THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
DENBURY RESOURCES INC.,
AS BORROWER,
THE FINANCIAL INSTITUTIONS LISTED ON SCHEDULE 2.1 HERETO,
AS BANKS,
BANK ONE, NA,
AS ADMINISTRATIVE AGENT,
CREDIT LYONNAIS NEW YORK BRANCH
AND
FORTIS CAPITAL CORP.,
AS SYNDICATION AGENTS,
AND
UNION BANK OF CALIFORNIA, N.A.
AND
COMERICA BANK-TEXAS,
AS DOCUMENTATION AGENTS
$300,000,000
DATED AS OF
SEPTEMBER 12, 2002
BANC ONE CAPITAL MARKETS, INC.,
AS SOLE LEAD ARRANGER AND BOOK MANAGER
TABLE OF CONTENTS
Page No.
Article I AMENDMENT AND RESTATEMENT...................................................................................2
Article II TERMS DEFINED..............................................................................................2
Section 2.1 Definitions.....................................................................................2
Section 2.2 Accounting Terms and Determinations............................................................23
Section 2.3 Petroleum Terms................................................................................23
Section 2.4 Money..........................................................................................23
Article III THE CREDIT...............................................................................................24
Section 3.1 Commitments....................................................................................24
Section 3.2 Method of Borrowing............................................................................27
Section 3.3 Method of Requesting Letters of Credit.........................................................28
Section 3.4 Notes..........................................................................................28
Section 3.5 Interest Rates; Payments.......................................................................29
Section 3.6 Mandatory Prepayments..........................................................................30
Section 3.7 Voluntary Prepayments..........................................................................30
Section 3.8 Voluntary Reduction of Commitments.............................................................31
Section 3.9 Termination of Commitments; Final Maturity of Revolving Loan...................................31
Section 3.10 Application of Payments........................................................................31
Section 3.11 Commitment Fee.................................................................................31
Section 3.12 Agency and other Fees..........................................................................31
Article IV GENERAL PROVISIONS........................................................................................31
Section 4.1 Delivery and Endorsement of Notes..............................................................31
Section 4.2 General Provisions as to Payments..............................................................32
Article V BORROWING BASE.............................................................................................33
Section 5.1 Reserve Report; Proposed Borrowing Base and Conforming Borrowing Base..........................33
Section 5.2 Scheduled Redeterminations of the Borrowing Base and the Conforming Borrowing Base; Procedures
and Standards..................................................................................33
Section 5.3 Special Redetermination........................................................................34
Section 5.4 Borrowing Base Deficiency......................................................................34
Section 5.5 Initial Borrowing Base and Initial Conforming Borrowing Base...................................35
Article VI COLLATERAL AND GUARANTEES.................................................................................35
Section 6.1 Security.......................................................................................35
Section 6.2 Guarantees.....................................................................................36
Article VII CONDITIONS PRECEDENT.....................................................................................36
Section 7.1 Conditions to Amendment and Restatement and Initial Borrowing and Participation in Letter of
Credit Exposure................................................................................36
Section 7.2 Conditions to Each Borrowing and each Letter of Credit.........................................40
Section 7.3 Agreements Regarding Initial Borrowing.........................................................40
Section 7.4 Materiality of Conditions......................................................................41
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Article VIII REPRESENTATIONS AND WARRANTIES..........................................................................41
Section 8.1 Corporate Existence and Power..................................................................41
Section 8.2 Credit Party and Governmental Authorization; Contravention.....................................41
Section 8.3 Binding Effect.................................................................................41
Section 8.4 Financial Information..........................................................................42
Section 8.5 Litigation.....................................................................................42
Section 8.6 ERISA..........................................................................................42
Section 8.7 Taxes and Filing of Tax Returns................................................................43
Section 8.8 Ownership of Properties Generally..............................................................43
Section 8.9 Mineral Interests..............................................................................43
Section 8.10 Licenses, Permits, Etc.........................................................................44
Section 8.11 Compliance with Law............................................................................44
Section 8.12 Full Disclosure................................................................................44
Section 8.13 Organizational Structure; Nature of Business...................................................44
Section 8.14 Environmental Matters..........................................................................44
Section 8.15 Burdensome Obligations.........................................................................45
Section 8.16 Fiscal Year....................................................................................45
Section 8.17 No Default.....................................................................................46
Section 8.18 Government Regulation..........................................................................46
Section 8.19 Insider........................................................................................46
Section 8.20 Gas Balancing Agreements and Advance Payment Contracts.........................................46
Article IX AFFIRMATIVE COVENANTS.....................................................................................46
Section 9.1 Information....................................................................................46
Section 9.2 Business of Credit Parties.....................................................................48
Section 9.3 Maintenance of Existence.......................................................................49
Section 9.4 Title Data.....................................................................................49
Section 9.5 Right of Inspection............................................................................49
Section 9.6 Maintenance of Insurance.......................................................................49
Section 9.7 Payment of Taxes and Claims....................................................................50
Section 9.8 Compliance with Laws and Documents.............................................................50
Section 9.9 Operation of Properties and Equipment..........................................................50
Section 9.10 Environmental Law Compliance...................................................................51
Section 9.11 ERISA Reporting Requirements...................................................................51
Section 9.12 Additional Documents...........................................................................52
Section 9.13 Environmental Review...........................................................................52
Article X NEGATIVE COVENANTS.........................................................................................52
Section 10.1 Incurrence of Debt.............................................................................52
Section 10.2 Restricted Payments............................................................................53
Section 10.3 Negative Pledge................................................................................53
Section 10.4 Consolidations and Mergers.....................................................................53
Section 10.5 Asset Dispositions.............................................................................53
Section 10.6 Amendments to Organizational Documents.........................................................54
Section 10.7 Use of Proceeds...............................................................................54
Section 10.8 Investments....................................................................................54
Section 10.9 Transactions with Affiliates...................................................................54
Section 10.10 ERISA..........................................................................................54
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Section 10.11 Hedge Transactions.............................................................................54
Section 10.12 Fiscal Year....................................................................................55
Section 10.13 Change in Business.............................................................................55
Section 10.14 Qualified Purpose..............................................................................55
Section 10.15 Obligations of Unrestricted Subsidiaries.......................................................55
Article XI FINANCIAL COVENANTS.......................................................................................55
Section 11.1 Current Ratio of Borrower......................................................................55
Section 11.2 Minimum Consolidated Tangible Net Worth........................................................55
Section 11.3 Consolidated EBITDA to Consolidated Net Interest Expense.......................................56
Article XII DEFAULTS.................................................................................................56
Section 12.1 Events of Default..............................................................................56
Article XIII AGENTS..................................................................................................58
Section 13.1 Appointment; Nature of Relationship............................................................58
Section 13.2 Powers.........................................................................................58
Section 13.3 General Immunity...............................................................................58
Section 13.4 No Responsibility for Loans, Recitals, etc.....................................................58
Section 13.5 Action on Instructions of Banks................................................................59
Section 13.6 Employment of Agents and Counsel...............................................................59
Section 13.7 Reliance on Documents; Counsel.................................................................59
Section 13.8 Administrative Agent's Reimbursement and Indemnification.......................................59
Section 13.9 Notice of Default..............................................................................60
Section 13.10 Rights as a Bank...............................................................................60
Section 13.11 Bank Credit Decision...........................................................................60
Section 13.12 Successor Administrative Agent.................................................................60
Section 13.13 Delegation to Affiliates.......................................................................61
Section 13.14 Execution of Collateral Documents..............................................................61
Section 13.15 Collateral Releases............................................................................61
Section 13.16 Agents.........................................................................................62
Article XIV CHANGE IN CIRCUMSTANCES..................................................................................62
Section 14.1 Increased Cost and Reduced Return..............................................................62
Section 14.2 Limitation on Type of Loans....................................................................63
Section 14.3 Illegality.....................................................................................64
Section 14.4 Treatment of Affected Loans....................................................................64
Section 14.5 Compensation...................................................................................64
Section 14.6 Taxes..........................................................................................65
Section 14.7 Discretion of Banks as to Manner of Funding....................................................66
Article XV MISCELLANEOUS.............................................................................................67
Section 15.1 Notices........................................................................................67
Section 15.2 No Waivers.....................................................................................67
Section 15.3 Expenses; Indemnification......................................................................67
Section 15.4 Right of Set-off; Adjustments..................................................................68
Section 15.5 Amendments and Waivers.........................................................................69
Section 15.6 Survival.......................................................................................69
Section 15.7 Limitation on Interest.........................................................................69
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Section 15.8 Invalid Provisions.............................................................................70
Section 15.9 Waiver of Consumer Credit Laws.................................................................70
Section 15.10 Assignments and Participations.................................................................70
Section 15.11 TEXAS LAW......................................................................................73
Section 15.12 Consent to Jurisdiction; Waiver of Immunities..................................................74
Section 15.13 Counterparts; Effectiveness....................................................................74
Section 15.14 No Third Party Beneficiaries...................................................................74
Section 15.15 COMPLETE AGREEMENT.............................................................................74
Section 15.16 WAIVER OF JURY TRIAL...........................................................................75
Section 15.17 Confidentiality................................................................................75
iv
EXHIBITS
--------
EXHIBIT A FORM OF ASSIGNMENT AND AMENDMENT TO MORTGAGES
EXHIBIT B FORM OF FACILITY GUARANTY
EXHIBIT C FORM OF PROMISSORY NOTE EXHIBIT D FORM OF BORROWER
PLEDGE AGREEMENT
EXHIBIT E FORM OF SUBSIDIARY PLEDGE AGREEMENT
EXHIBIT F FORM OF REQUEST FOR BORROWING
EXHIBIT G FORM OF REQUEST FOR LETTER OF CREDIT
EXHIBIT H FORM OF NOTICE OF CONTINUATION OR CONVERSION
EXHIBIT I FORM OF CERTIFICATE OF OWNERSHIP INTERESTS
EXHIBIT J FORM OF CERTIFICATE OF PRINCIPAL EXECUTIVE AND FINANCIAL OFFICER
EXHIBIT K FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT L FORM OF CERTIFICATE OF EFFECTIVENESS
SCHEDULES
---------
SCHEDULE 2.1 FINANCIAL INSTITUTIONS
SCHEDULE 2.2 EXISTING MORTGAGES
SCHEDULE 2.3 EXISTING LETTERS OF CREDIT
SCHEDULE 8.5 LITIGATION
SCHEDULE 8.10 LICENSES, PERMITS, ETC.
SCHEDULE 8.13 JURISDICTIONS, ETC.
SCHEDULE 9.10 ENVIRONMENTAL DISCLOSURE
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------------
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT") is
entered into as of the 12th day of September, 2002, among DENBURY RESOURCES
INC., a Delaware corporation ("BORROWER"), BANK ONE, NA, with its main office in
Chicago, Illinois, as Administrative Agent ("ADMINISTRATIVE AGENT"), CREDIT
LYONNAIS NEW YORK BRANCH and FORTIS CAPITAL CORP., as Syndication Agents
("SYNDICATION AGENTS"), UNION BANK OF CALIFORNIA, N.A. and COMERICA BANK-TEXAS,
as Documentation Agents ("DOCUMENTATION AGENTS") and the financial institutions
listed on Schedule 2.1 hereto as Banks (individually a "BANK" and collectively
"BANKS").
W I T N E S S E T H:
WHEREAS, Borrower, Bank of America, N.A. ("BOFA"), as administrative agent
(in such capacity, the "EXISTING AGENT"), and each of the financial institutions
named and defined therein as Banks (the "EXISTING Banks") and agents, are
parties to that certain Second Amended and Restated Credit Agreement dated as of
October 13, 2000, pursuant to which Existing Banks provided certain loans and
extensions of credit to Borrower (as amended, the "EXISTING CREDIT AGREEMENT");
and
WHEREAS, immediately prior to the execution of this Agreement, certain
Banks (including certain of the Existing Banks) have purchased and assumed all
of the rights and interests of BofA and certain of the other Existing Banks
under the Existing Credit Agreement pursuant to certain Assignment and
Acceptance Agreements (collectively, the "BANK ASSIGNMENTS"); and
WHEREAS, pursuant to that certain Resignation of Administrative Agent dated
effective as of the date hereof (the "RESIGNATION AND APPOINTMENT"), BofA has
resigned as Administrative Agent for the Existing Banks under the Existing
Credit Agreement and the other Loan Papers (as therein defined), and Bank One,
NA ("BANK ONE") has been appointed as successor Administrative Agent thereunder;
and
WHEREAS, immediately after giving effect to the Bank Assignments, and the
resignation of BofA, and appointment of Bank One, as Administrative Agent under
the Existing Credit Agreement pursuant to the Resignation and Appointment, the
parties hereto desire to amend and restate the Existing Credit Agreement in its
entirety in the form of this Agreement, and Borrower desires to obtain
Borrowings (as herein defined) (a) to refinance the indebtedness under the
Existing Credit Agreement, and (b) for other purposes permitted herein; and
WHEREAS, after giving effect to the Bank Assignments and the amendment and
restatement of the Existing Credit Agreement pursuant to the terms hereof, the
Commitment Percentage (as herein defined) of each Bank hereunder will be as set
forth on Schedule 2.1 hereto; and
WHEREAS, in connection with the Resignation and Appointment, the Existing
Agent has executed and delivered to Administrative Agent hereunder those certain
Assignments and Amendments to Mortgages (as hereinafter defined) dated of even
date herewith, pursuant to
1
which, among other things, the Existing Mortgages (as hereinafter defined) have
been assigned to Administrative Agent hereunder to secure the Obligations (as
hereinafter defined); and
WHEREAS, pursuant to certain separate agreements among Bank One, Banc One
Capital Markets, Inc. ("BOCM") and Borrower, BOCM has been appointed Sole Lead
Arranger and Book Manager for the credit facility provided herein.
NOW, THEREFORE, in consideration of the premises, the representations,
warranties, covenants and agreements contained herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower, Administrative Agent and Banks agree as follows:
ARTICLE I
AMENDMENT AND RESTATEMENT
Subject to the satisfaction of each condition precedent contained in
Section 7.1 hereof, the satisfaction of which shall be evidenced by the
execution by Borrower and Administrative Agent of the Certificate of
Effectiveness (as herein defined), the Existing Credit Agreement shall be
amended and restated as of the Closing Date in the form of this Agreement. It is
the intention of Borrower, Administrative Agent and Banks that this Agreement
supersedes and replaces the Existing Credit Agreement in its entirety; provided
that, (a) such amendment and restatement shall operate to renew, amend and
modify certain of the rights and obligations of the parties under the Existing
Credit Agreement as provided herein, but shall not act as a novation thereof,
and (b) the Liens securing the Obligations under and as defined in the Existing
Credit Agreement shall not be extinguished, but shall be carried forward and
shall secure such obligations and indebtedness as renewed, amended, restated and
modified hereby.
ARTICLE II
TERMS DEFINED
SECTION 2.1 DEFINITIONS. The following terms, as used herein, have the
following meanings:
"ADJUSTED EURODOLLAR RATE" means, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by Administrative Agent to be equal to the
quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar Loan
for such Interest Period by (b) 1 minus the Reserve Requirement for such
Eurodollar Loan for such Interest Period.
"ADMINISTRATIVE AGENT" means Bank One, NA, in its capacity as
Administrative Agent for Banks hereunder or any successor thereto.
"ADVANCE PAYMENT CONTRACT" means any contract whereby any Credit Party
either (a) receives or becomes entitled to receive (either directly or
indirectly) any payment (an "ADVANCE PAYMENT") to be applied toward payment of
the purchase price of Hydrocarbons produced or to be produced from Mineral
Interests owned by any Credit Party and which Advance Payment is, or is to be,
paid in advance of actual delivery of such production to or for the account of
the purchaser regardless of such production, or (b) grants an option or right of
2
refusal to the purchaser to take delivery of such production in lieu of payment,
and, in either of the foregoing instances, the Advance Payment is, or is to be,
applied as payment in full for such production when sold and delivered or is, or
is to be, applied as payment for a portion only of the purchase price thereof or
of a percentage or share of such production; provided that inclusion of the
standard "take or pay" provision in any gas sales or purchase contract or any
other similar contract shall not, in and of itself, constitute such contract as
an Advance Payment Contract for the purposes hereof.
"AFFILIATE" means, as to any Person, any Subsidiary of such Person, or any
other Person which, directly or indirectly, controls, is controlled by, or is
under common control with, such Person and, with respect to any Credit Party,
means, any director, executive officer, general partner or manager of such
Credit Party and any Person who holds ten percent (10%) or more of the voting
stock, partnership interests, membership interests or other ownership interests
of such Credit Party. For the purposes of this definition, "CONTROL" (including,
with correlative meanings, the terms "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities,
membership interests or partnership interests, or by contract or otherwise.
"AGENT" means Administrative Agent, each Syndication Agent, each
Documentation Agent, Sole Lead Arranger or Book Manager, and "AGENTS" means
Administrative Agent, each Syndication Agent, each Documentation Agent, Sole
Lead Arranger and Book Manager, collectively.
"AGREEMENT" means this Third Amended and Restated Credit Agreement as the
same may hereafter be modified, amended or supplemented from time to time.
"APPLICABLE ENVIRONMENTAL LAW" means any federal, state or local law,
common law, ordinance, regulation or policy, as well as order, decree, permit,
judgment or injunction issued, promulgated, approved, or entered thereunder,
relating to the environment, health and safety, or Hazardous Substances
(including, without limitation, the use, handling, transportation, production,
disposal, discharge or storage thereof) or to industrial hygiene or the
environmental conditions on, under, or about any real property owned, leased or
operated at any time by any Credit Party or any real property owned, leased or
operated by any other party including, without limitation, soil, groundwater,
and indoor and ambient air conditions.
"APPLICABLE LENDING OFFICE" means, for each Bank and for each Type of Loan,
the "Lending Office" of such Bank (or of an affiliate of such Bank) designated
for such Type of Loan on the signature pages hereof or such other office of such
Bank (or an affiliate of such Bank) as such Bank may from time to time specify
to Administrative Agent and Borrower by written notice in accordance with the
terms hereof as the office by which Loans of such Type are to be made and
maintained.
"APPLICABLE MARGIN" means, on any date, with respect to each Type of Loan,
an amount determined by reference to the ratio of Outstanding Credit to the
Conforming Borrowing Base on such date in accordance with the table below:
3
==================================== ============================ ==============================
Ratio of Outstanding Credit to Applicable Margin for Applicable Margin for
Conforming Borrowing Base Eurodollar Loans Base Rate Loans
------------------------------------ ---------------------------- ------------------------------
------------------------------------ ---------------------------- ------------------------------
<= .50 to 1 1.250% 0%
------------------------------------ ---------------------------- ------------------------------
------------------------------------ ---------------------------- ------------------------------
> .50 to 1 and <= .75 to 1 1.500% 0%
------------------------------------ ---------------------------- ------------------------------
------------------------------------ ---------------------------- ------------------------------
> .75 to 1 and <= .90 to 1 1.750% .250%
------------------------------------ ---------------------------- ------------------------------
------------------------------------ ---------------------------- ------------------------------
> .90 to 1 and <= 1.0 to 1 2.000% .500%
------------------------------------ ---------------------------- ------------------------------
------------------------------------ ---------------------------- ------------------------------
> 1.0 to 1 2.375% .750%
==================================== ============================ ==============================
"APPROVED FUND" means any Fund that is administered or managed by (a) a
Bank, (b) an Affiliate of a Bank, or (c) an entity or an Affiliate of an entity
that administers or manages a Bank.
"APPROVED PETROLEUM ENGINEER" means DeGolyer and MacNaughton or any other
reputable firm of independent petroleum engineers as shall be selected by
Borrower and approved by Required Banks, such approval not to be unreasonably
withheld.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" has the meaning given such term in
Section 15.10(c)(i).
"ASSIGNMENT AND AMENDMENT TO MORTGAGES" means an Assignment and Amendment
to Mortgages to be entered into among Borrower, the Existing Agent and
Administrative Agent, substantially in the form of Exhibit A attached hereto,
pursuant to which, among other things, the Existing Mortgages shall be (i)
assigned to Administrative Agent for the ratable benefit of each Bank to secure
the Obligations and (ii) amended to reflect the amendment and restatement of the
Existing Credit Agreement pursuant hereto.
"AUTHORIZED OFFICER" means, as to any Person, its Chief Executive Officer,
its President, its Chief Financial Officer, its Chief Accounting Officer, any of
its Vice Presidents, its Treasurer or its corporate Secretary.
"AVAILABILITY" means, as of any date, the remainder of (a) the Borrowing
Base in effect on such date, minus (b) the Outstanding Credit on such date.
"BANK" means any financial institution reflected on Schedule 2.1 hereto as
having a Commitment and its successors and permitted Assignees, and "BANKS"
shall mean all Banks.
"BANK ASSIGNMENTS" has the meaning assigned to such term in the recitals
hereto.
"BANK ONE" means Bank One, NA, a national banking association, with its
main office in Chicago, Illinois, in its capacity as a Bank.
"BASE RATE" means, for any day, the rate per annum equal to the higher of
(a) the Federal Funds Rate for such day plus one-half of one percent (.5%) and
(b) the Prime Rate for such day. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective automatically and
without notice to Borrower or any Bank on the effective date of such change in
the Prime Rate or Federal Funds Rate.
4
"BASE RATE LOAN" means the portion of the principal of the Revolving Loan
bearing interest with reference to the Base Rate.
"BOCM" means Banc One Capital Markets, Inc.
"BOFA" has the meaning assigned to such term in the recitals hereto.
"BOOK MANAGER" means BOCM, in its capacity as book manager for the credit
facility hereunder or any successor thereto.
"BORROWER" means Denbury Resources Inc., a Delaware corporation.
"BORROWER PLEDGE AGREEMENT" means a Pledge Agreement substantially in the
form of Exhibit D attached hereto (with applicable conforming changes) which may
be executed by Borrower pursuant to which Borrower shall pledge to
Administrative Agent, for the ratable benefit of Banks, all of the issued and
outstanding Equity owned by Borrower of each Subsidiary of Borrower described
therein to secure the Obligations.
"BORROWING" means any disbursement to Borrower under, or to satisfy the
obligations of any Credit Party under, any of the Loan Papers. Any Borrowing
which will constitute a part of the Base Rate Loan is referred to herein as a
"BASE RATE BORROWING," and any Borrowing which will constitute a Eurodollar
Loan, is referred to herein as a "EURODOLLAR BORROWING."
"BORROWING BASE" has the meaning set forth in Section 5.1 hereof.
"BORROWING BASE DEFICIENCY" means, as of any date, the amount, if any, by
which the Outstanding Credit on such date exceeds the Borrowing Base in effect
on such date; provided, that, for purposes of determining the existence and
amount of any Borrowing Base Deficiency, Letter of Credit Exposure will not be
deemed to be outstanding to the extent it is secured by cash in the manner
contemplated by Section 3.1(b).
"BORROWING BASE PROPERTIES" means all Mineral Interests evaluated by Banks
for purposes of establishing the Borrowing Base.
"BORROWING DATE" means the Eurodollar Business Day or the Domestic Business
Day, as the case may be, upon which the proceeds of any Borrowing are made
available to Borrower or to satisfy any obligation of any Credit Party.
"CERTIFICATE OF EFFECTIVENESS" means a Certificate of Effectiveness in the
form of Exhibit L attached hereto to be executed by Borrower and Administrative
Agent upon the satisfaction of each of the conditions precedent contained in
Section 7.1 hereof.
"CERTIFICATE OF OWNERSHIP INTERESTS" means a Certificate of Ownership
Interests in the form of Exhibit I attached hereto to be executed and delivered
by an Authorized Officer of Borrower pursuant to Section 7.1(a)(xv) hereof.
"CHANGE OF CONTROL" means that, for any reason, any Person or group (as
defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act) other than the
Texas Pacific Group shall
5
become (i) the direct or indirect beneficial owner (as defined in Rule 13(d)(3)
of the Exchange Act) of greater than thirty percent (30%) of the total voting
power of all classes of capital stock then outstanding of Borrower entitled
(without regard to the occurrence of any contingency) to vote in elections of
directors of Borrower, and (ii) the largest shareholder of the total voting
power of all classes of capital stock then outstanding of Borrower entitled
(without regard to the occurrence of any contingency) to vote in elections of
directors of Borrower.
"CLOSING DATE" means the date upon which all of the conditions precedent
set forth in Section 7.1 have been satisfied, and Borrower and Administrative
Agent have executed and delivered the Certificate of Effectiveness; provided,
that, in no event shall such date be later than September 12, 2002.
"CLOSING TRANSACTIONS" means the transactions to occur on the Closing Date,
including, without limitation: (a) the resignation of BofA as administrative
agent under the Existing Credit Agreement, and the appointment of Bank One as
successor administrative agent thereunder, pursuant to the terms of the
Resignation and Appointment, (b) the execution and delivery of the Bank
Assignments and the consummation of the transactions contemplated thereby, (c)
the cancellation of all letters of credit outstanding under the Existing Credit
Agreement other than the Existing Letters of Credit, (d) the assignment of the
Existing Mortgages to Administrative Agent to secure the Obligations, (e) the
release of all other Liens securing the obligations of Borrower and its
Subsidiaries under the Existing Credit Agreement (including, without limitation,
the delivery of UCC-3 releases with respect to all uniform commercial code
filings made under the Existing Credit Agreement (to the extent not being
assigned pursuant to the terms of this Agreement and the Assignment and
Amendment to Mortgages)), and the delivery to Administrative Agent of all
original certificates and stock powers pledged and delivered by Borrower or any
of its Subsidiaries pursuant to the terms of the Existing Credit Agreement as
security for Borrower's obligations thereunder, (f) the release of all
guarantees of the Debt of Borrower under the Existing Credit Agreement, (g) the
refinancing in full, with proceeds of a Borrowing under this Agreement, of all
Obligations accrued and outstanding under the Existing Credit Agreement as of
the Closing Date, including, without limitation, (i) the entire outstanding
principal balance of the "Revolving Loans" made (and as defined) thereunder,
(ii) all accrued but unpaid interest, and (iii) all accrued but unpaid
commitment and other fees, and (h) the payment of all fees and expenses of
Administrative Agent in connection with the credit facilities provided herein.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT" means, with respect to any Bank, the commitment of such Bank
to lend its Commitment Percentage of the Total Commitment to Borrower pursuant
to Section 3.1 hereof, as such Commitment may be terminated or reduced from time
to time in accordance with the provisions hereof. On the Closing Date, the
amount of each Bank's Commitment is the amount set forth opposite such Bank's
name on Schedule 2.1 hereto; provided, that after giving effect to any
Assignment and Acceptance Agreement, the Commitment of each Bank shall be the
amount set forth in the Register maintained by Administrative Agent pursuant to
Section 15.10(c)(iv) hereof.
6
"COMMITMENT FEE PERCENTAGE" means, on any date, the percentage determined
by reference to the ratio of Outstanding Credit to the Conforming Borrowing Base
on such date in accordance with the table below:
===================================== =======================================
Ratio of Outstanding Credit to Commitment Fee
Conforming Borrowing Base Percentage
------------------------------------- ---------------------------------------
------------------------------------- ---------------------------------------
<= .50 to 1 .350%
------------------------------------- ---------------------------------------
------------------------------------- ---------------------------------------
> .50 to 1 and <= .75 to 1 .375%
------------------------------------- ---------------------------------------
------------------------------------- ---------------------------------------
> .75 to 1 and <= .90 to 1 .500%
------------------------------------- ---------------------------------------
------------------------------------- ---------------------------------------
> .90 to 1 and <= 1.0 to 1 .500%
------------------------------------- ---------------------------------------
------------------------------------- ---------------------------------------
> 1.0 to 1 .500%
===================================== =======================================
"COMMITMENT PERCENTAGE" means, with respect to each Bank, the Commitment
Percentage for such Bank set forth on Schedule 2.1 hereto; provided, that after
giving effect to any Assignment and Acceptance Agreement, the Commitment
Percentage of each Bank shall be the amount set forth in the Register maintained
by Administrative Agent pursuant to Section 15.10(c)(iv) hereof.
"CONFORMING BORROWING BASE" has the meaning set forth in Section 5.1
hereof.
"CONSOLIDATED CURRENT ASSETS" means, for any Person at any time, the
current assets of such Person and its Consolidated Subsidiaries at such time,
plus, in the case of Borrower, the Availability at such time. For purposes of
this definition, any non-cash gains on any Hedge Agreement resulting from the
requirements of SFAS 133 for any period of determination shall be excluded from
the determination of current assets of such Person and its Consolidated
Subsidiaries.
"CONSOLIDATED CURRENT LIABILITIES" means, for any Person at any time, the
current liabilities of such Person and its Consolidated Subsidiaries at such
time, but, in the case of Borrower, excluding the current portion (if any) of
the outstanding principal balance of the Revolving Loan. For purposes of this
definition, any non-cash losses or charges on any Hedge Agreement resulting from
the requirements of SFAS 133 for any period of determination shall be excluded
from the determination of current liabilities of such Person and its
Consolidated Subsidiaries.
"CONSOLIDATED EBITDA" means, for any Person for any period: (a)
Consolidated Net Income of such Person for such period; plus, to the extent
deducted in the calculation of Consolidated Net Income, (b) the sum of (i)
income or franchise Taxes paid or accrued; (ii) Consolidated Net Interest
Expense; (iii) amortization, depletion and depreciation expense; (iv) any
non-cash losses or charges on any Hedge Agreement resulting from the
requirements of SFAS 133 for that period; and (v) other non-cash charges
(excluding accruals for cash expenses made in the ordinary course of business);
less, to the extent included in the calculation of Consolidated Net Income, (c)
the sum of (i) the income of any Person (other than wholly-owned Subsidiaries of
such Person) unless such income is received by such Person in a cash
distribution; (ii) gains or losses from sales or other dispositions of assets
(other than Hydrocarbons produced in the normal course of business); (iii) any
non-cash gains on any
7
Hedge Agreement resulting from the requirements of SFAS 133 for that period; and
(iv) extraordinary or non-recurring gains, but not net of extraordinary or
non-recurring "cash" losses.
"CONSOLIDATED NET INCOME" means, for any Person for any period, the net
income (or loss) of such Person and its Consolidated Subsidiaries for such
period.
"CONSOLIDATED NET INTEREST EXPENSE" means, for any Person for any period,
the remainder of the following for such Person and its Consolidated Subsidiaries
for such period: (a) interest expense, minus (b) interest income.
"CONSOLIDATED SUBSIDIARY" or "CONSOLIDATED SUBSIDIARIES" means, for any
Person, any Subsidiary or other entity the accounts of which would be
consolidated with those of such Person in its consolidated financial statements.
"CONSOLIDATED TANGIBLE NET WORTH" means, with respect to any Person at
any time, (a) the consolidated shareholder's equity of such Person at such time,
less (b) the consolidated Intangible Assets of such Person at such time. For
purposes of this definition, (i) any non-cash gains, losses or charges on any
Hedge Agreement resulting from the requirements of SFAS 133 for any period of
determination shall be excluded from the determination of such shareholder's
equity, and (ii) "INTANGIBLE ASSETS" means the amount (to the extent reflected
in determining such consolidated shareholder's equity) of all unamortized debt
discount and expense, unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, organization expenses and
other intangible items.
"CONTINUE," "CONTINUATION" and "CONTINUED" shall refer to the continuation
pursuant to Section 3.5 hereof and/or Article XIV hereof of a Eurodollar Loan
from one Interest Period to the next Interest Period.
"CONVERT," "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 3.5 and/or Article XIV hereof of all or a portion of one
Type of Revolving Loan into another Type of Revolving Loan.
"CREDIT PARTIES" means, collectively, Borrower and each Restricted
Subsidiary, and "CREDIT PARTY" means any one of the foregoing.
"DEBT" means, for any Person at any time, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (c)
all other indebtedness (including capitalized lease obligations, other than
usual and customary oil and gas leases) of such Person on which interest charges
are customarily paid or accrued, (d) all Guarantees by such Person, (e) the
unfunded or unreimbursed portion of all letters of credit issued for the account
of such Person, (f) any amount owed by such Person representing the deferred
purchase price of property or services other than accounts payable incurred in
the ordinary course of business and in accordance with customary trade terms and
which are not more than one hundred twenty (120) days past the invoice date, and
(g) all liability of such Person as a general partner of a partnership for
obligations of such partnership of the nature described in (a) through (f)
preceding.
8
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice, lapse of time or both would, unless
cured or waived, become an Event of Default.
"DEFAULT RATE" means, in respect of any principal of the Revolving Loan or
any other amount payable by Borrower under any Loan Paper which is not paid when
due (whether at stated maturity, by acceleration, or otherwise), a rate per
annum during the period commencing on the due date until such amount is paid in
full equal to the sum of (i) three percent (3%), plus (ii) the Applicable
Margin, plus (iii) the Base Rate as in effect from time to time (provided, that
if such amount in default is principal of a Eurodollar Borrowing and the due
date is a day other than the last day of an Interest Period therefor, the
"Default Rate" for such principal shall be, for the period from and including
the due date and to but excluding the last day of the Interest period therefor,
the sum of (a) three percent (3%), plus (b) the Applicable Margin, plus (c) the
Eurodollar Rate for such Borrowing for such Interest Period as provided in
Section 3.5 hereof, and thereafter, the rate provided for above in this
definition).
"DES" means Denbury Energy Services, Inc., which is a wholly owned
Subsidiary of Borrower.
"DG&M" means Denbury Gathering & Marketing, Inc., which is a wholly owned
Subsidiary of Borrower.
"DISTRIBUTION" by any Person, means (a) with respect to any stock issued by
such Person or any partnership, joint venture, limited liability company,
membership or other interest of such Person, the retirement, redemption,
purchase, or other acquisition for value of any such stock or partnership, joint
venture, limited liability company, membership or other interest, (b) the
declaration or payment of any dividend or other distribution on or with respect
to any stock, partnership, joint venture, limited liability company, membership
or other interest of any Person, and (c) any other payment by such Person with
respect to such stock, partnership, joint venture, limited liability company,
membership or other interest of such Person.
"DOCUMENTATION AGENT" means Union Bank of California, N.A. or Comerica
Bank-Texas in its capacity as Documentation Agent for Banks hereunder or any
successor thereto, and "DOCUMENTATION AGENTS" means Union Bank of California,
N.A. and Comerica Bank-Texas, collectively, in their capacities as Documentation
Agents for Banks hereunder.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which national banks in Dallas, Texas, are authorized by Law to close.
"DOMESTIC LENDING OFFICE" means, as to each Bank, (a) its office located at
its address identified on Schedule 2.1 hereto as its Domestic Lending Office,
(b) its office located at its address identified on the Register as its Domestic
Lending Office, or (c) such other office as such Bank may hereafter designate as
its Domestic Lending Office by notice to Borrower and Administrative Agent.
"ENVIRONMENTAL COMPLAINT" means any complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, proceeding, judgment, letter
or other communication from any federal, state or municipal authority or any
other party against any Credit Party involving
9
(a) a Hazardous Discharge from, onto or about any real property owned, leased or
operated at any time by any Credit Party, (b) a Hazardous Discharge caused, in
whole or in part, by any Credit Party or by any Person acting on behalf of or at
the instruction of any Credit Party, or (c) any violation of any Applicable
Environmental Law by any Credit Party.
"EQUITY" means shares of capital stock or a partnership, profits, capital,
member or other equity interest, or options, warrants or any other rights to
substitute for or otherwise acquire the capital stock or a partnership, profits,
capital, member or other equity interest of any Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" means any corporation or trade or business under common
control with any Credit Party as determined under section 4001(a)(14) of ERISA.
"EURODOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in the applicable Eurodollar interbank market.
"EURODOLLAR LENDING OFFICE" means, as to each Bank, (a) its office, branch
or affiliate located at its address identified on Schedule 2.1 hereto as its
Eurodollar Lending Office, (b) its office, branch or affiliate located at its
address identified on the Register as its Eurodollar Lending Office, or (c) such
other office, branch or affiliate of such Bank as it may hereafter designate as
its Eurodollar Lending Office by notice to Borrower and Administrative Agent.
"EURODOLLAR LOANS" means Revolving Loans that bear interest at rates based
upon the Adjusted Eurodollar Rate.
"EURODOLLAR RATE" means, for any Eurodollar Loan for any Interest Period
therefor, the applicable British Bankers' Association LIBOR rate for deposits in
Dollars as reported by any generally recognized financial information service as
of 11:00 a.m. (London time) two (2) Eurodollar Business Days prior to the first
day of such Interest Period, and having a maturity equal to such Interest
Period; provided, that, if no such British Bankers' Association LIBOR rate is
available to Administrative Agent, the applicable Eurodollar Rate for the
relevant Interest Period shall instead be the rate determined by Administrative
Agent to be the rate at which Bank One or one of its Affiliate banks offers to
place deposits in Dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two (2) Eurodollar Business Days prior
to the first day of such Interest Period, in the appropriate amount of Bank
One's relevant Eurodollar Loan and having a maturity equal to such Interest
Period.
"EVENTS OF DEFAULT" has the meaning set forth in Section 12.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXHIBIT" refers to an exhibit attached to this Agreement and incorporated
herein by reference, unless specifically provided otherwise.
"EXISTING AGENT" has the meaning assigned to such term in the recitals
hereto.
10
"EXISTING BANKS" has the meaning assigned to such term in the recitals
hereto.
"EXISTING CREDIT AGREEMENT" has the meaning assigned to such term in the
recitals hereto.
"EXISTING LC EXPOSURE" means, at any time, without duplication, the sum of
(a) the aggregate undrawn amount of all outstanding Existing Letters of Credit
at such time plus (b) the aggregate amount of all payments made by any issuer of
an Existing Letter of Credit pursuant to such Existing Letters of Credit that
have not yet been reimbursed by or on behalf of Borrower or its Subsidiaries at
such time.
"EXISTING LETTERS OF CREDIT" means the letters of credit issued for the
account of Borrower or its Subsidiaries under the Existing Credit Agreement and
outstanding on the date hereof and described on Schedule 2.3 hereto,
specifically excluding any extensions or renewals of such letters of credit.
"EXISTING MORTGAGES" means the mortgages, deeds of trust, security
agreements, assignments, pledges and other documents, instruments and agreements
described on Schedule 2.2 hereto, which establish Liens on certain of Borrower's
Mineral Interests to secure Borrower's obligations under the Existing Credit
Agreement.
"EXISTING RESERVE REPORT" means, collectively, (i) an engineering and
economic analysis of certain of the Borrowing Base Properties prepared as of
December 31, 2001, by DeGolyer and MacNaughton, and (ii) an engineering and
economic analysis of all Borrowing Base Properties not covered by the Reserve
Report described in clause (i), prepared as of June 30, 2002, by Borrower's
in-house staff.
"FACILITY GUARANTY" means a Guaranty substantially in the form of Exhibit B
attached hereto which may be executed by a Subsidiary of Borrower in favor of
Banks, pursuant to which such Subsidiary of Borrower guarantees payment and
performance in full of the Obligations.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day; provided that (a) if the day for which such rate is to be
determined is not a Domestic Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business Day, and (b) if
such rate is not so published on such next succeeding Domestic Business Day, the
Federal Funds Rate for any day shall be the average rate charged to
Administrative Agent on such day on such transactions as determined by
Administrative Agent.
"FINANCIAL OFFICER" of any Person means its Chief Financial Officer;
provided, that if no Person serves in such capacity, "FINANCIAL OFFICER" shall
mean the highest ranking executive officer of such Person with responsibility
for accounting, financial reporting, cash management and similar functions.
11
"FISCAL QUARTER" means the three (3) month periods ending on March 31, June
30, September 30 and December 31 of each Fiscal Year.
"FISCAL YEAR" means a twelve (12) month period ending December 31.
"FUND" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means those generally accepted accounting principles and practices
which are recognized as such by the Securities and Exchange Commission, the
American Institute of Certified Public Accountants acting through its Accounting
Principles Board or by the Financial Accounting Standards Board or through other
appropriate boards or committees thereof and which are consistently applied for
all periods after the Closing Date so as to properly reflect the financial
condition, and the results of operations and changes in financial position, of
Borrower and its Consolidated Subsidiaries, except that any accounting principle
or practice required to be changed by the said Securities and Exchange
Commission, Accounting Principles Board or Financial Accounting Standards Board
(or other appropriate board or committee thereof) in order to continue as a
generally accepted accounting principle or practice may be so changed.
"GAS BALANCING AGREEMENT" means any agreement or arrangement whereby any
Credit Party, or any other party having an interest in any Hydrocarbons to be
produced from Mineral Interests in which any Credit Party owns an interest, has
a right to take more than its proportionate share of production therefrom.
"GENESIS ENERGY" means Genesis Energy, Inc.
"GOVERNMENTAL AUTHORITY" means any court or governmental department,
commission, board, bureau, agency, or instrumentality of any nation or of any
province, state, commonwealth, nation, territory, possession, county, parish, or
municipality, whether now or hereafter constituted or existing.
"GUARANTEE" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (a) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions, by "comfort letter"
or other similar undertaking of support or otherwise) or (b) entered into for
the purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided, that the term "GUARANTEE" shall
not include endorsements for collection or deposit in the ordinary course of
business.
"HAZARDOUS DISCHARGE" means any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping of any Hazardous Substance from or onto any real property
owned, leased or operated at any time by any Credit Party or any real property
owned, leased or operated by any other party.
12
"HAZARDOUS SUBSTANCE" means any pollutant, toxic substance, hazardous
waste, compound, element or chemical that is defined as hazardous, toxic,
noxious, dangerous or infectious pursuant to any Applicable Environmental Law or
which is otherwise regulated by any Applicable Environmental Law or is required
to be investigated and/or remediated by or pursuant to any Applicable
Environmental Law.
"HEDGE AGREEMENTS" means, collectively, any agreement, instrument,
arrangement or schedule or supplement thereto evidencing any Hedge Transaction.
"HEDGE TRANSACTION" means any commodity, interest rate, currency or other
swap, option, collar, futures contract or other contract pursuant to which a
Person hedges risks related to commodity prices, interest rates, currency
exchange rates, securities prices or financial market conditions. Hedge
Transactions expressly includes Oil and Gas Hedge Transactions.
"HYDROCARBONS" means oil, gas, casinghead gas, drip gasolines, natural
gasoline, condensate, distillate, and all other liquid and gaseous hydrocarbons
produced or to be produced in conjunction therewith, and all products,
by-products and all other substances derived therefrom or the processing
thereof, and all other minerals and substances, including, but not limited to,
sulphur, lignite, coal, uranium, thorium, iron, geothermal steam, water, carbon
dioxide, helium, and any and all other minerals, ores, or substances of value,
and the products and proceeds therefrom, including, without limitation, all gas
resulting from the in-situ combustion of coal or lignite.
"IMMATERIAL TITLE DEFICIENCIES" means, with respect to Borrowing Base
Properties, defects or clouds on title, discrepancies in reported net revenue
and working interest ownership percentages and other Liens, defects,
discrepancies and similar matters which do not, individually or in the
aggregate, affect Borrowing Base Properties with a Recognized Value greater than
five percent (5%) of the Recognized Value of all of such Borrowing Base
Properties.
"INDIRECT SUBSIDIARY" has the meaning given such term in the definition of
"Subsidiary Pledge Agreement."
"INITIAL BORROWING BASE" means a Borrowing Base in the amount of
$220,000,000, which shall be in effect during the period commencing on the
Closing Date and continuing until the first Redetermination after the Closing
Date.
"INITIAL CONFORMING BORROWING BASE" means a Conforming Borrowing Base in
the amount of $220,000,000, which shall be in effect during the period
commencing on the Closing Date and continuing until the first Redetermination
after the Closing Date.
"INTEREST PERIOD" means, with respect to each Eurodollar Borrowing and each
Continuation of Eurodollar Loans and each Conversion of all or part of the Base
Rate Loan to Eurodollar Loans, the period commencing on the date of such
Borrowing, Continuation or Conversion and ending one (1), two (2), three (3) or
six (6), and, if available to all Banks, nine (9) or twelve (12) months
thereafter, as Borrower may elect in the applicable Request for Borrowing or
Notice of Continuation or Conversion; provided, that:
13
(a) any Interest Period which would otherwise end on a day which is
not a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day unless such Eurodollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Eurodollar Business Day;
(b) any Interest Period which begins on the last Eurodollar 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 (c) below, end on the last Eurodollar Business Day
of a calendar month;
(c) if any Interest Period includes a date on which any payment of
principal of the Eurodollar Loans which are the subject of such Borrowing,
Continuation or Conversion is required to be made hereunder, but does not
end on such date, then (i) the principal amount of such Eurodollar Loans
required to be repaid on such date shall have an Interest Period ending on
such date, and (ii) the remainder of each such Eurodollar Loans shall have
an Interest Period determined as set forth above; and
(d) no Interest Period shall extend past the Termination Date.
"INVESTMENT" means, with respect to any Person, any loan, advance,
extension of credit, capital contribution to, investment in or purchase of the
stock or other securities of, or interests in, any other Person; provided, that,
"INVESTMENT" shall not include current customer and trade accounts which are
payable in accordance with customary trade terms.
"LAWS" means all applicable statutes, laws, ordinances, regulations,
orders, writs, injunctions, or decrees of any state, commonwealth, nation,
territory, possession, county, township, parish, municipality or Governmental
Authority.
"LENDING OFFICE" means, as to any Bank, its Domestic Lending Office or its
Eurodollar Lending Office, as the context may require.
"LETTER OF CREDIT EXPOSURE" of any Bank means such Bank's aggregate
participation in the unfunded portion and the funded but unreimbursed portion of
Letters of Credit outstanding at any time.
"LETTER OF CREDIT FEE" means, with respect to any Letter of Credit issued
hereunder, a fee in an amount equal to the greater of (a) $500, or (b) a
percentage of the stated amount of such Letter of Credit (calculated on a per
annum basis based on the stated term of such Letter of Credit) determined by
reference to the ratio of the Outstanding Credit to the Conforming Borrowing
Base in effect on the date such Letter of Credit is issued in accordance with
the table below:
14
===================================== =======================================
Ratio of Outstanding Credit to Per Annum Letter of Credit Fee
Conforming Borrowing Base Percentage
------------------------------------- ---------------------------------------
------------------------------------- ---------------------------------------
<=. 50 to 1 1.250%
------------------------------------- ---------------------------------------
------------------------------------- ---------------------------------------
>. 50 to 1 and <= .75 to 1 1.500%
------------------------------------- ---------------------------------------
------------------------------------- ---------------------------------------
>. 75 to 1 and <= .90 to 1 1.750%
------------------------------------- ---------------------------------------
------------------------------------- ---------------------------------------
> .90 to 1 and <= 1.0 to 1 2.000%
------------------------------------- ---------------------------------------
------------------------------------- ---------------------------------------
> 1.0 to 1 2.375%
===================================== =======================================
"LETTER OF CREDIT FRONTING FEE" means, with respect to any Letter of Credit
issued hereunder, a fee equal to one eighth of one percent (.125%) per annum of
the stated amount of such Letter of Credit.
"LETTER OF CREDIT ISSUER" has the meaning set forth in Section 3.1(b).
"LETTERS OF CREDIT" means letters of credit issued for the account of
Borrower pursuant to Section 3.1(b) and, except as expressly provided to the
contrary herein, shall include the Existing Letters of Credit until such time as
such Existing Letters of Credit have been cancelled, replaced or have otherwise
expired.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, financing statement or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, the Credit Parties
shall be deemed to own subject to a Lien any asset which is acquired or held
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"LOAN PAPERS" means this Agreement, the Notes, each Facility Guaranty which
may now or hereafter be executed, each Borrower Pledge Agreement which may now
or hereafter be executed, each Subsidiary Pledge Agreement which may now or
hereafter be executed, the Existing Mortgages (as amended by the Assignments and
Amendments to Mortgages), all Mortgages now or at any time hereafter delivered
pursuant to Section 6.1, the Assignments and Amendments to Mortgages, and all
other certificates, documents or instruments delivered in connection with this
Agreement, as the foregoing may be amended from time to time.
"MARGIN REGULATIONS" means Regulations T, U and X of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"MARGIN STOCK" means "margin stock" as defined in Regulation U.
"MARINE" means Denbury Marine, L.L.C., a Louisiana limited liability
company, which is a wholly owned Subsidiary of Borrower.
"MATERIAL ADVERSE CHANGE" means any circumstance or event that has or would
reasonably be expected to have a Material Adverse Effect.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
assets, liabilities, financial condition, results of operations or prospects of
any Credit Party, or the Credit Parties taken as a whole, (b) the right or
ability of any Credit Party to fully, completely and timely
15
perform its obligations under the Loan Papers, (c) the validity or
enforceability of any Loan Paper against any Credit Party which is a party
thereto, or (d) the validity, perfection or priority of any material Lien
intended to be created under or pursuant to any Loan Paper to secure the
Obligations.
"MATERIAL AGREEMENT" means any material written or oral agreement,
contract, commitment, or understanding to which a Person is a party, by which
such Person is directly or indirectly bound, or to which any assets of such
Person may be subject, which is not cancelable by such Person upon notice of
thirty (30) days or less without liability for further payment other than
nominal penalty.
"MATERIAL GAS IMBALANCE" means, with respect to all Gas Balancing
Agreements to which any Credit Party is a party or by which any Mineral Interest
owned by any Credit Party is bound, a net gas imbalance to any Credit Party in
excess of $2,000,000.
"MAXIMUM LAWFUL RATE" means, for each Bank, the maximum rate (or, if the
context so permits or requires, an amount calculated at such rate) of interest
which, at the time in question would not cause the interest charged on the
portion of the Revolving Loan owed to such Bank at such time to exceed the
maximum amount which such Bank would be allowed to contract for, charge, take,
reserve, or receive under applicable Laws after taking into account, to the
extent required by applicable Laws, any and all relevant payments or charges
under the Loan Papers. To the extent the Laws of the State of Texas are
applicable for purposes of determining the "MAXIMUM LAWFUL RATE," such term
shall mean the "indicated rate ceiling" from time to time in effect under
Chapter 303 of the Texas Finance Code, as amended, substituted for or restated,
or, if permitted by applicable Law and effective upon the giving of the notices
required by such Chapter 303 (or effective upon any other date otherwise
specified by applicable Law), the "quarterly ceiling" or "annualized ceiling"
from time to time in effect under such Chapter 303, whichever Administrative
Agent (with the approval of Required Banks) shall elect to substitute for the
"indicated rate ceiling," and vice versa, each such substitution to have the
effect provided in such Chapter 303, and Administrative Agent (with the approval
of Required Banks) shall be entitled to make such election from time to time and
one or more times and, without notice to Borrower, to leave any such substitute
rate in effect for subsequent periods in accordance with such Chapter 303.
"MINERAL INTERESTS" means rights, estates, titles, and interests in and to
oil and gas leases and any oil and gas interests, royalty and overriding royalty
interest, production payment, net profits interests, oil and gas fee interests,
and other rights therein, including, without limitation, any reversionary or
carried interests relating to the foregoing, together with rights, titles, and
interests created by or arising under the terms of any unitization,
communization, and pooling agreements or arrangements, and all properties,
rights and interests covered thereby, whether arising by contract, by order, or
by operation of Laws, which now or hereafter include all or any part of the
foregoing.
"MORTGAGES" means all mortgages, deeds of trust, amendments to mortgages,
security agreements, assignments of production, pledge agreements, collateral
mortgages, collateral chattel mortgages, collateral assignments, financing
statements and other documents, instruments and agreements evidencing, creating,
perfecting or otherwise establishing the Liens required
16
by Section 6.1 hereof. All Mortgages shall be in form and substance satisfactory
to Administrative Agent in its sole discretion. The term "MORTGAGES" shall
include, without limitation, the Existing Mortgages, as amended pursuant to the
Assignments and Amendments to Mortgages.
"NOTE" means a promissory note of Borrower payable to the order of a Bank,
in substantially the form of Exhibit C hereto, in the amount of such Bank's
Commitment, evidencing the obligation of Borrower to repay to such Bank its
Commitment Percentage of the Revolving Loan, together with all modifications,
extensions, renewals, and rearrangements thereof, and "NOTES" means all of such
Notes collectively.
"NOTICE OF CONTINUATION OR CONVERSION" has the meaning set forth in Section
3.5(c).
"OBLIGATIONS" means all present and future indebtedness, obligations and
liabilities, and all renewals and extensions thereof, or any part thereof, of
each Credit Party to Administrative Agent or to any Bank or any Affiliate of any
Bank arising pursuant to the Loan Papers or pursuant to any Hedge Agreement or
Hedge Transaction entered into with any Bank or any Affiliate of any Bank, and
all interest accrued thereon and costs, expenses, and attorneys' fees incurred
in the enforcement or collection thereof, regardless of whether such
indebtedness, obligations and liabilities are direct, indirect, fixed,
contingent, liquidated, unliquidated, joint, several or joint and several.
"OIL & GAS HEDGE TRANSACTION" means a Hedge Transaction pursuant to which
any Person hedges the price to be received by it for future production of
Hydrocarbons.
"OFFSHORE" means Denbury Offshore, Inc., which is a wholly owned Subsidiary
of Borrower.
"OUTSTANDING CREDIT" means, on any date, the sum of (a) the aggregate
outstanding Letter of Credit Exposure on such date including the Letter of
Credit Exposure attributable to Letters of Credit to be issued on such date,
plus (b) the aggregate outstanding principal balance of the Revolving Loan on
such date, including the amount of any Borrowing to be made on such date.
"PARTICIPANT" has the meaning given such term in Section 15.10(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERMITTED ENCUMBRANCES" means with respect to any asset:
(a) Liens securing the Obligations;
(b) minor defects in title which do not secure the payment of money
and otherwise have no material adverse effect on the value or the operation
of the subject property, and for the purposes of this Agreement, a minor
defect in title shall include, but not be limited to, easements,
rights-of-way, servitudes, permits, surface leases and other similar rights
in respect of surface operations, and easements for pipelines, streets,
alleys, highways, telephone lines, power lines,
17
railways and other easements and rights-of-way, on, over or in respect of
any of the properties of any Credit Party that are customarily granted in
the oil and gas industry;
(c) inchoate statutory or operators' Liens securing obligations for
labor, services, materials and supplies furnished to Mineral Interests
which are not delinquent (except to the extent permitted by Section 9.7);
(d) mechanic's, materialmen's, warehouseman's, journeyman's and
carrier's Liens and other similar Liens arising by operation of Law in the
ordinary course of business which are not delinquent (except to the extent
permitted by Section 9.7);
(e) Liens for Taxes or assessments not yet due or not yet delinquent,
or, if delinquent, that are being contested in good faith in the normal
course of business by appropriate action, as permitted by Section 9.7;
(f) lease burdens payable to third parties which are deducted in the
calculation of discounted present value in the Reserve Report including,
without limitation, any royalty, overriding royalty, net profits interest,
production payment, carried interest or reversionary working interest;
(g) "Permitted Encumbrances" as that term is defined in the Existing
Mortgages; and
(h) Liens, charges and encumbrances upon Borrower's assets, other than
Proved Mineral Interests, which in the aggregate, do not have a value in
excess of $1,000,000.
"PERMITTED INVESTMENTS" means (a) readily marketable direct obligations of
the United States of America (or investments in mutual funds or similar funds
which invest solely in such obligations), (b) fully insured time deposits and
certificates of deposit with maturities of one year or less of any commercial
bank operating in the United States having capital and surplus in excess of
$500,000,000, (c) commercial paper of a domestic issuer if at the time of
purchase such paper is rated in one of the two highest ratings categories of
Standard and Poor's Corporation or Moody's Investors Service, (d) Investments by
any Credit Party in a Subsidiary of Borrower that has provided a Facility
Guaranty and the Equity of which has been pledged to Administrative Agent
pursuant to a Borrower Pledge Agreement or a Subsidiary Pledge Agreement, and
(e) other Investments; provided, that, the aggregate amount of all other
Investments made pursuant to this clause (e) outstanding at any time shall not
exceed $5,000,000 (measured on a cost basis).
"PERMITTED SUBORDINATE DEBT" means Debt of Borrower resulting from two
separate issues of Borrower's 9% Senior Subordinated Notes Due 2008 in an
aggregate outstanding principal balance of not greater than $200,000,000, and
which (a) is fully subordinated to the Obligations pursuant to subordination
provisions which have been approved by the Existing Banks prior to the date
hereof, and (b) is not subject to negative covenants or events of default
18
(or other provisions which have the same effect as negative covenants or events
of default) which have not been approved by the Existing Banks prior to the date
hereof.
"PERSON" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a Government Authority.
"PLAN" means an employee benefit plan within the meaning of section 3(3) of
ERISA, and any other similar plan, policy or arrangement, including an
employment contract, whether formal or informal and whether legally binding or
not, under which any Credit Party or an ERISA Affiliate of a Credit Party has
any current or future obligation or liability or under which any present or
former employee of any Credit Party or an ERISA Affiliate of a Credit Party, or
such present or former employee's dependents or beneficiaries, has any current
or future right to benefits resulting from the present or former employee's
employment relationship with any Credit Party or an ERISA Affiliate of a Credit
Party.
"PRIME RATE" means the per annum rate of interest established from time to
time by Administrative Agent as its prime rate, which rate may not be the lowest
rate of interest charged by Administrative Agent to its customers.
"PROVED MINERAL INTERESTS" means, collectively, Proved Producing Mineral
Interests, Proved Nonproducing Mineral Interests, and Proved Undeveloped Mineral
Interests.
"PROVED NONPRODUCING MINERAL INTERESTS" means all Mineral Interests which
constitute proved developed nonproducing reserves.
"PROVED PRODUCING MINERAL INTERESTS" means all Mineral Interests which
constitute proved developed producing reserves.
"PROVED UNDEVELOPED MINERAL INTERESTS" means all Mineral Interests which
constitute proved undeveloped reserves.
"PURCHASERS" has the meaning given such term in Section 15.10(c).
"QUALIFIED PURPOSE" means (i) the purchase by Borrower of Proved Mineral
Interests, or (ii) capital expenditures made by Borrower to maintain, enhance or
develop Proved Mineral Interests owned by Borrower; provided, that, the portion
of the aggregate amount of all Borrowings made during any period during which
Section 10.14 is in effect hereunder which is utilized to purchase Proved
Mineral Interests which is in excess of the "QUALIFIED AMOUNT" will not be
deemed to be utilized for a "Qualified Purpose." As used herein, "qualified
amount" means, with respect to Proved Mineral Interests acquired with the
proceeds of Borrowings made during any period during which Section 10.14 is in
effect hereunder, an amount equal to two hundred percent (200%) of the
Recognized Value of that portion of such Proved Mineral Interests which
constitute Proved Producing Mineral Interests.
"QUARTERLY DATE" means the last day of each March, June, September and
December.
"RECOGNIZED VALUE" means, with respect to Mineral Interests, the portion of
the Borrowing Base which Bank One attributes to such Mineral Interests for
purposes of the most
19
recent redetermination of the Borrowing Base pursuant to Article V hereof (or
for purposes of determining the initial Borrowing Base in the event no such
redetermination has occurred), based upon the discounted present value of the
estimated net cash flow to be realized from the production of Hydrocarbons from
such Mineral Interests.
"REDETERMINATION" means any Scheduled Redetermination or Special
Redetermination.
"REDETERMINATION DATE" means (a) with respect to any Scheduled
Redetermination, each October 1 and April 1, commencing April 1, 2003, and (b)
with respect to any Special Redetermination, the first day of the first month
which is not less than twenty (20) Domestic Business Days following the date of
a request for a Special Redetermination.
"REGISTER" has the meaning given such term in Section 15.10(c)(iv).
"REGULATION A" means Regulation A of the Board of Governors of the Federal
Reserve System, 12 C.F.R. Part 221, as in effect from time to time.
"REGULATION D" means Regulation D of the Board of Governors of the Federal
Reserve System, 12 C.F.R. Part 221, as in effect from time to time.
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System, 12 C.F.R. Part 221, as in effect from time to time.
"REQUEST FOR BORROWING" has the meaning set forth in Section 3.2(a).
"REQUEST FOR LETTER OF CREDIT" has the meaning set forth in Section 3.3(a).
"REQUIRED BANKS" means Banks holding at least sixty-six and two-thirds
percent (66 2/3%) of the Total Commitment.
"REQUIRED CONSOLIDATED TANGIBLE NET WORTH" means, initially, $250,000,000;
provided, that, the Required Consolidated Tangible Net Worth shall increase (but
not decrease) above the Required Consolidated Tangible Net Worth previously in
effect pursuant to this definition (i) on each Quarterly Date (commencing
September 30, 2002) by an amount equal to fifty percent (50%) of Borrower's
Consolidated Net Income for the Fiscal Quarter then ended, and (ii) on the date
of any issuance by Borrower of its equity securities by an amount equal to fifty
percent (50%) of the net proceeds received by Borrower from the issuance of such
securities.
"REQUIRED RESERVE VALUE" means Proved Mineral Interests that have a
Recognized Value of not less than eighty-five percent (85%) of the Recognized
Value of all Proved Mineral Interests held by Borrower and its Subsidiaries.
"RESERVE REPORT" means an unsuperseded engineering analysis of the Mineral
Interests owned by Borrower, in form and substance reasonably acceptable to
Required Banks, prepared in accordance with customary and prudent practices in
the petroleum engineering industry and Financial Accounting Standards Board
Statement 69. Each Reserve Report required to be delivered by February 28 of
each year pursuant to Section 5.1 shall be prepared by the Approved
20
Petroleum Engineer. Each other Reserve Report shall be prepared by either (i)
the Approved Petroleum Engineer, or (ii) Borrower's in-house staff.
Notwithstanding the foregoing, in connection with any Special Redetermination
requested by Borrower, the Reserve Report shall be in form and scope mutually
acceptable to Borrower and Required Banks. Until superseded, the Existing
Reserve Report shall be considered the Reserve Report.
"RESERVE REQUIREMENT" means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against in the case of
Eurodollar Loans, "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks with
respect to (i) any category of liabilities which includes deposits by reference
to which the Adjusted Eurodollar Rate is to be determined, or (ii) any category
of extensions of credit or other assets which include Eurodollar Loans. The
Adjusted Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"RESIGNATION AND APPOINTMENT" has the meaning assigned to such term in the
recitals hereto.
"RESTRICTED PAYMENT" means, with respect to any Person, (a) any
Distribution by such Person, (b) any capital contribution, loan or advance by
any Credit Party to any Unrestricted Subsidiary, (c) the issuance of a Guarantee
by any Credit Party with respect to any Debt or other obligation of any
Unrestricted Subsidiary, (d) the retirement, redemption, defeasance, repurchase
or prepayment prior to scheduled maturity by such Person or any Affiliate of
such Person of any Debt of such Person, or (e) except as otherwise approved by
Required Banks, the retirement, redemption or payment by Borrower or any
affiliate of Borrower of any part of the principal of the Permitted Subordinate
Debt at any time prior to the termination of all Commitments and the payment and
performance in full of the Obligations.
"RESTRICTED SUBSIDIARY" means, as of the date hereof, Marine, DES, Offshore
and DG&M. "RESTRICTED SUBSIDIARY" shall also refer to any other Subsidiary of
Borrower which Borrower hereafter designates as a "Restricted Subsidiary;"
provided, that no Subsidiary of Borrower will be a Restricted Subsidiary unless
(a) one hundred percent (100%) of its issued and outstanding Equity has been
pledged to Administrative Agent to secure the Obligations pursuant to a Borrower
Pledge Agreement or a Subsidiary Pledge Agreement, and (b) it has executed a
Facility Guaranty.
"REVOLVING LOAN" means the revolving credit loan in an amount outstanding
at any time not to exceed the amount of the Total Commitment then in effect less
the amount of the Letter Credit Exposure then outstanding to be made by Banks to
Borrower in accordance with Section 3.1 hereof. The Revolving Loan may be
comprised of the Base Rate Loan and one or more Eurodollar Loans as Borrower may
select in a Request for Borrowing or a Notice of Continuation or Conversion.
21
"SCHEDULE" means a "schedule" attached to this Agreement and incorporated
herein by reference, unless specifically indicated otherwise.
"SCHEDULED REDETERMINATION" means any Redetermination of the Borrowing Base
and the Conforming Borrowing Base pursuant to Section 5.2.
"SECTION" refers to a "section" or "subsection" of this Agreement unless
specifically indicated otherwise.
"SOLE LEAD ARRANGER" means BOCM, in its capacity as sole lead arranger for
the credit facility hereunder or any successor thereto.
"SPECIAL REDETERMINATION" means any Redetermination of the Borrowing Base
pursuant to Section 5.3.
"SUBSIDIARY" means, for any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions (including that of a general partner) are at the time directly or
indirectly owned, collectively, by such Person and any Subsidiaries of such
Person. The term "SUBSIDIARY" shall include Subsidiaries of Subsidiaries (and so
on).
"SUBSIDIARY PLEDGE AGREEMENT" means a Pledge Agreement substantially in the
form of Exhibit E attached hereto (with applicable conforming changes) which may
be executed by each existing and/or future Subsidiary of Borrower to the extent
such Subsidiary owns any outstanding Equity of any other Subsidiary of Borrower
(for purposes of this definition and Section 6.1(d) hereof, such Subsidiary is
referred to herein and therein as an "INDIRECT SUBSIDIARY"), pursuant to which
such Indirect Subsidiary shall pledge to Administrative Agent, for the ratable
benefit of Banks, all of the issued and outstanding Equity owned by such
Indirect Subsidiary of each Subsidiary of such Indirect Subsidiary described
therein to secure the Obligations.
"SYNDICATION AGENT" means Credit Lyonnais New York Branch or Fortis Capital
Corp., in its capacity as Syndication Agent for Banks hereunder or any successor
thereto, and "SYNDICATION AGENTS" means Credit Lyonnais New York Branch and
Fortis Capital Corp., collectively, in their capacities as Syndication Agents
for Banks hereunder.
"TAXES" means all taxes, assessments, filing or other fees, levies,
imposts, duties, deductions, withholdings, stamp taxes, capital transaction
taxes, foreign exchange taxes or other charges, or other charges of any nature
whatsoever, from time to time or at any time imposed by Law or any Governmental
Authority. "TAX" means any one of the foregoing.
"TERMINATION DATE" means April 30, 2006.
"TEXAS PACIFIC GROUP" means, collectively, TGP Partners, L.P., T.G.P.
Parallel, L.P., and any of their Affiliates.
22
"TOTAL COMMITMENT" means the Commitments of all Banks in an initial
aggregate amount of $300,000,000 as such amount shall be reduced from time to
time pursuant to Section 3.8 and Section 3.9.
"TRANSFEREE" has the meaning given such term in Section 15.10(d).
"TRI" means Tallahatchie Resources, Inc., a Texas corporation which is a
wholly owned Subsidiary of Borrower.
"TYPE" means, with reference to a Revolving Loan, the characterization of
such Revolving Loan as the Base Rate Loan or a Eurodollar Loan based on the
method by which the accrual of interest on such Revolving Loan is calculated.
"UNPROVED RESERVES" means Mineral Interests which do not constitute Proved
Mineral Interests.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of Borrower which is not a
Restricted Subsidiary, and shall include, without limitation, Genesis Energy and
TRI.
SECTION 2.2 ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be expressed in U.S. dollars and shall be prepared
in accordance with GAAP, applied on a basis consistent with the most recent
audited consolidated financial statements of Borrower and its Consolidated
Subsidiaries delivered to Banks except for changes concurred in by Borrower's
independent certified public accountants and which are disclosed to
Administrative Agent on the next date on which financial statements are required
to be delivered to Banks pursuant to Section 9.1(a) or Section 9.1(b); provided,
that, unless Required Banks shall otherwise agree in writing, no such change
shall modify or affect the manner in which compliance with the covenants
contained in Article XI are computed such that all such computations shall be
conducted utilizing financial information presented consistently with prior
periods.
SECTION 2.3 PETROLEUM TERMS. As used herein, the terms "PROVED RESERVES,"
"PROVED DEVELOPED RESERVES," "PROVED DEVELOPED PRODUCING RESERVES," "PROVED
DEVELOPED NONPRODUCING RESERVES," and "PROVED UNDEVELOPED RESERVES" have the
meaning given such terms from time to time and at the time in question by the
Society of Petroleum Engineers of the American Institute of Mining Engineers.
SECTION 2.4 MONEY. Unless expressly stipulated otherwise, all references
herein to "DOLLARS," "MONEY," "FUNDS," "PAYMENTS," "PREPAYMENTS" or similar
financial or monetary terms, are references to currency of the United States of
America.
23
ARTICLE III
THE CREDIT
SECTION 3.1 COMMITMENTS.
(a) Each Bank severally agrees, subject to Section 3.1(c), Section 7.1
and Section 7.2 and the other terms and conditions set forth in this
Agreement, to lend to Borrower from time to time prior to the Termination
Date amounts requested by Borrower not to exceed in the aggregate at any
one time outstanding, the amount of such Bank's Commitment reduced by an
amount equal to such Bank's Letter of Credit Exposure. Each Borrowing shall
be in an aggregate principal amount of $1,000,000 or any larger integral
multiple of $100,000 (except that any Base Rate Borrowing may be in an
amount equal to the Availability at such time), and (ii) shall be made from
the Banks ratably in accordance with their respective Commitment
Percentages. Subject to the foregoing limitations and the other provisions
of this Agreement, prior to the Termination Date Borrower may borrow under
this Section 3.1(a), repay amounts borrowed and request new Borrowings to
be made under this Section 3.1(a).
(b) Administrative Agent, or such Bank designated by Administrative
Agent which (without obligation to do so) consents to the same (and, with
respect to the Existing Letters of Credit only (and only until such time as
such Existing Letters of Credit have been cancelled, replaced or have
otherwise expired), shall include BofA in its capacity as the issuer of
such Existing Letters of Credit) ("LETTER OF CREDIT ISSUER") will, from
time to time prior to the date which is five (5) Domestic Business Days
prior to the Termination Date, upon request by Borrower, issue Letters of
Credit for the account of Borrower or any Restricted Subsidiary designated
by Borrower, so long as (i) the sum of (A) the total Letter of Credit
Exposure then existing, and (B) the amount of the requested Letter of
Credit does not exceed ten percent (10%) of the lesser of (y) the Total
Commitment, and (z) the Conforming Borrowing Base, and (ii) Borrower would
be entitled to a Borrowing under Section 3.1(a) and Section 3.1(c) in the
amount of the requested Letter of Credit. Not less than three (3) Domestic
Business Days prior to the requested date of issuance of any such Letter of
Credit, Borrower (and any Restricted Subsidiary for whose account such
Letter of Credit is being issued) shall execute and deliver to Letter of
Credit Issuer, Letter of Credit Issuer's customary letter of credit
application. Each Letter of Credit shall be in the minimum amount of
$10,000 and shall be in form and substance acceptable to Letter of Credit
Issuer. No Letter of Credit shall have an expiration date later than the
earlier of (i) one (1) year after the Termination Date, or (ii) one (1)
year from the date of issuance (or, in the case of any renewal or extension
thereof, one (1) year after such renewal or extension). Upon the date of
issuance of a Letter of Credit, and, with respect to the Existing Letters
of Credit, on the Closing Date, Letter of Credit Issuer shall be deemed to
have sold to each other Bank, and each other Bank shall be deemed to have
unconditionally and irrevocably purchased from Letter of Credit Issuer, a
non recourse participation in the related Letter of Credit and Letter of
Credit Exposure equal to such Bank's Commitment Percentage of such Letter
of Credit and Letter of Credit Exposure. Upon request of any Bank, but not
less often than quarterly, Administrative Agent shall provide notice to
each Bank by telephone, teletransmission or telex setting forth each Letter
of Credit issued and outstanding pursuant to the terms hereof and
specifying the beneficiary and expiration date of each such Letter of
Credit, each Bank's percentage of each such Letter of Credit and the actual
dollar amount of each Bank's participation held by Letter of Credit Issuer
thereof for such Bank's account and risk. At the time
24
of issuance of each Letter of Credit, Borrower shall pay to Administrative
Agent in respect of such Letter of Credit (a) the applicable Letter of
Credit Fee, and (b) the applicable Letter of Credit Fronting Fee.
Administrative Agent shall distribute the Letter of Credit Fee payable upon
the issuance of each Letter of Credit to Banks in accordance with their
respective Commitment Percentages, and Administrative Agent shall
distribute the Letter of Credit Fronting Fee to Letter of Credit Issuer for
its own account. Any (y) material amendment or modification, or (z) renewal
or extension of any Letter of Credit shall be deemed to be the issuance of
a new Letter of Credit for purposes of this Section 3.1(b). Notwithstanding
anything to the contrary contained herein, Borrower shall pay to
Administrative Agent in connection with the issuance of each Letter of
Credit and/or any amendment or modification of any nature to any existing
Letter of Credit, Administrative Agent's usual and customary fees for the
issuance of, amendments or modifications to, and processing of, Letters of
Credit.
Immediately upon the occurrence of an Event of Default and the
acceleration of the Obligations hereunder, and also on the date which is
five (5) Domestic Business Days prior to the Termination Date, Borrower
shall deposit with Administrative Agent cash in such amounts as
Administrative Agent may request, up to a maximum amount equal to the
aggregate existing Letter of Credit Exposure of all Banks; provided, that,
in the case of any of the Events of Default specified in Section 12.1(g) or
Section 12.1(h), an amount equal to the aggregate existing Letter of Credit
Exposure of all Banks shall be due and payable without any notice to
Borrower or any other act by Administrative Agent or any Bank. Any amounts
so deposited shall be held by Administrative Agent for the ratable benefit
of all Banks as security for the outstanding Letter of Credit Exposure and
the other Obligations, and Borrower will, in connection therewith, execute
and deliver such security agreements in form and substance satisfactory to
Administrative Agent which Administrative Agent may, in its discretion,
require. As drafts or demands for payment are presented under any Letter of
Credit, Administrative Agent shall apply such cash to satisfy such drafts
or demands. When all Letters of Credit have expired and the Obligations
have been repaid in full (and no Bank has any obligation to lend or issue
Letters of Credit hereunder) or such Event of Default has been cured to the
satisfaction of Required Banks, Administrative Agent shall release to
Borrower any remaining cash deposited under this Section 3.1(b). Whenever
Borrower is required to make deposits under this Section 3.1(b) and fails
to do so on the day such deposit is due, Administrative Agent or any Bank
may, without notice to Borrower, make such deposit (whether by application
of proceeds of any collateral for the Obligations, by transfers from other
accounts maintained with any Bank or otherwise) using any funds then
available to any Bank of any Credit Party, any guarantor or any other party
liable for repayment of the Obligations.
Notwithstanding anything to the contrary contained herein, Borrower
hereby agrees to reimburse each Letter of Credit Issuer immediately upon
demand by such Letter of Credit Issuer, and in immediately available funds,
for any payment or disbursement made by such Letter of Credit Issuer under
any Letter of Credit issued by it. Payment shall be made by Borrower with
interest on the amount so paid or disbursed by Letter of Credit Issuer from
and including the date payment is made under any Letter of Credit to and
including the date of payment, at the lesser of (i) the Maximum Lawful
Rate, or (ii) the Default Rate. The obligations of Borrower under this
paragraph will continue until all Letters of Credit have expired and all
reimbursement obligations with respect thereto have been paid in full by
Borrower and until all other Obligations shall have been paid in full.
25
Borrower shall be obligated to reimburse Letter of Credit Issuer upon
demand for all amounts paid under Letters of Credit as set forth in the
immediately preceding paragraph hereof; provided, however, if Borrower for
any reason fails to reimburse Letter of Credit Issuer in full upon demand,
Banks shall reimburse Letter of Credit Issuer in accordance with each
Banks' Commitment Percentage for amounts due and unpaid from Borrower as
set forth hereinbelow; provided, however, that no such reimbursement made
by Banks shall discharge Borrower's obligations to reimburse Letter of
Credit Issuer. All reimbursement amounts payable by any Bank under this
Section 3.1(b) shall include interest thereon at the Federal Funds Rate,
from the date of the payment of such amounts by Letter of Credit Issuer to
the date of reimbursement by such Bank. No Bank shall be liable for the
performance or nonperformance of the obligations of any other Bank under
this paragraph. The reimbursement obligations of Banks under this paragraph
shall continue after the Termination Date and shall survive termination of
this Agreement and the other Loan Papers.
Borrower shall indemnify and hold Administrative Agent, Letter of
Credit Issuer and each Bank, and their respective officers, directors,
representatives and employees harmless from loss for any claim, demand or
liability which may be asserted against any or such indemnified party in
connection with actions taken under Letters of Credit or in connection
therewith (including losses resulting from the negligence of any or such
indemnified party), and shall pay each indemnified party for reasonable
fees of attorneys and legal costs paid or incurred by each indemnified
party in connection with any matter related to Letters of Credit, except
for losses and liabilities incurred as a direct result of the gross
negligence or willful misconduct of such indemnified party, IT BEING THE
EXPRESS INTENTION OF THE PARTIES THAT EACH INDEMNIFIED PARTY SHALL BE
INDEMNIFIED FOR THE CONSEQUENCES OF ITS OWN ORDINARY NEGLIGENCE. If
Borrower for any reason fails to indemnify or pay such indemnified party as
set forth herein in full, Banks shall indemnify and pay such indemnified
party upon demand, in accordance with each Bank's Commitment Percentage of
such amounts due and unpaid from Borrower; provided, however, that, no such
payment made by Banks shall discharge Borrower's obligation to indemnify or
pay such indemnified party in accordance with the terms hereof. The
provisions of this paragraph shall survive the termination of this
Agreement.
Neither Administrative Agent nor any other Letter of Credit Issuer
makes any representation or warranty, nor assumes any responsibility with
respect to the validity, legality, sufficiency or enforceability of any
letter of credit application executed and delivered in connection with any
Letter of Credit issued hereunder or any document relative thereto or to
the collectibility thereunder. Neither Administrative Agent nor any other
Letter of Credit Issuer assumes any responsibility for the financial
condition of Borrower or for the performance of any obligation of Borrower.
Administrative Agent and each other Letter of Credit Issuer may use its
discretion with respect to exercising or refraining from exercising any
rights, or taking or refraining from taking any action which may be vested
in it or which it may be entitled to take or assert with respect to any
Letter of Credit or any letter of credit application. FURTHERMORE, EXCEPT
AS SET FORTH HEREIN, NEITHER ADMINISTRATIVE AGENT NOR ANY OTHER LETTER OF
CREDIT ISSUER SHALL BE UNDER ANY LIABILITY TO ANY BANK, WITH RESPECT TO
ANYTHING ADMINISTRATIVE AGENT OR ANY SUCH LETTER OF CREDIT ISSUER MAY DO OR
REFRAIN FROM DOING IN THE EXERCISE OF ITS JUDGMENT, THE SOLE LIABILITY AND
RESPONSIBILITY OF
26
ADMINISTRATIVE AGENT AND SUCH LETTER OF CREDIT ISSUER BEING TO HANDLE EACH
BANK'S SHARE ON AS FAVORABLE A BASIS AS ADMINISTRATIVE AGENT OR SUCH LETTER
OF CREDIT ISSUER HANDLES ITS OWN SHARE. NEITHER ADMINISTRATIVE AGENT NOR
ANY OTHER LETTER OF CREDIT ISSUER SHALL HAVE ANY DUTIES OR RESPONSIBILITIES
EXCEPT THOSE EXPRESSLY SET FORTH HEREIN AND THOSE DUTIES AND LIABILITIES
SHALL BE SUBJECT TO THE LIMITATIONS AND QUALIFICATIONS SET FORTH HEREIN.
FURTHERMORE, NEITHER ADMINISTRATIVE AGENT, ANY LETTER OF CREDIT ISSUER, NOR
ANY OF THEIR DIRECTORS, OFFICERS, OR EMPLOYEES SHALL BE LIABLE FOR ANY
ACTION TAKEN OR OMITTED (WHETHER OR NOT SUCH ACTION TAKEN OR OMITTED IS
EXPRESSLY SET FORTH HEREIN) UNDER OR IN CONNECTION HEREWITH OR UNDER ANY
OTHER INSTRUMENT OR DOCUMENT IN CONNECTION HEREWITH, EXCEPT FOR GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. Neither Administrative Agent nor any
other Letter of Credit Issuer shall incur any liability to any Bank,
Borrower, or any Affiliate of any Bank or Borrower, in acting upon any
notice, document, order, consent, certificate, warrant or other instrument
reasonably believed by Administrative Agent or such Letter of Credit Issuer
to be genuine or authentic and to be signed by the proper party.
(c) No Bank will be obligated to lend to Borrower hereunder or incur
Letter of Credit Exposure, and Borrower shall not be entitled to borrow
hereunder or obtain Letters of Credit hereunder, in an amount which would
cause the Outstanding Credit to exceed the Borrowing Base then in effect.
No Bank shall be obligated to fund Borrowings hereunder and Borrower shall
not be entitled to Borrowings hereunder during the existence of a Borrowing
Base Deficiency. Nothing in this Section 3.1(c) shall be deemed to limit
any Bank's obligation to reimburse any Letter of Credit Issuer with respect
to its participation in Letters of Credit as a result of the drawing under
any Letter of Credit pursuant to Section 3.1(b).
SECTION 3.2 METHOD OF BORROWING.
(a) In order to request any Borrowing under Section 3.1, Borrower
shall hand deliver, telex or telecopy to Administrative Agent a duly
completed Request for Borrowing (herein so called) prior to 11:00 a.m.
(Dallas, Texas time), (i) on the Borrowing Date specified for a proposed
Base Rate Borrowing, and (ii) at least three (3) Eurodollar Business Days
before the Borrowing Date of a proposed Eurodollar Borrowing. Each such
Request for Borrowing shall be substantially in the form of Exhibit F
attached hereto, and shall specify:
(i) the Borrowing Date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or a
Eurodollar Business Day in the case of a Eurodollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether such Borrowing is to be a Base Rate Borrowing or a
Eurodollar Borrowing; and
27
(iv) in the case of a Eurodollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Request for Borrowing, Administrative Agent
shall promptly notify each Bank of the contents thereof and the amount of
the Borrowing to be loaned by such Bank pursuant thereto, and such Request
for Borrowing shall not thereafter be revocable by Borrower.
(c) Not later than 12:00 noon (Dallas, Texas time) on the date of each
Borrowing, each Bank shall make available its Commitment Percentage of such
Borrowing, in Federal or other funds immediately available in Dallas, Texas
to Administrative Agent at its address set forth on Schedule 2.1 hereto.
Unless Administrative Agent determines that any applicable condition
specified in Section 7.2 has not been satisfied, Administrative Agent will
make the funds so received from Banks available to Borrower at
Administrative Agent's aforesaid address.
SECTION 3.3 METHOD OF REQUESTING LETTERS OF CREDIT.
(a) In order to request any Letter of Credit hereunder, Borrower shall
hand deliver, telex or telecopy to Administrative Agent a duly completed
Request for Letter of Credit (herein so called) prior to 12:00 noon
(Dallas, Texas time) at least three (3) Domestic Business Days before the
date specified for issuance of such Letter of Credit. Each Request for
Letter of Credit shall be substantially in the form of Exhibit G attached
hereto, shall be accompanied by the applicable Letter of Credit Issuer's
duly completed and executed letter of credit application and agreement and
shall specify:
(i) the requested date for issuance of such Letter of Credit;
(ii) the terms of such requested Letter of Credit, including the
name and address of the beneficiary, the stated amount, the expiration
date and the conditions under which drafts under such Letter of Credit
are to be available; and
(iii) the purpose of such Letter of Credit.
(b) Upon receipt of a Request for Letter of Credit, Administrative
Agent shall promptly notify each Bank and the proposed Letter of Credit
Issuer of the contents thereof, including the amount of the requested
Letter of Credit, and such Request for Letter of Credit shall not
thereafter be revocable by Borrower.
(c) No later than 12:00 noon (Dallas, Texas time) on the date each
Letter of Credit is requested, unless Administrative Agent or the
applicable Letter of Credit Issuer determines that any applicable condition
precedent set forth in Section 7.2 hereof has not been satisfied,
Administrative Agent or such other applicable Letter of Credit Issuer will
issue and deliver such Letter of Credit pursuant to the instructions of
Borrower.
SECTION 3.4 NOTES. Each Bank's Commitment Percentage of the Revolving Loan
shall be evidenced by a single Note payable to the order of such Bank in an
amount equal to such Bank's Commitment.
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SECTION 3.5 INTEREST RATES; PAYMENTS.
(a) The principal amount of the Base Rate Loan outstanding from day to
day shall bear interest at a rate per annum equal to the sum of (i) the
Applicable Margin plus (ii) the applicable Base Rate in effect from day to
day; provided that in no event shall the rate charged hereunder or under
the Notes exceed the Maximum Lawful Rate. Interest on the Base Rate Loan
shall be payable as it accrues on each Quarterly Date, and on the
Termination Date.
(b) The principal amount of each Eurodollar Loan outstanding from day
to day shall bear interest for the Interest Period applicable thereto at a
rate per annum equal to the sum of (i) the Applicable Margin plus (ii) the
applicable Adjusted Eurodollar Rate; provided that in no event shall the
rate charged hereunder or under the Notes exceed the Maximum Lawful Rate.
Interest on any portion of the principal of each Eurodollar Loan subject to
an Interest Period of one (1), two (2) or three (3) months shall be payable
on the last day of the Interest Period applicable thereto. Interest on any
portion of the principal of each Eurodollar Loan subject to an Interest
Period of six (6), nine (9), or twelve (12) months shall be payable on the
last day of the Interest Period applicable thereto and on each Quarterly
Date.
(c) So long as no Default or Event of Default shall be continuing,
subject to the provisions of this Section 3.5, Borrower shall have the
option of having all or any portion of the principal outstanding under the
Revolving Loan be a Base Rate Loan or one (1) or more Eurodollar Loans,
which shall bear interest at rates determined by reference to the Base Rate
and the Adjusted Eurodollar Rate, respectively; provided, that each
Eurodollar Loan shall be in a minimum amount of $2,000,000 and shall be in
an amount which is an integral multiple of $500,000. Prior to the
termination of each Interest Period with respect to each Eurodollar Loan,
Borrower shall give written notice (a "NOTICE OF CONTINUATION OR
CONVERSION") in the form of Exhibit H attached hereto to Administrative
Agent of the Type of Loan which shall be applicable to the principal of
such Eurodollar Loan upon the expiration of such Interest Period. Such
Notice of Continuation or Conversion shall be given to Administrative Agent
at least one (1) Domestic Business Day, in the case of a Base Rate Loan
selection and three (3) Eurodollar Business Days, in the case of a
Eurodollar Loan selection, prior to the termination of the Interest Period
then expiring. If Borrower shall specify a Eurodollar Loan, such Notice of
Continuation or Conversion shall also specify the length of the succeeding
Interest Period (subject to the provisions of the definition of such term)
selected by Borrower. Each Notice of Continuation or Conversion shall be
irrevocable and effective upon notification thereof to Administrative
Agent. If the required Notice of Continuation or Conversion shall not have
been timely received by Administrative Agent, Borrower shall be deemed to
have elected that the principal of the Eurodollar Loan subject to the
Interest Period then expiring be Converted to the Base Rate Loan upon the
expiration of such Interest Period and Borrower will be deemed to have
given Administrative Agent notice of such election. Subject to the
limitations set forth in this Section 3.5(c) on the amount and number of
Eurodollar Loans, Borrower shall have the right to Convert all or any part
of the Base Rate Loan to a Eurodollar Loan by giving Administrative Agent a
Notice of Continuation or Conversion of such election at least three (3)
Eurodollar Business Days prior to the date on which Borrower elects to make
such Conversion (a "CONVERSION DATE"). The Conversion Date selected by
Borrower shall be a Eurodollar Business Day. Notwithstanding anything in
this Section 3.5 to the contrary, no portion of the principal of the Base
Rate Loan may be Converted to a Eurodollar Loan and no Eurodollar Loan may
be
29
Continued as such when any Default or Event of Default has occurred and is
continuing, but each such Eurodollar Loan shall be automatically Converted
to the Base Rate Loan on the last day of each applicable Interest Period.
Borrower shall not be permitted to have more than seven (7) Eurodollar
Loans in effect at any time.
(d) Notwithstanding anything to the contrary set forth in Section
3.5(a) or Section 3.5(b) above, after the occurrence of an Event of
Default, interest shall accrue on the outstanding principal balance of the
Revolving Loan, and to the extent permitted by Law, on the accrued but
unpaid interest on the Revolving Loan and all other Obligations from the
period from and including the occurrence of such Event of Default to but
excluding the date the same is remedied at a rate per annum equal to the
lesser of (a) the Default Rate, and (b) the Maximum Lawful Rate.
(e) Administrative Agent shall determine each interest rate applicable
to the Revolving Loan in accordance with the terms hereof. Administrative
Agent shall promptly notify Borrower and Banks by telex, telecopy or cable
of each rate of interest so determined, and its determination thereof shall
be conclusive in the absence of manifest error.
(f) Notwithstanding the foregoing, if at any time the rate of interest
calculated with reference to the Base Rate or the Eurodollar Rate hereunder
(the "CONTRACT RATE") is limited to the Maximum Lawful Rate, any subsequent
reductions in the contract rate shall not reduce the rate of interest on
the Revolving Loan below the Maximum Lawful Rate until the total amount of
interest accrued equals the amount of interest which would have accrued if
the contract rate had at all times been in effect. In the event that at
maturity (stated or by acceleration), or at final payment of any Note, the
total amount of interest paid or accrued on such Note is less than the
amount of interest which would have accrued if the contract rate had at all
times been in effect with respect thereto, then at such time, to the extent
permitted by law, Borrower shall pay to the holder of such Note an amount
equal to the difference between (i) the lesser of the amount of interest
which would have accrued if the contract rate had at all times been in
effect and the amount of interest which would have accrued if the Maximum
Lawful Rate had at all times been in effect, and (ii) the amount of
interest actually paid on such Note.
(g) Interest payable hereunder on each Eurodollar Loan shall be
computed based on the number of actual days elapsed assuming that each
calendar year consisted of 360 days. Interest payable hereunder on the Base
Rate Loan shall be computed based on the actual number of days elapsed
assuming that each calendar year consisted of 365 days (or 366 days in a
leap year).
SECTION 3.6 MANDATORY PREPAYMENTS. Upon the occurrence of any Borrowing
Base Deficiency, Borrower shall make the mandatory prepayments of the Revolving
Loan required by Section 5.4 hereof.
SECTION 3.7 VOLUNTARY PREPAYMENTS. Borrower may, subject to Section 3.3 and
the other provisions of this Agreement, prepay the principal of the Revolving
Loan in whole or in part. Any partial prepayment shall be in a minimum amount of
$500,000 and shall be in an integral multiple of $100,000.
30
SECTION 3.8 VOLUNTARY REDUCTION OF COMMITMENTS. Borrower may, by notice to
Administrative Agent five (5) Domestic Business Days prior to the effective date
of any such reduction, reduce the Total Commitment (and thereby reduce the
Commitment of each Bank ratably) in amounts not less than $5,000,000 and in an
amount which is an integral multiple of $1,000,000. On the effective date of any
such reduction, Borrower shall, to the extent required as a result of such
reduction, make a principal payment on the Revolving Loan in an amount
sufficient to cause the principal balance of the Revolving Loan then outstanding
to be equal to or less than the Total Commitment as thereby reduced.
Notwithstanding the foregoing, Borrower shall not be permitted to voluntarily
reduce the Total Commitment to an amount less than the aggregate Letter of
Credit Exposure of all Banks.
SECTION 3.9 TERMINATION OF COMMITMENTS; FINAL MATURITY OF REVOLVING LOAN.
The Total Commitment (and the Commitment of each Bank) shall terminate, and the
entire outstanding principal balance of the Revolving Loan, all interest accrued
thereon, all accrued but unpaid fees hereunder and all other outstanding
Obligations shall be due and payable in full on the Termination Date.
SECTION 3.10 APPLICATION OF PAYMENTS. Each repayment pursuant to Section
3.6, Section 3.7, Section 3.8, Section 3.9 and Section 5.4 shall be made
together with accrued interest on the amount repaid to the date of payment, and
shall be applied in accordance with Section 4.2 and the other provisions of this
Agreement.
SECTION 3.11 COMMITMENT FEE. On the Termination Date, on each Quarterly
Date prior to the Termination Date, and, in the event the Commitments are
terminated in their entirety prior to the Termination Date, on the date of such
termination, Borrower shall pay to Administrative Agent, for the ratable benefit
of each Bank based on each Bank's Commitment Percentage, a commitment fee equal
to the Commitment Fee Percentage in effect from day to day (applied on a per
annum basis and computed on the basis of actual days elapsed and as if each
calendar year consisted of 365 days (or 366 days in a leap year)) of the average
daily Availability for the Fiscal Quarter (or portion thereof) ending on the
date such payment is due.
SECTION 3.12 AGENCY AND OTHER FEES. Borrower shall pay to Administrative
Agent and its Affiliates such other fees and amounts as Borrower shall be
required to pay to Administrative Agent and its Affiliates from time to time
pursuant to any separate agreement between Borrower and Administrative Agent or
such Affiliates. Such fees and other amounts shall be retained by Administrative
Agent and its Affiliates, and no Bank (other than Bank One) shall have any
interest therein. Administrative Agent may disburse any fees paid to
Administrative Agent and its Affiliates pursuant to this Section 3.12 in any
manner Administrative Agent desires in its sole discretion.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.1 DELIVERY AND ENDORSEMENT OF NOTES. On the Closing Date,
Administrative Agent shall deliver to each Bank the Note payable to such Bank.
Each Bank may endorse (and prior to any transfer of its Note shall endorse) on
the schedules attached and forming a part thereof appropriate notations to
evidence the date and amount of its Commitment
31
Percentage of each Borrowing, the Interest Period applicable thereto, and the
date and amount of each payment of principal made by Borrower with respect
thereto; provided that the failure by any Bank to so endorse its Note shall not
affect the liability of Borrower for the repayment of all amounts outstanding
under such Note together with interest thereon. Each Bank is hereby irrevocably
authorized by Borrower to endorse its Note and to attach to and make a part of
any such Note a continuation of any such schedule as required.
SECTION 4.2 GENERAL PROVISIONS AS TO PAYMENTS.
(a) Borrower shall make each payment of principal of, and interest on,
the Revolving Loan, and all fees payable hereunder shall be paid, not later
than 12:00 noon (Dallas, Texas time) on the date when due, in Federal or
other funds immediately available in Dallas, Texas, to Administrative Agent
at its address set forth on Schedule 2.1 hereto, without defense, set-off,
deduction or counterclaim. Administrative Agent will promptly (and if such
payment is received by Administrative Agent by 10:00 a.m. (Dallas, Texas
time), and otherwise if reasonably possible, on the same Domestic Business
Day) distribute to each Bank its Commitment Percentage of each such payment
received by Administrative Agent for the account of Banks. Whenever any
payment of principal of, or interest on, the Base Rate Loan or of fees
shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of, or interest on, any portion of
any Eurodollar Loan shall be due on a day which is not a Eurodollar
Business Day, the date for payment thereof shall be extended to the next
succeeding Eurodollar Business Day (subject to the provisions of the
definition of Interest Period). If the date for any payment of principal is
extended by operation of Law or otherwise, interest thereon shall be
payable for such extended time. Borrower hereby authorizes Administrative
Agent to charge from time to time against Borrower's accounts with
Administrative Agent any amount then due.
(b) Prior to the occurrence of an Event of Default, all principal
payments received by Banks with respect to the Revolving Loan shall be
applied first to Eurodollar Loans outstanding with Interest Periods ending
on the date of such payment, then to the Base Rate Loan, and then to
Eurodollar Loans next maturing until such principal payment is fully
applied.
(c) After the occurrence of an Event of Default, all amounts collected
or received by Administrative Agent or any Bank shall be applied first to
the payment of all proper costs incurred by Administrative Agent in
connection with the collection thereof (including reasonable expenses and
disbursements of Administrative Agent), second to the payment of all proper
costs incurred by Banks in connection with the collection thereof
(including reasonable expenses and disbursements of Banks), third to the
reimbursement of any advances made by Banks to effect performance of any
unperformed covenants of any Credit Party under any of the Loan Papers,
fourth to the payment of any unpaid fees required pursuant to Section 3.11,
fifth to the payment of any unpaid fees required pursuant to Section 3.1(b)
and Section 3.10, sixth, to payment to each Bank of its Commitment
Percentage of the outstanding principal of the Revolving Loan and accrued
but unpaid interest thereon, and seventh to establish the deposits required
in Section 3.1(b). All payments received by a Bank after the occurrence of
an Event of Default for application to the principal of the Revolving Loan
shall be applied by such Bank in the manner provided in Section 4.2(b).
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ARTICLE V
BORROWING BASE
SECTION 5.1 RESERVE REPORT; PROPOSED BORROWING BASE AND CONFORMING
BORROWING BASE. The aggregate amount of credit available to Borrower under this
Agreement shall be limited by a Borrowing Base (herein so called) which shall be
determined by Banks at the times and in accordance with the standards and
procedures set forth in this Article V. As soon as available and in any event by
February 28 and August 31 of each year commencing February 28, 2003, Borrower
shall deliver to Administrative Agent and each Bank a Reserve Report prepared as
of the immediately preceding December 31 and June 30 respectively.
Simultaneously with the delivery to Administrative Agent and each Bank of each
Reserve Report, Borrower shall notify Administrative Agent and each Bank of the
amount of the Borrowing Base which Borrower requests become effective on the
next Redetermination Date (or such date promptly following such Redetermination
Date as Required Banks shall elect). Banks may, in their sole discretion,
establish a Borrowing Base which is higher than the Borrowing Base that would
otherwise be in effect if Banks determined the Borrowing Base based on each
Bank's application of the credit standards and other criteria customarily
applied by such Bank in the determination of credit limitations for companies
similar to Borrower ("CONFORMING CREDIT CRITERIA"). At the time of each
Redetermination, Banks shall also determine what the Borrowing Base would be if
they applied Conforming Credit Criteria (the "CONFORMING BORROWING BASE"). If
Banks do not determine a Conforming Borrowing Base, the Borrowing Base as
redetermined shall also be the Conforming Borrowing Base for purposes of this
Agreement.
SECTION 5.2 SCHEDULED REDETERMINATIONS OF THE BORROWING BASE AND THE
CONFORMING BORROWING BASE; PROCEDURES AND STANDARDS. Based in part on the
Reserve Reports made available to Banks pursuant to Section 5.1, Banks shall
redetermine the Borrowing Base and the Conforming Borrowing Base on or prior to
the next Redetermination Date (or such date promptly thereafter as reasonably
possible based on the engineering and other information available to Banks). Any
Borrowing Base or Conforming Borrowing Base which becomes effective as a result
of any Redetermination of the Borrowing Base or Conforming Borrowing Base shall
be subject to the following restrictions: (a) such Borrowing Base or Conforming
Borrowing Base shall not exceed the Borrowing Base requested by Borrower
pursuant to Section 5.1 or Section 5.3 (as applicable), (b) such Borrowing Base
or Conforming Borrowing Base shall not exceed the Total Commitment then in
effect, (c) to the extent such Borrowing Base or Conforming Borrowing Base
represents an increase from the Borrowing Base or the Conforming Borrowing Base
(as applicable) in effect prior to such Redetermination, such Borrowing Base or
Conforming Borrowing Base shall be approved by all Banks, and (d) to the extent
such Borrowing Base or Conforming Borrowing Base represents a decrease in the
Borrowing Base or the Conforming Borrowing Base (as applicable) in effect prior
to such Redetermination, or a reaffirmation of such prior Borrowing Base or
Conforming Borrowing Base, such Borrowing Base or Conforming Borrowing Base
shall be approved by Required Banks. Each Redetermination shall be made by Banks
in their sole discretion. Without limiting such discretion, Borrower
acknowledges and agrees that Banks (i) may make such assumptions regarding
appropriate existing and projected pricing for Hydrocarbons as they deem
appropriate in their sole discretion, (ii) may make such assumptions regarding
projected rates and quantities of future production of Hydrocarbons from the
Mineral Interests owned by Borrower as they
33
deem appropriate in their sole discretion, (iii) may consider the projected cash
requirements of the Credit Parties, (iv) are not required to consider any asset
other than Proved Mineral Interests owned by Borrower which are subject to first
and prior Liens in favor of Administrative Agent for the ratable benefit of
Banks to the extent required by Section 6.1 hereof, and (v) may make such other
assumptions, considerations and exclusions as Banks deem appropriate in the
exercise of their sole discretion. It is further acknowledged and agreed that
each Bank may consider such other credit factors as it deems appropriate in the
exercise of its sole discretion and shall have no obligation in connection with
any Redetermination to approve any increase from the Borrowing Base or the
Conforming Borrowing Base in effect prior to such Redetermination. The
Conforming Borrowing Base shall also be determined by Banks in their sole
discretion, and in determining the amount of the Conforming Borrowing Base, each
Bank may make the assumptions and consider the factors and criteria set forth in
subclauses (a) through (d) and (i) through (v) above; provided, that each Bank
shall apply Conforming Credit Criteria. Promptly following any Redetermination
of the Borrowing Base and the Conforming Borrowing Base, Administrative Agent
shall notify Borrower of the amount of the Borrowing Base and the Conforming
Borrowing Base as redetermined, which Borrowing Base and Conforming Borrowing
Base shall be effective as of the date specified in such notice, and shall
remain in effect for all purposes of this Agreement until the next
Redetermination.
SECTION 5.3 SPECIAL REDETERMINATION.
(a) In addition to Scheduled Redeterminations, Borrower and Required
Banks shall each be permitted to request a Special Redetermination of the
Borrowing Base and the Conforming Borrowing Base once in each Fiscal Year.
Any request by Required Banks pursuant to this Section 5.3(a) shall be
submitted to Administrative Agent and Borrower. Any request by Borrower
pursuant to this Section 5.3(a) shall be submitted to Administrative Agent
and each Bank and at the time of such request Borrower shall (i) deliver to
Administrative Agent and each Bank a Reserve Report, and (ii) also notify
Administrative Agent and each Bank of the Borrowing Base requested by
Borrower in connection with such Special Redetermination. (b) Any Special
Redetermination shall be made by Banks in accordance with the procedures
and standards set forth in Section 5.2; provided, that, no Reserve Report
will be required to be delivered to Administrative Agent and Banks in
connection with any Special Redetermination requested by Required Banks
pursuant to Section 5.3(a) above.
SECTION 5.4 BORROWING BASE DEFICIENCY. To the extent a Borrowing Base
Deficiency exists after giving effect to any Redetermination, Borrower shall be
obligated to eliminate such Borrowing Base Deficiency over a period not to
exceed six (6) months from the effective date of such Redetermination by making
six (6) mandatory, equal, consecutive, monthly payments of principal on the
Revolving Loan, each of which shall be in the amount of one sixth (1/6th) of
such Borrowing Base Deficiency, or in the event that the remaining principal
outstanding under the Revolving Loan is less than the Borrowing Base Deficiency,
then in the amount of one sixth (1/6th) of the remaining principal outstanding
under the Revolving Loan. The first of such six (6) payments shall be due on the
thirtieth (30th) day following the effective date of each such Redetermination
and each subsequent payment shall be due on the same day of each month
thereafter (or if there is no corresponding day of any subsequent month, then on
the last day of such month) (each such date is referred to herein as a
"BORROWING BASE DEFICIENCY
34
PAYMENT DATE"). If a Borrowing Base Deficiency cannot be eliminated pursuant to
this Section 5.4 by prepayment of the Revolving Loan in full (as a result of
outstanding Letter of Credit Exposure), on each borrowing base deficiency
payment date, Borrower shall also deposit cash with Administrative Agent, to be
held by Administrative Agent to secure outstanding Letter of Credit Exposure in
the manner contemplated by Section 3.1(b), an amount at least equal to one sixth
(1/6th) of the balance of such Borrowing Base Deficiency (i.e., one-sixth of the
difference between the Borrowing Base Deficiency and the remaining outstanding
principal under the Revolving Loan on the effective date of such
Redetermination).
SECTION 5.5 INITIAL BORROWING BASE AND INITIAL CONFORMING BORROWING BASE.
Notwithstanding anything to the contrary contained herein, the Borrowing Base
and the Conforming Borrowing Base in effect during the period commencing on the
Closing Date and ending on the effective date of the first Redetermination after
the Closing Date shall be the Initial Borrowing Base and the Initial Conforming
Borrowing Base, respectively. The Mineral Interests acquired by Borrower
pursuant to the terms of that certain Asset Purchase Agreement, dated as of June
19, 2002, by and between Borrower and COHO Resources, Inc., have not been
evaluated for purposes of establishing the Initial Borrowing Base and Initial
Conforming Borrowing Base.
ARTICLE VI
COLLATERAL AND GUARANTEES
SECTION 6.1 SECURITY.
(a) The Obligations shall be secured by first and prior Liens (subject
only to Permitted Encumbrances) covering and encumbering (i) one hundred
percent (100%) of all Borrowing Base Properties, and prior to any
Distributions being permitted to be made to any Restricted Subsidiary
pursuant to the terms of Section 10.2(b) and/or the definition of
"Permitted Investments," all of the issued and outstanding Equity owned by
Borrower and each Restricted Subsidiary of each such Restricted Subsidiary.
On the Closing Date, Borrower shall deliver to Administrative Agent for the
ratable benefit of each Bank, the Mortgages and Assignments and Amendments
to Mortgages in form and substance acceptable to Administrative Agent and
duly executed by Borrower, together with such other assignments,
conveyances, amendments, agreements and other writings, including, without
limitation, UCC-1 and UCC-3 financing statements (each duly authorized and
executed, as applicable) as Administrative Agent shall deem necessary or
appropriate to grant, evidence and perfect first and prior Liens in all
Borrowing Base Properties and other interests of Borrower required by this
Section 6.1(a). Borrower hereby authorizes Administrative Agent, and its
agents, successors and assigns, to file any and all necessary financing
statements under the Uniform Commercial Code, assignments or continuation
statements as necessary from time to time (in Administrative Agent's
discretion) to perfect (or continue perfection of) the Liens granted
pursuant to the Loan Papers.
(b) On or before each Redetermination Date after the Closing Date and
at such other times as Administrative Agent or Required Banks shall
request, Borrower and its Restricted Subsidiaries shall execute and deliver
to Administrative Agent, for the ratable benefit of each Bank, Mortgages in
form and substance acceptable to Administrative Agent and duly executed by
Borrower and any such Restricted Subsidiary (as applicable) together with
such other assignments, conveyances, amendments, agreements and other
writings, including, without
35
limitation, UCC-1 financing statements (each duly authorized and executed)
as Administrative Agent shall deem necessary or appropriate to grant,
evidence and perfect the Liens required by Section 6.1(a) preceding with
respect to Borrowing Base Properties acquired by Borrower and its
Restricted Subsidiaries subsequent to the last date on which Borrower or
any such Restricted Subsidiary was required to execute and deliver
Mortgages pursuant to this Section 6.1(b), or which, for any other reason
are not the subject of valid, enforceable, perfected first priority Liens
(subject only to Permitted Encumbrances) in favor of Administrative Agent
for the ratable benefit of Banks.
(c) At any time Borrower or any of its Subsidiaries is required to
execute and deliver Mortgages and/or Assignments and Amendments to
Mortgages to Administrative Agent pursuant to this Section 6.1, Borrower
shall also deliver to Administrative Agent such opinions of counsel
(including, if so requested, title opinions, and in each case addressed to
Administrative Agent) and other evidence of title as Administrative Agent
shall deem necessary or appropriate to verify (i) Borrower's or such
Subsidiary's title to the Required Reserve Value of the Proved Mineral
Interests which are subject to such Mortgages, and (ii) the validity,
perfection and priority of the Liens created by such Mortgages (as amended
by the Assignments and Amendments to Mortgages, as applicable) and such
other matters regarding such Mortgages as Administrative Agent shall
reasonably request.
(d) To the extent required or contemplated by the terms of Section
6.1(a)(ii), Section 10.2 and the definition of "Permitted Investments,"
Borrower or any Indirect Subsidiary (as applicable) shall execute and
deliver to Administrative Agent a Borrower Pledge Agreement or a Subsidiary
Pledge Agreement (as applicable) together with (i) all certificates (or
other evidence acceptable to Administrative Agent) evidencing the issued
and outstanding Equity of any such Restricted Subsidiary of every class
owned by Borrower or such Indirect Subsidiary (as applicable) which shall
be duly endorsed or accompanied by stock powers executed in blank (as
applicable), and (ii) such UCC-1 financing statements as Administrative
Agent shall deem necessary or appropriate to grant, evidence and perfect
the Liens required by Section 6.1(a)(ii) and Section 10.2 in the issued and
outstanding Equity of each such Restricted Subsidiary.
SECTION 6.2 GUARANTEES. Prior to any Distributions being permitted to be
made to any Restricted Subsidiary pursuant to the terms of Section 10.2(b),
payment and performance of the Obligations shall be fully guaranteed by each
such Restricted Subsidiary pursuant to a Facility Guaranty, and Borrower shall
cause any such applicable Restricted Subsidiary to execute and deliver to
Administrative Agent such Facility Guaranty.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1 CONDITIONS TO AMENDMENT AND RESTATEMENT AND INITIAL BORROWING
AND PARTICIPATION IN LETTER OF CREDIT EXPOSURE. The amendment and restatement of
the Existing Credit Agreement on the terms set forth herein, and the obligation
of each Bank to loan its Commitment Percentage of the initial Borrowing
hereunder and the obligation of Administrative Agent to issue (or cause another
Bank to issue) any Letter of Credit issued hereunder is subject to the
satisfaction of each of the following conditions:
36
(a) CLOSING DELIVERIES. Administrative Agent shall have received each
of the following documents, instruments and agreements, each of which shall
be in form and substance and executed in such counterparts as shall be
acceptable to Administrative Agent and each Bank and each of which shall,
unless otherwise indicated, be dated the Closing Date:
(i) a Note payable to the order of each Bank, each in the amount
of such Bank's Commitment, duly executed by Borrower;
(ii) the Mortgages and Assignments and Amendments to Mortgages to
be executed on the Closing Date pursuant to Section 6.1(a), duly
executed and delivered by Borrower, together with such other
assignments, conveyances, amendments, agreements and other writings,
including, without limitation, UCC-1 and UCC-3 financing statements,
in form and substance satisfactory to Administrative Agent, creating
first and prior Liens in all Borrowing Base Properties;
(iii) the Borrower Pledge Agreement duly executed and delivered
by Borrower, together with (A) all certificates (or other evidence
acceptable to Administrative Agent) evidencing one hundred percent
(100%) of the issued and outstanding Equity of each Restricted
Subsidiary of every class, which certificates shall be duly endorsed
or accompanied by appropriate stock powers (as applicable) executed in
blank, and (B) such other agreements and writings, including, without
limitation, UCC-1 financing statements, in form and substance
satisfactory to Administrative Agent;
(iv) Facility Guarantees duly executed and delivered by each
Restricted Subsidiary;
(v) such financing statements (including, without limitation, the
financing statements referenced in subclause (ii) above) in form and
substance acceptable to Administrative Agent and executed by each
Credit Party (as applicable) as Administrative Agent shall specify to
fully evidence and perfect all Liens contemplated by the Loan Papers,
all of which shall be filed of record in such jurisdictions as
Administrative Agent shall require in its sole discretion;
(vi) a copy of the articles or certificate of incorporation,
certificate of organization, or comparable charter documents, and all
amendments thereto, of each Credit Party accompanied by a certificate
that such copy is true, correct and complete, and dated within ten
(10) days of the Closing Date (or within such other period as
acceptable to Administrative Agent), issued by the appropriate
Governmental Authority of the jurisdiction of incorporation of each
such Credit Party, and accompanied by a certificate of the Secretary
or comparable Authorized Officer of each such Credit Party that such
copy is true, correct and complete on the Closing Date;
(vii) a copy of the bylaws, regulations or comparable charter
documents, and all amendments thereto, of each Credit Party
accompanied by a certificate of the Secretary or comparable Authorized
Officer of each such Credit Party that such copy is true, correct and
complete as of Closing Date;
37
(viii) certain certificates and other documents issued by the
appropriate Governmental Authorities of such jurisdictions as
Administrative Agent has requested relating to the existence of each
Credit Party and to the effect that each such Credit Party is in good
standing with respect to the payment of franchise and similar Taxes
and is duly qualified to transact business in such jurisdictions;
(ix) a certificate of incumbency of all officers of each Credit
Party who will be authorized to execute or attest to any Loan Paper,
dated the Closing Date, executed by the Secretary or comparable
Authorized Officer of each such Credit Party;
(x) copies of resolutions or comparable authorizations approving
the Loan Papers and authorizing the transactions contemplated by this
Agreement and the other Loan Papers, duly adopted by the Board of
Directors (or comparable authority) of each Credit Party accompanied
by certificates of the Secretary or comparable officer of each such
Credit Party that such copies are true and correct copies of
resolutions duly adopted at a meeting of or (if permitted by
applicable Law and, if required by such Law, by the bylaws or
comparable charter documents of each such Credit Party, as applicable)
by the unanimous written consent of the Board of Directors (or
comparable authority) of each such Credit Party, as applicable, and
that such resolutions constitute all the resolutions adopted with
respect to such transactions, have not been amended, modified, or
revoked in any respect, and are in full force and effect as of the
Closing Date;
(xi) an opinion of Jenkens & Gilchrist, P.C., special counsel for
the Credit Parties dated the Closing Date, favorably opining as to the
enforceability of each of the Loan Papers and otherwise in form and
substance satisfactory to Administrative Agent and Banks;
(xii) an opinion of Casten & Pearce, special Louisiana counsel
for Administrative Agent dated the Closing Date, favorably opining as
to the enforceability of the Mortgages and Assignments and Amendments
to Mortgages in Louisiana and otherwise in form and substance
satisfactory to Administrative Agent and Banks;
(xiii) an opinion of Young, Williams, Henderson & Fuselier, P.A.,
special Mississippi counsel for Administrative Agent dated the Closing
Date, favorably opining as to the enforceability of the Mortgages and
Assignments and Amendments to Mortgages in Mississippi and otherwise
in form and substance satisfactory to Administrative Agent and Banks;
(xiv) a certificate signed by an Authorized Officer of Borrower
stating that (a) the representations and warranties contained in this
Agreement and the other Loan Papers are true and correct in all
respects, (b) no Default or Event of Default has occurred and is
continuing, and (c) all conditions set forth in this Section 7.1 and
Section 7.2 have been satisfied;
(xv) a Certificate of Ownership Interests signed by an Authorized
Officer of Borrower in the form of Exhibit I attached hereto;
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(xvi) a report or reports in form, scope and detail acceptable to
Administrative Agent from environmental engineering firms acceptable
to Administrative Agent setting forth the results of a review of
Borrower's Mineral Interests and operations, which report(s) shall not
reflect the existence of facts or circumstances which would constitute
a material violation of any Applicable Environmental Law or which are
likely to result in a material liability to any Credit Party; and
(xvii) certificates from Borrower's insurance broker setting
forth the insurance maintained by Borrower, stating that such
insurance is in full force and effect, that all premiums due have been
paid and stating that such insurance is adequate and complies with the
requirements of Section 9.6.
(b) TITLE REVIEW. Administrative Agent or its counsel shall have completed
a review of title to the Required Reserve Value of all Borrowing Base Properties
and such review shall not have revealed any condition or circumstance which
would reflect that the representations and warranties contained in Section 8.8
hereof are inaccurate in any respect.
(c) CLOSING TRANSACTIONS. Subject only to the disbursement and application
of the initial Borrowing, the Closing Transactions shall have occurred (or
Administrative Agent shall be satisfied that such transactions will occur
simultaneously with the Effective Date).
(d) NO MATERIAL ADVERSE CHANGE. In the sole discretion of each Bank, no
Material Adverse Change shall have occurred.
(e) NO LEGAL PROHIBITION. The transactions contemplated by this Agreement
shall be permitted by applicable Law and regulation and shall not subject any
Agent or any Bank to any material adverse change in its assets, liabilities,
financial condition, operations or prospects or subject any Credit Party to a
Material Adverse Change.
(f) NO LITIGATION. No litigation, arbitration or similar proceeding shall
be pending or threatened which calls into question the validity or
enforceability of this Agreement, the other Loan Papers or the transactions
contemplated hereby or thereby.
(g) CLOSING FEES. Borrower shall have paid to Administrative Agent for the
ratable benefit of each Bank, and shall have paid to Administrative Agent and
its Affiliates (for its own account), the fees to be paid on the Closing Date
pursuant to Section 3.12.
() OTHER MATTERS. All matters related to this Agreement, the other Loan
Papers and the Credit Parties shall be acceptable to each Bank in its sole
discretion, and each Credit Party shall have delivered to Administrative Agent
and each Bank such evidence as they shall request to substantiate any matters
related to this Agreement and the other Loan Papers as Administrative Agent or
any Bank shall request.
Upon satisfaction of each of the conditions set forth in this Section 7.1,
Borrower and Administrative Agent shall execute the Certificate of
Effectiveness. Upon the execution and delivery of the Certificate of
Effectiveness, the Existing Credit Agreement shall automatically and completely
be amended and restated on the terms set forth herein without necessity of any
other action on the part of any Bank, any Agent or Borrower. Until execution and
delivery of the
39
Certificate of Effectiveness, the Existing Credit Agreement shall remain in full
force and effect in accordance with its terms. Each Bank hereby authorizes
Administrative Agent to execute the Certificate of Effectiveness on its behalf
and acknowledges and agrees that the execution of the Certificate of
Effectiveness by Administrative Agent shall be binding on each such Bank.
SECTION 7.2 CONDITIONS TO EACH BORROWING AND EACH LETTER OF CREDIT. The
obligation of each Bank to loan its Commitment Percentage of each Borrowing and
the obligation of any Letter of Credit Issuer to issue, extend, amend or renew
any Letter of Credit on the date such Letter of Credit is to be issued,
extended, amended or renewed is subject to the further satisfaction of the
following conditions:
(a) timely receipt by Administrative Agent of a Request for Borrowing
or a Request for Letter of Credit (as applicable);
(b) immediately before and after giving effect to such Borrowing or
issuance of such Letter of Credit, no Default or Event of Default shall
have occurred and be continuing and the funding of such Borrowing or the
issuance of the requested Letter of Credit (as applicable) shall not cause
a Default or Event of Default;
(c) the representations and warranties of each Credit Party contained
in this Agreement and the other Loan Papers shall be true and correct on
and as of the date of such Borrowing or issuance of such Letter of Credit
(as applicable);
(d) the amount of the requested Borrowing or the amount of the
requested Letter of Credit (as applicable) shall not exceed the
Availability;
(e) no Material Adverse Change shall have occurred; and
(f) the funding of such Borrowing or the issuance of such Letter of
Credit (as applicable) shall be permitted by applicable Law.
The funding of each Borrowing and the issuance of each Letter of Credit
hereunder shall be deemed to be a representation and warranty by Borrower on the
date of such Borrowing and the date of issuance of each Letter of Credit as to
the facts specified in Section 7.2(b) through Section 7.2(e).
SECTION 7.3 AGREEMENTS REGARDING INITIAL BORROWING. Borrower,
Administrative Agent and each Bank acknowledge that all the proceeds of the
initial Borrowing to be made on the Closing Date are to be applied to refinance
in full all Obligations outstanding under and as defined in the Existing Credit
Agreement (the "REFINANCING BORROWING"). Administrative Agent and each Bank
hereby waive the requirements of Section 3.2(a) and Section 7.2(a) with respect
to the Refinancing Borrowing to the extent, but only to the extent, such
Sections require the delivery of a Request for Borrowing as a condition
precedent to the obligation of each Bank to loan its Commitment Percentage of
each Borrowing. Each Bank, Administrative Agent and Borrower further acknowledge
and agree that, notwithstanding the contrary provisions of Section 3.2(c), each
Bank shall only be required to fund as part of such Refinancing Borrowing the
remainder, if any (and as applicable), of (a) its Commitment Percentage of such
Refinancing Borrowing, minus (b) the amount it is to receive as a result of
40
the application of the proceeds of the Refinancing Borrowing to refinance all
obligations outstanding under and as defined in the Existing Credit Agreement.
SECTION 7.4 MATERIALITY OF CONDITIONS. Each condition precedent herein is
material to the transactions contemplated herein, and time is of the essence in
respect of each thereof.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and each Bank that
each of the following statements is true and correct on the date hereof, and
will be true and correct on the occasion of each Borrowing and the issuance of
each Letter of Credit:
SECTION 8.1 CORPORATE EXISTENCE AND POWER. Each Credit Party (a) is a
corporation, partnership or limited liability company duly incorporated or
organized (as applicable), validly existing and in good standing under the Laws
of its jurisdiction of incorporation or organization, (b) has all corporate,
partnership or limited liability company power (as applicable) and all material
governmental licenses, authorizations, consents and approvals required to carry
on its businesses as now conducted and as proposed to be conducted, and (c) is
duly qualified to transact business as a foreign corporation, partnership or
limited liability company (as applicable) in each jurisdiction where a failure
to be so qualified could have a Material Adverse Effect.
SECTION 8.2 CREDIT PARTY AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION. The
execution, delivery and performance of this Agreement and the other Loan Papers
by each Credit Party (to the extent each Credit Party is a party to this
Agreement and such Loan Papers) are within such Credit Party's corporate,
partnership or limited liability company powers (as applicable), when executed
will be duly authorized by all necessary corporate, partnership or limited
liability company action (as applicable), require no action by or in respect of,
or filing with, any Governmental Authority and do not contravene, or constitute
a default under, any provision of applicable Law (including, without limitation,
the Margin Regulations) or of the articles or certificate of incorporation,
bylaws, regulations, partnership agreement or comparable charter documents of
any Credit Party or of any agreement, judgment, injunction, order, decree or
other instrument binding upon any Credit Party or result in the creation or
imposition of any Lien on any asset of any Credit Party other than the Liens
securing the Obligations.
SECTION 8.3 BINDING EFFECT. This Agreement constitutes a valid and binding
agreement of Borrower; the other Loan Papers when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
each Credit Party executing the same; and each Loan Paper is, or when executed
and delivered, will be, enforceable against each Credit Party which executes the
same in accordance with its terms except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency or similar Laws affecting creditors rights
generally, and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
41
SECTION 8.4 FINANCIAL INFORMATION.
(a) The most recent annual audited consolidated balance sheet of
Borrower and the related consolidated statements of operations and cash
flows for the Fiscal Year then ended, copies of which have been delivered
to each Bank, fairly present, in conformity with GAAP, the consolidated
financial position of Borrower as of the end of such Fiscal Year and its
consolidated results of operations and cash flows for such Fiscal Year.
(b) The most recent quarterly unaudited consolidated balance sheet of
Borrower delivered to Banks, and the related unaudited consolidated
statements of operations and cash flows for the portion of Borrower's
Fiscal Year then ended, fairly present, in conformity with GAAP applied on
a basis consistent with the financial statements referred to in Section
8.4(a), the consolidated financial position of Borrower as of such date and
its consolidated results of operations and cash flows for such portion of
Borrower's Fiscal Year.
(c) Except as disclosed in writing to Banks prior to the execution and
delivery of this Agreement, since the date of Borrower's most recent annual
and quarterly consolidated balance sheet and consolidated statements of
operations and cash flow delivered to Banks, there has been no material
adverse change in the assets, liabilities, financial position, results of
operations or prospects of any Credit Party.
SECTION 8.5 LITIGATION. Except for matters disclosed on Schedule 8.5
attached hereto, there is no action, suit or proceeding pending against, or to
the knowledge of any Credit Party, threatened against or affecting any Credit
Party before any Governmental Authority in which there is a reasonable
possibility of an adverse decision which could have a Material Adverse Effect or
which could in any manner draw into question the validity of the Loan Papers.
SECTION 8.6 ERISA. No Credit Party nor any ERISA Affiliate of any Credit
Party maintains or has ever maintained or been obligated to contribute to any
Plan covered by Title IV of ERISA or subject to the funding requirements of
section 412 of the Code or section 302 of ERISA. Each Plan maintained by any
Credit Party or any ERISA Affiliate of any Credit Party is in compliance in all
material respects with all applicable Laws. Except in such instances where an
omission or failure would not have a Material Adverse Effect, (a) all returns,
reports and notices required to be filed with any regulatory agency with respect
to any Plan have been filed timely, and (b) no Credit Party nor any ERISA
Affiliate of any Credit Party has failed to make any contribution or pay any
amount due or owing as required by the terms of any Plan. There are no pending
or, to the best of Borrower's knowledge, threatened claims, lawsuits,
investigations or actions (other than routine claims for benefits in the
ordinary course) asserted or instituted against, and no Credit Party nor any
ERISA Affiliate of any Credit Party has knowledge of any threatened litigation
or claims against, the assets of any Plan or its related trust or against any
fiduciary of a Plan with respect to the operation of such Plan that are likely
to result in liability of any Credit Party having a Material Adverse Effect.
Except in such instances where an omission or failure would not have a Material
Adverse Effect, each Plan that is intended to be "qualified" within the meaning
of section 401(a) of the Code is, and has been during the period from its
adoption to date, so qualified, both as to form and operation and all necessary
governmental approvals, including a favorable determination as to the
qualification under the Code of such Plan and each amendment thereto, have been
or will be timely obtained.
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No Credit Party nor any ERISA Affiliate of any Credit Party has engaged in any
prohibited transactions, within the meaning of section 406 of ERISA or section
4975 of the Code, in connection with any Plan which would result in liability of
any Credit Party having a Material Adverse Effect. No Credit Party nor any ERISA
Affiliate of any Credit Party maintains or contributes to any Plan that provides
a post-employment health benefit, other than a benefit required under section
601 of ERISA, or maintains or contributes to a Plan that provides health
benefits that is not fully funded except where the failure to fully fund such
Plan would not have a Material Adverse Effect. No Credit Party nor any ERISA
Affiliate of any Credit Party maintains, has established or has ever
participated in a multiple employer welfare benefit arrangement within the
meaning of section 3(40)(A) of ERISA.
SECTION 8.7 TAXES AND FILING OF TAX RETURNS. Each Credit Party has filed
all tax returns required to have been filed and has paid all Taxes shown to be
due and payable on such returns, including interest and penalties, and all other
Taxes which are payable by such party, to the extent the same have become due
and payable, other than Taxes with respect to which a failure to pay would not
have a Material Adverse Effect. No Credit Party knows of any proposed material
Tax assessment against it and all Tax liabilities of each Credit Party are
adequately provided for. Except as disclosed in writing to Banks prior to the
date hereof, no income tax liability in excess of $50,000 of any Credit Party
has been asserted by the Internal Revenue Service or other Governmental
Authority for Taxes in excess of those already paid.
SECTION 8.8 OWNERSHIP OF PROPERTIES GENERALLY. Each Credit Party has good
and valid fee simple or leasehold title to all material properties and assets
purported to be owned by it, including, without limitation, all assets reflected
in the balance sheets referred to in Section 8.4(a) and Section 8.4(b) and all
assets which are used by the Credit Parties in the operation of their respective
businesses, and none of such properties or assets is subject to any Lien other
than Permitted Encumbrances.
SECTION 8.9 MINERAL INTERESTS. Borrower has good and defensible title to
all Mineral Interests described in the Reserve Report, including, without
limitation, all Borrowing Base Properties, free and clear of all Liens except
Permitted Encumbrances and Immaterial Title Deficiencies. With the exception of
Immaterial Title Deficiencies, all such Mineral Interests are valid, subsisting,
and in full force and effect, and all rentals, royalties, and other amounts due
and payable in respect thereof have been duly paid. Without regard to any
consent or non-consent provisions of any joint operating agreement covering any
of Borrower's Proved Mineral Interests, and with the exception of Immaterial
Title Deficiencies, Borrower's share of (a) the costs for each Proved Mineral
Interest described in the Reserve Report is not greater than the decimal
fraction set forth in the Reserve Report, before and after payout, as the case
may be, and described therein by the respective designations "working
interests," "WI," "gross working interest," "GWI," or similar terms, and (b)
production from, allocated to, or attributed to each such Proved Mineral
Interest is not less than the decimal fraction set forth in the Reserve Report,
before and after payout, as the case may be, and described therein by the
designations "net revenue interest," "NRI," or similar terms. Except in the case
of wells which, in the aggregate, represent less than two percent (2%) of the
production from the Proved Producing Mineral Interests described in the Reserve
Report, each well drilled in respect of each Proved Producing Mineral Interest
described in the Reserve Report (y) is capable of, and is presently, producing
hydrocarbons in commercially profitable quantities, and Borrower is currently
receiving
43
payments for its share of production, with no funds in respect of any thereof
being presently held in suspense, other than any such funds being held in
suspense pending delivery of appropriate division orders, and (z) has been
drilled, bottomed, completed, and operated in compliance with all applicable
Laws and no such well which is currently producing Hydrocarbons is subject to
any penalty in production by reason of such well having produced in excess of
its allowable production.
SECTION 8.10 LICENSES, PERMITS, ETC. Except as disclosed on Schedule 8.10
attached hereto, each Credit Party possesses such valid franchises, certificates
of convenience and necessity, operating rights, licenses, permits, consents,
authorizations, exemptions and orders of Governmental Authorities, as are
necessary to carry on its business as now conducted and as proposed to be
conducted, except to the extent a failure to obtain any such item would not have
a Material Adverse Effect.
SECTION 8.11 COMPLIANCE WITH LAW. The business and operations of each
Credit Party have been and are being conducted in accordance with all applicable
Laws other than violations of Laws which do not (either individually or
collectively) have a Material Adverse Effect.
SECTION 8.12 FULL DISCLOSURE. All information heretofore furnished by each
Credit Party to Administrative Agent or any Bank for purposes of or in
connection with this Agreement, any Loan Paper or any transaction contemplated
hereby or thereby is, and all such information hereafter furnished by or on
behalf of any Credit Party to Administrative Agent or any Bank will be, true,
complete and accurate in every material respect. The Credit Parties have
disclosed or have caused to be disclosed to Banks in writing any and all facts
(other than facts of general public knowledge) which might reasonably be
expected to result in a Material Adverse Change.
SECTION 8.13 ORGANIZATIONAL STRUCTURE; NATURE OF BUSINESS. Borrower owns
one hundred percent (100%) of the issued and outstanding common stock in
Offshore, DG&M, TRI and DES and one hundred percent (100%) of the issued and
outstanding limited liability company interests in Marine. Borrower has no
direct, wholly-owned Subsidiaries other than Offshore, DG&M, Marine, DES and
TRI. Marine, DES, Offshore and TRI have no Subsidiaries. Borrower and Offshore
are engaged only in the business of acquiring, exploring, developing and
operating Mineral Interests and the production and marketing of hydrocarbons
therefrom. Marine is engaged only in the business of marine oil field services.
DES is engaged only in the business of oil and gas marketing and related
services. DG&M is a holding company owning one hundred percent (100%) of the
issued and outstanding common stock in Genesis Energy. TRI does not have any
assets, operations, liabilities, employees or contractual relationships.
Schedule 8.13 attached hereto accurately reflects (i) the jurisdiction of
incorporation or organization of each Credit Party, (ii) each jurisdiction in
which each Credit Party is qualified to transact business as a foreign
corporation, foreign partnership or foreign limited liability company, (iii) the
authorized, issued and outstanding Equity of each Credit Party, and (iv) all
outstanding warrants, options, subscription rights, convertible securities or
other rights to purchase Equity of each Credit Party.
SECTION 8.14 ENVIRONMENTAL MATTERS. Except for matters disclosed on
Schedule 9.10 attached hereto, no operation conducted by any Credit Party and no
real or
44
personal property now or previously owned or leased by any Credit Party
(including, without limitation, any Credit Party's Mineral Interests) and no
operations conducted thereon, and to any Credit Parties' knowledge, no
operations of any prior owner, lessee or operator of any such properties, is or
has been in violation of any Applicable Environmental Law other than violations
which neither individually nor in the aggregate will have a Material Adverse
Effect. Except for matters disclosed on Schedule 9.10 attached hereto, no Credit
Party, nor any such property nor operation is the subject of any existing,
pending or, to any Credit Parties' knowledge, threatened Environmental Complaint
which could, individually or in the aggregate, have a Material Adverse Effect.
All notices, permits, licenses, and similar authorizations, required to be
obtained or filed in connection with the ownership of each tract of real
property or operations of any Credit Party thereon and each item of personal
property owned, leased or operated by any Credit Party, including, without
limitation, notices, licenses, permits and authorizations required in connection
with any past or present treatment, storage, disposal, or release of Hazardous
Substances into the environment, have been duly obtained or filed except to the
extent the failure to obtain or file such notices, licenses, permits and
authorizations would not have a Material Adverse Effect. All Hazardous
Substances, generated at each tract of real property and by each item of
personal property owned, leased or operated by any Credit Party have been
transported, treated, and disposed of only by carriers or facilities maintaining
valid permits under RCRA (as hereinafter defined) and all other Applicable
Environmental Laws for the conduct of such activities except in such cases where
the failure to obtain such permits would not, individually or in the aggregate,
have a Material Adverse Effect. Except for matters disclosed on Schedule 9.10
attached hereto, there have been no Hazardous Discharges which were not in
compliance with Applicable Environmental Laws other than Hazardous Discharge
which would not, individually or in the aggregate, have a Material Adverse
Effect. Except for matters disclosed on Schedule 9.10 attached hereto, no Credit
Party has any contingent liability in connection with any Hazardous Discharge
which could reasonably be expected to have a Material Adverse Effect. As used in
this Section 8.14, the term "RCRA" shall mean the Resource Conservation and
Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980, the
Solid Waste Recovery Act of 1976, as amended by the Solid Waste Disposal Act of
1980, and the Hazardous and Solid Waste Amendments of 1984, as the same may be
further amended and in effect from time to time.
SECTION 8.15 BURDENSOME OBLIGATIONS. No Credit Party, nor any of the properties
of any Credit Party, is subject to any Law or any pending or threatened change
of Law or subject to any restriction under its articles (or certificate) of
incorporation, bylaws, regulations, partnership agreement or comparable charter
documents or under any agreement or instrument to which any Credit Party or by
which any Credit Party or any of their properties may be subject or bound, which
is so unusual or burdensome as to be likely in the foreseeable future to have a
Material Adverse Effect. Without limiting the foregoing, no Credit Party is a
party to or bound by any agreement (other than the Loan Papers) or subject to
any order of any Governmental Authority which prohibits or restricts in any way
the right of such Credit Party or any Restricted Subsidiary of any Credit Party
to make Distributions.
SECTION 8.16 FISCAL YEAR. Borrower's Fiscal Year is January 1 through December
31.
45
SECTION 8.17 NO DEFAULT. Neither a Default nor an Event of Default has
occurred or will exist after giving effect to the transactions contemplated by
this Agreement or the other Loan Papers.
SECTION 8.18 GOVERNMENT REGULATION. No Credit Party is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act (as any of the preceding acts have been
amended), the Investment Company Act of 1940 or any other Law which regulates
the incurring by such Credit Party of Debt, including, but not limited to Laws
relating to common contract carriers or the sale of electricity, gas, steam,
water or other public utility services.
SECTION 8.19 INSIDER. No Credit Party is, and no Person having "control"
(as that term is defined in 12 U.S.C. section 375(b) or regulations promulgated
thereunder) of any Credit Party is an "executive officer," "director" or
"shareholder" of any Bank or any bank holding company of which any Bank is a
Subsidiary or of any Subsidiary of such bank holding company.
SECTION 8.20 GAS BALANCING AGREEMENTS AND ADVANCE PAYMENT CONTRACTS. On the
date of this Agreement, (a) there is no Material Gas Imbalance, and (b) the
aggregate amount of all Advance Payments received by any Credit Party under
Advance Payment Contracts which have not been satisfied by delivery of
production does not exceed $2,000,000.
ARTICLE IX
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, so long as any Bank has any commitment
to lend or participate in Letter of Credit Exposure hereunder or any amount
payable under any Note remains unpaid or any Letter of Credit remains
outstanding:
SECTION 9.1 INFORMATION. Borrower will deliver, or cause to be delivered,
to each Bank:
(a) as soon as available and in any event within (i) ninety (90) days
after the end of the Fiscal Year ending December 31, 2002, (ii)
seventy-five (75) days after the end of the Fiscal Year ending December 31,
2003, and (iii) sixty (60) days after the end of each Fiscal Year
thereafter, consolidated balance sheets of Borrower as of the end of such
Fiscal Year and the related consolidated statements of income and
statements of cash flow for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous Fiscal Year, all reported by
Borrower in accordance with GAAP and audited by a firm of independent
public accountants of nationally recognized standing and acceptable to
Administrative Agent; to the extent Borrower's Form of 10-K filed with the
Securities and Exchange Commission for each Fiscal Year contains all
information required by this Section 9.1(a), Borrower may satisfy its
obligations under this Section 9.1(a) for each Fiscal Year by delivering to
Banks a copy of such Form 10-K for such Fiscal Year;
(b) as soon as available and in any event within (i) forty-five (45)
days after the end of (A) the third Fiscal Quarter of the Fiscal Year
ending December 31, 2002, and (B) each of the first three (3) Fiscal
Quarters of the Fiscal Year ending December 31, 2003, (ii) forty (40) days
after the end of each of the first three (3) Fiscal Quarters of the Fiscal
Year ending
46
December 31, 2004, and (iii) thirty-five (35) days after the end of each of
the first three (3) Fiscal Quarters of each Fiscal Year thereafter,
consolidated balance sheets of Borrower as of the end of such Fiscal
Quarter and the related consolidated statements of income and statements of
cash flow for such quarter and for the portion of Borrower's Fiscal Year
ended at the end of such Fiscal Quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and the
corresponding portion of Borrower's previous Fiscal Year; to the extent
Borrower's Form 10-Q filed with the Securities and Exchange Commission for
each Fiscal Quarter contains all information required by this Section
9.1(b), Borrower may satisfy its obligations under this Section 9.1(b) for
each Fiscal Quarter by delivering to Banks a copy of such Form 10-Q for
such Fiscal Quarter. All financial statements delivered pursuant to this
Section 9.1(b) shall be certified as to fairness of presentation, GAAP and
consistency by a Financial Officer of Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in Section 9.1(a) and Section 9.1(b) a certificate
of the principal executive and Financial Officer of Borrower in the form of
Exhibit J attached hereto, (i) setting forth in reasonable detail the
calculations required to establish whether Borrower was in compliance with
the requirements of Article XI on the date of such financial statements,
(ii) stating whether there exists on the date of such certificate any
Default and, if any Default then exists, setting forth the details thereof
and the action which Borrower is taking or proposes to take with respect
thereto, (iii) stating whether or not such financial statements fairly
reflect in all material respects the results of operations and financial
condition of Borrower as of the date of the delivery of such financial
statements and for the period covered thereby, (iv) setting forth (A)
whether as of such date there is a Material Gas Imbalance and, if so,
setting forth the amount of net gas imbalances under Gas Balancing
Agreements to which Borrower is a party or by which any Mineral Interests
owned by Borrower is bound, and (B) the aggregate amount of all Advance
Payments received under Advance Payment Contracts to which Borrower is a
party or by which any Mineral Interests owned by Borrower is bound which
have not been satisfied by delivery of production, if any, (v) setting
forth a summary of the Hedge Transactions to which Borrower is a party on
such date, and (vi) setting forth the other information described in
Exhibit J attached hereto;
(d) promptly upon the mailing thereof to the stockholders of any
Credit Party generally, copies of all financial statements, reports and
proxy statements so mailed;
(e) promptly upon the filing thereof, copies of all final registration
statements, post effective amendments thereto and annual, quarterly or
special reports which any Credit Party shall have filed with the Securities
and Exchange Commission; provided, that Borrower must deliver, or cause to
be delivered, any annual reports which any Credit Party shall have filed
with the Securities and Exchange Commission, within ninety (90) days after
the end of each Fiscal Year of such Credit Party, and any quarterly reports
which any Credit Party shall have filed with the Securities and Exchange
Commission, within forty-five (45) days after the end of each of the first
three (3) Fiscal Quarters of each Fiscal Year of such Credit Party;
(f) promptly upon receipt of same, any notice or other information
received by any Credit Party indicating (i) any potential, actual or
alleged non-compliance with or violation of the requirements of any
Applicable Environmental Law which could result in liability to any Credit
Party for fines, clean up or any other remediation obligations or any other
47
liability in excess of $1,000,000 in the aggregate; (ii) any threatened
Hazardous Discharge which Hazardous Discharge would impose on any Credit
Party a duty to report to a Governmental Authority or to pay cleanup costs
or to take remedial action under any Applicable Environmental Law which
could result in liability to any Credit Party for fines, clean up and other
remediation obligations or any other liability in excess of $1,000,000 in
the aggregate; or (iii) the existence of any Lien arising under any
Applicable Environmental Law securing any obligation to pay fines, clean up
or other remediation costs or any other liability in excess of $1,000,000
in the aggregate. Without limiting the foregoing, each Credit Party shall
provide to Banks promptly upon receipt of same by any Credit Party copies
of all environmental consultants or engineers reports received by any
Credit Party which would render the representation and warranty contained
in Section 8.14 untrue or inaccurate in any respect;
(g) In the event any notification is provided to any Bank or
Administrative Agent pursuant to Section 9.1(f) hereof or Administrative
Agent or any Bank otherwise learns of any event or condition under which
any such notice would be required, then, upon request of Required Banks,
Borrower shall within thirty (30) days of such request, cause to be
furnished to Administrative Agent and each Bank a report by an
environmental consulting firm acceptable to Administrative Agent and
Required Banks, stating that a review of such event, condition or
circumstance has been undertaken (the scope of which shall be acceptable to
Administrative Agent and Required Banks) and detailing the findings,
conclusions and recommendations of such consultant. Borrower shall bear all
expenses and costs associated with such review and updates thereof;
(h) immediately upon any Authorized Officer of any Credit Party
becoming aware of the occurrence of any Default, a certificate of an
Authorized Officer of Borrower setting forth the details thereof and the
action which Borrower is taking or proposes to take with respect thereto;
(i) no later than February 28, and August 31 of each year, commencing
February 28, 2003, reports of production volumes, revenue, expenses and
product prices for all oil and gas properties owned by Borrower with a
Recognized Value of $500,000 or more for the periods of six (6) months
ending the preceding December 31 and June 30, respectively. Such reports
shall be prepared on an accrual basis and shall be reported on a field by
field basis;
(j) promptly notify Banks of any Material Adverse Change;
(k) promptly notify Banks of any material litigation involving any
Credit Party; and
(l) from time to time such additional information regarding the
financial position or business of any Credit Party as Administrative Agent,
at the request of any Bank, may reasonably request.
SECTION 9.2 BUSINESS OF CREDIT PARTIES. The sole business of Borrower will
continue to be (a) the issuance of equity and debt securities not prohibited
pursuant to the provisions of this Agreement, (b) the acquisition, exploration,
development and operation of Mineral Interests and the production and marketing
of Hydrocarbons therefrom, (c) the
48
ownership of one hundred percent (100%) of the issued and outstanding limited
liability company interests of Marine and one hundred percent (100%) of the
issued and outstanding common stock of DES, Offshore, DG&M and TRI, and (d)
activities reasonably related to the businesses of Borrower described in the
foregoing clauses (a) and (c), including, without limitation, activities
necessary to comply with the reporting requirements of the Exchange Act, and
with rules and regulations of applicable securities exchanges or which are
otherwise incident to being a publicly traded company. The sole business of
Offshore will continue to be the acquisition, exploration, development and
operation of offshore Mineral Interests, the production and marketing of
Hydrocarbons therefrom, and activities reasonably related thereto. The sole
business of Marine will continue to be marine oil field services. The sole
business of DES will continue to be oil and gas marketing and related services.
DG&M will remain a holding company owning one hundred percent (100%) of the
issued and outstanding common stock in Genesis Energy. TRI will remain a shell
corporation with no assets or operations.
SECTION 9.3 MAINTENANCE OF EXISTENCE. Borrower shall, and shall cause each
other Credit Party to, at all times (a) maintain its corporate, partnership or
limited liability company existence in its state of incorporation or
organization, and (b) maintain its good standing and qualification to transact
business in all jurisdictions where the failure to maintain good standing or
qualification to transact business could have a Material Adverse Effect.
Notwithstanding the foregoing, TRI may dissolve at anytime.
SECTION 9.4 TITLE DATA. In addition to the title information required by
Section 6.1(c) and Section 7.1(b) hereof, Borrower shall, upon the request of
Required Banks, cause to be delivered to Administrative Agent such title
opinions and other information regarding title to Mineral Interests owned by
Borrower as are appropriate to determine the status thereof; provided, however,
that, Banks may not require the Credit Parties to furnish title opinions (except
pursuant to Section 6.1(c) and Section 7.1(b)) unless (a) an Event of Default
shall have occurred and be continuing, or (b) Required Banks have reason to
believe that there is a defect in or encumbrance upon Borrower's title to such
Mineral Interests that is not a Permitted Encumbrance.
SECTION 9.5 RIGHT OF INSPECTION. Borrower will permit, and will cause each
other Credit Party to permit, any officer, employee or agent of Administrative
Agent or of any Bank to visit and inspect any of the assets of any Credit Party,
examine each Credit Party's books of record and accounts, take copies and
extracts therefrom, and discuss the affairs, finances and accounts of each
Credit Party with such Credit Party's officers, accountants and auditors, all at
such reasonable times and as often as Administrative Agent or any Bank may
desire, all at the expense of Borrower.
SECTION 9.6 MAINTENANCE OF INSURANCE. Borrower will, and will cause each
other Credit Party to, at all times maintain or cause to be maintained insurance
covering such risks as are customarily carried by businesses similarly situated,
including, without limitation, the following: (a) workmen's compensation
insurance; (b) employer's liability insurance; (c) comprehensive general public
liability and property damage insurance; (d) insurance against (other than
losses or damage to property owned by Borrower which is self insured) losses
customarily insured against as a result of damage by fire, lightning, hail,
tornado, explosion and other similar risk; and (e) comprehensive automobile
liability insurance. All loss payable clauses
49
or provisions in all policies of insurance maintained by any Credit Party
pursuant to this Section 9.6 shall be endorsed in favor of and made payable to
Administrative Agent for the ratable benefit of Banks, as their interests may
appear. Administrative Agent shall have the right, for the ratable benefit of
Banks, to collect, and Borrower hereby assigns to Administrative Agent for the
ratable benefit of Banks (and hereby agrees to cause each other Credit Party to
assign), any and all monies that may become payable under any such policies of
insurance by reason of damage, loss or destruction of any of property which
stands as security for the Obligations or any part thereof, and Administrative
Agent may, at its election, either apply for the ratable benefit of Banks all or
any part of the sums so collected toward payment of the Obligations, whether or
not such Obligations are then due and payable, in such manner as Administrative
Agent may elect or release same to the applicable Credit Party.
SECTION 9.7 PAYMENT OF TAXES AND CLAIMS. Borrower will, and will cause each
other Credit Party to, pay (a) all Taxes imposed upon it or any of its assets or
with respect to any of its franchises, business, income or profits before any
material penalty or interest accrues thereon, and (b) all material claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by Law have or
might become a Lien (other than a Permitted Encumbrance) on any of its assets;
provided, however, no payment of Taxes or claims shall be required if (i) the
amount, applicability or validity thereof is currently being contested in good
faith by appropriate action promptly initiated and diligently conducted in
accordance with good business practices and no material part of the property or
assets of Borrower, and no part of the assets of any Restricted Subsidiary which
would be material to Borrower, is subject to any pending levy or execution, (ii)
Borrower, and any Restricted Subsidiary, as and to the extent required in
accordance with GAAP, shall have set aside on their books reserves (segregated
to the extent required by GAAP) deemed by them to be adequate with respect
thereto, and (iii) Borrower has notified Administrative Agent of such
circumstances, in detail satisfactory to Administrative Agent.
SECTION 9.8 COMPLIANCE WITH LAWS AND DOCUMENTS. Borrower will, and will
cause each other Credit Party to, comply with all Laws, their respective
certificates (or articles) of incorporation, bylaws, regulations and similar
organizational documents and all Material Agreements to which any Credit Party
is a party, if a violation, alone or when combined with all other such
violations, could have a Material Adverse Effect.
SECTION 9.9 OPERATION OF PROPERTIES AND EQUIPMENT.
(a) Borrower will, and will cause each other Credit Party to,
maintain, develop and operate its Mineral Interests in a good and
workmanlike manner, and observe and comply with all of the terms and
provisions, express or implied, of all oil and gas leases relating to such
Mineral Interests so long as such Mineral Interests are capable of
producing Hydrocarbons and accompanying elements in paying quantities,
except where such failure to comply would not have a Material Adverse
Effect.
(b) Borrower will, and will cause each other Credit Party to, comply
in all respects with all contracts and agreements applicable to or relating
to its Mineral Interest or the production and sale of Hydrocarbons and
accompanying elements therefrom, except to the extent a failure to so
comply would not have a Material Adverse Effect.
50
(c) Borrower will, and will cause each other Credit Party to, at all
times maintain, preserve and keep all operating equipment used with respect
to its Mineral Interests in proper repair, working order and condition, and
make all necessary or appropriate repairs, renewals, replacements,
additions and improvements thereto so that the efficiency of such operating
equipment shall at all times be properly preserved and maintained, except
where such failure to comply would not have a Material Adverse Effect;
provided, further that, no item of operating equipment need be so repaired,
renewed, replaced, added to or improved, if Borrower shall in good faith
determine that such action is not necessary or desirable for the continued
efficient and profitable operation of the business of such Credit Party.
SECTION 9.10 ENVIRONMENTAL LAW COMPLIANCE. Except to the extent a failure
to comply would not have a Material Adverse Effect, Borrower will, and will
cause each other Credit Party to, comply with all Applicable Environmental Laws,
including, without limitation, (a) all licensing, permitting, notification and
similar requirements of Applicable Environmental Laws, and (b) all provisions of
all Applicable Environmental Laws regarding storage, discharge, release,
transportation, treatment and disposal of Hazardous Substances. Borrower will,
and will cause each other Credit Party to, promptly pay and discharge when due
all legal debts, claims, liabilities and obligations with respect to any
clean-up or remediation measures necessary to comply with Applicable
Environmental Laws.
SECTION 9.11 ERISA REPORTING REQUIREMENTS. Borrower shall furnish, or cause
to be furnished, to Administrative Agent:
(a) promptly and in any event (i) within thirty (30) days after
Borrower or any ERISA Affiliate receives notice from any regulatory agency
of the commencement of an audit, investigation or similar proceeding with
respect to a Plan, and (ii) within ten (10) days after Borrower or any
ERISA Affiliate contacts the Internal Revenue Service for the purpose of
participation in a closing agreement or any voluntary resolution program
with respect to a Plan which could have a Material Adverse Effect or knows
or has reason to know that any event with respect to any Plan of Borrower
or any ERISA Affiliate has occurred that is reasonably believed by Borrower
to potentially have a Material Adverse Effect, a written notice describing
such event and describing what action is being taken or is proposed to be
taken with respect thereto, together with a copy of any notice of such
event that is given to the PBGC;
(b) promptly and in any event within thirty (30) days after the
receipt by Borrower of a request therefor by a Bank, copies of any annual
and other report (including Schedule B thereto) with respect to a Plan
filed by Borrower or any ERISA Affiliate with the United States Department
of Labor, the Internal Revenue Service or the PBGC;
(c) notification within thirty (30) days of the effective date thereof
of any material increases in the benefits, or material change in the
funding method, of any existing Plan which is not a multiemployer plan (as
defined in section 4001(a)(3) of ERISA), or the establishment of any
material new Plans, or the commencement of contributions to any Plan to
which Borrower or any ERISA Affiliate was not previously contributing; and
(d) promptly after receipt of written notice of commencement thereof,
notice of all (i) claims made by participants or beneficiaries with respect
to any Plan, and (ii) actions,
51
suits and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
affecting Borrower or any ERISA Affiliate with respect to any Plan, except
those which, in the aggregate, if adversely determined could not have a
Material Adverse Effect.
SECTION 9.12 ADDITIONAL DOCUMENTS. Borrower will, and will cause each
other Credit Party to, cure promptly any defects in the creation and
issuance of each Note, and the execution and delivery of this Agreement and
the other Loan Papers and, at Borrower's expense, Borrower shall promptly
and duly execute and deliver to each Bank, and cause each other Credit
Party to promptly and duly execute and deliver to each Bank, upon
reasonable request, all such other and further documents, agreements and
instruments in compliance with or accomplishment of the covenants and
agreements of the Credit Parties in this Agreement and the other Loan
Papers as may be reasonably necessary or appropriate in connection
therewith.
SECTION 9.13 ENVIRONMENTAL REVIEW. Borrower shall deliver to
Administrative Agent prior to the completion by any Credit Party of any
material acquisition of Mineral Interests or related assets, other than an
acquisition of additional interests in Mineral Interests in which a Credit
Party previously held an interest, a report or reports obtained by Borrower
in the course of such acquisition, which report or reports shall set forth
the results of a Phase I environmental review of such Mineral Interests and
related assets. Additionally, if requested by Administrative Agent or
Required Banks in writing in connection with any such material acquisition,
Borrower shall deliver to Administrative Agent, within forty-five (45) days
of Administrative Agent's or Required Banks' written request, a report or
reports related to any such material acquisition which shall be in form,
scope and detail acceptable to Administrative Agent from environmental
engineering firms acceptable to Administrative Agent, and which shall set
forth the results of a Phase I environmental review of the Mineral
Interests and related assets the subject of such material acquisition. All
of the reports delivered to Administrative Agent pursuant to this Section
9.13 shall not reflect the existence of facts or circumstances which would
constitute a material violation of any Applicable Environmental Law or
which are likely to result in a material liability to any Credit Party.
ARTICLE X
NEGATIVE COVENANTS
Borrower agrees that, so long as any Bank has any commitment to lend or
participate in Letter of Credit Exposure hereunder or any amount payable under
any Note remains unpaid or any Letter of Credit remains outstanding:
SECTION 10.1 INCURRENCE OF DEBT. Borrower will not, nor will Borrower
permit any other Credit Party to, incur, become or remain liable for any Debt;
provided, that (a) Borrower may incur, become or remain liable for (i) the
Obligations, (ii) Existing LC Exposure, and (iii) other unsecured Debt in an
aggregate amount outstanding at any time not to exceed $10,000,000, (b) Borrower
may incur, become and remain liable for Permitted Subordinate Debt, and (c) any
Restricted Subsidiary may incur, become and remain liable for Permitted
Subordinate Debt as a guarantor; provided, that (i) such Guarantees of Permitted
Subordinate Debt shall be subordinated to the Obligations pursuant to
subordination provisions approved by Required Banks, such approval to not be
unreasonably withheld, and (ii) prior to the execution
52
and delivery by any Restricted Subsidiary of any Guaranty of Permitted
Subordinate Debt, such Restricted Subsidiary shall have executed and delivered
to Administrative Agent for the ratable benefit of Banks a Facility Guaranty,
and all the Equity of such Restricted Subsidiary owned by Borrower shall have
been pledged to Administrative Agent pursuant to a Borrower Pledge Agreement.
SECTION 10.2 RESTRICTED PAYMENTS. Borrower will not, nor will Borrower
permit any other Credit Party to, directly or indirectly, declare or pay, or
incur any liability to declare or pay, any Restricted Payment; provided, that
(a) any Subsidiary of Borrower may make Distributions to Borrower, any Credit
Party may make Distributions to any other Credit Party that has provided a
Facility Guaranty, and all of the Equity of which owned by Borrower or any
Indirect Subsidiary which is a Restricted Subsidiary (as applicable) has been
pledged to Administrative Agent pursuant to a Borrower Pledge Agreement or a
Subsidiary Pledge Agreement (as applicable), and (c) so long as (i) no Default
or Borrowing Base Deficiency exists on the date any such Distribution is
declared or paid and no Default or Event of Default would result therefrom, and
(ii) the Borrowing Base does not exceed the Conforming Borrowing Base on the
date such Restricted Payments are declared or paid, in addition to Distributions
permitted under the preceding clauses (a) and (b), Borrower may make Restricted
Payments up to $5,000,000 in the aggregate in any Fiscal Year.
SECTION 10.3 NEGATIVE PLEDGE. Borrower will not, nor will Borrower permit
any other Credit Party to, create, assume or suffer to exist any Lien on any of
their respective assets, other than Permitted Encumbrances. Borrower will not,
nor will Borrower permit any other Credit Party to, enter into or become bound
by any agreement (other than this Agreement) that prohibits or otherwise
restricts the right of Borrower or any other Credit Party to create, assume or
suffer to exist any Lien on any of their respective assets in favor of
Administrative Agent for the ratable benefit of Banks.
SECTION 10.4 CONSOLIDATIONS AND MERGERS. Borrower will not, nor will
Borrower permit any other Credit Party to, consolidate or merge with or into any
other Person; provided, that, so long as no Default or Event of Default exists
or will result, any Restricted Subsidiary of may merge or consolidate with any
other Person so long as such Restricted Subsidiary is the surviving Person and a
wholly owned Subsidiary of Borrower.
SECTION 10.5 ASSET DISPOSITIONS. Borrower will not, nor will Borrower
permit any other Credit Party to, sell, lease, transfer, abandon or otherwise
dispose of any asset other than (a) the sale in the ordinary course of business
of Hydrocarbons produced from Borrower's Mineral Interests, (b) the sale, lease,
transfer, abandonment, exchange or other disposition of other assets, provided,
that the aggregate value (which, in the case of assets consisting of Mineral
Interests, shall be the Recognized Value of such Mineral Interests and in the
case of any exchange, shall be the net value or net Recognized Value realized or
resulting from such exchange) of all assets sold, leased, transferred or
disposed of pursuant to this clause (b) in any period between Scheduled
Redeterminations shall not exceed five percent (5%) of the Conforming Borrowing
Base then in effect (for purposes of this clause (b) the Closing Date will be
deemed to be a Scheduled Redetermination), and (c) the sale, lease, transfer,
abandonment or disposition of Unproved Reserves. In no event will Borrower sell,
transfer or dispose of any Equity in any Restricted Subsidiary nor will any
Credit Party issue or sell any Equity or any
53
option, warrant or other right to acquire such Equity or security convertible
into such Equity to any Person other than the Credit Party which is the direct
parent of such issuer on the Closing Date. SECTION 10.6 AMENDMENTS TO
ORGANIZATIONAL DOCUMENTS. Borrower will not, nor will Borrower permit any other
Credit Party to, enter into or permit any modification or amendment of, or waive
any material right or obligation of any Person under, its certificate or
articles of incorporation, bylaws, partnership agreement, regulations or other
organizational documents other than amendments, modifications and waivers which
will not, individually or in the aggregate, have a Material Adverse Effect.
SECTION 10.7 USE OF PROCEEDS. The proceeds of Borrowings will not be used
for any purpose other than (a) working capital, (b) to finance the acquisition,
exploration and development of Mineral Interests, (c) for general corporate
purposes, and (d) to refinance the obligations outstanding under the Existing
Credit Agreement. None of such proceeds (including, without limitation, proceeds
of Letters of Credit issued hereunder) will be used, directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any Margin Stock, and none of such proceeds will be used in violation
of applicable Law (including, without limitation, the Margin Regulations).
Letters of Credit will be issued hereunder only for the purpose of securing
bids, tenders, bonds, contracts and other obligations entered into in the
ordinary course of Borrower's business. Without limiting the foregoing, no
Letters of Credit will be issued hereunder for the purpose of or providing
credit enhancement with respect to any Debt or equity security of any Credit
Party or to secure any Credit Party's obligations with respect to Hedge
Transactions other than Hedge Transactions with a Bank or an Affiliate of such
Bank.
SECTION 10.8 INVESTMENTS. Borrower will not, nor will Borrower permit any
other Credit Party to, directly or indirectly, make or have outstanding any
Investment other than Permitted Investments.
SECTION 10.9 TRANSACTIONS WITH AFFILIATES. Borrower will not, nor will
Borrower permit any of its Subsidiaries to, engage in any transaction with an
Affiliate unless such transaction is as favorable to such party as could be
obtained in an arm's length transaction with an unaffiliated Person in
accordance with prevailing industry customs and practices.
SECTION 10.10 ERISA. Except in such instances where an omission or failure
would not have a Material Adverse Effect, Borrower will not, nor will Borrower
permit any other Credit Party to (a) take any action or fail to take any action
which would result in a violation of ERISA, the Code or other Laws applicable to
the Plans maintained or contributed to by it or any ERISA Affiliate, or (b)
modify the term of, or the funding obligations or contribution requirements
under any existing Plan, establish a new Plan, or become obligated or incur any
liability under a Plan that is not maintained or contributed to by Borrower or
any ERISA Affiliate as of the Closing Date.
SECTION 10.11 HEDGE TRANSACTIONS. Borrower will not, nor will Borrower
permit any other Credit Party to, enter into any Hedge Transactions which would
cause the amount of Hydrocarbons which are the subject of Hedge Transactions in
existence at such time to exceed
54
eighty five percent (85%) of Borrower's anticipated production from Proved
Producing Mineral Interests during the term of such existing Hedge Transactions;
provided, that, Borrower may enter into Hedge Transactions consisting solely of
a floor price (i.e. floor, put or option) so long as the amount of Hydrocarbons
which are the subject of any such Hedge Transaction in existence at any such
time do not exceed one-hundred percent (100%) of Borrower's anticipated
production from Proved Mineral Interests during the term of any such existing
Hedge Transaction.
SECTION 10.12 FISCAL YEAR. Borrower will not, nor will Borrower permit any
other Credit Party to, change its Fiscal Year.
SECTION 10.13 CHANGE IN BUSINESS. Borrower will not, nor will Borrower
permit any other Credit Party to, engage in any business other than the
businesses engaged in by such parties on the date hereof as described in Section
8.13 hereof.
SECTION 10.14 QUALIFIED PURPOSE. Borrower will not request or receive any
Borrowing hereunder if, after giving effect thereto and the use of the proceeds
thereof, that portion of the principal balance of the Revolving Loan which is
outstanding at such time and was utilized for any purpose other than a Qualified
Purpose exceeds twenty five percent (25%) of the Conforming Borrowing Base in
effect at such time. Borrower agrees that each Request for Borrowing will
include in addition to the information described in Section 3.2 hereof, a
certification from an Authorized Officer of Borrower as to the purpose and
utilization of the proceeds of such Borrowing. Additionally, notwithstanding
anything to the contrary contained in Section 4.2 hereof, all principal payments
received by Banks with respect to the Revolving Loan shall be applied first to
that portion of the outstanding principal balance of the Revolving Loan utilized
for purposes other than Qualified Purposes. Notwithstanding the foregoing,
Borrower shall not be required to comply with this Section 10.14 at any time
that the Borrowing Base is equal to the Conforming Borrowing Base.
SECTION 10.15 OBLIGATIONS OF UNRESTRICTED SUBSIDIARIES. Borrower will not,
nor will Borrower permit any other Credit Party to, incur any liability, Debt or
obligation to any Unrestricted Subsidiary of any nature, or have any liability
(whether by operation of law or otherwise) for any liability, Debt or obligation
of any Unrestricted Subsidiary.
ARTICLE XI
FINANCIAL COVENANTS
Borrower agrees that so long as any Bank has any commitment to lend or
participate in Letter of Credit Exposure hereunder or any amount payable under
any Note remains unpaid or any Letter of Credit remains outstanding:
SECTION 11.1 CURRENT RATIO OF BORROWER. Borrower will not permit its ratio
of Consolidated Current Assets to its Consolidated Current Liabilities as of the
end of any Fiscal Quarter to be less than 1.0 to 1.0.
SECTION 11.2 MINIMUM CONSOLIDATED TANGIBLE NET WORTH. Borrower will not
permit its Consolidated Tangible Net Worth to be less than the Required
Consolidated Tangible Net Worth on any Quarterly Date.
55
SECTION 11.3 CONSOLIDATED EBITDA TO CONSOLIDATED NET INTEREST EXPENSE.
Borrower will not permit its ratio of Consolidated EBITDA to Consolidated Net
Interest Expense to be less than 2.50 to 1.0 for any period of four (4)
consecutive Fiscal Quarters ending on or after September 30, 2002.
ARTICLE XII
DEFAULTS
SECTION 12.1 EVENTS OF DEFAULT. If one or more of the following events
(collectively "EVENTS OF DEFAULT" and individually an "EVENT OF DEFAULT") shall
have occurred and be continuing:
(a) Borrower shall fail to pay when due any principal on any Note;
(b) Borrower shall fail to pay when due accrued interest on any Note
or any fees or any other amount payable hereunder and such failure shall
continue for a period of three (3) days following the due date;
(c) Borrower shall fail to observe or perform any covenant or
agreement contained in Article X or Article XI of this Agreement;
(d) any Credit Party shall fail to observe or perform any covenant or
agreement contained in this Agreement or the other Loan Papers (other than
those referenced in Section 12.1(a), Section 12.1(b) and Section 12.1(c))
and such failure continues for a period of thirty (30) days after the
earlier of (i) the date any Authorized Officer of any Credit Party acquires
knowledge of such failure, or (ii) written notice of such failure has been
given to any Credit Party by Administrative Agent or any Bank;
(e) any representation, warranty, certification or statement made or
deemed to have been made by any Credit Party in any certificate, financial
statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made;
(f) any Credit Party shall fail to make any payment when due on any
Debt of such Person in a principal amount equal to or greater than
$500,000, or any other event or condition shall occur which (i) results in
the acceleration of the maturity of any such Debt, or (ii) entitles the
holder of such Debt to accelerate the maturity thereof;
(g) any Credit Party shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency or other similar
Law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to
the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or shall take any corporate, partnership
or limited liability company action to authorize any of the foregoing;
56
(h) an involuntary case or other proceeding shall be commenced against
any Credit Party seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other
similar Law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of sixty (60)
days; or an order for relief shall be entered against any Credit Party
under the federal bankruptcy Laws as now or hereafter in effect;
(i) one (1) or more final judgments or orders for the payment of money
aggregating in excess of $500,000 shall be rendered against any Credit
Party and such judgment or order shall continue unsatisfied and unstayed
for thirty (30) days;
(j) (i) any event occurs with respect to any Plan or Plans pursuant to
which any Credit Party and/or any ERISA Affiliate incur a liability due and
owing at the time of such event, without existing funding therefor, for
benefit payments under such Plan or Plans in excess of $500,000; or (ii)
any Credit Party, any ERISA Affiliate, or any other "party-in-interest" or
"disqualified person," as such terms are defined in section 3(14) of ERISA
and section 4975(e)(2) of the Code, shall engage in transactions which in
the aggregate results in a direct or indirect liability to any Credit Party
or any ERISA Affiliate in excess of $500,000 under section 409 or 502 of
ERISA or section 4975 of the Code which either (A) results in a Lien on any
Credit Party's assets which is not a Permitted Encumbrance, or (B)
continues unsatisfied for a period of thirty (30) days after any Authorized
Officer of any Credit Party first acquires knowledge of such liability;
(k) a Change of Control shall occur; or
(l) this Agreement or any other Loan Paper shall cease to be in full
force and effect or shall be declared null and void or the validity or
enforceability thereof shall be contested or challenged by any Credit
Party, or any Credit Party shall deny that it has any further liability or
obligation under any of the Loan Papers, or any Lien created by the Loan
Papers shall for any reason (other than the release thereof in accordance
with the Loan Papers) cease to be a valid, first priority, perfected Lien
upon any of the Proved Mineral Interests purported to be covered thereby;
then, and in every such event, Administrative Agent shall without presentment,
notice or demand (unless expressly provided for herein) of any kind (including,
without limitation, notice of intention to accelerate and acceleration), all of
which are hereby waived, (a) if requested by Required Banks, terminate the
Commitments and they shall thereupon terminate, and (b) if requested by Required
Banks, take such other actions as may be permitted by the Loan Papers including,
declaring the Notes (together with accrued interest thereon) to be, and the
Notes shall thereupon become, immediately due and payable; provided that, in the
case of any of the Events of Default specified in Section 12.1(g) or Section
12.1(h), without any notice to any Credit Party or any other act by
Administrative Agent or Banks, the Commitments shall thereupon terminate and the
Notes (together with accrued interest thereon) shall become immediately due and
payable.
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ARTICLE XIII
AGENTS
SECTION 13.1 APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, NA is hereby
appointed by each of the Banks as its contractual representative and
Administrative Agent hereunder and under each other Loan Paper, and each Bank
irrevocably authorizes Administrative Agent to act as the contractual
representative of such Bank with the rights and duties expressly set forth
herein and in the other Loan Papers. Administrative Agent agrees to act as such
contractual representative and Administrative Agent upon the express conditions
contained in this Article XIII. Notwithstanding the use of the defined term
"ADMINISTRATIVE AGENT," it is expressly understood and agreed that
Administrative Agent shall not have any fiduciary responsibilities to any Bank
by reason of this Agreement or any other Loan Paper and that Administrative
Agent is merely acting as the contractual representative of the Banks with only
those duties as are expressly set forth in this Agreement and the other Loan
Papers. In its capacity as the Banks' contractual representative, Administrative
Agent (i) does not hereby assume any fiduciary duties to any of the Banks, (ii)
is a "representative" of the Banks within the meaning of the term "secured
party" as defined in the Illinois Uniform Commercial Code, and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Papers. Each of
the Banks hereby agrees to assert no claim against Administrative Agent on any
theory of liability for breach of fiduciary duty, any and all of which claims
each Bank hereby waives.
SECTION 13.2 POWERS. Administrative Agent shall have and may exercise such
powers under the Loan Papers as are specifically delegated to Administrative
Agent by the terms of each thereof, together with such powers as are reasonably
incidental thereto. Administrative Agent shall have no implied duties to the
Banks, or any obligation to the Banks to take any action thereunder except any
action specifically provided by the Loan Papers to be taken by Administrative
Agent.
SECTION 13.3 GENERAL IMMUNITY. Neither Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to Borrower or any Bank
for any action taken or omitted to be taken by it or them hereunder or under any
other Loan Paper or in connection herewith or therewith except to the extent
such action or inaction is determined in a final non-appealable judgment by a
court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Person.
SECTION 13.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any Loan
Paper or any Borrowing hereunder; (b) the performance or observance of any of
the covenants or agreements of any obligor under any Loan Paper, including,
without limitation, any agreement by an obligor to furnish information directly
to each Bank; (c) the satisfaction of any condition specified in Article VII,
except receipt of items required to be delivered solely to Administrative Agent;
(d) the existence or possible existence of any Default or Event of Default; (e)
the validity, enforceability, effectiveness, sufficiency or genuineness of any
Loan Paper or any other instrument or writing furnished in connection therewith;
(f) the value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the
58
financial condition of Borrower or any guarantor of any of the Obligations or of
any of Borrower's or any such guarantor's respective Subsidiaries.
Administrative Agent shall have no duty to disclose to the Banks information
that is not required to be furnished by Borrower to Administrative Agent at such
time, but is voluntarily furnished by Borrower to Bank One (either in its
capacity as Administrative Agent or in its individual capacity).
SECTION 13.5 ACTION ON INSTRUCTIONS OF BANKS. Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Paper in accordance with written instructions signed by
the Required Banks, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Banks. The Banks hereby
acknowledge that Administrative Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Paper unless it shall be requested in writing
to do so by Required Banks. Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan Paper
unless it shall first be indemnified to its satisfaction by the Banks pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
SECTION 13.6 EMPLOYMENT OF AGENTS AND COUNSEL. Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any other
Loan Paper by or through employees, agents, and attorneys-in-fact and shall not
be answerable to the Banks, except as to money or securities received by it or
its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Administrative Agent
shall be entitled to advice of counsel concerning the contractual arrangement
between Administrative Agent and the Banks and all matters pertaining to
Administrative Agent's duties hereunder and under any other Loan Paper.
SECTION 13.7 RELIANCE ON DOCUMENTS; COUNSEL. Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper Person or Persons, and, in respect
to legal matters, upon the opinion of counsel selected by Administrative Agent,
which counsel may be employees of Administrative Agent.
SECTION 13.8 ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION.
Banks agree to reimburse and indemnify Administrative Agent ratably in
proportion to their respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior to such
termination) (i) for any amounts not reimbursed by Borrower for which
Administrative Agent is entitled to reimbursement by Borrower under the Loan
Papers, (ii) for any other expenses incurred by Administrative Agent on behalf
of the Banks, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Papers (including, without
limitation, for any expenses incurred by Administrative Agent in connection with
any dispute between Administrative Agent and any Bank or between two or more of
the Banks) and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against Administrative Agent in any way relating to or arising out of the Loan
Papers or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
59
amounts incurred by or asserted against Administrative Agent in connection with
any dispute between Administrative Agent and any Bank or between two or more of
the Banks), or the enforcement of any of the terms of the Loan Papers or of any
such other documents; provided that no Bank shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of Administrative Agent. The obligations of the
Banks under this Section 13.8 shall survive payment of the Obligations and
termination of this Agreement.
SECTION 13.9 NOTICE OF DEFAULT. Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless Administrative Agent has received written notice from a Bank or
Borrower referring to this Agreement describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that
Administrative Agent receives such a notice, Administrative Agent shall give
prompt notice thereof to the Banks.
SECTION 13.10 RIGHTS AS A BANK. In the event Administrative Agent is a
Bank, Administrative Agent shall have the same rights and powers hereunder and
under any other Loan Paper with respect to its Commitment and its Revolving
Loans as any Bank and may exercise the same as though it were not Administrative
Agent, and the term "Bank" or "Banks" shall, at any time when Administrative
Agent is a Bank, unless the context otherwise indicates, include in its
individual capacity. Administrative Agent and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement or any
other Loan Paper, with Borrower or any of its Subsidiaries in which Borrower or
such Subsidiary is not restricted hereby from engaging with any other Person.
SECTION 13.11 BANK CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon Administrative Agent, Sole Lead
Arranger, Book Manager or any other Agent or Bank and based on the financial
statements prepared by Borrower and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and the other Loan Papers. Each Bank also acknowledges that it
will, independently and without reliance upon Administrative Agent, Sole Lead
Arranger, Book Manager or any other Agent or Bank and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and the
other Loan Papers.
SECTION 13.12 SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may
resign at any time by giving written notice thereof to Banks and Borrower, such
resignation to be effective upon the appointment of a successor Administrative
Agent or, if no successor Administrative Agent has been appointed, forty-five
(45) days after the retiring Administrative Agent gives notice of its intention
to resign. Administrative Agent may be removed at any time with or without cause
by written notice received by Administrative Agent from Required Banks, such
removal to be effective on the date specified by Required Banks. Upon any such
resignation or removal, Required Banks shall have the right to appoint, on
behalf of Borrower and the Banks, a successor Administrative Agent, which shall
be approved by Borrower, such approval not to be unreasonably withheld;
provided, that, Borrower shall not have the right to
60
approve any successor Administrative Agent appointed during the continuance of
any Default. If no successor Administrative Agent shall have been so appointed
by Required Banks within thirty (30) days after the resigning Administrative
Agent's giving notice of its intention to resign, then the resigning
Administrative Agent may appoint, on behalf of Borrower and Banks, a successor
Administrative Agent which shall be approved by Borrower, such approval not to
be unreasonably withheld; provided, that, Borrower shall not have the right to
approve any successor Administrative Agent appointed during the continuance of
any Default. If Administrative Agent has resigned or been removed and no
successor Administrative Agent has been appointed, Banks may perform all the
duties of Administrative Agent hereunder and Borrower shall make all payments in
respect of the Obligations to the applicable Bank and for all other purposes
shall deal directly with the Banks. No successor Administrative Agent shall be
deemed to be appointed hereunder until such successor Administrative Agent has
accepted the appointment. Any such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least $100,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the resigning or removed Administrative Agent. Upon the
effectiveness of the resignation or removal of Administrative Agent, the
resigning or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the Loan Papers. After the effectiveness of
the resignation or removal of an Administrative Agent, the provisions of this
Article XIII shall continue in effect for the benefit of such Administrative
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as Administrative Agent hereunder and under the other Loan Papers. In the
event that there is a successor to Administrative Agent by merger, or
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 13.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent.
SECTION 13.13 DELEGATION TO AFFILIATES. Borrower and Banks agree that
Administrative Agent may delegate any of its duties under this Agreement to any
of its Affiliates. Any such Affiliate (and such Affiliate's directors, officers,
agents and employees) which performs duties in connection with this Agreement
shall be entitled to the same benefits of the indemnification, waiver and other
protective provisions to which Administrative Agent is entitled under Article
XIII and Article XIV.
SECTION 13.14 EXECUTION OF COLLATERAL DOCUMENTS. Without limiting the
powers and authority of Administrative Agent described herein, the Banks hereby
empower and authorize Administrative Agent to execute and deliver to Borrower on
their behalf the Mortgages, the Assignments and Amendments to Mortgages, the
Borrower Pledge Agreements, the Subsidiary Pledge Agreements and all related
financing statements and any other financing statements, agreements, documents
or instruments as shall be necessary or appropriate to effect the purposes of
the foregoing instruments.
SECTION 13.15 COLLATERAL RELEASES. Banks hereby empower and authorize
Administrative Agent to execute and deliver to Borrower on their behalf any
agreements, documents or instruments as shall be necessary or appropriate to
effect any releases of collateral which shall be permitted by the terms hereof
or of any other Loan Paper or which shall otherwise
61
have been approved by Required Banks (or, if required by the terms of Section
15.5, all of the Banks) in writing.
SECTION 13.16 AGENTS. None of the Banks identified in this Agreement as a
"Documentation Agent" and/or a "Syndication Agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Banks as such. Without limiting the foregoing, none of
such Documentation Agents or Syndication Agents shall have or be deemed to have
a fiduciary relationship with any Bank. Each Bank hereby makes the same
acknowledgments with respect to such Documentation Agents and Syndication Agents
as it makes with respect to Administrative Agent in Section 13.11.
ARTICLE XIV
CHANGE IN CIRCUMSTANCES
SECTION 14.1 INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration thereof
by any Governmental Authority, central bank, or comparable agency charged
with the interpretation or administration thereof, or compliance by any
Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency:
(i) shall subject such Bank (or its Applicable Lending Office) to
any tax, duty, or other charge with respect to any Eurodollar Loans,
its Note, or its obligation to make Eurodollar Loans, or change the
basis of taxation of any amounts payable to such Bank (or its
Applicable Lending Office) under this Agreement or its Note in respect
of any Eurodollar Loans (other than taxes imposed on the overall net
income of such Bank or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, compulsory loan, or similar requirement
(other than the Reserve Requirement utilized in the determination of
the Adjusted Eurodollar Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or
commitments of, such Bank (or its Applicable Lending Office),
including the Commitment of such Bank hereunder; or
(iii) shall impose on such Bank (or its Applicable Lending
Office) or on the London interbank market any other condition
affecting this Agreement or its Note or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Bank (or its Applicable Lending Office) under this Agreement or its Note
with respect to any Eurodollar Loans, then the Borrower shall pay to such Bank
on demand such amount or amounts as will compensate such Bank for such increased
cost or reduction. If any Bank requests compensation by Borrower under this
Section 14.1(a), the Borrower may, by notice to such Bank (with a copy to
Administrative Agent), suspend the
62
obligation of such Bank to make or Continue Eurodollar Loans or to Convert all
or part of the Base Rate Loan owing to such Bank into Eurodollar Loans, until
the event or condition giving rise to such request ceases to be in effect (in
which case the provisions of Section 14.4 shall be applicable); provided, that
such suspension shall not affect the right of such Bank to receive the
compensation so requested.
(b) If, after the date hereof, any Bank shall have determined that the
adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any Governmental Authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not having the force of
law) of any such Governmental Authority, central bank, or comparable
agency, has or would have the effect of reducing the rate of return on the
capital of such Bank or any corporation controlling such Bank as a
consequence of such Bank's obligations hereunder to a level below that
which such Bank or such corporation could have achieved but for such
adoption, change, request, or directive (taking into consideration its
policies with respect to capital adequacy), then, from time to time upon
demand, Borrower shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such reduction.
(c) Each Bank shall promptly notify Borrower and Administrative Agent
of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section 14.1
and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to it. Any Bank claiming compensation under this Section
14.1 shall furnish to Borrower and Administrative Agent a statement setting
forth the additional amount or amounts to be paid to it hereunder which
shall be conclusive in the absence of manifest error. In determining such
amount, such Bank may use any reasonable averaging and attribution methods.
SECTION 14.2 LIMITATION ON TYPE OF LOANS. If on or prior to the first day
of any Interest Period for any Eurodollar Loan:
(a) Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period; or
(b) Required Banks determine (which determination shall be conclusive)
and notify Administrative Agent that the Adjusted Eurodollar Rate will not
adequately and fairly reflect the cost to Banks of funding Eurodollar Loans
for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof specifying
the relevant Type of Revolving Loans and the relevant amounts or periods, and so
long as such condition remains in effect, Banks shall be under no obligation to
make additional Revolving Loans of such Type, Continue Revolving Loans of such
Type, or to Convert Revolving Loans of any other Type into Revolving Loans of
such Type, and Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Revolving Loans of the affected Type, either
prepay
63
such Revolving Loans or Convert such Revolving Loans into another Type of
Revolving Loan in accordance with the terms of this Agreement.
SECTION 14.3 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to make, maintain, or fund Eurodollar Loans hereunder, then such
Bank shall promptly notify Borrower thereof and such Bank's obligation to make
or Continue Eurodollar Loans and to Convert other Types of Revolving Loans into
Eurodollar Loans shall be suspended until such time as such Bank may again make,
maintain, and fund Eurodollar Loans (in which case the provisions of Section
14.4 shall be applicable).
SECTION 14.4 TREATMENT OF AFFECTED LOANS. If the obligation of any Bank to
make particular Eurodollar Loans or to Continue Revolving Loans, or to Convert
Revolving Loans of another Type into Revolving Loans of a particular Type shall
be suspended pursuant to Section 14.1 or Section 14.3 hereof (Revolving Loans of
such Type being herein called "AFFECTED LOANS" and such Type being herein called
the "AFFECTED TYPE"), such Bank's Affected Loans shall be automatically
Converted into the Base Rate Loan on the last day(s) of the then current
Interest Period(s) for Affected Loans (or, in the case of a Conversion required
by Section 14.3 hereof, on such earlier date as such Bank may specify to
Borrower with a copy to Administrative Agent) and, unless and until such Bank
gives notice as provided below that the circumstances specified in Section 14.1
or Section 14.3 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Bank's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Bank's Affected Loans shall be applied instead to the
Base Rate Loan; and
(b) all Revolving Loans that would otherwise be made or Continued by
such Bank as Revolving Loans of the Affected Type shall be made or
Continued instead as part of the Base Rate Loan, and all Revolving Loans of
such Bank that would otherwise be Converted into Revolving Loans of the
Affected Type shall be Converted instead into (or shall remain) as part of
the Base Rate Loan.
If such Bank gives notice to Borrower (with a copy to Administrative Agent) that
the circumstances specified in Section 14.1 or Section 14.3 hereof that gave
rise to the Conversion of such Bank's Affected Loans pursuant to this Section
14.4 no longer exist (which such Bank agrees to do promptly upon such
circumstances ceasing to exist) at a time when Revolving Loans of the Affected
Type made by other Banks are outstanding, such Bank's portion of the Base Rate
Loan shall be automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Revolving Loans of the
Affected Type, to the extent necessary so that, after giving effect thereto, all
Revolving Loans held by Banks holding Revolving Loans of the Affected Type and
by such Bank are held pro rata (as to principal amounts, Types and Interest
Periods) in accordance with their respective Commitments.
SECTION 14.5 COMPENSATION. Upon the request of any Bank, Borrower shall pay
to such Bank such amount or amounts as shall be sufficient (in the reasonable
opinion of
64
such Bank) to compensate it for any loss, cost, or expense (including loss of
anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan for
any reason (including, without limitation, the acceleration of the
Revolving Loan) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Article VII
to be satisfied) to borrow, Convert, Continue, or prepay a Eurodollar Loan
on the date for such Borrowing, Conversion, Continuation, or prepayment
specified in the relevant Request for Borrowing, Notice of Continuation or
Conversion, or other notice of Borrowing, prepayment, Continuation, or
Conversion under this Agreement.
SECTION 14.6 TAXES.
(a) Any and all payments by Borrower to or for the account of any Bank
or Administrative Agent hereunder or under any other Loan Paper shall be
made free and clear of and without deduction for any and all present or
future Taxes, duties, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding, in the case of each
Bank and Administrative Agent, Taxes imposed on its income, and franchise
Taxes imposed on it, by the jurisdiction under the Laws of which such Bank
(or its Applicable Lending Office) or Administrative Agent (as the case may
be) is organized or any political subdivision thereof (all such
non-excluded Taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to in this Section
14.6 as "NON-EXCLUDED TAXES"). If Borrower shall be required by Law to
deduct any Non-Excluded Taxes from or in respect of any sum payable under
this Agreement or any other Loan Paper to any Bank or Administrative Agent,
(i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 14.6) such Bank or Administrative Agent receives
an amount equal to the sum it would have received had no such deductions
been made, (ii) Borrower shall make such deductions, (iii) Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Law, and (iv) Borrower shall
furnish to Administrative Agent, at its address set forth on Schedule 2.1
hereto, the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, Borrower agrees to pay any and all present or future
stamp or documentary Taxes and any other excise or property Taxes or
charges or similar levies which arise from any payment made under this
Agreement or any other Loan Paper or from the execution or delivery of, or
otherwise with respect to, this Agreement or any other Loan Paper
(hereinafter referred to as "OTHER TAXES").
(c) Borrower agrees to indemnify each Bank and Administrative Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Non-Excluded Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 14.6) paid by such
Bank or Administrative Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or with
respect thereto.
65
(d) Each Bank organized under the Laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank listed on Schedule 2.1 hereto and
on or prior to the date on which it becomes a Bank in the case of each
other Bank, and from time to time thereafter if requested in writing by
Borrower or Administrative Agent (but only so long as such Bank remains
lawfully able to do so), shall provide Borrower and Administrative Agent,
at the time or times prescribed by applicable Law, with such properly
completed and executed documentation prescribed by applicable Law (or
reasonably requested by Borrower) certifying that such Bank is entitled to
benefits under an income tax treaty to which the United States is a party
which reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States, and certifying that such Bank is entitled to an exemption from or a
reduced rate of tax on payments pursuant to this Agreement or any of the
other Loan Papers.
(e) For any period with respect to which a Bank has failed to provide
Borrower and Administrative Agent with the appropriate form pursuant to
Section 14.6(d) (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Bank shall not be entitled to
indemnification under Section 14.6(a) or Section 14.6(b) with respect to
Non-Excluded Taxes imposed by the United States; provided, however, that
should a Bank, which is otherwise exempt from or subject to a reduced rate
of withholding Tax, become subject to Non-Excluded Taxes because of its
failure to deliver a form required hereunder, Borrower shall take such
steps as such Bank shall reasonably request to assist such Bank to recover
such Non-Excluded Taxes.
(f) If Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 14.6, then such Bank will
agree to use reasonable efforts to change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Bank, is not otherwise disadvantageous to such Bank.
(g) Within thirty (30) days after the date of any payment of
Non-Excluded Taxes, Borrower shall furnish to Administrative Agent the
original or a certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreements and obligations of Borrower contained in
this Section 14.6 shall survive the termination of the Commitments and the
payment in full of the Notes.
SECTION 14.7 DISCRETION OF BANKS AS TO MANNER OF FUNDING. Notwithstanding
any provisions of this Agreement to the contrary, each Bank shall be entitled to
fund and maintain its funding of all or any part of its Commitment in any manner
it sees fit, it being understood, however, that for the purposes of this
Agreement all determinations hereunder shall be made as if such Bank had
actually funded and maintained each Eurodollar Loan during the Interest Period
for such Eurodollar Loan through the purchase of deposits having a maturity
corresponding to the last day of such Interest Period and bearing an interest
rate equal to the Adjusted Eurodollar Rate for such Interest Period.
66
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 NOTICES. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, telecopy or similar
writing) and shall be given, if to Administrative Agent or any Bank, at its
address or telecopier number set forth on Schedule 2.1 hereto, and if given to
Borrower, at its address or telecopy number set forth on the signature pages
hereof (or in either case, at such other address or telecopy number as such
party may hereafter specify for the purpose by notice to the other parties
hereto). Each such notice, request or other communication shall be effective (a)
if given by telecopy, when such telecopy is transmitted to the telecopy number
specified in this Section 15.1 and the appropriate answerback is received or
receipt is otherwise confirmed, (b) if given by mail, three (3) Domestic
Business Days after deposit in the mails with first class postage prepaid,
addressed as aforesaid, or (c) if given by any other means, when delivered at
the address specified in this Section 15.1; provided that notices to
Administrative Agent under Article III or Article IV shall not be effective
until received.
SECTION 15.2 NO WAIVERS. No failure or delay by Administrative Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note or
other Loan Paper shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by Law or in any of the other Loan Papers.
SECTION 15.3 EXPENSES; INDEMNIFICATION.
(a) Borrower agrees to pay on demand all reasonable costs and expenses
of each Agent (other than any Documentation Agent or Syndication Agent) in
connection with the syndication, preparation, execution, delivery,
modification, and amendment of this Agreement, the other Loan Papers, and
the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of counsel for Administrative
Agent with respect thereto and with respect to advising Administrative
Agent as to its rights and responsibilities under the Loan Papers. Borrower
further agrees to pay on demand all costs and expenses of Administrative
Agent and Banks, if any (including, without limitation, reasonable
attorneys' fees and expenses), in connection with the enforcement (whether
through negotiations, legal proceedings, or otherwise) of the Loan Papers
and the other documents to be delivered hereunder.
(B) BORROWER AGREES TO INDEMNIFY AND HOLD HARMLESS EACH AGENT AND EACH
BANK AND EACH OF THEIR AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, AND ADVISORS (EACH, AN "INDEMNIFIED PARTY") FROM AND
AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES) THAT
MAY BE INCURRED BY OR ASSERTED OR AWARDED AGAINST ANY INDEMNIFIED PARTY, IN
EACH CASE ARISING OUT OF OR IN CONNECTION WITH OR BY REASON OF (INCLUDING,
WITHOUT LIMITATION, IN
67
CONNECTION WITH ANY INVESTIGATION, LITIGATION, OR PROCEEDING OR PREPARATION
OF DEFENSE IN CONNECTION THEREWITH) THE LOAN PAPERS, ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR PROPOSED USE OF THE
PROCEEDS OF THE REVOLVING LOAN (INCLUDING ANY OF THE FOREGOING ARISING FROM
THE NEGLIGENCE OF THE INDEMNIFIED PARTY), EXCEPT TO THE EXTENT SUCH CLAIM,
DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE IS FOUND IN A FINAL,
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE
RESULTED FROM SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. IN THE CASE OF AN INVESTIGATION, LITIGATION OR OTHER PROCEEDING
TO WHICH THE INDEMNITY IN THIS SECTION 15.3 APPLIES, SUCH INDEMNITY SHALL
BE EFFECTIVE WHETHER OR NOT SUCH INVESTIGATION, LITIGATION OR PROCEEDING IS
BROUGHT BY CREDIT PARTIES, ITS DIRECTORS, SHAREHOLDERS OR CREDITORS OR AN
INDEMNIFIED PARTY OR ANY OTHER PERSON OR ANY INDEMNIFIED PARTY IS OTHERWISE
A PARTY THERETO AND WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE
CONSUMMATED. BORROWER AGREES NOT TO ASSERT ANY CLAIM AGAINST ANY AGENT, ANY
BANK, ANY OF THEIR AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, AND ADVISERS, ON ANY THEORY OF
LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES
ARISING OUT OF OR OTHERWISE RELATING TO THE LOAN PAPERS, ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR PROPOSED USE OF THE
PROCEEDS OF THE REVOLVING LOAN.
(c) Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreements and obligations of Borrower contained in
this Section 15.3 shall survive the payment in full of the Revolving Loan
and all other amounts payable under this Agreement.
SECTION 15.4 RIGHT OF SET-OFF; ADJUSTMENTS.
(a) Upon the occurrence and during the continuance of any Event of
Default, each Bank (and each of its Affiliates) is hereby authorized at any
time and from time to time, to the fullest extent permitted by Law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time
owing by such Bank (or any of its Affiliates) to or for the credit or the
account of any Credit Party against any and all of the Obligations,
irrespective of whether such Bank shall have made any demand under this
Agreement or Note held by such and although such obligations may be
unmatured. Each Bank agrees promptly to notify the affected Credit Party
after any such set-off and application made by such Bank; provided,
however, that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of each Bank under this Section
15.4 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Bank may have.
68
(b) If any Bank (a "BENEFITTED BANK") shall at any time receive any
payment of all or part of the amounts owing to it, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, or otherwise), in a greater proportion than any
such payment to or collateral received by any other Bank, if any, in
respect of such other Bank's amounts owing to it, or interest thereon, such
benefitted Bank shall purchase for cash from the other Banks a
participating interest in such portion of each such other Bank's amounts
owing to it, or shall provide such other Banks with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Bank to share the excess payment or benefits of such
collateral or proceeds ratably with each other Bank; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefitted Bank, such purchase shall be rescinded, and
the purchase price and benefits returned, to the extent of such recovery,
but without interest. Borrower agrees that any Bank so purchasing a
participation from a Bank pursuant to this Section 15.4 may, to the fullest
extent permitted by Law, exercise all of its rights of payment (including
the right of set-off) with respect to such participation as fully as if
such Person were the direct creditor of Borrower in the amount of such
participation.
SECTION 15.5 AMENDMENTS AND WAIVERS. Any provision of this Agreement, the
Notes or any other Loan Paper may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by Borrower and Required Banks
(and, if the rights or duties of any Agent are affected thereby, by such Agent);
provided that no such amendment or waiver shall, unless signed by all Banks, (a)
increase the Commitment of any Bank, (b) reduce the principal of or rate of
interest on any Revolving Loan or any fees or other amounts payable hereunder or
for termination of any Commitment, (c) change the percentage of the Total
Commitment, or the number of Banks which shall be required for Banks or any of
them to take any action under this Section 15.5 or any other provision of this
Agreement, (d) extend the due date for, or forgive any principal, interest, fees
or reimbursement obligations due hereunder, (e) release any material guarantor
or other material party liable for all or any part of the Obligations or release
any material part of the collateral for the Obligations or any part thereof
other than releases required pursuant to sales of collateral which are expressly
permitted by Section 10.5 hereof, or (f) amend or modify any of the provisions
of Article V hereof or the definitions of any terms defined therein.
SECTION 15.6 SURVIVAL. All representations, warranties and covenants made
by any Credit Party herein or in any certificate or other instrument delivered
by it or in its behalf under the Loan Papers shall be considered to have been
relied upon by Banks and shall survive the delivery to Banks of such Loan Papers
or the extension of the Revolving Loan (or any part thereof), regardless of any
investigation made by or on behalf of Banks. The indemnity provided in Section
15.3(b) herein shall survive the repayment of all credit advances hereunder
and/or the discharge or release of any Lien granted hereunder or in any other
Loan Paper, contract or agreement between Borrower or any other Credit Party and
any Agent or any Bank.
SECTION 15.7 LIMITATION ON INTEREST. Regardless of any provision contained
in the Loan Papers, Banks shall never be entitled to receive, collect, or apply,
as interest on the Revolving Loan, any amount in excess of the Maximum Lawful
Rate, and in the event any Bank ever receives, collects or applies as interest
any such excess, such amount which would be deemed excessive interest shall be
deemed a partial prepayment of principal and treated
69
hereunder as such; and if the Revolving Loan is paid in full, any remaining
excess shall promptly be paid to Borrower. In determining whether or not the
interest paid or payable under any specific contingency exceeds the Maximum
Lawful Rate, Borrower and Banks shall, to the extent permitted under applicable
Law, (a) characterize any non-principal payment as an expense, fee or premium
rather than as interest, (b) exclude voluntary prepayments and the effects
thereof and (c) amortize, prorate, allocate and spread, in equal parts, the
total amount of the interest throughout the entire contemplated term of the
Notes, so that the interest rate is the Maximum Lawful Rate throughout the
entire term of the Notes; provided, however, that if the unpaid principal
balance thereof is paid and performed in full prior to the end of the full
contemplated term thereof, and if the interest received for the actual period of
existence thereof exceeds the Maximum Lawful Rate, Banks shall refund to
Borrower the amount of such excess and, in such event, Banks shall not be
subject to any penalties provided by any Laws for contracting for, charging,
taking, reserving or receiving interest in excess of the Maximum Lawful Rate.
SECTION 15.8 INVALID PROVISIONS. If any provision of the Loan Papers is
held to be illegal, invalid, or unenforceable under present or future Laws
effective during the term thereof, such provision shall be fully severable, the
Loan Papers shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part thereof, and the remaining
provisions thereof shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
therefrom. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision there shall be added automatically as a part of the Loan Papers a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
SECTION 15.9 WAIVER OF CONSUMER CREDIT LAWS. Pursuant to Chapter 346 of the
Texas Finance Code, as amended, Borrower agrees that such Chapter 346 shall not
govern or in any manner apply to the Revolving Loan.
SECTION 15.10 ASSIGNMENTS AND PARTICIPATIONS.
(a) SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Papers shall be binding upon and inure to the benefit of Borrower and Banks
and their respective successors and assigns permitted hereby, except that
(i) Borrower shall not have the right to assign its rights or obligations
under the Loan Papers without the prior written consent of each Bank, (ii)
any assignment by any Bank must be made in compliance with Section
15.10(c), and (iii) any transfer by participation must be made in
compliance with Section 15.10(b). Any attempted assignment or transfer by
any party not made in compliance with this Section 15.10(a) shall be null
and void, unless such attempted assignment or transfer is treated as a
participation in accordance with Section 15.10(b). The parties to this
Agreement acknowledge that clause (ii) of this Section 15.10(a) relates
only to absolute assignments and this Section 15.10(a) does not prohibit
assignments creating security interests, including, without limitation, (x)
any pledge or assignment by any Bank of all or any portion of its rights
under this Agreement and any Note to a Federal Reserve Bank or (y) in the
case of a Bank which is a Fund, any pledge or assignment of all or any
portion of its rights under this Agreement and any Note to its trustee in
support of its obligations to its trustee; provided, however, that no such
pledge or assignment creating a security interest shall release the
transferor Bank from its obligations hereunder unless and until
70
the parties thereto have complied with the provisions of Section 15.10(c).
Administrative Agent may treat the Person which made any Revolving Loan or
which holds any Note as the owner thereof for all purposes hereof unless
and until such Person complies with Section 15.10(c); provided, however,
that Administrative Agent may in its discretion (but shall not be required
to) follow instructions from the Person which made any Revolving Loan or
which holds any Note to direct payments relating to such Revolving Loan or
Note to another Person. Any assignee of the rights to any Revolving Loan or
any Note agrees by acceptance of such assignment to be bound by all the
terms and provisions of the Loan Papers. Any request, authority or consent
of any Person, who at the time of making such request or giving such
authority or consent is the owner of the rights to any Revolving Loan
(whether or not a Note has been issued in evidence thereof), shall be
conclusive and binding on any subsequent holder or assignee of the rights
to such Revolving Loan.
(b) PARTICIPATIONS.
(i) Any Bank may at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Revolving
Loan owing to such Bank, any Note held by such Bank, any Commitment of
such Bank or any other interest of such Bank under the Loan Papers. In
the event of any such sale by a Bank of participating interests to a
Participant, such Bank's obligations under the Loan Papers shall
remain unchanged, such Bank shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Bank shall remain the owner of its Revolving Loans and the holder of
any Note issued to it in evidence thereof for all purposes under the
Loan Papers, all amounts payable by Borrower under this Agreement
shall be determined as if such Bank had not sold such participating
interests, and Borrower and Administrative Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's
rights and obligations under the Loan Papers.
(ii) Each Bank shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver
of any provision of the Loan Papers other than any amendment,
modification or waiver with respect to any Revolving Loan or
Commitment in which such Participant has an interest which would
require consent of all of the Banks pursuant to the terms of Section
15.5 or of any other Loan Paper.
(iii) Borrower agrees that each Participant shall be deemed to
have the right of setoff provided in Section 15.4 in respect of its
participating interest in amounts owing under the Loan Papers to the
same extent as if the amount of its participating interest were owing
directly to it as a Bank under the Loan Papers; provided, that each
Bank shall retain the right of setoff provided in Section 15.4 with
respect to the amount of participating interests sold to each
Participant. Banks agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section
15.4, agrees to share with each Bank, any amount received pursuant to
the exercise of its right of setoff, such amounts to be shared in
accordance with Section 15.4 as if each Participant were a Bank.
Borrower further agrees that each Participant shall be entitled to the
yield protection provisions contained in Article XIV to the same
extent as if it were a Bank and had acquired its interest by
assignment pursuant to Section 15.10(c);
71
provided, that (A) a Participant shall not be entitled to receive any
greater payment under Article XIV than the Bank who sold the
participating interest to such Participant would have received had it
retained such interest for its own account, unless the sale of such
interest to such Participant is made with the prior written consent of
Borrower, and (B) any Participant not incorporated under the laws of
the United States of America or any State thereof agrees to comply
with the provisions of Section 14.6 to the same extent as if it were a
Bank.
(c) ASSIGNMENTS.
(i) Any Bank may at any time assign to one or more banks or other
entities ("PURCHASERS") all or any part of its rights and obligations
under the Loan Papers. The parties to such assignment shall execute
and deliver an Assignment and Acceptance Agreement (herein so called)
which shall be substantially in the form of Exhibit K or in such other
form as may be agreed to by the parties thereto. Each such assignment
with respect to a Purchaser which is not a Bank or an Affiliate of a
Bank or an Approved Fund shall either be in an amount equal to the
entire applicable Commitment and Revolving Loans of the assigning Bank
or (unless each of Borrower and Administrative Agent otherwise
consents) be in an aggregate amount not less than $5,000,000. The
amount of the assignment shall be based on the Commitment or
outstanding Revolving Loans (if the Commitment has been terminated)
subject to the assignment, determined as of the date of such
assignment or as of the "Effective Date," if the "Effective Date" is
specified in the Assignment and Acceptance Agreement.
(ii) The consent of Borrower shall be required prior to an
assignment becoming effective unless Purchaser is a Bank, an Affiliate
of a Bank or an Approved Fund, provided that the consent of Borrower
shall not be required if a Default has occurred and is continuing. The
consent of Administrative Agent shall be required prior to an
assignment becoming effective unless the Purchaser is a Bank, an
Affiliate of a Bank or an Approved Fund. The consent of Letter of
Credit Issuer shall be required prior to an assignment of a Commitment
becoming effective unless Purchaser is a Bank, an Affiliate of a Bank
or an Approved Fund. Any consent required under this Section
15.10(c)(ii) shall not be unreasonably withheld or delayed.
(iii) Upon (A) delivery to Administrative Agent of an Assignment
and Acceptance Agreement, together with any consents required by
Section 15.10(c)(i) and (ii), and (B) payment of a $3,500 fee to
Administrative Agent for processing such assignment (unless such fee
is waived by Administrative Agent), such assignment shall become
effective on the effective date specified in such Assignment and
Acceptance Agreement. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Bank party to
this Agreement and any other Loan Paper executed by or on behalf of
Banks and shall have all the rights and obligations of a Bank under
the Loan Papers, to the same extent as if it were an original party
thereto, and the transferor Bank shall be released with respect to the
Commitment and Revolving Loans assigned to such Purchaser without any
further consent or action by Borrower, Banks or Administrative Agent.
In the case of an assignment covering all of the assigning Bank's
rights and obligations under this Agreement, such Bank shall cease to
be a Bank hereunder but shall
72
continue to be entitled to the benefits of, and subject to, those
provisions of this Agreement and the other Loan Papers which survive
payment of the Obligations and termination of the applicable
agreement. Any assignment or transfer by a Bank of rights or
obligations under this Agreement that does not comply with this
Section 15.10(c) shall be treated for purposes of this Agreement as a
sale by such Bank of a participation in such rights and obligations in
accordance with Section 15.10(b). Upon the consummation of any
assignment to a Purchaser pursuant to this Section 15.10(c), the
transferor Bank, Administrative Agent and Borrower shall make
appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Bank and new Notes or,
as appropriate, replacement Notes, are issued to such Purchaser, in
each case in principal amounts reflecting their respective
Commitments, as adjusted pursuant to such assignment.
(iv) Administrative Agent, acting solely for this purpose as an
agent of Borrower, shall maintain at one of its offices in Chicago,
Illinois or Dallas, Texas a copy of each Assignment and Acceptance
Agreement delivered to it and a register for the recordation of the
names and addresses of the Banks, and the Commitments of, and
principal amounts of the Revolving Loans owing to, each Bank pursuant
to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and Borrower, Administrative Agent
and Banks may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Bank hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by Borrower and any Bank, at any
reasonable time and from time to time upon reasonable prior notice.
(d) DISSEMINATION OF INFORMATION. Borrower authorizes each Bank to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Papers by operation of law (each a "TRANSFEREE") and
any prospective Transferee any and all information in such Bank's
possession concerning the creditworthiness of Borrower and its
Subsidiaries, including, without limitation, any information contained in
any financial reports; provided, that, each Transferee and prospective
Transferee agrees to be bound by Section 15.17 of this Agreement.
(e) TAX TREATMENT. If any interest in any Loan Paper is transferred to any
Transferee which is not incorporated under the laws of the United States or any
State thereof, the transferor Bank shall cause such Transferee, concurrently
with the effectiveness of such transfer, to comply with the provisions of
Section 14.6(d).(f)
SECTION 15.11 TEXAS LAW. THIS AGREEMENT, EACH NOTE AND THE OTHER LOAN
PAPERS HAVE BEEN EXECUTED AND DELIVERED IN THE STATE OF TEXAS AND SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND
THE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT TO THE EXTENT THAT THE LAWS OF
ANY STATE IN WHICH ANY PROPERTY INTENDED AS SECURITY FOR THE OBLIGATIONS IS
LOCATED NECESSARILY GOVERN (A) THE PERFECTION AND PRIORITY OF THE LIENS IN FAVOR
OF ADMINISTRATIVE AGENT AND BANKS WITH RESPECT TO SUCH
73
PROPERTY, AND (B) THE EXERCISE OF ANY REMEDIES (INCLUDING FORECLOSURE) WITH
RESPECT TO SUCH PROPERTY.
SECTION 15.12 CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES.
(a) Borrower hereby irrevocably submits to the jurisdiction of any
Texas State or Federal court sitting in the Northern District of Texas over
any action or proceeding arising out of or relating to this Agreement or
any other Loan Papers, and Borrower hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined
in such Texas State or Federal court. As an alternative, Borrower
irrevocably consents to the service of any and all process in any such
action or proceeding by the mailing (which shall be by registered mail) of
copies of such process to such Person at its address specified in Section
15.1. Borrower agrees that a final judgment on 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 15.12 shall affect any right of Banks to
serve legal process in any other manner permitted by Law or affect the
right of any Bank to bring any action or proceeding against any Credit
Party or their properties in the courts of any other jurisdictions.
(c) To the extent that Borrower has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid
of execution, execution or otherwise) with respect to itself or its
property, such Person hereby irrevocably waives such immunity in respect of
its obligations under this Agreement and the other Loan Papers.
SECTION 15.13 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Subject to the terms and conditions herein set forth (including, without
limitation, the execution and delivery of the Certificate of Effectiveness),
this Agreement shall become effective when Administrative Agent shall have
received counterparts hereof signed by all of the parties hereto or, in the case
of any Bank as to which an executed counterpart shall not have been received,
Administrative Agent shall have received telegraphic or other written
confirmation from such Bank of execution of a counterpart hereof by such Bank.
SECTION 15.14 NO THIRD PARTY BENEFICIARIES. Except for the provisions
hereof inuring to the benefit of Agents not a party to this Agreement, it is
expressly intended that there shall be no third party beneficiaries of the
covenants, agreements, representations or warranties herein contained other than
third party beneficiaries permitted pursuant to Section 15.10.
SECTION 15.15 COMPLETE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS
COLLECTIVELY REPRESENT THE FINAL AGREEMENT BY AND AMONG BANKS, AGENTS AND THE
CREDIT PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF BANKS, AGENTS, AND THE CREDIT
PARTIES. THERE ARE
74
NO UNWRITTEN ORAL AGREEMENTS AMONG BANKS, AGENTS, AND THE CREDIT PARTIES.
SECTION 15.16 WAIVER OF JURY TRIAL. BORROWER, ADMINISTRATIVE AGENT AND
BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN PAPERS
AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 15.17 CONFIDENTIALITY. Administrative Agent and each Bank (each, a
"LENDING PARTY") agrees to keep confidential any information furnished or made
available to it by Borrower pursuant to this Agreement that is marked
confidential; provided, that nothing herein shall prevent any Lending Party from
disclosing such information (a) to any other Lending Party or any Affiliate of
any Lending Party, or any officer, director, employee, agent, or advisor of any
Lending Party or any Affiliate of any Lending Party, (b) to any other Person if
reasonably incidental to the administration of the credit facility provided
herein, (c) as required by any Law, rule or regulation, (d) upon the order of
any court or administrative agency, (e) upon the request or demand of any
regulatory agency or authority, (f) that is or becomes available to the public
or that is or becomes available to any Lending Party other than as a result of a
disclosure by any Lending Party prohibited by this Agreement, (g) in connection
with any litigation to which such Lending Party or any of its affiliates may be
a party, (h) to the extent necessary in connection with the exercise of any
remedy under this Agreement or any other Loan Paper, and (i) subject to
provisions substantially similar to those contained in this Section 15.17, to
any actual or proposed participant or assignee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective Authorized Officers on the day and year first
above written.
[signature pages to follow]
75
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
BORROWER:
DENBURY RESOURCES INC.,
a Delaware corporation
By:
--------------------------------------------
Phil Rykhoek,
Chief Financial Officer
Address for Notice:
5100 Tennyson Parkway
Suite 3000
Plano, Texas 75024
Fax No. (972) 673-2150
Signature Page
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
ADMINISTRATIVE AGENT:
- --------------------
BANK ONE, NA,
as Administrative Agent
By:
--------------------------------------------
J. Scott Fowler,
Director, Capital Markets
BANKS:
BANK ONE, NA
By:
--------------------------------------------
J. Scott Fowler,
Director, Capital Markets
Signature Page
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
SYNDICATION AGENT:
- -----------------
CREDIT LYONNAIS NEW YORK BRANCH,
as Syndication Agent
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
BANKS:
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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Signature Page
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
SYNDICATION AGENT:
- -----------------
FORTIS CAPITAL CORP.,
as Syndication Agent
By:
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Name:
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Title:
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By:
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Name:
--------------------------------------------
Title:
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BANKS:
FORTIS CAPITAL CORP.
By:
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Name:
--------------------------------------------
Title:
--------------------------------------------
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Signature Page
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
DOCUMENTATION AGENT:
- -------------------
UNION BANK OF CALIFORNIA, N.A.,
as Documentation Agent
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
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By:
--------------------------------------------
Name:
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Title:
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BANKS:
UNION BANK OF CALIFORNIA, N.A.
By:
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Name:
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Title:
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By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Signature Page
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
DOCUMENTATION AGENT:
- -------------------
COMERICA BANK-TEXAS,
as Documentation Agent
By:
--------------------------------------------
Name:
--------------------------------------------
Title: .........
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BANKS:
COMERICA BANK-TEXAS
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Signature Page
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
BANKS:
FLEET NATIONAL BANK
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Signature Page
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
BANKS:
WELLS FARGO BANK TEXAS, N.A.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Signature Page
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
BANKS:
BANK OF SCOTLAND
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Signature Page
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
BANKS:
COMPASS BANK
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Signature Page
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
DENBURY RESOURCES INC., AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
THE OTHER AGENTS A PARTY THERETO, AND
THE FINANCIAL INSTITUTIONS LISTED
ON SCHEDULE 2.1 THERETO, AS BANKS
BANKS:
BANK OF AMERICA, N.A.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
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Signature Page
SCHEDULE 2.1
------------
Financial Institutions
======================================== ========================= ===========================
Banks Commitment Amount Commitment Percentage
- ---------------------------------------- ------------------------- ---------------------------
Bank One, NA $35,454,545.45 11.8181818182%
- ---------------------------------------- ------------------------- ---------------------------
Credit Lyonnais New York Branch $35,454,545.45 11.8181818182%
- ---------------------------------------- ------------------------- ---------------------------
Fortis Capital Corp. $35,454,545.45 11.8181818182%
- ---------------------------------------- ------------------------- ---------------------------
Union Bank of California, N.A. $35,454,545.45 11.8181818182%
- ---------------------------------------- ------------------------- ---------------------------
Comerica Bank - Texas $35,454,545.45 11.8181818182%
- ---------------------------------------- ------------------------- ---------------------------
Fleet National Bank $28,636,363.64 9.5454545454%
- ---------------------------------------- ------------------------- ---------------------------
Wells Fargo Bank Texas, N.A. $28,636,363.64 9.5454545454%
- ---------------------------------------- ------------------------- ---------------------------
Bank of Scotland $28,636,363.64 9.5454545454%
- ---------------------------------------- ------------------------- ---------------------------
Bank of America, N.A. $18,409,090.91 6.1363636364%
- ---------------------------------------- ------------------------- ---------------------------
Compass Bank $18,409,090.91 6.1363636364%
- ---------------------------------------- ------------------------- ---------------------------
Totals: $300,000,000.00 100.00%
======================================== ========================= ===========================
=============================== ============================== =============================== ================================
Banks Domestic Lending Office Eurodollar Lending Office Address for Notice
- ----- ----------------------- ------------------
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Bank One, NA 1717 Main Street 1717 Main Street 1717 Main Street
4th Floor 4th Floor 4th Floor
Mail Code TX1-2448 Mail Code TX1-2448 Mail Code TX1-2448
Dallas, Texas 75201 Dallas, Texas 75201 Dallas, Texas 75201
Attn: J. Scott Fowler Attn: J. Scott Fowler Attn: J. Scott Fowler
Tel. No. (214) 290-2162 Tel. No. (214) 290-2162 Tel. No. (214) 290-2162
Fax No. (214) 290-2332 Fax No. (214) 290-2332 Fax No. (214) 290-2332
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Credit Lyonnais New York 1301 Avenue of the Americas 1301 Avenue of the Americas 1000 Louisiana, Suite 5360
Branch New York, New York 10019 New York, New York 10019 Houston, Texas 77002
Attn: Gener David Attn: Gener David Attn: John Grandstaff
Tel. No. (212) 261-7747 Tel. No. (212) 261-7747 Tel. No. (713) 890-8617
Fax No. (917) 849-5440 Fax No. (917) 849-5440 Fax No. (713) 890-8668
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Fortis Capital Corp. 100 Crescent Court 100 Crescent Court 100 Crescent Court
Suite 1777 Suite 1777 Suite 1777
Dallas, Texas 75201 Dallas, Texas 75201 Dallas, Texas 75201
Attn: Yolanda Dittmar Attn: Yolanda Dittmar Attn: David Montgomery
Tel. No. (214) 953-9301 Tel. No. (214) 953-9301 Tel. No. (214) 953-9311
Fax No. (214) 754-5981 Fax No. (214) 754-5981 Fax No. (214) 754-5981
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Union Bank of California, N.A. 1980 Saturn Street, V03-251 1980 Saturn Street, V03-251 500 North Akard, Suite 4200
Monterey Park, CA 91755 Monterey Park, CA 91755 Dallas, TX 75201
Attn: Shirley Davis Attn: Shirley Davis Attn: Ali Ahmed
Tel. No. (323) 720-2870 Tel. No. (323) 720-2870 Tel. No. (214) 922-4207
Fax No. (323) 720-2252 / 51 Fax No. (323) 720-2252 / 51 Fax No. (214) 922-4209
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Comerica Bank - Texas 39200 West 6 Mile Road 39200 West 6 Mile Road 1601 Elm Street, 2nd Floor,
Lavonia, MI 48152 Lavonia, MI 48152 MC6593
Attn: Debralyn Brown Attn: Debralyn Brown Dallas, TX 75201
Tel. No. (734) 632-7021 Tel. No. (734) 632-7021 Attn: Michele L. Jones
Fax No. (734) 632-7021 Fax No. (734) 632-7021 Tel. No. (214) 969-6563
Fax No. (214) 969-6561
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Fleet National Bank 100 Federal Street 100 Federal Street 100 Federal Street
MA DE 10008A MA DE 10008A MA DE 10008A
Boston, MA 02110 Boston, MA 02110 Boston, MA 02110
Attn: Cassandra Roberson Attn: Cassandra Roberson Attn: Cassandra Roberson
Tel. No. (617) 434-3936 Tel. No. (617) 434-3936 Tel. No. (617) 434-3936
Fax No. (617) 434-0201 Fax No. (617) 434-0201 Fax No. (617) 434-0201
Schedule 2.1-1
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Wells Fargo Bank Texas, N.A. 1740 Broadway 1740 Broadway 1445 Ross Avenue, Suite 2360
MAC# C7300-034 MAC# C7300-034 MAC# T5303-233
Denver, CO 80274 Denver, CO 80274 Dallas, Texas 75202
Attn: Tanya Ivie Attn: Tanya Ivie Attn: J. Alan Alexander, Jr.
Tel. No. (303) 863-6102 Tel. No. (303) 863-6102 Tel. No. (214) 661-1237
Fax No. (303) 863-2729 Fax No. (303) 863-2729 Fax No. (214) 661-1242
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Bank of Scotland 565 Fifth Avenue, 5th Floor 565 Fifth Avenue, 5th Floor 565 Fifth Avenue, 5th Floor
New York, NY 10017 New York, NY 10017 New York, NY 10017
Attn. Karen Workman Attn. Karen Workman Attn. Karen Workman
Tel. No. (212) 450-0877 Tel. No. (212) 450-0877 Tel. No. (212) 450-0877
Fax No. (212) 687-4412 Fax No. (212) 687-4412 Fax No. (212) 687-4412
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Bank of America, N.A. 901 Main Street, 67th Floor 901 Main Street, 67th Floor 901 Main Street, 67th Floor
Dallas, Texas 75202 Dallas, Texas 75202 Dallas, Texas 75202
Attn: Sharlette Wright Attn: Sharlette Wright Attn: Steven Mackenzie
Tel. No. (214) 209-1150 Tel. No. (214) 209-1150 Tel. No. (214) 209-3680
Fax No. (214) 209-3140 Fax No. (214) 209-3140 Fax No. (214) 209-3140
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Compass Bank 24 Greeway Plaza, Suite 1400A 24 Greeway Plaza, Suite 1400A 24 Greeway Plaza, Suite 1400A
Houston, TX 77046 Houston, TX 77046 Houston, TX 77046
Attn: Stacey R. Box Attn: Stacey R. Box Attn: Dorothy Marchand
Tel. No. (713) 993-8580 Tel. No. (713) 993-8580 Tel. No. (713) 968-8272
Fax No. (713) 968-8292 Fax No. (713) 968-8292 Fax No. (713) 968-8292
- ------------------------------- ------------------------------ ------------------------------- --------------------------------
Administrative Agent - Address:
1717 Main Street, 4th Floor
Mail Code TX1-2448
Dallas, Texas 75202
Tel. No. (214) 290-2162
Fax No. (214) 290-2332
Schedule 2.1-2
SCHEDULE 2.2
------------
Existing Mortgages
MINERALS MANAGEMENT SERVICE
- ---------------------------
1. Deed of Trust, Mortgage, Assignment, Security Agreement, Fixture Filing and
Financing Statement dated March 24, 2000, executed by Matrix Oil & Gas,
Inc. in favor of Union Bank of California, filed on March 30, 2000, with
the Minerals Management Service, as amended by that certain
First Supplement and Amendment to Deed of Trust, Mortgage, Assignment,
Security Agreement, Fixture Filing and Financing Statement dated March 28,
2000, executed by Matrix Oil & Gas, Inc. and Union Bank of California,
filed on April 4, 2000, as File Number 00691, with the Minerals Management
Service, as amended by that certain
Second Supplement and Amendment to Deed of Trust, Mortgage, Assignment,
Security Agreement, Fixture Filing and Financing Statement dated as of
September 25, 2000, executed by Matrix Oil & Gas, Inc. and Union Bank of
California, filed on September 28, 2000, with the Minerals Management
Service and assigned by that certain
Assignment of Note and Liens dated July 10, 2001, executed by Union Bank of
California in favor of Existing Agent, filed on October 9, 2001, as File
Number OCS-00190, with the Minerals Management Service.
2. UCC Assignment in connection with original File Number G03386, executed by
Union Bank of California in favor of Existing Agent, filed with the
Minerals Management Service.
3. UCC Assignment in connection with original File Number OCS-00691, executed
by Union Bank of California in favor of Existing Agent, filed with the
Minerals Management Service.
4. UCC Assignment in connection with original File Number OCS-0787, executed
by Union Bank of California in favor of Existing Agent, filed with the
Minerals Management Service.
LOUISIANA
- ---------
ACADIA PARISH, LOUISIANA
5. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from Denbury Management, Inc. ("DMI") to Existing
Agent, recorded on July 15, 1996, as File Number 625353, in Mortgage Book
520, Folio 442, with the Parish Clerk of Acadia Parish, Louisiana, as
amended by that certain
Schedule 2.2-1
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed on January 12, 1998, as File Number 643480, with the
Parish Clerk of Acadia Parish, Louisiana.
6. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999 as Document Number 658835 in MOB
562, Page 36 and COB N56, Page 91, with the Parish Clerk of Acadia Parish,
Louisiana, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 680055, in
Mortgage Book 593, Page 744, with the Parish Clerk of Acadia Parish,
Louisiana.
7. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 658835, with the Parish Clerk of
Acadia Parish, Louisiana.
ASCENSION PARISH, LOUISIANA
8. Mortgage, Assignment, Security Agreement, Fixture Filing and Financing
Statement executed by DMI to Existing Agent, filed on November 27, 1995, as
File Number 361787, in Conveyance Book 549 and Mortgage Book 643, with the
Parish Clerk of Ascension Parish, Louisiana, as assigned and amended by
that certain
Assignment and Amendment to Mortgage filed June 12, 1996, as File Number
372807, in MOB Book 667, with the Parish Clerk of Ascension Parish,
Louisiana, as amended by that certain
Amendment to Mortgages executed by DMI and Existing Agent, filed January 12
,1998, as File Number 405042, in MOB Book 746, with the Parish Clerk of
Ascension Parish, Louisiana.
AVOYELLES PARISH, LOUISIANA
9. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 15, 1996,
as File Number 96-6252, in Mortgage Book 424, with the Parish Clerk of
Avoyelles Parish, Louisiana; as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 9, 1998, as File Number 9800208, in MOB Book
438, with the Parish Clerk of Avoyelles Parish, Louisiana.
10. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, as Clerk's File Number 9901907,
MOB Book Number 450 and MIN Book Number 194, with the Parish Clerk of
Avoyelles Parish, Louisiana, as amended by that certain
Schedule 2.2-2
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 00008196,
in Mortgage Book 465, with the Parish Clerk of Avoyelles Parish, Louisiana.
11. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 990581, with the Parish Clerk of
Avoyelles Parish, Louisiana.
CAMERON PARISH, LOUISIANA
12. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 12, 1995,
as File Number 240755, in Conveyance Book 815 and Mortgage Book 209, with
the Parish Clerk of Cameron Parish, Louisiana; as assigned and amended by
that certain
Assignment and Amendment to Mortgage filed June 11, 1996, as File Number
245936, in Conveyance Book 836 and Mortgage Book 218, with the Parish Clerk
of Cameron Parish, Louisiana, and as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, as File Number 253512, in
Conveyance Book 869 and Mortgage Book 230, with the Parish Clerk of Cameron
Parish, Louisiana.
13. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File Number 246389, in Mortgage Book 219, with the Parish Clerk of
Cameron Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, as File Number 253512, in
Conveyance Book 869 and Mortgage Book 230, with the Parish Clerk of Cameron
Parish, Louisiana.
14. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, as Clerk File's Number 259143
and Conveyance Book Number 892 and Mortgage Book Number 239, with the
Parish Clerk of Cameron Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 13, 2000, as Instrument Number 267490, in
Mortgage Book 255, with the Parish Clerk of Cameron Parish, Louisiana.
15. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 259144, with the Parish Clerk of
Cameron Parish, Louisiana.
16. Deed of Trust, Mortgage, Assignment, Security Agreement, Fixture Filing and
Financing Statement dated March 24, 2000, executed by Matrix Oil & Gas,
Inc. in favor of Union
Schedule 2.2-3
Bank of California, recorded on March 30, 2000, as File Number 264321, in
M.O.B. 250, with the Parish Clerk of Cameron Parish, Louisiana, as assigned
by that certain
Assignment of Note and Liens dated July 10, 2001, executed by Union Bank of
California in favor of Existing Agent, filed on July 20, 2001, as File
Number 271336, in Mortgage Book 261, with the Parish Clerk of Cameron
Parish, Louisiana.
17. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, executed by Mortgagor in
favor of Existing Agent, filed on February 6, 2001, as MOB Number 257, COB
Number 923, File Number 268674, with the Parish Clerk of Cameron Parish,
Louisiana.
18. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 6, 2001 as File Number 268675, with the Parish Clerk of
Cameron Parish, Louisiana.
CONCORDIA PARISH, LOUISIANA
19. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 12, 1995,
as Document Number 208248, in COB 347, Folio 595 and MOB 270, Folio 436,
with the Parish Clerk of Concordia Parish, Louisiana; as assigned and
amended by that certain
Assignment and Amendment to Mortgage filed June 10, 1996, as File Number
212988, in MOB Book 280, Folio 147, with the Parish Clerk of Concordia
Parish, Louisiana; and as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 9, 1998, as File Number 220142, in MOB Book
293, with the Parish Clerk of Concordia Parish, Louisiana.
20. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, in COB Book Number 377, Folio
508 and MOB Book Number 305, Folio 679 as Document Number 225538, with the
Parish Clerk of Concordia Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 233325, in
Mortgage Book 322, Folio 716, with the Parish Clerk of Concordia Parish,
Louisiana.
21. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 15-177729, UCC Book 1, Page 1, with
the Parish Clerk of Concordia Parish, Louisiana.
Schedule 2.2-4
DESOTO PARISH, LOUISIANA
22. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 11, 1996,
as File Number 551694, with the Parish Clerk of Desoto Parish, Louisiana,
as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 9, 1998, as File Number 562934, with the
Parish Clerk of Desoto Parish, Louisiana.
23. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, as Clerk's File Number 571636,
with the Parish Clerk of Desoto Parish, Louisiana, as amended by that
certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 10, 2000, as Instrument Number 583500
with the Parish Clerk of Desoto Parish, Louisiana.
24. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 57163, with the Parish Clerk of
Desoto Parish, Louisiana.
IBERIA PARISH, LOUISIANA
25. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File Number 96-6664, in Mortgage Book A682, with the Parish Clerk of
Iberia Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, as File Number 98-241, in Mortgage
Book A717, with the Parish Clerk of Iberia Parish, Louisiana.
26. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 16, 1999, in Mortgage Book Number A753,
Entry Number 99-3310, with the Parish Clerk of Iberia Parish, Louisiana, as
amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 00-13589,
in Mortgage Book A816, with the Parish Clerk of Iberia Parish, Louisiana.
27. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 16, 1999, as File Number 99-649, with the Parish Clerk of
Iberia Parish, Louisiana.
Schedule 2.2-5
28. Deed of Trust, Mortgage, Assignment, Security Agreement, Fixture Filing and
Financing Statement dated March 24, 2000, executed by Matrix Oil & Gas,
Inc. in favor of Union Bank of California, recorded on March 30, 2000, in
Book A793, Entry Number 00-3894, with the Parish Clerk of Iberia Parish,
Louisiana, as amended by that certain
Second Supplement and Amendment to Deed of Trust, Mortgage, Assignment,
Security Agreement, Fixture Filing and Financing Statement dated September
25, 2000, executed by Matrix Oil & Gas, Inc. and Union Bank of California,
recorded on September 28, 2000, in Mortgage Book A812, Entry Number
00-11990, with the Parish Clerk of Iberia Parish, Louisiana, and as
assigned by that certain
Assignment of Note and Liens dated July 10, 2001, executed by Union Bank of
California in favor of Existing Agent, filed on July 20, 2001, as entry
number 01-8622, in Mortgage Book A846, with the Parish Clerk of Iberia
Parish, Louisiana.
29. UCC Financing Statement executed by Matrix Oil & Gas, Inc. in favor of
Union Bank of California, filed on September 28, 2000, as File Number
002566, with the Parish Clerk of Iberia Parish, Louisiana, as assigned by
that certain
UCC-3 Financing Statement Assignment executed by Union Bank of California
in favor of Existing Agent, filed on July 20, 2001, as File Number 01-2243,
with the Parish Clerk of Iberia Parish, Louisiana.
30. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, executed by Mortgagor in
favor of Existing Agent, filed on February 13, 2001, as MOB Number A825,
COB Number 1212, and Entry Number 01-1705, with the Parish Clerk of Iberia
Parish, Louisiana.
31. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 6, 2001 as File Number 01 354, with the Parish Clerk of
Iberia Parish, Louisiana.
JACKSON PARISH, LOUISIANA
32. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 15, 1996,
as File Number 318867, in Mortgage Book 170, Folio 694, with the Parish
Clerk of Jackson Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 9, 1998, as File Number 324795, in Mortgage
Book 177, Page 834, with the Parish Clerk of Jackson Parish, Louisiana.
33. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, as Clerk's File Number 328899
in Conveyance Book Number 306, Page 71 and Mortgage Book Number 184, Page
721, with the Parish Clerk of Jackson Parish, Louisiana, as amended by that
certain
Schedule 2.2-6
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 13, 2000, as Instrument Number 335841, in
Mortgage Book 195, Page 613, with the Parish Clerk of Jackson Parish,
Louisiana.
34. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 25023906, with the Parish Clerk of
Jackson Parish, Louisiana.
JEFFERSON DAVIS PARISH, LOUISIANA
35. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 16, 1996,
as File Number 535475, in Mortgage Book 378, Folio 403, with the Parish
Clerk of Jefferson Davis Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 26, 1998, as File Number 550009, in Mortgage
Book 397, Page 759, with the Parish Clerk of Jefferson Davis Parish,
Louisiana.
36. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 15, 1999, as Clerk's File Number 560349
in MOB Book Number 413, Page 299, with the Parish Clerk of Jefferson Davis
Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 575430, in
Mortgage Book 435, Page 410, with the Parish Clerk of Jefferson Davis
Parish, Louisiana.
37. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 15, 1999, as File Number 279900330, with the Parish Clerk of
Jefferson Davis Parish, Louisiana.
38. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, executed by Mortgagor in
favor of Existing Agent, filed on February 9, 2001, as MOB Number 438, Page
609, and File Number 577381, with the Parish Clerk of Jefferson Davis
Parish, Louisiana.
39. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 9, 2001, as File Number 01-00146, with the Parish Clerk
of Jefferson Davis Parish, Louisiana.
LAFOURCHE PARISH, LOUISIANA
40. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 12, 1995,
as Entry Number 781497, in Conveyance Book 1242, Folio 612 and Mortgage
Book 691, Folio 648, with the Parish Clerk of LaFourche Parish, Louisiana;
as assigned and amended by that certain
Schedule 2.2-7
Assignment and Amendment to Mortgages filed July 1, 1996, as Entry Number
799606, in Conveyance Book 1277, Folio 736 and Miscellaneous Book 77, Folio
861, with the Parish Clerk of LaFourche Parish, Louisiana, and as amended
by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed February 27, 1998, as File Number 828742, in Mortgage
Book 767, Page 330, with the Parish Clerk of LaFourche Parish, Louisiana.
41. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File Number 800203, in Mortgage Book 719, Folio 211, with the Parish
Clerk of LaFourche Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI in favor of
Existing Agent, filed February 27, 1998, as File Number 828742, in Mortgage
Book 767, Page 330, with the Parish Clerk of LaFourche Parish, Louisiana.
42. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 17, 1999, in Mortgage Book Number 806,
Folio Number 30, as Entry Number 849538 with the office of the Parish Clerk
of LaFourche Parish, Louisiana as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on December 1, 2000, as Instrument Number 884017, in
Mortgage Book 869, Folio 49 with the office of the Parish Clerk of
LaFourche Parish, Louisiana.
43. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 17, 1999, as File Number 29-849539, with the Parish Clerk of
LaFourche Parish, Louisiana.
PLAQUEMINES PARISH, LOUISIANA
44. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated October 13, 2000, executed by Mortgagor in
favor of Existing Agent, filed on November 13, 2000, as MOB Number 310,
Folio 204 and COB Number 988, Folio 44, with the Parish Clerk of
Plaquemines Parish, Louisiana.
45. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on November 13, 2000, as File Number 38-001663, with the Parish Clerk
of Plaquemines Parish, Louisiana.
46. Deed of Trust, Mortgage, Assignment, Security Agreement, Fixture Filing and
Financing Statement dated March 24, 2000, executed by Matrix Oil & Gas,
Inc. in favor of Union Bank of California, recorded on March 30, 2000, in
M.O.B. 302, Folio 580, with the Parish Clerk of Plaquemines Parish,
Louisiana, as amended by that certain
Schedule 2.2-8
First Supplement and Amendment to Deed of Trust, Mortgage, Assignment,
Security Agreement, Fixture Filing and Financing Statement dated March 28,
2000, executed by Matrix Oil & Gas, Inc. and Union Bank of California,
recorded on March 30, 2000, in M.O.B. 302, Folio 649, with the Parish Clerk
of Plaquemines Parish, Louisiana, and as assigned by that certain
Assignment of Note and Liens dated July 10, 2001, executed by Union Bank of
California in favor of Existing Agent, filed on July 24, 2001, in M.O.B.
319, Folio 885, with the Clerk of Court of Plaquemines Parish, Louisiana.
POINTE COUPEE PARISH, LOUISIANA
47. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File MB245, Number 70, in Mortgage Book 415, Folio 132, with the Parish
Clerk of Pointe Coupee Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 9, 1998, in Mortgage Book 257, Number 140 and
Conveyance Book 440, Number 106, with the Parish Clerk of Pointe Coupee
Parish, Louisiana.
48. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, in MB Book 269 as Clerk's
Number 82, with the Parish Clerk of Pointe Coupee Parish, Louisiana, as
amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, in Mortgage Book 287, Number 43,
with the Parish Clerk of Pointe Coupee Parish, Louisiana.
49. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 10401, in CM Book 26, with the
Parish Clerk of Pointe Coupee Parish, Louisiana.
RAPIDES PARISH, LOUISIANA
50. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File Number 1028847, in Mortgage Book 1416, Folio 519, with the Parish
Clerk of Rapides Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 9, 1998, in Mortgage Book 1483, Number 915,
with the Parish Clerk of Rapides Parish, Louisiana.
51. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, in Mortgage Book 1556, Page
153, and Conveyance Book 1553,
Schedule 2.2-9
Page 897 and as Clerk's File Number 1097748, with the Parish Clerk of
Rapides Parish, Louisiana as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 1144063, in
Mortgage Book 1658, Page 406, with the Parish Clerk of Rapides Parish,
Louisiana.
52. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 40-043994, with the Parish Clerk of
Rapides Parish, Louisiana.
RED RIVER PARISH, LOUISIANA
53. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 11, 1996,
as File Number 186073, in Mortgage Book 142, Folio 149, with the Parish
Clerk of Red River Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 13, 1998, as File Number 189198, with the
Parish Clerk of Red River Parish, Louisiana.
54. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 15, 1999, as Instrument Number 191,356,
with the Parish Clerk of Red River Parish, Louisiana as amended by that
certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, in Mortgage Book 152, with the
Parish Clerk of Red River Parish, Louisiana.
55. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 15, 1999, as File Number 191357, with the Parish Clerk of
Red River Parish, Louisiana.
RICHLAND PARISH, LOUISIANA
56. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File Number 296206, in Mortgage Book 306, with the Parish Clerk of
Richland Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 20, 1998, as File Number 301316, with the
Parish Clerk of Richland Parish, Louisiana.
Schedule 2.2-10
ST. BERNARD PARISH, LOUISIANA
57. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated October 13, 2000, executed by Mortgagor in
favor of Existing Agent, filed on November 13, 2000, as File Number MOB
995, Page 281, with the Parish Clerk of St. Bernard Parish, Louisiana.
58. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on November 13, 2000, as File Number 4435330, with the Parish Clerk
of St. Bernard Parish, Louisiana.
ST. CHARLES PARISH, LOUISIANA
59. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File Number 203836, in Mortgage Book 614, Folio 372, with the Parish
Clerk of St. Charles Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 9, 1998, as File Number 216906, in Book 653,
Page 608, with the Parish Clerk of St. Charles Parish, Louisiana.
60. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, in Mortgage Book Number 703,
Folio Number 20, as Clerk's File Number 230509, with the Parish Clerk of
St. Charles Parish, Louisiana.
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 248717, in
Book 771, Folio 255, with the Parish Clerk of St. Charles Parish,
Louisiana.
61. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 45-074384, with the Parish Clerk of
St. Charles Parish, Louisiana.
ST. LANDRY PARISH, LOUISIANA
62. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, executed by Mortgagor in
favor of Existing Agent, filed on February 5, 2001, as MOB Number 1051,
Page 58, and as Entry Number 865415, with the Parish Clerk of St. Landry
Parish, Louisiana.
63. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 5, 2001, as File Number 49-255460, with the Parish Clerk
of St. Landry Parish, Louisiana.
Schedule 2.2-11
ST. MARTIN PARISH, LOUISIANA
64. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 17, 1996,
as File Number 155143, in Mortgage Book 730, Folio 229, with the Parish
Clerk of St. Martin Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, File Number 289325, in Book 781,
Page 468, with the Parish Clerk of St. Martin Parish, Louisiana.
65. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, in Mortgage Book Number 809,
Folio Number 423, and as Clerk's File Number 001623 with the Parish Clerk
of St. Martin Parish, Louisiana as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 321176, in
Book 853, Page 524, with the Parish Clerk of St. Martin Parish, Louisiana.
66. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 99-323, with the Parish Clerk of
St. Martin Parish, Louisiana.
ST. MARY PARISH, LOUISIANA
67. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File Number 218194, in Mortgage Book 734, Folio 35, with the Parish
Clerk of St. Mary Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, as File Number 226303, in Mortgage
Book 774, Page 1, with the Parish Clerk of St. Mary Parish, Louisiana.
68. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, in Mortgage Book Number 807,
Entry Number 232,984, Page Number 477, with the Parish Clerk of St. Mary
Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 242451, in
Mortgage Book 856, Folio 325, with the Parish Clerk of St. Mary Parish,
Louisiana.
69. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 51-15324, with the Parish Clerk of
St. Mary Parish, Louisiana.
Schedule 2.2-12
70. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent filed on February 5, 2001, as MOB Number 862, Page Number 473, and as
Entry Number 243,683, with the Parish Clerk of St. Mary Parish, Louisiana.
71. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 5, 2001, as Entry Number 51-20884, with the Parish Clerk
of St. Mary Parish, Louisiana.
72. Second Supplement and Amendment to Deed of Trust, Mortgage, Assignment,
Security Agreement, Fixture Filing and Financing Statement dated September
25, 2000, executed by Matrix Oil & Gas, Inc. and Union Bank of California,
recorded on September 28, 2000, in M.O.B. 853, Page 258, as Entry Number
241833, with the Parish Clerk of St. Mary Parish, Louisiana, as assigned by
that certain
Assignment of Note and Liens dated July 10, 2001, executed by Union Bank of
California in favor of Existing Agent, filed on July 20, 2001, as Entry
Number 246324, in Mortgage Book 879, Page 193, with the Parish Clerk of St.
Mary Parish, Louisiana.
TERREBONNE PARISH, LOUISIANA
73. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 16, 1995,
as Entry Number 955603, in Mortgage Book 1016 and COB 1461, with the Parish
Clerk of Terrebonne Parish, Louisiana, as assigned and amended by that
certain
Assignment and Amendment to Mortgage filed June 10, 1996, as Entry Number
977283, in Mortgage Book 1061, and on June 12 ,1996, as Entry Number
977426, in Mortgage Book 1061, with the Parish Clerk of Terrebonne Parish,
Louisiana, and as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 15, 1998, as File Number 1013268, with the
Parish Clerk of Terrebonne Parish, Louisiana.
74. Mortgage, Assignment, Security Agreement, Fixture Filing and Financing
Statement filed November 22, 1995, as Entry Number 966504, in Mortgage Book
1038 and COB 1486, with the Parish Clerk of Terrebonne Parish, Louisiana,
as assigned and amended by that certain
Assignment and Amendment to Mortgage filed June 10, 1996, as Entry Number
977283, in Mortgage Book 1061, and on June 12 ,1996, as Entry Number
977426, in Mortgage Book 1061, with the Parish Clerk of Terrebonne Parish,
Louisiana, and as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 15, 1998, as File Number 1013268, with the
Parish Clerk of Terrebonne Parish, Louisiana.
Schedule 2.2-13
75. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 17, 1996,
as File Number 979550, in Mortgage Book 1065, with the Parish Clerk of
Terrebonne Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 15, 1998, as File Number 1013268, with the
Parish Clerk of Terrebonne Parish, Louisiana.
76. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, as Clerk's File Number 1041400,
with the Parish Clerk of Terrebonne Parish, Louisiana, as amended by that
certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 1083164, in
Mortgage Book 1323, with the Parish Clerk of Terrebonne Parish, Louisiana.
77. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 55-1041401, with the Parish Clerk
of Terrebonne Parish, Louisiana.
78. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent filed on February 7, 2001, as MOB Number 1338, Entry Number 1088528,
with the Parish Clerk of Terrebonne Parish, Louisiana.
79. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as Entry Number 55-1088529, with the Parish
Clerk of Terrebonne Parish, Louisiana.
VERMILION PARISH, LOUISIANA
80. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File Number 9608707, with the Parish Clerk of Vermilion Parish,
Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 14, 1998, as File Number 9800407, with the
Parish Clerk of Vermilion Parish, Louisiana.
81. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 16, 1999, as Clerk's File Number 9902951,
with the Parish Clerk of Vermilion Parish, Louisiana, as amended by that
certain
Schedule 2.2-14
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 20011619,
with the Parish Clerk of Vermilion Parish, Louisiana.
82. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 16, 1999, as File Number 57-990505, with the Parish Clerk of
Vermilion Parish, Louisiana.
83. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 9, 2001, as Entry Number 20101575, with the Parish
Clerk of Vermilion Parish, Louisiana.
84. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 9, 2001, as Entry Number 57 2010196, with the Parish
Clerk of Vermilion Parish, Louisiana.
WEBSTER PARISH, LOUISIANA
85. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 18, 1996,
as File Number 404112, in Mortgage Book 426, Folio 369, with the Parish
Clerk of Webster Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 20, 1998, as File Number 416774, with the
Parish Clerk of Webster Parish, Louisiana.
86. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 16, 1999, as Registry Number 427114, with
the Parish Clerk of Webster Parish, Louisiana, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 13, 2000, as Instrument Number 441186, in
Mortgage Book 488, Page 780, with the Parish Clerk of Webster Parish,
Louisiana.
87. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 16, 1999, as File Number 307204, with the Parish Clerk of
Webster Parish, Louisiana.
MISSISSIPPI
AMITE COUNTY, MISSISSIPPI
88. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on
Schedule 2.2-15
February 7, 2001, as MOB Number 271, Page 618, Entry Number 0100303, with
the Parish Clerk of Amite County, Mississippi.
89. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as Entry Number 23522, with the Parish Clerk of
Amite County, Mississippi.
CLARKE COUNTY, MISSISSIPPI
90. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 12, 1995,
in Deed of Trust Records Book 184, Page 318, with the County Clerk of
Clarke County, Mississippi, as assigned and amended by that certain
Assignment and Amendment to Mortgage filed June 10, 1996, in Deed of Trust
Records Book 193, Page 523, with the County Clerk of Clarke County,
Mississippi, and as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 15, 1998, as File Number 9450, in Deed of
Trust Records Book 208, Page 338, with the County Clerk of Clarke County,
Mississippi.
91. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 11, 1996,
in Deed of Trust Records Book 194, Page 359, with the County Clerk of
Clarke County, Mississippi, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 15, 1998, as File Number 9450, in Deed of
Trust Records Book 208, Page 338, with the County Clerk of Clarke County,
Mississippi.
92. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, filed on April 8, 1999 at Book DT220, Page(s) 732-810, in
the office of the County Clerk of Clarke County, Mississippi, as amended by
that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, in Deed of Trust Book 234, Page
790, with the County Clerk of Clarke County, Mississippi.
93. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on April 6 1999, as File Number 1208B, with the County Clerk of
Clarke County, Mississippi.
FRANKLIN COUNTY, MISSISSIPPI
94. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 11, 1996,
as File Number 017594, in
Schedule 2.2-16
Mortgage Book 202, Page 636, with the County Clerk of Franklin County,
Mississippi, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 13, 1998, as File Number 021021, in Book 208,
Page 29, with the County Clerk of Franklin County, Mississippi.
95. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, filed on March 12, 1999, as File Number 024152 in Book 214,
Page(s) 231-263, with the County Clerk of Franklin County, Mississippi, as
amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, as Instrument Number 027963, in
Book 223, Page 115, with the County Clerk of Franklin County, Mississippi.
96. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 098-03-99, with the County Clerk of
Franklin County, Mississippi.
HINDS COUNTY, MISSISSIPPI
97. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File Number 87931, in Mortgage Book 295, Page 686, with the County Clerk
of Hinds County, Mississippi, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, as File Number 97849, in Book 316,
Page 85, with the County Clerk of Hinds County, Mississippi.
98. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, filed on March 18, 1999, as File Number 106313 in Book 334,
Page 525, with the County Clerk of Hinds County, Mississippi, as amended by
that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 10, 2000, as Instrument Number 118484, in
Book 360, Page 67, with the County Clerk of Hinds County, Mississippi.
99. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 18, 1999, as File Number 033238, with the County Clerk of
Hinds County, Mississippi.
JASPER COUNTY, MISSISSIPPI, 1ST JUDICIAL DISTRICT
100. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 12, 1995,
in Deed of Trust
Schedule 2.2-17
Records Book 92, Page 175, with the County Clerk of Jasper County,
Mississippi, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 16, 1998, in Deed of Trust Records Book 102,
Page 247, with the County Clerk of Jasper County, Mississippi.
101. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 15, 1999, in Book 106, Page(s) 586-663,
with the County Clerk of Jasper County, Mississippi First Judicial
District, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, in Deed of Trust Book 112, Page
249, with the County Clerk of Jasper County, Mississippi First Judicial
District.
102. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 15, 1999, in Book 20, Page 612, with the County Clerk of
Jasper County, Mississippi First Judicial District.
103. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12 ,2001, from Mortgagor to Existing
Agent, filed on February 12, 2001, as DTB Number 113, Page 76, with the
County Clerk of Jasper County, Mississippi.
104. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 12, 2001, as File Number 64078, in Book 24-1, with the
County Clerk of Jasper County, Mississippi.
JEFFERSON DAVIS COUNTY, MISSISSIPPI
105. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
as File Number 9601950, in Mortgage Book 431, Page 465, with the County
Clerk of Jefferson Davis County, Mississippi, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, as File Number 9800082, in Book
441, Page 484, with the County Clerk of Jefferson Davis County,
Mississippi.
106. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 18, 1999, in Book 450, Page 296 as
Document Number 9900823, with the County Clerk of Jefferson Davis County,
Mississippi, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 14, 2000, as Instrument Number 0003787,
in Book 462, Page 511, with the County Clerk of Jefferson Davis County,
Mississippi.
Schedule 2.2-18
107. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 18, 1999, as File Number 99-0373, with the County Clerk of
Jefferson Davis County, Mississippi.
JONES COUNTY, MISSISSIPPI, 1ST JUDICIAL DISTRICT
108. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 18, 1996,
in Mortgage Book 436, Page 434, with the County Clerk of Jones County,
Mississippi, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, Deed of Trust Records Book 464,
Page 608, with the County Clerk of Jones County, Mississippi.
109. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 7, 2001, as DTB Number 525, Page 195, with the
County Clerk of Jones County, Mississippi First Judicial District.
110. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as File Number 10,693, with the County Clerk of
Jones County, Mississippi First Judicial District.
JONES COUNTY, MISSISSIPPI, 2ND JUDICIAL DISTRICT
111. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 12, 1995,
in Deed of Trust Records Book 1044, Page 538, with the County Clerk of
Jones County, Mississippi Second Judicial District.
112. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 19, 1999, in Book 1192, Page 521, with
the County Clerk of Jones County, Mississippi Second Judicial District as
amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, in Deed of Trust Book 1260, Page
676, with the County Clerk of Jones County, Mississippi Second Judicial
District.
113. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 19, 1999, in Book 1192, Page 521, with the County Clerk of
Jones County, Mississippi Second Judicial District.
114. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 7, 2001, as DTB Number 1269, Page 334, with the
County Clerk of Jones County, Mississippi Second Judicial District.
Schedule 2.2-19
115. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as File Number 111,382, with the County Clerk of
Jones County, Mississippi Second Judicial District.
LINCOLN COUNTY, MISSISSIPPI
116. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to
Administrative Agent, filed on February 13, 2001, as MOB Number 1086, Page
439, with the County Clerk of Lincoln County, Mississippi.
117. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 13, 2001, as Entry Number 035001, with the County Clerk
of Lincoln County, Mississippi.
LOWNDES COUNTY, MISSISSIPPI
118. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 16, 1996,
in Mortgage Book 1165, Page 310, with the County Clerk of Lowndes County,
Mississippi, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, in Deed of Trust Records Book 1219,
Page 419, with the County Clerk of Lowndes County, Mississippi.
119. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, filed on March 15, 1999, as Trust Deed Number 1270, Page(s)
417-449, with the County Clerk of Lowndes County, Mississippi, as amended
by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 14, 2000, Trust Deed Book 1345, Page 344,
with the County Clerk of Lowndes County, Mississippi.
120. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 15, 1999, as File Number 123697, Trust Deed Number 1270,
Page 450, with the County Clerk of Lowndes County, Mississippi.
MADISON COUNTY, MISSISSIPPI
121. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 17, 1996,
as File Number 197658, in Book 991, Page 386, with the County Clerk of
Madison County, Mississippi, as amended by that certain
Schedule 2.2-20
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 9, 1998, in Book 1074, Page 535, with the
County Clerk of Madison County, Mississippi.
122. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, recorded on March 12, 1999, in Book 1159, Page 738, as
Document Number 276499, with the County Clerk of Madison County,
Mississippi, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 13, 2000, as Instrument Number 323455, in
Book 1265, Page 406, with the County Clerk of Madison County, Mississippi.
123. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 998292, with the County Clerk of
Madison County, Mississippi.
PERRY COUNTY, MISSISSIPPI
124. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated October 13, 2000, executed by Mortgagor in
favor of Existing Agent, filed on November 13, 2000, in Book 158, Page 488,
with the County Clerk of Perry County, Mississippi.
125. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on November 13, 2000, as File Number 00-11-1,050, with the County
Clerk of Perry County, Mississippi.
126. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 7, 2001, as DTB Number 160, Page 1, with the
County Clerk of Perry County, Mississippi.
127. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as Entry Number 01-02-1,298, with the County
Clerk of Perry County, Mississippi.
PIKE COUNTY, MISSISSIPPI
128. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated October 13, 2000, executed by Mortgagor in
favor of Existing Agent, filed on November 14, 2000, as Instrument Number
134782, Book 0599, Page 0121, with the County Clerk of Pike County,
Mississippi.
129. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on November 14, 2000, as File Number 5607, with the County Clerk of
Pike County, Mississippi.
Schedule 2.2-21
130. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent filed on February 7, 2001, as DTB Number 0602, Page 0914, with the
County Clerk of Pike County, Mississippi.
131. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as File Number 7060, with the County Clerk of
Pike County, Mississippi.
RANKIN COUNTY, MISSISSIPPI
132. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 22, 1995,
in Book 1043, Page 498, with the County Clerk of Rankin County,
Mississippi, as assigned and amended by that certain
Assignment and Amendment to Mortgage filed June 11, 1996, in Book 1125,
Page 662, with the County Clerk of Rankin County, Mississippi, and as
amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 15, 1998, in Book 1262, Page 513, with the
County Clerk of Rankin County, Mississippi.
133. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, filed on March 12, 1999, in Book 1394, Page 560, with the
County Clerk of Rankin County, Mississippi, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, in Book 1566, Page 416, with the
County Clerk of Rankin County, Mississippi.
134. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 16, 1999, as File Number 99-000-1082, with the County Clerk
of Rankin County, Mississippi.
SMITH COUNTY, MISSISSIPPI
135. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 12, 1995,
in Deed of Trust Records Book 404, Page 556, with the County Clerk of Smith
County, Mississippi, as assigned and amended by that certain
Assignment and Amendment to Mortgage filed June 12, 1996, in Deed of Trust
Records Book 415, Page 166, with the County Clerk of Smith County,
Mississippi, and as amended by that certain
Schedule 2.2-22
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, LDT Book 431, Page 1, with the
County Clerk of Smith County, Mississippi.
136. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 11, 1996,
as File Number 3022, in Book 416, Page 85, with the County Clerk of Smith
County, Mississippi, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, in LDT Book 431, Page 1, with the
County Clerk of Smith County, Mississippi.
137. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, filed on March 12, 1999, in OGL Book 404, Page(s) 405-439,
with the County Clerk of Smith County, Mississippi, as amended by that
certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, in O&G Book 410, Page 400, with
the County Clerk of Smith County, Mississippi.
138. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 16, 1999, as File Number 39665, with the County Clerk of
Smith County, Mississippi.
WALTHALL COUNTY, MISSISSIPPI
139. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 12, 1995,
in Book 231, Page 568, with the County Clerk of Walthall County,
Mississippi, as assigned and amended by that certain
Assignment and Amendment to Mortgage filed June 10, 1996, in Book 239, Page
14, with the County Clerk of Walthall County, Mississippi, and as amended
by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, in Deed of Trust Book 248, Page
768, with the County Clerk of Walthall County, Mississippi.
140. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 12, 1996,
in Mortgage Book 239, Page 467, with the County Clerk of Walthall County,
Mississippi, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, in Deed of Trust Book 248, Page
768, with the County Clerk of Walthall County, Mississippi.
Schedule 2.2-23
141. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, filed on March 12, 1999, in Land Deed Trust Book 258, Page
224, with the County Clerk of Walthall County, Mississippi, as amended by
that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, in Book 268, Page 814, with the
County Clerk of Walthall County, Mississippi.
142. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 210-3-99, Book 8, with the County
Clerk of Walthall County, Mississippi.
WAYNE COUNTY, MISSISSIPPI
143. Deed of Trust, Mortgage, Assignment, Security Agreement and Financing
Statement executed by DMI in favor of Existing Agent, filed May 12, 1995,
in Deed of Trust Records Book 860, Page 531, with the County Clerk of Wayne
County, Mississippi, as assigned and amended by that certain
Assignment and Amendment to Mortgage filed June 10, 1996, in OT Deed Book
890, Page 448, with the County Clerk of Wayne County, Mississippi, and as
amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, in Deed of Trust Book 932, Page
179, with the County Clerk of Wayne County, Mississippi.
144. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production from DMI to Existing Agent, filed July 11, 1996,
in Mortgage Book 892, Page 321, with the County Clerk of Wayne County,
Mississippi, as amended by that certain
Amendment to Mortgages dated December 29, 1997, executed by DMI and
Existing Agent, filed January 12, 1998, in Deed of Trust Book 932, Page
179, with the County Clerk of Wayne County, Mississippi.
145. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated as of March 1, 1999, from Mortgagor to
Existing Agent, filed on March 12, 1999, in Deed Book 975, Page 365, with
the County Clerk of Wayne County, Mississippi, as amended by that certain
Amendment to Mortgages dated October 13, 2000, executed by Mortgagor and
Existing Agent, filed on November 9, 2000, in Deed of Trust Book 1032, Page
481, with the County Clerk of Wayne County, Mississippi.
Schedule 2.2-24
146. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on March 12, 1999, as File Number 99-322, with the County Clerk of
Wayne County, Mississippi.
147. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 7, 2001, as DTB Number 1038, Page 390, with the
County Clerk of Wayne County, Mississippi.
148. UCC-1 Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as File Number 01-186, with the County Clerk of
Wayne County, Mississippi.
TEXAS
ARCHER COUNTY, TEXAS
149. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 7, 2001, as File Number 100533, Volume 0602, Page
664, with the County Clerk of Archer County, Texas.
150. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as File Number 9283, with the County Clerk of
Archer County, Texas.
BRAZORIA COUNTY, TEXAS
151. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 7, 2001, as File Number 01-005055, with the County
Clerk of Brazoria County, Texas.
152. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as File Number 00112, with the County Clerk of
Brazoria County, Texas.
ECTOR COUNTY, TEXAS
153. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 13, 2001, as File Number 1728, Volume 1572, Page
0312, with the County Clerk of Ector County, Texas.
154. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 13, 2001, as File Number 416, with the County Clerk of
Ector County, Texas.
Schedule 2.2-25
MARION COUNTY, TEXAS
155. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 7, 2001, as File Number 249, Volume 629, Page 159,
with the County Clerk of Marion County, Texas.
156. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as File Number 6, with the County Clerk of
Marion County, Texas.
MATAGORDA COUNTY, TEXAS
157. Deed of Trust, Mortgage, Assignment, Security Agreement, Fixture Filing and
Financing Statement dated March 24, 2000, executed by Matrix Oil & Gas,
Inc. in favor of Union Bank of California, recorded on March 31, 2000, as
File Number 002022, in Volume 575, Page 957, with the County Clerk of
Matagorda County, Texas, as assigned by that certain
Assignment of Note and Liens dated July 10, 2001, executed by Union Bank of
California in favor of Existing Agent, filed on July 19, 2001, as Entry
Number 014959, in Book 625, Page 906, with the County Clerk of Matagorda
County, Texas.
MIDLAND COUNTY, TEXAS
158. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 7, 2001, as File Number 2014, Volume 1839, Page
67, with the County Clerk of Midland County, Texas.
159. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as File Number 386, with the County Clerk of
Midland County, Texas.
WOOD COUNTY, TEXAS
160. Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Assignment of Production dated January 12, 2001, from Mortgagor to Existing
Agent, filed on February 7, 2001, as File Number 0064322, Book 1768, Page
82, with the County Clerk of Wood County, Texas.
161. UCC Financing Statement executed by Mortgagor in favor of Existing Agent,
filed on February 7, 2001, as File Number 26353, with the Clerk of Court of
Wood County, Texas.
Schedule 2.2-26
SCHEDULE 2.3
------------
Existing Letters of Credit
Beneficiary Amount Applicant Expiration Issuer
----------- ------ --------- ---------- ------
Amoco Production Company $145,000 Borrower 10/15/02 Bank of America, N.A.
Mississippi State Oil & Gas Board $100,000 Borrower 1/13/03 Bank of America, N.A.
Bureau of Land Management $25,000 Borrower 6/12/03 Bank of America, N.A.
Mississippi State Oil & Gas Board $100,000 Borrower 6/29/03 Bank of America, N.A.
Schedule 2.3
SCHEDULE 8.5
------------
Litigation
Schedule 8.5
SCHEDULE 8.10
-------------
Licenses, Permits, Etc.
Schedule 8.10
SCHEDULE 8.13
-------------
Jurisdictions, Etc.
Schedule 8.13
SCHEDULE 9.10
-------------
Environmental Disclosure
Schedule 9.10