by increasing their respective Commitments, and
each Lender electing to participate in such Increase shall have the right to
participate in such Increase (by increasing its Commitment in accordance with,
and subject to, this Section 2.20) on a ratable basis.
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of this
Agreement. This Agreement shall become effective when (i) it shall have been
executed by the Borrower and the Agent, (ii) the Agent and the Borrower either
shall have been notified by each Initial Lender that such Initial Lender has
executed it or shall have received a counterpart of this Agreement executed by
such Initial Lender, and (iii) the Agent shall have received the following,
each dated the date of delivery thereof unless otherwise specified below (which
date shall be selected by the Borrower and be the same for all documents and
all Lenders), in form and substance satisfactory to the Agent and (except for
the Notes) in sufficient copies for each Lender:
(a) The A Notes, to the order of the Lenders,
respectively.
(b) Certified copies of the resolutions of the Board of
Directors of the Borrower approving the borrowings contemplated hereby
and authorizing the execution of this Agreement and the Notes, and of
all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
Notes.
(c) A certificate of the Secretary or an Assistant
Secretary of the Borrower (i) certifying names and true signatures of
officers of the Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered hereunder and (ii) if
the date of effectiveness of this Agreement is other than the date
hereof, certifying that the representations and warranties contained
in Section 4.01 are true and correct as of such date of effectiveness.
(d) A favorable opinion of the Borrower's Senior Vice
President, Law or its Vice President, Law, in substantially the form
of Exhibit G hereto.
(e) A favorable opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇,
New York counsel to the Borrower, in substantially the form of Exhibit
H hereto.
(f) A favorable opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P.,
counsel for the Agent, in substantially the form of Exhibit I hereto.
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(g) A letter from the Process Agent, in substantially the
form of Exhibit J hereto, agreeing to act as Process Agent and to
forward forthwith all process received by it to the Borrower.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance (including the initial A
Advance) on the occasion of any A Borrowing shall be subject to the further
conditions precedent that on or before the date of such A Borrowing this
Agreement shall have become effective pursuant to Section 3.01 and that on the
date of such A Borrowing, before and immediately after giving effect to such A
Borrowing and to the application of the proceeds therefrom, the following
statements shall be true and correct, and the giving by the Borrower of the
applicable Notice of A Borrowing and the acceptance by the Borrower of the
proceeds of such A Borrowing shall constitute its representation and warranty
that on and as of the date of such A Borrowing, before and immediately after
giving effect thereto and to the application of the proceeds therefrom, the
following statements are true and correct:
(a) Each representation and warranty contained in Section
4.01 is correct in all material respects as though made on and as of
such date;
(b) No event has occurred and is continuing, or would
result from such A Borrowing, 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
(c) The aggregate amount of the borrowings under this
Agreement (including, without limitation, such A Borrowing) and under
other agreements or facilities or evidenced by other instruments or
documents is not in excess of the aggregate amount of such borrowings
approved as of such date by the Board of Directors of the Borrower.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender which is to make a B Advance on the occasion of any B
Borrowing (including the initial B Borrowing) shall be subject to the further
conditions precedent that (i) at or before the time required by paragraph (iii)
of Section 2.19(a), the Agent shall have received the written confirmatory
notice of such B Borrowing contemplated by such paragraph, (ii) on or before
the date of such B Borrowing, but prior to such B Borrowing, the Agent shall
have received a B Note executed by the Borrower payable to the order of such
Lender for each of the one or more B Advances to be made by such Lender as part
of such B Borrowing, in a principal amount equal to the principal amount of the
B Advance to be evidenced thereby and otherwise on such terms as were agreed to
for such B Advance in accordance with Section 2.19, (iii) on or before the date
of such B Borrowing this Agreement shall have become effective pursuant to
Section 3.01, and (iv) on the date of such B Borrowing, before and immediately
after giving effect to such B Borrowing and to the application of the proceeds
therefrom, the following statements shall be true and correct, and the giving
by the Borrower of the applicable Notice of B Borrowing and the acceptance by
the Borrower of the proceeds of such B Borrowing shall constitute its
representation and warranty that on and as of the date of such B Borrowing,
before and immediately after giving effect thereto and to the application of
the proceeds therefrom, the following statements are true and correct:
(a) Each representation and warranty contained in Section
4.01 is correct in all material respects as though made on and as of
such date;
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(b) No event has occurred and is continuing, or would
result from such B Borrowing, 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
(c) The aggregate amount of the borrowings under this
Agreement (including, without limitation, such B Borrowing) and under
other agreements or facilities or evidenced by other instruments or
documents is not in excess of the aggregate amount of such borrowings
approved as of such date by the Board of Directors of the Borrower.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware. Each Material Subsidiary is duly incorporated, validly
existing and in good standing in the jurisdiction of its
incorporation. The Borrower and each Material Subsidiary possess all
corporate powers and all other authorizations and licenses necessary
to engage in its business and operations as now conducted, the failure
to obtain or maintain which would have a Material Adverse Effect.
Each Subsidiary which is, on and as of the date of this Agreement, a
Material Subsidiary is listed on Schedule II hereto.
(b) The execution, delivery and performance by the
Borrower of this Agreement and the Notes are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the Borrower's certificate of
incorporation or by-laws or (ii) law or any contractual restriction
binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by
the Borrower of this Agreement or the Notes which has not been duly
made or obtained, except those (i) required in the ordinary course to
comply with ongoing covenant obligations of the Borrower hereunder the
performance of which is not yet due and (ii) that will, in the
ordinary course of business in accordance with this Agreement, be duly
made or obtained on or prior to the time or times the performance of
such obligations shall be due.
(d) This Agreement constitutes, and the Notes when
delivered hereunder shall constitute, legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors rights generally or by general
principles of equity.
(e) The consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at December 31, 1995 and the related
consolidated statements of income and cash flow for the fiscal year
then ended, reported on by Coopers & ▇▇▇▇▇▇▇, independent public
accountants, copies of which have been furnished to the Agent and the
Initial Lenders prior to the date hereof, fairly present the
consolidated financial condition of the Borrower and such
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Subsidiaries as at December 31, 1995 and the consolidated results of
their operations for such fiscal period, all in accordance with
generally accepted accounting principles consistently applied. The
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at March 31, 1996 and the related consolidated
statements of income and cash flow for the three months then ended,
copies of which have been furnished to the Agent and the Initial
Lenders prior to the date hereof, fairly present the consolidated
financial condition of the Borrower and such Subsidiaries as at March
31, 1996 and the consolidated results of their operations for such
fiscal period, all in accordance with generally accepted accounting
principles consistently applied, and since March 31, 1996 there has
been no material adverse change in such condition or operations.
(f) There is no action, suit or proceeding pending, or to
the knowledge of the Borrower threatened, against or involving the
Borrower or any Material Subsidiary in any court, or before any
arbitrator of any kind, or before or by any governmental body, which
in the reasonable judgment of the Borrower (taking into account the
exhaustion of all appeals) would have a material adverse effect on the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries taken as a whole, or which purports to affect the
legality, validity, binding effect or enforceability of this Agreement
or the Notes.
(g) The Borrower and each consolidated Subsidiary have
duly filed all tax returns required to be filed, and duly paid and
discharged all taxes, assessments and governmental charges upon it or
against its properties now due and payable, the failure to file or pay
which, as applicable, would have a Material Adverse Effect, unless and
to the extent only that the same are being contested in good faith and
by appropriate proceedings by the Borrower or the appropriate
Subsidiary.
(h) The Borrower and each Material Subsidiary have good
title to their respective properties and assets, free and clear of all
mortgages, liens and encumbrances, except for mortgages, liens and
encumbrances (including covenants, restrictions, rights, easements and
minor irregularities in title) which do not have a Material Adverse
Effect or which are permitted by Section 5.02(a), and except that no
representation or warranty is being made with respect to Margin Stock.
(i) Except to the extent permitted pursuant to Section
5.02(e), neither the Borrower nor any Material Subsidiary is subject
to any contractual restrictions which limit the amount of dividends
payable by any Subsidiary.
(j) No Termination Event has occurred or is reasonably
expected to occur with respect to any Plan which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default
under Section 6.01(g).
(k) The statement of assets and liabilities of each Plan
and the statements of changes in fund balance and in financial
position, or the statement of changes in net assets available for plan
benefits, for the most recent plan year for which an accountant's
report with respect to such plan year has been prepared, copies of
which have been furnished to the Agent, fairly present the financial
condition of such Plan as at such date and the results of operations
of such Plan for the plan year ended on such date.
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(l) Neither the Borrower nor any ERISA Affiliate has
incurred, or is reasonably expected to incur, any Withdrawal Liability
to any Multiemployer Plan which, when aggregated with all other
amounts required to be paid to Multiemployer Plans in connection with
Withdrawal Liability (as of the date of determination), exceeds
$50,000,000.
(m) Neither the Borrower nor any ERISA Affiliate has
received any notification that any Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV
of ERISA, and no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated within the meaning of Title IV of
ERISA the effect of which reorganization or termination would be the
occurrence of an Event of Default under Section 6.01(i).
(n) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Advance will be used to extend credit to
others (other than to any Subsidiary of the Borrower) for the purpose
of purchasing or carrying Margin Stock.
(o) The Borrower is not an "investment company" or a
"company" controlled by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(p) The Borrower is not a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company",
or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
All representations and warranties made by the Borrower herein or made in any
certificate delivered pursuant hereto shall survive the making of the Advances
and the execution and delivery to the Lenders of this Agreement and the Notes.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Note or
other amount payable by the Borrower hereunder shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will, unless the
Majority Lenders shall otherwise consent in writing:
(a) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each Material Subsidiary to preserve and maintain,
its corporate existence, rights (charter and statutory) and material
franchises, except as otherwise permitted by Section 5.02(c) or
5.02(d).
(b) Compliance with Laws, Etc. Comply, and cause each
Subsidiary to comply, in all material respects, with all applicable
laws, rules, regulations and orders (including, without limitation,
all environmental laws and laws requiring payment of all taxes,
assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith by appropriate
proceedings) the failure to comply with which would have a Material
Adverse Effect.
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(c) Visitation Rights. At such reasonable times and
intervals as the Agent or any of the Lenders (other than Designated
Bidders) may desire, permit the Agent or any of the Lenders (other
than Designated Bidders) to visit the Borrower and to discuss the
affairs, finances, accounts and mineral reserve performance of the
Borrower and any of its Subsidiaries with officers of the Borrower and
independent certified public accountants of the Borrower and any of
its Subsidiaries, provided that if an Event of Default, or an event
which with the giving of notice or the passage of time, or both, would
become an Event of Default, has occurred and is continuing, the Agent
or any Lender may, in addition to the other provisions of this
subsection (c) and at such reasonable times and intervals as the Agent
or any of the Lenders may desire, visit and inspect, under guidance of
officers of the Borrower, any properties significant to the
consolidated operations of the Borrower and its Subsidiaries, and to
examine the books and records of account (other than with respect to
any mineral reserve information that the Borrower determines to be
confidential) of the Borrower and any of its Subsidiaries and to
discuss the affairs, finances and accounts of any of the Borrower's
Subsidiaries with any of the officers of such Subsidiary.
(d) Books and Records. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made of all financial transactions
and the assets and business of the Borrower and each Subsidiary in
accordance with generally accepted accounting principles either (i)
consistently applied or (ii) applied in a changed manner that does
not, under generally accepted accounting principles or public
reporting requirements applicable to the Borrower, either require
disclosure in the consolidated financial statements of the Borrower
and its consolidated Subsidiaries or require the consent of the
accountants which (as required by Section 5.03(b)) report on such
financial statements for the fiscal year in which such change shall
have occurred, or (iii) applied in a changed manner not covered by
clause (ii) above provided such change shall have been disclosed to
the Agent and shall have been consented to by the accountants which
(as required by Section 5.03(b)) report on the consolidated financial
statements of the Borrower and its consolidated Subsidiaries for the
fiscal year in which such change shall have occurred, provided that if
any change referred to in clause (ii) or (iii) above would not meet
the standard set forth in clause (i) or (ii) of Section 1.03, the
Agent, the Lenders and the Borrower agree to amend the covenants
contained in Section 5.01 and 5.02 so that the relative protection
afforded thereby to the Lenders and the relative flexibility afforded
thereby to the Borrower will in substance be retained after such
amendment, provided, however, that until such amendment becomes
effective hereunder, the covenants as set forth herein shall remain in
full force and effect and those accounting principles applicable to
the Borrower and its consolidated Subsidiaries which do meet the
standards set forth in clause (i) or (ii) of Section 1.03 shall be
applied to determine whether or not the Borrower is in compliance with
such covenants.
(e) Maintenance of Properties, Etc. Maintain and preserve,
and cause each Material Subsidiary to maintain and preserve, all of
its properties which are used in the conduct of its business in good
working order and condition, ordinary wear and tear excepted, to the
extent that any failure to do so would have a Material Adverse Effect.
(f) Maintenance of Insurance. Maintain, and cause each
Material Subsidiary 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 in the same general
areas in which the Borrower or such Subsidiary operates.
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(g) Consolidated Tangible Net Worth. Maintain Consolidated
Tangible Net Worth of not less than $1,300,000,000 at all times.
(h) Subsidiary Dividends. Cause each Subsidiary to pay to
the Borrower, or such Subsidiary's immediate parent company if such
parent company is not the Borrower, such dividends as such Subsidiary
may legally pay (giving due consideration to the rights of any
minority shareholders) to the extent necessary to provide the Borrower
with funds for the payment of its obligations under this Agreement and
the Notes.
SECTION 5.02. Negative Covenants. So long as any Note or
other amount payable by the Borrower hereunder shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will not, unless the
Majority Lenders shall otherwise consent in writing:
(a) Liens, Etc. (i) Create, assume or suffer to exist, or
permit any Material Subsidiary to create, assume or suffer to exist,
any Liens upon or with respect to any of the capital stock of any
Material Subsidiary, whether now owned or hereafter acquired, or (ii)
create or assume, or permit any Material Subsidiary to create or
assume, any Liens upon or with respect to any other assets material to
the consolidated operations of the Borrower and its consolidated
Subsidiaries taken as a whole securing the payment of Debt and
Guaranties in an aggregate amount (determined without duplication of
amount (so that the amount of a Guaranty will be excluded to the
extent the Debt Guaranteed thereby is included in computing such
aggregate amount)) exceeding $200,000,000 at any one time; provided,
however, that this subsection (a) shall not apply to:
A. Liens on assets acquired by the Borrower or
any of its Subsidiaries after the date hereof to the extent
that such Liens existed at the time of such acquisition and
were not placed thereon by or with the consent of the Borrower
in contemplation of such acquisition;
B. Liens on stock acquired after the date hereof
of a corporation which has become or becomes a Subsidiary of
the Borrower, to the extent that such Liens existed at the
time of such acquisition and were not placed thereon by or
with the consent of the Borrower in contemplation of such
acquisition;
C. Liens on Margin Stock; and
D. Permitted Liens.
(b) Debt, Etc. Create, assume or suffer to exist, or permit
any of its consolidated Subsidiaries to create, assume or suffer to
exist, any Debt, any Guaranty or, to the extent set forth in clause
(1) below, any reimbursement obligation with respect to any letter of
credit, unless, immediately after giving effect to such Debt, Guaranty
or reimbursement obligation and the receipt and application of any
proceeds thereof or value received in connection therewith,
(1) the sum (without duplication) of (i)
consolidated Debt of the Borrower and its consolidated
Subsidiaries plus (ii) the aggregate amount (determined on a
consolidated basis) of Guaranties and of letters of credit
issued for the account of the Borrower and its consolidated
Subsidiaries is less than 52.5% of Capitalization, provided
that Debt for borrowed money either maturing within one year
and evidenced
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by instruments commonly known as commercial paper, or
evidenced by variable demand notes or other similar short-term
financing instruments issued to commercial banks and trust
companies (other than Debt incurred pursuant to this Agreement
or the Short-Term Revolving Credit Agreement or any
replacement therefor), shall not exceed the aggregate of the
Borrower's unused bank lines of credit and unused credit
available to the Borrower under financing arrangements with
banks; and
(2) with respect to any such Debt created,
assumed or suffered to exist by a consolidated Subsidiary that
is either a Subsidiary of the Borrower as of the date hereof
or a Subsidiary of the Borrower acquired or created after the
date hereof and owning a material portion of the consolidated
operating assets existing at the date hereof of the Borrower
and its Subsidiaries, the aggregate amount of Debt of the
consolidated Subsidiaries of the Borrower referred to above in
this paragraph (2) owing to Persons other than the Borrower
and its consolidated Subsidiaries is less than $400,000,000.
(c) Sale, Etc. of Assets. Sell, lease or otherwise transfer,
or permit any Material Subsidiary to sell, lease or otherwise transfer
(in either case, whether in one transaction or in a series of
transactions, and except, in either case, to the Borrower or an entity
which after giving effect to such transfer will be or become a
Material Subsidiary in which the Borrower's direct or indirect equity
interest will be at least as great as its direct or indirect equity
interest in the transferor immediately prior thereto, and except as
permitted by Section 5.02(d)), assets constituting a material portion
of the book value of the consolidated assets of the Borrower and its
Material Subsidiaries, provided that, notwithstanding the foregoing,
(i) assets restricted hereunder shall not include Margin Stock or
inventory sold in the ordinary course of business, (ii) the Borrower
or any Material Subsidiary may sell, lease or otherwise transfer the
assets or capital stock of any Subsidiary that is not a Material
Subsidiary as of the date of this Agreement, and (iii) the Borrower or
any Material Subsidiary may sell, lease or otherwise transfer any
Permitted Assets constituting a material portion of the consolidated
assets of the Borrower and its Material Subsidiaries, provided that,
for purposes of this clause (iii), (A) such Permitted Assets are sold,
leased or otherwise transferred in exchange for other Permitted Assets
and/or (B) the proceeds from such sale, lease or other transfer, or an
amount equal to the proceeds thereof, are (x) reinvested within one
year in Permitted Assets and/or the development of Permitted Assets
and/or (y) used to repay Debt the proceeds of which were or are being
used for investment in, and/or the development of, Permitted Assets;
provided furtherthat, no such sale, lease or other transfer shall be
permitted by this clause (iii) unless either (1) after giving effect
to such sale, lease or other transfer, no Event of Default, and no
event which with lapse of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and be continuing
or (2) the Borrower or the relevant Material Subsidiary, as the case
may be, was contractually obligated, prior to the occurrence of such
Event of Default or event, to consummate such sale, lease or other
transfer.
(d) Mergers, Etc. Merge or consolidate with any Person, or
permit any of its Material Subsidiaries to merge or consolidate with
any Person, except that (i) such a Subsidiary may merge or consolidate
with (or liquidate into) any other Subsidiary or may merge or
consolidate with (or liquidate into) the Borrower, provided that (A)
if such Material Subsidiary merges or consolidates with (or liquidates
into) the Borrower, the Borrower shall be the continuing or surviving
corporation, (B) if any such Material Subsidiary merges or
consolidates with (or liquidates into) any other Subsidiary of the
Borrower, one of such Subsidiaries is the surviving
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corporation and, if either such Subsidiary is not wholly-owned by the
Borrower, such merger or consolidation is on an arm's length basis and
(C) as a result of such merger or consolidation, no Event of Default,
and no event which with lapse of time or the giving of notice, or
both, would constitute an Event of Default, shall have occurred and be
continuing, and (ii) the Borrower or any Material Subsidiary may merge
or consolidate with any other corporation (that is, in addition to the
Borrower or any Subsidiary of the Borrower), provided that (A) if the
Borrower merges or consolidates with any such other corporation, the
Borrower is the surviving corporation, (B) if any Material Subsidiary
merges or consolidates with any such other corporation, the surviving
corporation is a wholly-owned Material Subsidiary of the Borrower, and
(C) if either the Borrower or any Material Subsidiary merges or
consolidates with any such other corporation, after giving effect to
such merger or consolidation no Event of Default, and no event which
with lapse of time or the giving of notice, or both, would constitute
an Event of Default, shall have occurred and be continuing.
(e) Dividend Restrictions. Create, or consent or agree to,
or permit any of its Material Subsidiaries existing on the date hereof
or any of its Subsidiaries hereafter created or acquired and owning a
material portion of the consolidated operating assets existing at the
date hereof of the Borrower and its Subsidiaries, to create, or
consent or agree to, any restrictions, contained in any agreement or
instrument relating to or evidencing Debt, on any such Subsidiary's
ability to pay dividends or to make advances to the Borrower or any
Subsidiary of the Borrower; provided, however, that this subsection
(e) shall not apply to any such restrictions (including any extensions
of the term of any thereof) applicable to the stock of any Subsidiary
of the Borrower the stock of which shall be hereafter acquired by the
Borrower and which restrictions are existing at the time such
Subsidiary first becomes a Subsidiary of the Borrower and are not
placed thereon by or with the consent of the Borrower in contemplation
of such acquisition by the Borrower.
SECTION 5.03. Reporting Requirements. So long as any Note
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will furnish to each Lender in such reasonable quantities as shall
from time to time be requested by such Lender:
(a) within 60 days after the end of each of the first
three quarters of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as of
the end of such quarter, and consolidated statements of income and
cash flow of the Borrower and its consolidated Subsidiaries each for
the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, certified (subject to normal
year-end adjustments) as to fairness and utilization of generally
accepted accounting principles by the chief financial officer of the
Borrower and accompanied by a certificate of such officer stating (i)
that such statements of income and cash flow and such balance sheet
have been prepared in accordance with generally accepted accounting
principles, (ii) whether or not such officer has knowledge of the
occurrence of any Event of Default which is continuing hereunder or of
any event not theretofore remedied which with notice or lapse of time
or both would constitute such an Event of Default and, if so, stating
in reasonable detail the facts with respect thereto, (iii) all
relevant facts in reasonable detail to evidence, and the computations
as to, whether or not the Borrower is in compliance with the
requirements set forth in subsection (g) of Section 5.01 and in
subsection (b) of Section 5.02, and (iv) a listing of all Material
Subsidiaries and consolidated Subsidiaries of the Borrower showing the
extent of its direct and indirect holdings of their stocks;
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(b) within 120 days after the end of each fiscal year of
the Borrower, a copy of the annual report for such year for the
Borrower and its consolidated Subsidiaries containing financial
statements for such year reported on by nationally recognized
independent public accountants acceptable to the Lenders, accompanied
by (i) a report signed by said accountants stating that such financial
statements have been prepared in accordance with generally accepted
accounting principles and (ii) a letter from such accountants stating
that in making the investigations necessary for such report they
obtained no knowledge, except as specifically stated therein, of any
Event of Default which is continuing hereunder or of any event not
theretofore remedied which with notice or lapse of time or both would
constitute such an Event of Default;
(c) within 120 days after the close of each of the
Borrower's fiscal years, a certificate of the chief financial officer
of the Borrower stating (i) whether or not such officer has knowledge
of the occurrence of any Event of Default which is continuing
hereunder or of any event not theretofore remedied which with notice
or lapse of time or both would constitute such an Event of Default
and, if so, stating in reasonable detail the facts with respect
thereto, (ii) all relevant facts in reasonable detail to evidence, and
the computations as to, whether or not the Borrower is in compliance
with the requirements set forth in subsection (g) of Section 5.01 and
in subsection (b) of Section 5.02 and (iii) a listing of all Material
Subsidiaries and consolidated Subsidiaries of the Borrower showing the
extent of its direct and indirect holdings of their stocks;
(d) promptly upon their distribution, copies of all
financial statements, reports and proxy statements which the Borrower
or any Material Subsidiary shall have sent to its public stockholders;
(e) promptly upon their becoming publicly available, all
regular and periodic financial reports and registration statements
which the Borrower or any Material Subsidiary shall file with the
Securities and Exchange Commission or any national securities exchange
other than registration statements relating to employee benefit plans
and to registration statements of securities for selling security
holders;
(f) promptly in writing, notice of all litigation and of
all proceedings before any governmental or regulatory agencies against
or involving the Borrower or any Material Subsidiary, except any
litigation or proceeding which in the reasonable judgment of the
Borrower (taking into account the exhaustion of all appeals) is not
likely to have a material adverse effect on the consolidated financial
condition of the Borrower and its consolidated Subsidiaries taken as a
whole;
(g) within three Business Days after an executive officer
of the Borrower obtains knowledge of the occurrence of any Event of
Default which is continuing or of any event not theretofore remedied
which with notice or lapse of time, or both, would constitute an Event
of Default, notice of such occurrence together with a detailed
statement by a responsible officer of the Borrower of the steps being
taken by the Borrower or the appropriate Subsidiary to cure the effect
of such event;
(h) as soon as practicable and in any event (i) within 30
days after the Borrower or any ERISA Affiliate knows or has reason to
know that any Termination Event described in
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clause (i) of the definition of Termination Event with respect to any
Plan has occurred and (ii) within 10 days after the Borrower or any
ERISA Affiliate knows or has reason to know that any other Termination
Event with respect to any Plan has occurred, a statement of the chief
financial officer of the Borrower describing such Termination Event
and the action, if any, which the Borrower or such ERISA Affiliate
proposes to take with respect thereto;
(i) promptly and in any event within two Business Days
after receipt thereof by the Borrower or any ERISA Affiliate, copies
of each notice received by the Borrower or any ERISA Affiliate from
the PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan;
(j) promptly and in any event within 30 days after the
filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) with respect to each Plan;
(k) promptly and in any event within five Business Days
after receipt thereof by the Borrower or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, a copy of each notice received by the
Borrower or any ERISA Affiliate concerning (i) the imposition of
Withdrawal Liability by a Multiemployer Plan, (ii) the determination
that a Multiemployer Plan is, or is expected to be, in reorganization
within the meaning of Title IV of ERISA, (iii) the termination of a
Multiemployer Plan within the meaning of Title IV of ERISA, or (iv)
the amount of liability incurred, or expected to be incurred, by the
Borrower or any ERISA Affiliate in connection with any event described
in clause (i), (ii) or (iii) above; and
(l) as soon as practicable but in any event within 60
days of any notice of request therefor, such other information
respecting the financial condition and results of operations of the
Borrower or any Subsidiary as any Lender through the Agent may from
time to time reasonably request.
Each balance sheet and other financial statement furnished
pursuant to subsections (a) and (b) of this Section 5.03 shall contain
comparative information which conforms to the presentation required in Form
10-Q and Form 10-K, as appropriate, under the Securities Exchange Act of 1934,
as amended.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Note when due, or any interest on any Note or any other amount payable
hereunder within five Business Days after the same shall be due; or
(b) Any representation or warranty made or deemed made by
the Borrower herein or by the Borrower (or any of its officers) in
connection with this Agreement shall prove to have been incorrect in
any material respect when made or deemed made; or
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(c) The Borrower shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement on its
part to be performed or observed and any such failure shall remain
unremedied for 30 days after written notice thereof shall have been
given to the Borrower by the Agent or by any Lender with a copy to the
Agent; or
(d) The Borrower or any Material Subsidiary shall fail to
pay any Debt or Guaranty (excluding Debt evidenced by the Notes) of
the Borrower or such Subsidiary (as the case may be) in an aggregate
principal amount of $50,000,000 or more, or any installment of
principal thereof or interest or premium thereon, when due (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 Guaranty; or any other default under any agreement or
instrument relating to any such Debt, or any other event, shall occur
and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such
default or event is to accelerate, or to permit the acceleration of,
the maturity of such Debt; provided that, notwithstanding any
provision contained in this subsection (d) to the contrary, to the
extent that pursuant to the terms of any agreement or instrument
relating to any Debt referred to in this subsection (d), any sale,
pledge or disposal of Margin Stock, or utilization of the proceeds
thereof would result in a breach of any covenant contained therein or
otherwise give rise to a default or event of default thereunder and/or
acceleration of the maturity of the Debt extended pursuant thereto and
as a result of such terms or of such sale, pledge, disposal,
utilization, breach, default, event of default or acceleration, or the
provisions hereof relating thereto, this Agreement or any Advance
hereunder would otherwise be subject to the margin requirements or any
other restriction under Regulation U issued by the Board of Governors
of the Federal Reserve System, then such breach, default, event of
default or acceleration shall not constitute a default or Event of
Default under this subsection (d); or
(e) (i) The Borrower or any Material Subsidiary shall (A)
generally not pay its debts as such debts become due; or (B) admit in
writing its inability to pay its debts generally; or (C) make a
general assignment for the benefit of creditors; or (ii) any
proceeding shall be instituted or consented to by the Borrower or any
such Subsidiary seeking to adjudicate it a 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; or (iii) any such
proceeding shall have been instituted against the Borrower or any such
Subsidiary and either such proceeding shall not be stayed or dismissed
for 60 consecutive days or any of the actions referred to above sought
in such proceeding (including, without limitation, the entry of an
order for relief against it or the appointment of a receiver, trustee,
custodian or other similar official for it or any substantial part of
its property) shall occur; or (iv) the Borrower or any such Subsidiary
shall take any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in
excess of $50,000,000 shall be rendered against the Borrower or any
Material Subsidiary and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order (other than
any enforcement proceedings consisting of the mere obtaining and
filing of a judgment lien or obtaining of a garnishment or similar
order so long as no foreclosure, levy or similar
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process in respect of such lien, or payment over in respect of such
garnishment or similar order, has commenced) or (ii) there shall be
any period of 30 consecutive days during which a stay of execution or
enforcement proceedings (other than those referred to in the
parenthesis in clause (i) above) in respect of such judgment or order,
by reason of a pending appeal, bonding or otherwise, shall not be in
effect; or
(g) Any Termination Event with respect to a Material Plan
shall have occurred and, 30 days after notice thereof shall have been
given to the Borrower by the Lender, (i) such Termination Event shall
still exist and (ii) the sum (determined as of the date of occurrence
of such Termination Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans with respect to which a
Termination Event shall have occurred and then exist (or in the case
of a Plan with respect to which a Termination Event described in
clause (ii) of the definition of Termination Event shall have occurred
and then exist, the liability related thereto), in each case in
respect of which the Borrower or any ERISA Affiliate has liability, is
equal to or greater than $50,000,000; or
(h) The Borrower 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 $50,000,000;
or
(i) The Borrower 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 Borrower 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) Upon completion of, and pursuant to, a transaction,
or a series of transactions (which may include prior acquisitions of
capital stock of the Borrower in the open market or otherwise),
involving a tender offer (i) a "person" (within the meaning of Section
13(d) of the Securities Exchange Act of 1934) other than the Borrower,
a Subsidiary of the Borrower or any employee benefit plan maintained
for employees of the Borrower and/or any of its Subsidiaries or the
trustee therefor, shall have acquired direct or indirect ownership of
and paid for in excess of 50% of the outstanding capital stock of the
Borrower entitled to vote in elections for directors of the Borrower
and (ii) at any time before the later of (x) six months after the
completion of such tender offer and (y) the next annual meeting of the
shareholders of the Borrower following the completion of such tender
offer more than half of the directors of the Borrower consists of
individuals who (a) were not directors before the completion of such
tender offer and (b) were not appointed, elected or nominated by the
Board of Directors in office prior to the completion of such tender
offer (other than any such appointment, election or nomination
required or agreed to in connection with, or as a result of, the
completion of such tender offer); or
(k) Any "Event of Default" as defined in the Short-Term
Revolving Credit Agreement shall occur and be continuing;
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then, and in any such event, the Agent shall at the request, or may
with the consent, of the Majority Lenders, by notice to the Borrower,
(i) declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii)
declare the Notes, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon the
Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided, however, that if an Event of Default under
subsection (e) of this Section 6.01 (except under clause (i)(A)
thereof) shall occur, (A) the obligation of each Lender to make
Advances shall automatically be terminated and (B) the Notes, all
interest thereon and all other amounts payable under this Agreement
shall automatically become and be forthwith due and payable, without
presentment, demand, protest or any notice of any kind, all of which
are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the Agent
by the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement of this Agreement or collection of
the Notes), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions shall be binding
upon all Lenders and all holders of Notes; provided, however, that the Agent
shall not be required to take any action which exposes the Agent to personal
liability or which is contrary to this Agreement or applicable law. The Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent:
(i) may treat the payee of any Note as the holder thereof until the Agent
receives and accepts an Assignment and Acceptance entered into by the Lender
which is the payee of such Note, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in
respect of this Agreement by acting upon
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any notice, consent, certificate or other instrument or writing (which may be
by telegram, telecopy, cable or telex) believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and
may exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in any
kind of business with, the Borrower, any of its Subsidiaries and any Person who
may do business with or own securities of the Borrower or any Subsidiary, all
as if Citibank were not the Agent and without any duty to account therefor to
the other Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 7.05. INDEMNIFICATION. THE LENDERS (OTHER THAN THE
DESIGNATED BIDDERS) AGREE TO INDEMNIFY THE AGENT (TO THE EXTENT NOT REIMBURSED
BY THE BORROWER), RATABLY ACCORDING TO THE RESPECTIVE PRINCIPAL AMOUNTS OF THE
A NOTES THEN HELD BY EACH OF THEM (OR IF NO A NOTES ARE AT THE TIME OUTSTANDING
OR IF ANY A NOTES ARE HELD BY PERSONS WHICH ARE NOT LENDERS, RATABLY ACCORDING
TO THE RESPECTIVE AMOUNTS OF THEIR COMMITMENTS OR THE RESPECTIVE AMOUNTS OF
THEIR COMMITMENTS IMMEDIATELY PRIOR TO TERMINATION IF THE COMMITMENTS HAVE BEEN
TERMINATED), FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON,
INCURRED BY, OR ASSERTED AGAINST THE AGENT IN ANY WAY RELATING TO OR ARISING
OUT OF THIS AGREEMENT, ANY OF THE NOTES OR ANY OTHER INSTRUMENT OR DOCUMENT
FURNISHED PURSUANT HERETO OR IN CONNECTION HEREWITH, OR ANY ACTION TAKEN OR
OMITTED BY THE AGENT UNDER THIS AGREEMENT, OR ANY OF THE NOTES OR ANY OTHER
INSTRUMENT OR DOCUMENT FURNISHED PURSUANT HERETO OR IN CONNECTION HEREWITH;
PROVIDED THAT NO LENDER SHALL BE LIABLE FOR ANY PORTION OF SUCH LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS RESULTING FROM THE AGENT'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. Without limitation of the foregoing, each Lender (other
than the Designated Bidders) agrees to reimburse the Agent promptly upon demand
for such Lender's ratable share of any reasonable out-of-pocket expenses
(including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings, in bankruptcy or
insolvency proceedings, or otherwise) of, or legal advice in respect of rights
or responsibilities under, this Agreement, any of the Notes or any other
instrument or document furnished pursuant hereto or in connection herewith to
the extent that the Agent acts in its capacity as Agent and is not reimbursed
for such expenses by the Borrower.
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SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may
be removed at any time with or without cause by the Majority Lenders. Upon any
such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Majority Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Agent, then such retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized, or authorized to conduct a banking business, under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment
as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. An amendment or waiver of any
provision of this Agreement or the A Notes, or a consent to any departure by
the Borrower therefrom, shall be effective against the Lenders and all holders
of the Notes if, but only if, it shall be in writing and signed by the Majority
Lenders, and then such a waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no such amendment, waiver or consent shall, unless in writing and
signed by all the Lenders (other than the Designated Bidders), be effective to:
(a) waive any of the conditions specified in Article III, (b) except as
contemplated by Section 2.20, increase the Commitments of the Lenders or
subject the Lenders to any additional obligations, (c) reduce the principal of,
or interest on, the A Notes or any facility fees hereunder, (d) postpone any
date fixed for any payment of principal of, or interest on, the A Notes or any
facility fees hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the A Notes, which shall be required for
the Lenders or any of them to take any action under this Agreement, or (f)
amend this Section 8.01; and, provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required hereinabove to take such action, affect the rights or duties
of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. Except as otherwise provided in
Section 2.02(a) or 2.10(ii), all notices and other communications provided for
hereunder shall be in writing and mailed by certified mail, return receipt
requested and postage prepaid, or telecopied, telefaxed or otherwise
teletransmitted, or delivered, if to the Borrower, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, Telefax: (▇▇▇) ▇▇▇-▇▇▇▇; if
to any Initial Lender, at its Domestic Lending Office set forth opposite its
name on Schedule I hereto; if to any other Lender at its Domestic Lending
Office specified in the Assignment and Acceptance or Increase Agreement
pursuant to which it became a Lender or at the address for notices specified in
the Designation Agreement pursuant to which it became a party hereto; and if to
the Agent, in care of Citicorp North America, Inc., at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Burlington Resources Inc., Account
Officer, Telefax: (▇▇▇) ▇▇▇-▇▇▇▇; or, as to each party, at such other address
as shall be designated by such party in a written notice to the other parties.
All such notices and communications shall be effective, (a) in
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the case of any notice or communication given by certified mail, when receipted
for, (b) in the case of any notice or communication given by telecopy, telefax
or other teletransmission, when confirmed by appropriate answerback, in each
case addressed as aforesaid, and (c) in the case of any notice or communication
delivered by hand or courier, when so delivered, except that notices and
communications to the Agent pursuant to Article II or VII shall not be
effective until received by the Agent. A notice received by the Agent or a
Lender by telephone pursuant to Section 2.02(a) or 2.10(ii) shall be effective
if the Agent or Lender believes in good faith that it was given by an
authorized representative of the Borrower and acts pursuant thereto,
notwithstanding the absence of written confirmation or any contradictory
provision thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder or under any Note preclude
any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. Costs and Expenses; Indemnity.
(a) The Borrower agrees to pay on demand (i) all reasonable
fees and out-of-pocket expenses of counsel for the Agent in connection with the
preparation, execution and delivery of this Agreement, the Notes and the other
documents to be delivered hereunder and with respect to advising the Agent as
to its rights and responsibilities under this Agreement, (ii) all reasonable
costs and expenses incurred by the Agent and its Affiliates in initially
syndicating all or any portion of the Commitments hereunder, including, without
limitation, the related reasonable fees and out-of-pocket expenses of counsel
for the Agent or its Affiliates, travel expenses, duplication and printing
costs and courier and postage fees, and excluding any syndication fees paid to
other parties joining the syndicate and (iii) all out-of-pocket costs and
expenses, if any, of the Agent and the Lenders (including reasonable counsel
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings, in bankruptcy or insolvency proceedings, or
otherwise) of this Agreement, the Notes and the other documents to be delivered
hereunder and thereunder.
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender on any day other than the last day of the Interest Period for such
Advance, as a result of a prepayment pursuant to Section 2.10 or a Conversion
pursuant to Section 2.08(f) or Section 2.09 or due to acceleration of the
maturity of the Notes pursuant to Section 6.01 or due to any other reason
attributable to the Borrower, the Borrower shall, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses which it may reasonably incur as a result of such
payment 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 any Lender to fund or
maintain such Advance.
(c) THE BORROWER AGREES TO INDEMNIFY AND HOLD HARMLESS THE
AGENT, THE ARRANGER AND EACH LENDER FROM AND AGAINST ANY AND ALL CLAIMS,
DAMAGES, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, FEES AND
DISBURSEMENTS OF COUNSEL) WHICH MAY BE INCURRED BY OR ASSERTED AGAINST THE
AGENT, THE ARRANGER OR SUCH LENDER IN CONNECTION WITH OR ARISING OUT OF ANY
INVESTIGATION, LITIGATION, OR PROCEEDING (WHETHER OR NOT THE AGENT, THE
ARRANGER OR SUCH LENDER IS PARTY THERETO) RELATED TO
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ANY ACQUISITION OR PROPOSED ACQUISITION BY THE BORROWER, OR BY ANY SUBSIDIARY
OF THE BORROWER, OF ALL OR ANY PORTION OF THE STOCK OR SUBSTANTIALLY ALL THE
ASSETS OF ANY PERSON OR ANY USE OR PROPOSED USE OF THE ADVANCES BY THE BORROWER
(EXCLUDING ANY CLAIMS, DAMAGES, LIABILITIES OR EXPENSES INCURRED BY REASON OF
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY TO BE INDEMNIFIED OR
ITS EMPLOYEES OR AGENTS, OR BY REASON OF ANY USE OR DISCLOSURE OF INFORMATION
RELATING TO ANY SUCH ACQUISITION OR USE OR PROPOSED USE OF THE PROCEEDS BY THE
PARTY TO BE INDEMNIFIED OR ITS EMPLOYEES OR AGENTS).
SECTION 8.05. Right of Set-off. Upon the declaration of the
Notes as due and payable pursuant to the provisions of Section 6.01, each
Lender 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 at any time owing by such Lender to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and any Note held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender under this Section 8.05 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which
such Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective in accordance with the provisions of Section 3.01, and thereafter
shall be binding upon and inure to the benefit of the Borrower, the Agent, the
Arranger and each Lender and their respective successors and assigns, except
that the Borrower shall not have the right to assign its rights hereunder or
any interest herein without the prior written consent of all of the Lenders.
SECTION 8.07. Assignments and Participations.
(a) Each Lender (other than a Designated Bidder) may assign
to one or more banks or other financial institutions all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the A Advances owing to it and the A Note or A
Notes held by it); provided, however, that (i) each such assignment shall be of
a constant, and not a varying, percentage of all rights and obligations under
this Agreement (other than any right to make B Advances, any B Advances or any
B Notes), and the same constant percentage of all rights and obligations of
such assigning Lender under the Short-Term Revolving Credit Agreement, unless
the Short-Term Revolving Credit Agreement has been terminated, shall be
contemporaneously assigned by such assigning Lender to the same assignee
pursuant to Section 8.07(a) of the Short-Term Revolving Credit Agreement, (ii)
the sum of (x) the amount of the Commitment of the assigning Lender being
assigned to the assignee pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) plus (y)
the amount of the "Commitment" of the assigning Lender under the Short-Term
Revolving Credit Agreement contemporaneously assigned by such assigning Lender
to such assignee as contemplated by clause (i) of this sentence must be equal
to or greater than $25,000,000 and must be an integral multiple of $1,000,000,
(iii) each such assignment shall be to an Eligible Assignee, and (iv) the
parties to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with any A Note or A Notes subject to such assignment and a processing
and recordation fee of $3,000,
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47
and shall send to the Borrower an executed counterpart of such Assignment and
Acceptance. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto, provided, however, such assigning
Lender shall retain any claim with respect to any fee, interest, cost, expense
or indemnity which accrues, or relates to an event that occurs, prior to the
date of such assignment pursuant to Section 2.03, 2.06, 2.07, 2.11, 2.12, 2.15
or 8.04).
(b) By executing and delivering an Assignment and Acceptance,
each Lender assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than
as provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity , enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is (subject to
approval in writing by the Borrower and the Agent) an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance, each Designation
Agreement and each Increase Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and,
with respect to Lenders other than Designated Bidders, the Commitment of, and
principal amount of the A Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any A Note or A Notes subject
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48
to such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit E hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower. Within five
Business Days after its receipt of such notice and its receipt of an executed
counterpart of such Assignment and Acceptance, the Borrower, at its own
expense, shall execute and deliver to the Agent in exchange for the surrendered
A Note or A Notes a new A Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new A Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new A Note or A Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered A Note or A Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A hereto.
(e) Each Lender (other than a Designated Bidder) may
designate one or more banks or other entities to have a right to make B
Advances as a Lender pursuant to Section 2.19; provided that (i) such Lender
shall have obtained the written consent of the Agent and the Borrower, such
consent not to be unreasonably withheld, (ii) no such Lender shall be entitled
to make more than two such designations, (iii) each such Lender making one or
more of such designations shall retain the right to make B Advances as a Lender
pursuant to Section 2.19, (iv) each such designation shall be to a Designated
Bidder and (v) the parties to each such designation shall execute and deliver
to the Agent, for its acceptance and recording in the Register, a Designation
Agreement. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Designation Agreement, the designee
thereunder shall be a party hereto with a right to make B Advances as a Lender
pursuant to Section 2.19 and the obligations related thereto.
(f) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm
and agree with each other and the other parties hereto as follows: (i) such
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto, (ii) such Lender makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any other instrument
or document furnished pursuant hereto; (iii) such designee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into the Designation Agreement; (iv) such designee will, independently
and without reliance upon the Agent, such designating Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such designee confirms that it is a Designated
Bidder; (vi) such designee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Agent by the terms hereof, together with such powers as
are reasonably incidental thereto, and (vii) such designee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(g) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Agent shall, if such Designation Agreement
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49
has been completed and is substantially in the form of Exhibit K hereto, (i)
accept such Designation Agreement, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
(h) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, and the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) such Lender shall continue to be able to
agree to any modification or amendment of this Agreement or any waiver
hereunder without the consent, approval or vote of any such participant or
group of participants, other than modifications, amendments and waivers which
(A) postpone any date fixed for any payment of, or reduce any payment of,
principal of or interest on such Lender's Note or any facility fees payable
under this Agreement, or (B) increase the amount of such Lender's Commitment in
a manner which would have the effect of increasing the amount of a
participant's participation, or (C) reduce the interest rate payable under this
Agreement and such Lender's Note, or (D) consent to the assignment or the
transfer by the Borrower of any of its rights and obligations under the
Agreement, and (vi) except as contemplated by the immediately preceding clause
(v), no participant shall be deemed to be or to have any of the rights or
obligations of a "Lender" hereunder.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee
or participant or proposed assignee, designee or participant shall agree in
writing for the benefit of the Borrower to preserve the confidentiality of any
confidential information relating to the Borrower received by it from such
Lender in a manner consistent with Section 8.08.
(j) Anything in this Agreement to the contrary
notwithstanding, any Lender may at any time create a security interest in all
or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it) and the Notes issued to it hereunder in
favor of any Federal Reserve Bank in accordance with Regulation A of the Board
of Governors of the Federal Reserve System (or any successor regulation) and
the applicable operating circular of such Federal Reserve Bank.
(k) Each Lender may assign to one or more Eligible Assignees
any B Note or B Notes held by it.
SECTION 8.08. Confidentiality. Each Lender and the Agent
(each, a "party") agrees that it will use its best reasonable efforts not to
disclose, without the prior consent of the Borrower (other than to its, or its
Affiliate's, employees, auditors, accountants, counsel or other
representatives, whether existing at the date of this Agreement or any
subsequent time), any information with respect to the Borrower which is
furnished pursuant to this Agreement, provided that any party may disclose
-45-
50
any such information (i) as has become generally available to the public, (ii)
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 party or to the Board of Governors of the
Federal Reserve System or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors,
(iii) as may be required or appropriate in response to any summons or subpoena
or in connection with any litigation or regulatory proceeding, (iv) in order to
comply with any law, order, regulation or ruling applicable to such party, or
(v) to any prospective assignee, designee or participant in connection with any
contemplated assignment of any rights or obligations hereunder, any designation
or any sale of any participation therein, by such party pursuant to Section
8.07, if such prospective assignee, designee or participant, as the case may
be, executes an agreement with the Borrower containing provisions substantially
similar to those contained in this Section 8.08; provided, however, that the
Borrower acknowledges that the Agent has disclosed and may continue to disclose
such information as the Agent in its sole discretion determines is appropriate
to the Lenders from time to time.
SECTION 8.09. Consent to Jurisdiction.
(a) The Borrower hereby irrevocably submits to the
jurisdiction of any New York State or Federal court sitting in New York City
and any appellate court from any thereof in any action or proceeding by the
Agent, the Arranger, any Lender or the holder of any Note in respect of, but
only in respect of, any claims or causes of action arising out of or relating
to this Agreement or the Notes (such claims and causes of action, collectively,
being "Permitted Claims"), and the Borrower hereby irrevocably agrees that all
Permitted Claims may be heard and determined in such New York State court or in
such Federal court. The Borrower hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any aforementioned court in respect
of Permitted Claims. The Borrower hereby irrevocably appoints CT Corporation
System (the "Process Agent"), with an office on the date hereof at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive on behalf of the
Borrower and its property service of copies of the summons and complaint and
any other process which may be served by the Agent, the Arranger, any Lender or
the holder of any Note in any such action or proceeding in any aforementioned
court in respect of Permitted Claims. Such service may be made by delivering a
copy of such process to the Borrower by courier and by certified mail (return
receipt requested), fees and postage prepaid, both (i) in care of the Process
Agent at the Process Agent's above address and (ii) at the Borrower's address
specified pursuant to Section 8.02, and the Borrower hereby irrevocably
authorizes and directs the Process Agent to accept such service on its behalf.
The Borrower agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) Nothing in this Section 8.09 (i) shall affect the right
of the Arranger, the Borrower, any Lender, the holder of any Note or the Agent
to serve legal process in any other manner permitted by law or affect any right
otherwise existing of the Borrower, any Lender, the Arranger, the holder of any
Note or the Agent to bring any action or proceeding in the courts of other
jurisdictions or (ii) shall be deemed to be a general consent to jurisdiction
in any particular court or a general waiver of any defense or a consent to
jurisdiction of the courts expressly referred to in subsection (a) above in any
action or proceeding in respect of any claim or cause of action other than
Permitted Claims.
SECTION 8.10. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.
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51
SECTION 8.11. 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. Delivery to the Agent of a counterpart executed by a Lender shall
constitute delivery of such counterpart to all of the Lenders.
SECTION 8.12. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT,
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OF THE NOTES OR ANY OTHER INSTRUMENT OR DOCUMENT FURNISHED
PURSUANT HERETO OR IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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.
BURLINGTON RESOURCES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and Treasurer
CITIBANK, N.A., as Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Title: Attorney-In-Fact
---------------------
Commitments The Initial Lenders
----------- -------------------
CITIBANK, N.A.
$60,000,000 By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Title: Attorney-In-Fact
----------------------
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52
Commitments
-----------
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
$60,000,000 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------
Title: Vice President
----------------------
NATIONSBANK OF TEXAS, N.A.
$60,000,000 By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Title: Senior Vice President
----------------------
THE CHASE MANHATTAN BANK, N.A. (formerly known
as TEXAS COMMERCE BANK NATIONAL ASSOCIATION)
$60,000,000 By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Title: Vice President
----------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
$42,000,000 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Title: Vice President
----------------------
THE FIRST NATIONAL BANK OF BOSTON
$42,000,000 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Title: Managing Director
----------------------
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53
Commitments
-----------
THE BANK OF TOKYO - MITSUBISHI, LTD. - HOUSTON
AGENCY (formerly known as THE BANK OF TOKYO, LTD.)
$42,000,000 By: /s/ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
---------------------------
MELLON BANK, N.A.
$42,000,000 By: /s/ E. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: E. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
TORONTO DOMINION (TEXAS), INC.
$42,000,000 By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
---------------------------
ABN AMRO BANK N.V.
By: ABN AMRO NORTH AMERICA INC., as agent
$25,000,000 By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: Vice President and Director
---------------------------
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: H. ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Vice President and Director
---------------------------
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54
Commitments
-----------
CREDIT LYONNAIS NEW YORK BRANCH
$25,000,000 By: /s/ ▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
---------------------------
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION
(formerly known as FIRST INTERSTATE BANK OF
TEXAS, N.A.)
$25,000,000 By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
---------------------------
THE NORTHERN TRUST COMPANY
$25,000,000 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
---------------------------
THE SUMITOMO BANK, LIMITED,
HOUSTON AGENCY
$25,000,000 By: /s/ HATUMITSU ▇▇▇▇
------------------------------
Name: Hatumitsu ▇▇▇▇
----------------------------
Title: General Manager
---------------------------
-50-
55
Commitments
-----------
UNION BANK OF SWITZERLAND
$25,000,000 By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Managing Director
-------------------------
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: Assistant Vice President
-------------------------
$600,000,000 Total of the Commitments
============
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56
EXHIBIT A
A PROMISSORY NOTE
U.S. $[Amount of Lender's Dated: ___________, 19__
Commitment]
FOR VALUE RECEIVED, the undersigned, Burlington Resources Inc., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
principal sum of U.S. $[amount of the Lender's Commitment in figures] or, if
less, the aggregate unpaid principal amount of all A Advances (as defined
below) owing to the Lender by the Borrower pursuant to the Credit Agreement (as
hereinafter defined) outstanding on the Termination Date (as defined in the
Credit Agreement) on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each A Advance from the date of such A Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. All A Advances made by the Lender to the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this A Promissory
Note; provided, however, that any failure to make such an endorsement on such
grid shall in no way impair or otherwise effect the Borrower's obligations
hereunder.
This A Promissory Note is one of the A Notes referred to in, and is
entitled to the benefits of, the Second Amended and Restated Long-Term
Revolving Credit Agreement dated as of July 12, 1996 (as may be amended or
otherwise modified from time to time, the "Credit Agreement") among the
Borrower, the Lender, certain other lenders parties thereto, and Citibank,
N.A., as Agent for the Lender and such other lenders. The Credit Agreement,
among other things, (i) provides for the making of advances pursuant to Section
2.01 thereof (the "A Advances") by the Lender to the Borrower from time to time
in an aggregate amount not to exceed at any time outstanding the U.S. dollar
amount first above mentioned, the indebtedness of the Borrower resulting from
each such A Advance being evidenced by this A Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of
57
certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
BURLINGTON RESOURCES INC.
By: __________________________
Name: ________________________
Title: ________________________
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ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made By
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59
EXHIBIT B
B PROMISSORY NOTE
U.S. $_______________ Dated: __________, 19__
FOR VALUE RECEIVED, the undersigned, Burlington Resources Inc., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on __ ______,
19__, the principal amount of U.S. $_____________.
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate, subject to Section 2.06(b) of the Credit Agreement, and payable
on the interest payment date or dates provided below:
Interest Rate: ______% per annum (calculated on the basis of a year
of ___ days for the actual number of days elapsed).
Interest Payment Date or Dates: _____________ _____________ .
Both principal and interest are payable in lawful money of the United
States of America to the account of the Lender at the office of Citibank, N.A.,
as Agent, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same days funds,
free and clear of and without any deduction, with respect to the payee named
above, for any and all present and future taxes, deductions, charges or
withholdings, and all liabilities with respect thereto.
This B Promissory Note is one of the B Notes referred to in, and is
entitled to the benefits of, the Second Amended and Restated Long-Term
Revolving Credit Agreement dated as of July 12, 1996 (as may be amended or
otherwise modified from time to time, the "Credit Agreement") among the
Borrower, the Lender, certain other lenders parties thereto, and Citibank,
N.A., as Agent for the Lender and such other lenders. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events. This B Promissory Note is not
subject to prepayment except as set forth below:
[insert applicable prepayment provisions, if any]
________________________________________________________
________________________________________________________
________________________________________________________
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising, any rights hereunder
on the part of the holder hereof shall operate as a waiver of such rights.
60
This B Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
BURLINGTON RESOURCES INC.
By: _________________________
Name: _______________________
Title: ______________________
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EXHIBIT C
NOTICE OF A BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ [Date]
Attention: Burlington Resources Inc., Account Officer
Ladies and Gentlemen:
The undersigned, Burlington Resources Inc., refers to the Second
Amended and Restated Long-Term Revolving Credit Agreement dated as of July 12,
1996 (as may be amended or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto and Citibank, N.A., as
Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests an A
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such A Borrowing (the "Proposed A Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is ___________,
19__.
(ii) The Type of A Advances comprising the Proposed A Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is
$___________.
(iv)(1) The Interest Period for each Eurodollar Rate Advance made as
part of the Proposed A Borrowing is [____] month[s].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed A
Borrowing, before and immediately after giving effect thereto and to the
application of the proceeds therefrom:
________________________
(1) To be used for Eurodollar Rate Advances only.
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Citibank, N.A., as Agent
[Date]
(a) each representation and warranty contained in Section 4.01 is
correct in all material respects as though made on and as of each such
date;
(b) no event has occurred and is continuing, or would result from the
Proposed A Borrowing, 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
(c) the aggregate amount of the borrowings under the Credit Agreement
(including, without limitation, the Proposed A Borrowing) and under other
agreements or facilities or evidenced by other instruments or documents is
not in excess of the aggregate amount of such borrowings that has been
approved by the Board of Directors of the Borrower.
Very truly yours,
BURLINGTON RESOURCES INC.
By: ________________________
Title: _____________________
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EXHIBIT D
NOTICE OF B BORROWING
Citibank, N.A., as Agent for
the Lenders parties to the
Credit Agreement referred
to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ [Date]
Attention: Burlington Resources Inc., Account Officer
Gentlemen:
The undersigned, Burlington Resources Inc., refers to the Second
Amended and Restated Long-Term Revolving Credit Agreement dated as of July 12,
1996 (as may be amended or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto and Citibank, N.A., as
Agent for said Lenders, and hereby gives you notice pursuant to Section 2.19 of
the Credit Agreement that the undersigned hereby requests a B Borrowing under
the Credit Agreement, and in that connection sets forth the terms on which such
B Borrowing (the "Proposed B Borrowing") is requested to be made:
(A) Date of B Borrowing ____________________
(B) Proposed Amount of
B Borrowing ____________________
(C) Maturity Date ____________________
(D) Interest Rate Basis ____________________
(E) Interest Payment Date(s) ____________________
(F) Proposed Amount of
B Reduction ____________________
(G) _______________________ ____________________
(H) _______________________ ____________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed B
Borrowing, before and immediately after giving effect thereto and to the
application of the proceeds therefrom:
(a) each representation and warranty contained in Section 4.01 of
the Credit Agreement is correct in all material respects as though made on
and as of each such date;
64
Citibank, N.A., as Agent
[Date]
(b) no event has occurred and is continuing, or would result from
the Proposed B Borrowing, 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
(c) the aggregate amount of the borrowings under the Credit
Agreement (including, without limitation, the Proposed B Borrowing) and
under other agreements or facilities or evidenced by other instruments or
documents is not in excess of the aggregate amount of such borrowings that
has been approved by the Board of Directors of the Borrower.
The undersigned hereby confirms that the Proposed B Borrowing is to
be made available to it in accordance with Section 2.19(a)(v) of the Credit
Agreement.
Very truly yours,
BURLINGTON RESOURCES INC.
By: ________________________
Title: _____________________
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EXHIBIT E
ASSIGNMENT AND ACCEPTANCE
Dated ___________, 19__
Reference is made to the Second Amended and Restated Long-Term
Revolving Credit Agreement dated as of July 12, 1996 (as may be amended or
otherwise modified from time to time, the "Credit Agreement") among Burlington
Resources Inc., a Delaware corporation (the "Borrower"), the Lenders (as
defined in the Credit Agreement) and Citibank, N.A., as Agent for the Lenders
(the "Agent"). Capitalized terms defined in the Credit Agreement and not
defined herein are used herein as therein defined.
_____________________ (the "Assignor") and ___________________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and
to all of the Assignor's rights and obligations under the Credit Agreement as
of the date hereof (other than in respect of B Advances and B Notes) which
represents the percentage interest specified on Schedule 1 of all outstanding
rights and obligations under the Credit Agreement (other than in respect of B
Advances and B Notes), including, without limitation, such interest in the
Assignor's Commitment, the A Advances owing to the Assignor, and the A Note[s]
held by the Assignor. After giving effect to such sale and assignment, the
Assignee's Commitment and the amount of the A Advances owing to the Assignee
will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) represents and
warrants that it has made or is contemporaneously making herewith, to the
Assignee as contemplated by Section 8.07 of the Credit Agreement, an assignment
under the Short-Term Revolving Credit Agreement, unless the Short-Term
Revolving Credit Agreement has been terminated; (iii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iv) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (v) attaches the A Note[s] referred to in
paragraph 1 above and requests that the Agent exchange such A Note[s] for a new
A Note payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new A Notes payable to
the order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and the Assignor in an
66
amount equal to the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) confirms that it has entered into or is
contemporaneously herewith entering into, with the Assignor as contemplated by
Section 8.07 of the Credit Agreement, an assignment under the Short-Term
Revolving Credit Agreement, unless the Short-Term Revolving Credit Agreement
has been terminated; (iii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iv) confirms that it is (subject to approval in writing by the
Borrower and the Agent) an Eligible Assignee; (v) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (vi) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be performed by it
as a Lender; [and] (vii) specifies as its Domestic Lending Office (and address
for notices) and Eurodollar Lending Office the offices set forth beneath its
name on the signature pages hereof [and (viii) attaches the forms prescribed by
the Internal Revenue Service of the United States certifying as to the
Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement and the Notes or such other documents as are necessary to
indicate that all such payments are subject to such rates at a rate reduced by
an applicable tax treaty](1).
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee and the execution of its consent hereto by the
Borrower, the Assignor will deliver this Assignment and Acceptance to the Agent
for acceptance and recording by the Agent. The effective date of this
Assignment and Acceptance shall be the date of acceptance thereof by the Agent,
unless otherwise specified on Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement, provided, however,
the Assignor shall retain any claim with respect to any fee, interest, cost,
expense or indemnity which accrues, or relates to an event that occurs, prior
to the Effective Date pursuant to Section 2.03, 2.06, 2.07, 2.11, 2.12, 2.15 or
8.04 of the Agreement.
________________________
(1) If the Assignee is organized under the laws of a jurisdiction
outside of the United States.
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67
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest and commitment fees
with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Notes for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
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Schedule 1
to
Assignment and Acceptance
Dated _________, 19__
Section 1.
Percentage Interest: ___________%
Section 2.
Assignee's Commitment: $__________
Aggregate Outstanding Principal
Amount of Advances owing to the Assignee: $__________
Note payable to the order of the Assignee
Dated: _________, 19___
Principal amount: _______
Note payable to the order of the Assignor
Dated: _________, 19___
Principal amount: _______
Section 3.
Effective Date(2): _________, 19___
[NAME OF ASSIGNOR]
By:___________________________
Title:
[NAME OF ASSIGNEE]
By:_________________________
Title:
________________________
(2) This date should be no earlier than the date of acceptance by
the Agent.
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Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ____ day
of ____________, 19__:
CITIBANK, N.A.
By:______________________
Name: ___________________
Title: __________________
Consented to this __ day
of __________, 19__:
BURLINGTON RESOURCES INC.
By:______________________
Name: ___________________
Title: __________________
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EXHIBIT F-1
COMMITMENT INCREASE AGREEMENT
This Commitment Increase Agreement dated as of ________, 19__ (this
"Agreement") is by and among (i) Burlington Resources Inc., a Delaware
corporation ("Borrower"), (ii) Citibank, N.A. in its capacity as Agent under
the Second Amended and Restated Long-Term Revolving Credit Agreement dated as
of July 12, 1996 (as may be amended or otherwise modified from time to time,
the "Credit Agreement", capitalized terms that are defined in the Credit
Agreement and not defined herein are used herein as therein defined) among the
Borrower, Citibank, N.A. in such capacity and the lenders party thereto, and
(iii) __________________ ("Increasing Lender").
Preliminary Statements
A. Pursuant to Section 2.20 of the Credit Agreement, the Borrower has the
right, subject to the terms and conditions thereof, to effectuate from
time to time an increase in the total Commitments under the Credit
Agreement by agreeing with a Lender to increase that Lender's Commitment.
B. The Borrower has given notice to the Agent of its intention to
increase the total Commitments pursuant to such Section 2.20 by increasing
the Commitment of the Increasing Lender from $____________ to
$_____________, and the Agent is willing to consent thereto.
Accordingly, the parties hereto agree as follows:
Section 1. Increase of Commitment. Pursuant to Section 2.20 of the
Credit Agreement, the Commitment of the Increasing Lender is hereby increased
from $__________ to $____________.
Section 2. New Note. The Borrower agrees to promptly execute and deliver
to the Increasing Lender an A Note in the amount of its increased Commitment
set forth in Section 1 above (the "New Note"), and the Increasing Lender agrees
to return to the Borrower, with reasonable promptness, the A Note previously
delivered to the Increasing Lender by the Borrower.
Section 3. Consent. The Agent hereby consents to the increase in the
Commitment of the Increasing Lender effectuated hereby.
Section 4. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 5. 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
71
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
Section 6. Lender Credit Decision. The Increasing Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and to agree to the
various matters set forth herein. The Increasing Lender also acknowledges that
it will, independently and without reliance upon the Agent or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement.
Section 7. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The execution, delivery and performance by the Borrower of this
Agreement and the New Note are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's certificate of incorporation or by-laws or
(ii) law or any contractual restriction binding on or affecting the
Borrower.
(b) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower
of this Agreement or the New Note which has not been duly made or
obtained.
(c) This Agreement constitutes, and the New Note when delivered
hereunder shall constitute, legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors rights generally or by general principles of equity.
(d) No Increase (as defined in Section 2.20 of the Credit Agreement)
in Commitments pursuant to this Agreement results in the total Commitments
of all Lenders exceeding $800,000,000 or results in the aggregate amount
of all Increases in the Commitments of all Lenders effectuated pursuant to
Section 2.20 of the Credit Agreement since the date of the Credit
Agreement exceeding $200,000,000. No prior Increase has taken effect
during the calendar quarter that includes the effective date hereof.
(e) The Borrower has outstanding public long-term senior unsecured
debt securities that are rated by S&P or Moody's of which the lowest such
rating by ▇▇▇▇▇'▇ is A3 or better or of which the lowest such rating by
S&P is ▇- ▇▇ ▇▇▇▇▇▇.
-▇-
▇▇
(▇) No event has occurred and is continuing 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.
(g) Immediately prior to, or simultaneously with, the Increase in
Commitment pursuant to this Agreement, the Borrower has prepaid in
accordance with the terms of the Credit Agreement, all outstanding A
Advances, if any.
(h) Unless the Short-Term Revolving Credit Agreement has been
terminated, the Borrower has caused, or is simultaneously causing, the
Increasing Lender's "Commitment" (under and as defined in the Short-Term
Revolving Credit Agreement) to be increased pursuant to Section 2.20
thereof by the same percentage as the Increasing Lender's Commitment under
the Credit Agreement is being increased pursuant to Section 2.20 of the
Credit Agreement.
(i) Attached hereto are resolutions duly adopted by the Board of
Directors of the Borrower sufficient to authorize this Agreement and the
New Note, and such resolutions are in full force and effect.
Section 8. Default. Without limiting any other event that may constitute
an Event of Default, in the event any representation or warranty set forth
herein shall prove to have been incorrect in any material respect when made,
such event shall constitute an "Event of Default" under the Credit Agreement.
Section 9. Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the preparation, negotiation,
execution and delivery of this Agreement and the New Note, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto.
Section 10. Effectiveness. When, and only when, the Agent shall have
received counterparts of, or telecopied signature pages of, this Agreement
executed by the Borrower, the Agent and the Increasing Lender, this Agreement
shall become effective as of the date first written above.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of
the date first above written.
BORROWER:
BURLINGTON RESOURCES INC.
By: __________________________
Name: ________________________
Title: _______________________
AGENT:
CITIBANK, N.A., as Agent
By: __________________________
Name: ________________________
Title: _______________________
INCREASING LENDER:
______________________________
By: __________________________
Name: ________________________
Title: _______________________
Attachment
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EXHIBIT F-2
NEW LENDER AGREEMENT
This New Lender Agreement dated as of _______, 19__ (this "Agreement") is
by and among (i) Burlington Resources Inc., a Delaware corporation
("Borrower"), (ii) Citibank, N.A. in its capacity as Agent under the Second
Amended and Restated Long-Term Revolving Credit Agreement dated as of July 12,
1996 (as may be amended or otherwise modified from time to time, the "Credit
Agreement", capitalized terms that are defined in the Credit Agreement and not
defined herein are used herein as therein defined) among the Borrower,
Citibank, N.A. in such capacity and the lenders party thereto, and (iii)
_____________________________ ("New Lender").
Preliminary Statements
A. Pursuant to Section 2.20 of the Credit Agreement, the Borrower has the
right, subject to the terms and conditions thereof, to effectuate from
time to time an increase in the total Commitments under the Credit
Agreement by adding to the Credit Agreement one or more banks or other
financial institutions.
B. The Borrower has given notice to the Agent pursuant to Section 2.20 of the
Credit Agreement of its intention to increase the total Commitments
pursuant to such Section 2.20 by adding the New Lender to the Credit
Agreement as a Lender with a Commitment of $________________, and the
Agent is willing to consent thereto.
Accordingly, the parties hereto agree as follows:
Section 1. Addition of New Lender. Pursuant to Section 2.20 of the
Credit Agreement, the New Lender is hereby added to the Credit Agreement as a
Lender with a Commitment of $________________________________. The New Lender
specifies as its Domestic Lending Office and Eurodollar Lending Office the
following:
Domestic Lending Address:
Office:
Attention:
Telephone:
Telecopy:
Eurodollar Lending Address:
Office:
Attention:
Telephone:
Telecopy:
75
Section 2. New Note. The Borrower agrees to promptly execute and deliver
to the New Lender an A Note in the amount of its Commitment set forth in
Section 1 above ("New Note").
Section 3. Consent. The Agent and the Borrower hereby consent to the
increase in the Commitments and addition of the New Lender effectuated hereby.
Section 4. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 5. 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.
Section 6. Lender Credit Decision. The New Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and to agree to the various
matters set forth herein. The New Lender also acknowledges that it will,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement.
Section 7. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The execution, delivery and performance by the Borrower of this
Agreement and the New Note are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's certificate of incorporation or by-laws or
(ii) law or any contractual restriction binding on or affecting the
Borrower.
(b) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower
of this Agreement or the New Note which has not been duly made or
obtained.
(c) This Agreement constitutes, and the New Note when delivered
hereunder shall constitute, legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors rights generally or by general principles of equity.
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(d) No Increase (as defined in Section 2.20 of the Credit Agreement)
in Commitments pursuant to this Agreement results in the total Commitments
of all Lenders exceeding $800,000,000 or results in the aggregate amount
of all Increases in the Commitments of all Lenders effectuated pursuant to
Section 2.20 of the Credit Agreement since the date of the Credit
Agreement exceeding $200,000,000. No prior Increase has taken effect
during the calendar quarter that includes the effective date hereof.
(e) The Borrower has outstanding public long-term senior unsecured
debt securities that are rated by S&P or Moody's of which the lowest such
rating by ▇▇▇▇▇'▇ is A3 or better or of which the lowest such rating by
S&P is A- or better.
(f) No event has occurred and is continuing 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.
(g) Immediately prior to, or simultaneously with, the Increase in
Commitments pursuant to this Agreement, the Borrower has prepaid in
accordance with the terms of the Credit Agreement, all outstanding A
Advances, if any.
(h) Unless the Short-Term Revolving Credit Agreement has been
terminated, the Borrower has caused, or is simultaneously causing, the New
Lender to become a party to the Short-Term Revolving Credit Agreement
pursuant to Section 2.20 thereof with a "Commitment" (under and as defined
in the Short-Term Revolving Credit Agreement) that constitutes the same
percentage of all "Commitments" thereunder as the percentage that the New
Lender's Commitment under the Credit Agreement constitutes of all
Commitments under the Credit Agreement.
(i) Prior to the Increase in Commitment pursuant to this Agreement,
the Borrower has offered the Lenders the right to participate in such
Increase by increasing their respective Commitments.
(j) Attached hereto are resolutions duly adopted by the Board of
Directors of the Borrower sufficient to authorize this Agreement and the
New Note, and such resolutions are in full force and effect.
Section 8. Default. Without limiting any other event that may constitute
an Event of Default, in the event any representation or warranty set forth
herein shall prove to have been incorrect in any material respect when made,
such event shall constitute an "Event of Default" under the Credit Agreement.
Section 9. Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the preparation, negotiation,
execution and delivery of this
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77
Agreement and the New Note, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Agent with respect thereto.
Section 10. Effectiveness. When, and only when, the Agent shall have
received counterparts of, or telecopied signature pages of, this Agreement
executed by the Borrower, the Agent and the New Lender, this Agreement shall
become effective as of the date first written above.
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.
BORROWER:
BURLINGTON RESOURCES INC.
By: __________________________
Name: ________________________
Title: _______________________
AGENT:
CITIBANK, N.A., as Agent
By: __________________________
Name: ________________________
Title: _______________________
NEW LENDER:
______________________________
By: __________________________
Name: ________________________
Title: _______________________
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EXHIBIT G
FORM OF OPINION OF SENIOR VICE PRESIDENT, LAW
FOR BORROWER
July 12, 1996
To each of the Lenders and the Agent
Referred to Below
c/o Citibank, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(d) of the Second
Amended and Restated Long-Term Revolving Credit Agreement, dated as of July 12,
1996 (the "Credit Agreement"), among Burlington Resources Inc., a Delaware
corporation (the "Company"), the financial institutions party thereto (each a
"Lender," and together the "Lenders"), and Citibank, N.A., as agent for the
Lenders. Unless the context otherwise requires, all capitalized terms used
herein without definition shall have the meanings ascribed to them in the
Credit Agreement.
I am Senior Vice President, Law of the Company, and I, or attorneys over
whom I exercise supervision, have acted as counsel for the Company in
connection with the preparation, execution and delivery of the Credit
Agreement. In that connection, I or such attorneys have examined:
(1) The Credit Agreement, executed by the parties thereto;
(2) The fifteen A Notes, executed by the Company; and
(3) The other documents furnished by the Company pursuant to Section 3.01
of the Credit Agreement.
I, or attorneys over whom I exercise supervision, have also examined the
originals, or copies certified to our satisfaction, of the agreements,
instruments and other documents, and all of the orders, writs, judgments,
awards, injunctions and decrees, which affect or purport to affect the
Company's ability to perform the Company's obligations under the Credit
Agreement or the Notes (collectively referred to herein as the "Documents").
In addition, I, or attorneys over whom I exercise supervision, have examined
the originals, or copies certified to our satisfaction, of such other corporate
records of the Company, certificates of public officials and of officers of the
Company, and agreements, instruments and other documents, as I have deemed
necessary as a basis for the opinions hereinafter expressed. In all such
examinations, I, or attorneys over
79
whom I exercise supervision, have assumed the legal capacity of all natural
persons executing documents, the genuineness of all signatures on original or
certified, conformed or reproduction copies of documents of all parties (other
than, with respect to the Documents, the Company), the authenticity of original
and certified documents and the conformity to original or certified copies of
all copies submitted to such attorneys or me as conformed or reproduction
copies. As to various questions of fact relevant to the opinions expressed
herein, I have relied upon, and assume the accuracy of, representations and
warranties contained in the Credit Agreement and certificates and oral or
written statements and other information of or from public officials, officers
and/or representatives of the Company and others.
To the extent it may be relevant to the opinions expressed herein, I have
assumed that the parties to the Documents other than the Company have the power
to enter into and perform such documents and that such documents have been duly
authorized, executed and delivered by, and constitute legal, valid and binding
obligations of, such parties.
The opinions expressed below are limited to the federal laws of the United
States and, to the extent relevant hereto, the General Corporation Law of the
State of Delaware, as currently in effect. I assume no obligation to
supplement this opinion if any applicable laws change after the date hereof or
if I become aware of any facts that might change the opinions expressed herein
after the date hereof.
Based upon the foregoing and upon such investigation as I have deemed
necessary, and subject to the limitations, qualifications and assumptions set
forth herein, I am of the following opinion:
1. The Company (i) is a corporation duly incorporated and existing
in good standing under the laws of the State of Delaware, and (ii)
possesses all the corporate powers and all other authorizations and
licenses necessary to engage in its business and operations as now
conducted, the failure to obtain or maintain which would have a Material
Adverse Effect.
2. The execution, delivery and performance by the Company of the
Documents are within the Company's corporate powers and have been duly
authorized by all necessary corporate action in respect of or by the
Company (except to the extent that the Company seeks to exercise its right
under Section 2.20 of the Credit Agreement to effect an increase of
Commitments), and do not contravene (i) the Company's Certificate of
Incorporation or By-Laws, in each case as amended, (ii) any federal law,
rule or regulation applicable to the Company (excluding provisions of
federal law expressly referred to in and covered by the opinion of ▇▇▇▇▇,
Day, ▇▇▇▇▇▇ & ▇▇▇▇▇ delivered to you in connection with the transactions
contemplated hereby), or (iii) any contractual restriction binding on or
affecting the Company. The Documents have been duly executed and
delivered on behalf of the Company.
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80
3. No authorization or approval or other action by, and no notice
to or filing with, any federal governmental authority or regulatory body
(including, without limitation, the Federal Energy Regulatory Commission)
is required for the due execution, delivery and performance by the Company
of the Documents, except those required in the ordinary course of business
in connection with the performance by the Company of its obligations under
certain covenants and warranties contained in the Documents.
4. To the best of my knowledge, there is no action, suit or
proceeding pending or overtly threatened against or involving the Company
or any of its Material Subsidiaries, which, in my reasonable judgment
(taking into account the exhaustion of all appeals), would have a material
adverse effect upon the consolidated financial condition of the Company
and its consolidated Subsidiaries taken as a whole, or which purports to
affect the legality, validity, binding effect or enforceability of any
Document.
These opinions are given as of the date hereof and are solely for your
benefit in connection with the transactions contemplated by the Credit
Agreement. These opinions may not be relied upon by you for any other purpose
or relied upon by any other person for any purpose without my prior written
consent.
Very truly yours,
L. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President, Law
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EXHIBIT H
FORM OF OPINION OF ▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇,
NEW YORK COUNSEL FOR BORROWER
July 12, 1996
To Each of the Lenders and the Agent
Referred to Below
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Burlington Resources Inc.
Ladies and Gentlemen:
We have acted as special New York counsel for Burlington Resources Inc., a
Delaware corporation (the "Borrower"), in connection with the Second Amended
and Restated Long-Term Revolving Credit Agreement, dated as of July 12, 1996
(the "Long-Term Revolving Credit Agreement"), among the Borrower, the financial
institutions party thereto (each a "Lender," and together the "Lenders"), and
Citibank, N.A., as agent for the Lenders (in such capacity, the "Agent"). This
opinion is delivered to you pursuant to Section 3.01(e) of the Long-Term
Revolving Credit Agreement. All capitalized terms used herein that are defined
in, or by reference in, the Long-Term Revolving Credit Agreement have the
meanings assigned to such terms therein, or by reference therein, unless
otherwise defined herein. With your permission, all assumptions and statements
of reliance herein have been made without any independent investigation or
verification on our part except to the extent otherwise expressly stated, and
we express no opinion with respect to the subject matter or accuracy of such
assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such questions
of law, (ii) examined originals or certified, conformed or reproduction copies
of such documents, and (iii) received such information from officers and
representatives of the Borrower as we have deemed necessary or appropriate for
the purposes of this opinion. We have examined, among other documents, the
following:
(a) A facsimile of an executed copy of the Long-Term Revolving Credit
Agreement; and
(b) A facsimile of an executed copy of each of the fifteen A Notes; and
82
(c) A facsimile of the Officer's Certificate of the Borrower delivered to
us in connection with this opinion, a copy of which is attached
hereto as Annex A.
The documents referred to in items (a) and (b) above are referred to herein
collectively as the "Documents."
In all such examinations, we have assumed the legal capacity of all
natural persons executing documents, the genuineness of all signatures, the
authenticity of original and certified documents and the conformity to original
or certified copies of all copies submitted to us as conformed or reproduction
copies. As to various questions of fact relevant to the opinions expressed
herein, we have relied upon, and assume the accuracy of, representations and
warranties contained in the Documents and certificates and oral or written
statements and other information of or from representatives of the Borrower and
others. With respect to the opinions expressed in paragraph (a) below, our
opinions are limited (x) to our actual knowledge of the Borrower's specially
regulated business activities and properties based solely upon an officer's
certificate in respect of such matters and without any independent
investigation or verification on our part and (y) to our review of only those
laws and regulations that, in our experience, are normally applicable to
transactions of the type contemplated by the Documents.
To the extent it may be relevant to the opinions expressed herein, we have
assumed that the parties to the Documents other than the Borrower have the
power to enter into and perform such documents and that such documents have
been duly authorized, executed and delivered by, and constitute legal, valid
and binding obligations of, such parties.
Based upon the foregoing, and subject to the limitations, qualifications
and assumptions set forth herein, we are of the opinion that:
(a) The execution and delivery to the Agent and the Lenders by the
Borrower of the Documents and the performance by the Borrower of its
obligations thereunder (i) do not require under present law any filing or
registration by the Borrower with, or approval or consent to the Borrower of,
any governmental agency or authority of the State of New York, except those, if
any, required in the ordinary course of business in connection with the
performance by the Borrower of its obligations under certain covenants and
warranties contained in the Documents and (ii) do not violate any present law,
or present regulation of any governmental agency or authority, of the State of
New York applicable to the Borrower or its property.
(b) The Documents constitute the legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
respective terms.
(c) The borrowings by the Borrower under the Long-Term Revolving Credit
Agreement and the applications of the proceeds thereof as provided in the
Long-Term Revolving Credit Agreement will not violate Regulation G, T, U or X
of the Board of Governors of the Federal Reserve System.
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83
The opinions set forth above are subject to the following
qualifications:
(A) We express no opinion as to:
(i) the validity, binding effect or enforceability (a) of
any provision of the Documents relating to indemnification,
contribution or exculpation in connection with violations of any
securities laws or statutory duties or public policy, or in
connection with willful, reckless or criminal acts or gross
negligence of the indemnified or exculpated party or the party
receiving contribution; or (b) of any provision of any of the
Documents relating to exculpation of any party in connection with its
own negligence that a court would determine in the circumstances
under applicable law to be unfair or insufficiently explicit;
(ii) the validity, binding effect or enforceability of (a)
any purported waiver, release, variation, disclaimer, consent or
other agreement to similar effect (all of the foregoing,
collectively, a "Waiver") by the Borrower under the Documents to the
extent limited by provisions of applicable law (including judicial
decisions), or to the extent that such a Waiver applies to a right,
claim, duty, defense or ground for discharge otherwise existing or
occurring as a matter of law (including judicial decisions), except
to the extent that such a Waiver is effective under and is not
prohibited by or void or invalid under provisions of applicable law
(including judicial decisions) or (b) any provision of any Document
relating to choice of governing law to the extent that the validity,
binding effect or enforceability of any such provision is to be
determined by any court other than a court of the State of New York;
(iii) the enforceability of any provision in the Documents
specifying that provisions thereof may be waived only in writing, to
the extent that an oral agreement or an implied agreement by trade
practice or course of conduct has been created that modifies any
provision of the Documents;
(iv) the effect of any law of any jurisdiction other than
the State of New York wherein the Agent or any Lender may be located
or wherein enforcement of any document referred to above may be
sought that limits the rates of interest legally chargeable or
collectible; and
(v) any approval, consent or authorization of the Federal
Energy Regulatory Commission or any other United States federal
agency or authority needed in connection with the execution, delivery
and performance by the Borrower of the Documents, the consummation of
the transactions contemplated thereby and compliance with the terms
and conditions thereof.
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84
(B) Our opinions above are subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar laws
from time to time in effect affecting creditors' rights generally, (ii) general
principles of equity (including, without limitation, standards of materiality,
good faith, fair dealing and reasonableness), whether such principles are
considered in a proceeding at law or in equity and (iii) the qualification that
certain other provisions of the Documents may be unenforceable in whole or in
part under the laws (including judicial decisions) of the State of New York or
the United States of America, but the inclusion of such provisions does not
affect the validity as against the Borrower of the Documents as a whole, and
the Documents contain adequate provisions for enforcing payment of the
obligations governed thereby, subject to the other qualifications contained in
this letter.
(C) For purposes of the opinions set forth in paragraph (c) above,
we have assumed that (i) neither the Agent nor any of the Lenders has or will
have the benefit of any agreement or arrangement (excluding the Documents)
pursuant to which any Advances are directly or indirectly secured by Margin
Stock, (ii) neither the Agent nor any of the Lenders nor any of their
respective affiliates has extended or will extend any other credit to the
Borrower directly or indirectly secured by Margin Stock and (iii) neither the
Agent nor any of the Lenders has relied or will rely upon any Margin Stock as
collateral in extending or maintaining any Advances pursuant to the Long-Term
Revolving Credit Agreement.
(D) For purposes of our opinions above, insofar as they relate to
the Borrower, we have assumed that (i) the Borrower is a corporation validly
existing in good standing in its jurisdiction of incorporation, has all
requisite power and authority, and has obtained all requisite corporate,
shareholder, third party and governmental authorizations, consents and
approvals, and made all requisite filings and registrations, necessary to
execute, deliver and perform the Documents (except to the extent noted in
paragraph (a) above), and that such execution, delivery and performance will
not violate or conflict with any law, rule, regulation, order, decree,
judgment, instrument or agreement binding upon or applicable to the Borrower or
its properties (except to the extent noted in paragraph (a) above), and (ii)
the Documents have been duly executed and delivered by the Borrower.
The opinions expressed herein are limited to the federal laws of the
United States of America (in the case of the matters covered in paragraph (c)
above) and the laws of the State of New York, as currently in effect.
The opinions expressed herein are solely for the benefit of the Agent and
the Lenders and may not be relied on in any manner or for any purpose by any
other person or entity.
Very truly yours,
▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇
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85
ANNEX A
to the Opinion dated July 12, 1996
of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇,
New York Counsel for Borrower
OFFICER'S CERTIFICATE
I, L. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President, Law of Burlington Resources
Inc., a Delaware corporation (the "Company"), hereby certify, for and on behalf
of the Company, in connection with the legal opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ &
▇▇▇▇▇ delivered pursuant to the Second Amended and Restated Long-Term Revolving
Credit Agreement, dated as of July 12, 1996, among the Company, the financial
institutions party thereto (the "Lenders"), and Citibank, N.A., as Agent for
the Lenders, that the Company does not, to the best of my knowledge and belief,
engage or propose to engage in any industry or business, or own, lease or
maintain any property or asset in the State of New York.
IN WITNESS WHEREOF, I have executed this Certificate on the 12th day of
July, 1996.
______________________________________
L. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President, Law
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86
EXHIBIT I
FORM OF OPINION OF COUNSEL
TO CITIBANK, N.A., AS AGENT
July 12, 1996
To the Lenders listed on Annex A hereto
and to Citibank, N.A., as Agent
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Burlington Resources Inc.
Ladies and Gentlemen:
We have acted as counsel to Citibank, N.A., individually and as Agent, in
connection with the preparation, execution and delivery of the Second Amended
and Restated Long-Term Revolving Credit Agreement dated as of July 12, 1996
(the "Credit Agreement") among Burlington Resources Inc. (the "Borrower") and
each of you. Terms defined in the Credit Agreement are used herein as therein
defined.
In that connection, we have examined the following documents:
(1) Counterparts of the Credit Agreement executed by the Borrower
and the Agent.
(2) The documents furnished by the Borrower pursuant to Section 3.01
of the Credit Agreement and listed on Annex B hereto, including the
opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, New York counsel to the Borrower,
and the opinion of L. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., the Senior Vice President, Law
of the Borrower.
In our examination of the documents referred to above, we have assumed the
authenticity of all such documents submitted to us as originals, the
genuineness of all signatures, the due authority of the parties executing such
documents, and the conformity to the originals of all such documents submitted
to us as copies. We have relied as to factual matters on the documents we have
examined.
While we are not expressing to you any opinion or conclusion with respect
to the matters covered by the opinions of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇ and of L.
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. referred
87
To the Lenders listed on
Exhibit A hereto and to
Citibank, N.A., as Agent
July 12, 1996
Page 2
to above, we call to your attention the various qualifications and
exceptions set forth in such opinions.
Based on and subject to the foregoing, we are of the opinion that the
documents listed on Annex B hereto are substantially responsive to the
requirements of Section 3.01 of the Credit Agreement.
Very truly yours,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P.
88
ANNEX A
to the Opinion dated July 12, 1996
of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P.
Lenders
Citibank, ▇.▇.
▇▇▇▇▇▇ Guaranty Trust Company of New York
NationsBank of Texas, N.A.
The Chase Manhattan Bank, N.A.
Bank of America National Trust and Savings Association
The First National Bank of Boston
The Bank of Tokyo - Mitsubishi, Ltd. - Houston Agency
Mellon Bank, N.A.
Toronto Dominion (Texas), Inc.
ABN AMRO Bank N.V.
Credit Lyonnais New York Branch
▇▇▇▇▇ Fargo (Texas), National Association
The Northern Trust Company
The Sumitomo Bank, Limited, Houston Agency
Union Bank of Switzerland
89
ANNEX B
to the Opinion dated July 12, 1996
of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P.
Documents
1. The fifteen A Notes dated July 12, 1996, one such A Note payable to the
order of each of the respective Lenders.
2. The opinion dated July 12, 1996 of L. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., the Senior Vice
President, Law of the Borrower.
3. The opinion dated July 12, 1996 of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, New York
counsel to the Borrower.
4. A certified copy of the resolutions of the Board of Directors of the
Borrower.
5. A certificate of the Assistant Secretary of the Borrower certifying names
and true signatures of officers of the Borrower.
6. The letter from CT Corporation System dated July ____, 1996.
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EXHIBIT J
FORM OF PROCESS AGENT LETTER
July 12, 1996
To each of the Lenders party
to the Credit Agreement
(as defined and referred to below)
and to Citibank, N.A., as Agent for
said Lenders
c/o Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
To Burlington Resources Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Burlington Resources Inc.
Ladies and Gentlemen:
Reference is made to the $600,000,000 Amended and Restated Long-Term
Revolving Credit Agreement, dated as of July 14, 1995, which has been
amended and restated in its entirety by the Second Amended and Restated
Long-Term Revolving Credit Agreement, dated as of July 12, 1996 (as may be
amended or otherwise modified from time to time, the "Credit Agreement", the
capitalized terms defined therein and not defined herein being used herein as
therein defined), among Burlington Resources Inc. (the "Borrower"), certain
financial institutions from time to time party thereto as Lenders thereunder
(the "Lenders") and Citibank, N.A., as agent (the "Agent") for the Lenders.
Pursuant to Section 8.09(a) of the Credit Agreement, the Borrower has
appointed the undersigned (with an office on the date hereof at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇) as Process Agent to receive, on behalf
of the Borrower and its property, service of copies of the summons and
complaint and any other process which may be served by the Agent, the Arranger,
any Lender or the holder of any Note in any action or proceeding by the Agent,
the Arranger, any Lender or the holder of any Note in any New York State or
Federal court sitting in New York City in respect of, but only in respect of,
any claims or causes of action arising out of or relating to the Credit
Agreement and the Notes issued pursuant thereto.
The undersigned hereby accepts such appointment as Process Agent and agrees
with each of you that (i) it will not terminate its agency as such Process
Agent prior to July 20, 2001 (and hereby
91
To each of the Lenders party to the Credit Agreement
(referred to below) and to Citibank, N.A., as
Agent for said Lenders, and to Burlington Resources Inc.
July __, 1996
Page 2
acknowledges that it has been paid in full by the Borrower for its services as
Process Agent through such date), (ii) it will maintain an office in New York
City through such date and will give the Agent prompt notice of any change of
its address, (iii) it will perform its duties as Process Agent in accordance
with Section 8.09(a) of the Credit Agreement and (iv) it will forward forthwith
to the Borrower at the Borrower's address specified in Section 8.02 of the
Credit Agreement copies of any summons, complaint and other process which it
receives in connection with its appointment as Process Agent.
This agreement shall be binding upon the undersigned and all successors of the
undersigned.
Very Truly Yours,
CT CORPORATION SYSTEM
By: __________________________
Name: ________________________
Title: _______________________
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EXHIBIT K
DESIGNATION AGREEMENT
Dated __________, 19__
Reference is made to the Second Amended and Restated Long-Term Credit
Agreement dated as of July 12, 1996 (as amended or otherwise modified from time
to time, the "Credit Agreement") among Burlington Resources Inc., a Delaware
corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement)
and Citibank, N.A., as Agent for the Lenders (the "Agent"). Terms defined in
the Credit Agreement are used herein with the same meaning.
_________________ (the "Designator"), ______________ (the "Designee"), and
Burlington Resources Inc., a Delaware corporation (the "Borrower"), agree as
follows:
1. The Designator hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make B Advances pursuant to
Section 2.19 of the Credit Agreement.
2. The Designator makes no representations or warranty and assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto and (ii) the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant
thereto.
3. The Designee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent, the Designator or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is a Designated Bidder; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) specifies as its Applicable Lending
Office with respect to B Advances (and address for notices) the offices set
forth beneath its name on the signature pages hereof.
93
4. Following the execution of this Designation Agreement by the
Designator, the Designee and the Borrower, it will be delivered to the Agent
for acceptance and recording by the Agent. The effective date of this
Designation Agreement shall be the date of acceptance thereof by the Agent,
unless otherwise specified on the signature page hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, the Designee shall be a party to the Credit Agreement with a right to
make B Advances as a Lender pursuant to Section 2.19 of the Credit Agreement
and the rights and obligations of a Lender related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Designation Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
Effective Date(1): ____________, 19___
[NAME OF DESIGNATOR]
By: _______________________
Name: _____________________
Title: ____________________
[NAME OF DESIGNEE]
By: _______________________
Name: _____________________
Title: ____________________
Applicable Lending Office (and addresses for
notices)
[Address]
________________________
(1) This date should be no earlier than the date of acceptance by the Agent.
-2-
94
BURLINGTON RESOURCES INC.
By: _______________________
Name: _____________________
Title: ____________________
Accepted and Approved this
___ day of __________, 19__
CITIBANK, N.A., as Agent
By: _______________________
Title:
-3-
95
SCHEDULE II
MATERIAL SUBSIDIARIES
Meridian Oil Inc.
96
SCHEDULE III
===================================================================================================================================
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇'▇ public long- Borrower's public long- Borrower's public long- Borrower's public long-
BASIS FOR term senior unsecured term senior unsecured term senior unsecured term senior unsecured
PRICING debt securities rated A debt securities rated less debt securities rated less debt securities rated less
or better by S&P And than Level 1 but at least than Level 2 but at least than Level 3 but at least
A2 or better by ▇▇▇▇▇'▇ BBB+ by S&P And at BBB by S&P And at least BBB- by S&P And at
least Baa1 by ▇▇▇▇▇'▇ Baa2 by ▇▇▇▇▇'▇ least Baa3 by ▇▇▇▇▇'▇
------------------------------------------------------------------------------------------------------------------------------------
Facility Fee(1) 8.0 bps 10.0 bps 12.0 bps 14.0 bps
------------------------------------------------------------------------------------------------------------------------------------
LIBOR
Applicable 19.5 bps 20.0 bps 23.0 bps 31.0 bps
Margin
====================================================================================================================================
==========================================
LEVEL 5
Borrower's public long-
term senior unsecured
debt securities rated
lower than Level 4 OR
such securities are not
rated by S&P or are
not rated by ▇▇▇▇▇'▇
------------------------------------------
25.0 bps
------------------------------------------
50.0 bps
==========================================
bps = basis points (each basis point being 1/100% per annum)
The applicable pricing level shall change on the date of any relevant
change in the rating by S&P or ▇▇▇▇▇'▇ of any public long-term senior
unsecured debt securities of the Borrower. If either S&P or ▇▇▇▇▇'▇
has more than one rating for public long-term senior unsecured debt
securities of the Borrower, the lowest such rating shall be
applicable.
________________________
(1) Payable quarterly in arrears on each Lender's Commitment
irrespective of usage.
97
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Bank Domestic Lending Office Eurodollar Lending Office
------------ ----------------------- -------------------------
ABN AMRO Bank N.V. ABN AMRO Bank N.V. ABN AMRO Bank N.V.
Three Riverway, Suite ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: W.▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America National Bank of America National Trust and Bank of America National Trust and
Trust and Savings Savings Association Savings Association
Association ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Citibank, N.A. Citibank, N.A. Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Petroleum Metals and Attention: Petroleum Metals and
Mining Mining
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: with a copy to:
Citibank, N.A. Citibank, N.A.
c/o Citicorp North America, Inc. ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: L. ▇▇▇ ▇▇▇▇▇▇ Attn: L. ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
98
Name of Bank Domestic Lending Office Eurodollar Lending Office
------------ ----------------------- -------------------------
Credit Lyonnais New York Credit Lyonnais New York Branch Credit Lyonnais New York Branch
Branch ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Loan Servicing Attention: Loan Servicing
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: with a copy to:
Credit Lyonnais Rep Office Credit Lyonnais Rep ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 5360
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Bank (Texas), ▇▇▇▇▇ Fargo Bank (Texas), ▇▇▇▇▇ Fargo Bank (Texas),
National Association National Association National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Mellon Bank, ▇.▇. ▇▇▇▇▇▇ Bank, ▇.▇. ▇▇▇▇▇▇ Bank, N.A.
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. 15259 ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: with a copy to:
Mellon Bank, ▇.▇. ▇▇▇▇▇▇ Bank, N.A.
1100 Louisiana, Suite 3600 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-2-
99
Name of Bank Domestic Lending Office Eurodollar Lending Office
------------ ----------------------- -------------------------
▇▇▇▇▇▇ Guaranty Trust ▇▇▇▇▇▇ Guaranty Trust Company of ▇▇▇▇▇▇ Guaranty Trust Company of
Company of New York New York New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: with a copy to:
▇▇▇▇▇▇ Guaranty Trust Company of ▇▇▇▇▇▇ Guaranty Trust Company of
New York New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
NationsBank of Texas, N.A. NationsBank of Texas, N.A. NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 830104 ▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Chase Manhattan Bank, The Chase Manhattan Bank, N.A. The Chase Manhattan Bank, N.A.
N.A. ▇▇▇ ▇▇▇▇▇▇ ▇▇., 5-TCB-N-86 ▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇-▇▇▇-▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Tokyo - The Bank of Tokyo - Mitsubishi, The Bank of Tokyo - Mitsubishi,
Mitsubishi, Ltd. - Houston Ltd. Ltd.
Agency ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The First National Bank of The First National Bank of Boston The First National Bank of Boston
Boston ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mailstop ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mailstop
01-08-02 01-08-02
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-3-
100
Name of Bank Domestic Lending Office Eurodollar Lending Office
------------ ----------------------- -------------------------
The Northern Trust The Northern Trust Company The Northern Trust Company
Company ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
The Sumitomo Bank, The Sumitomo Bank, Limited, The Sumitomo Bank, Limited,
Limited, Houston Agency Houston Agency Houston Agency
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Toronto Dominion Toronto Dominion (Texas), Inc. Toronto Dominion (Texas), Inc.
(Texas), Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Union Bank of Switzerland Union Bank of Switzerland Union Bank of Switzerland
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: with a copy to:
Union Bank of Switzerland Union Bank of Switzerland
1100 Louisiana, Suite 4500 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-4-