Exhibit 99.1
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REVOLVING CREDIT AGREEMENT
$1,000,000,000 REVOLVING CREDIT
AND COMPETITIVE BID FACILITY
AMONG
OCEAN ENERGY, INC.,
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT AND
AUCTION ADMINISTRATIVE AGENT,
BANK ONE, NA,
AND
FLEET NATIONAL BANK,
AS SYNDICATION AGENTS,
BNP PARIBAS,
AND
WELLS FARGO BANK TEXAS, N.A.,
AS DOCUMENTATION AGENTS,
BANK OF AMERICA, N.A.,
BANK OF MONTREAL,
THE BANK OF NOVA SCOTIA
AND
DEUTSCHE BANK AG NEW YORK BRANCH,
AS MANAGING AGENTS,
AND
THE OTHER LENDERS SIGNATORY HERETO
MAY 31, 2002
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TABLE OF CONTENTS
Page
Section 1 Definitions and Accounting Matters......................................... 1
1.1 Certain Defined Terms........................................................ 1
1.2 Accounting Terms and Determinations.......................................... 15
1.3 Types of Loans............................................................... 15
1.4 Miscellaneous................................................................ 15
Section 2 Commitments; Competitive Bid Facility...................................... 15
2.1 Committed Loans.............................................................. 15
2.2 Letters of Credit............................................................ 16
2.3 Reductions and Changes of Commitments........................................ 19
2.4 Fees......................................................................... 19
2.5 Affiliates; Lending Offices.................................................. 19
2.6 Several Obligations.......................................................... 20
2.7 Repayment of Loans; Evidence of Debt......................................... 20
2.8 Use of Proceeds.............................................................. 21
2.9 Competitive Bid Procedure.................................................... 21
Section 3 Borrowings, Prepayments and Selection of Interest Rates.................... 23
3.1 Borrowings................................................................... 23
3.2 Prepayments.................................................................. 23
3.3 Selection of Interest Rates.................................................. 23
Section 4 Payments of Principal and Interest......................................... 24
4.1 Repayment of Loans and Reimbursement Obligations............................. 24
4.2 Interest..................................................................... 24
Section 5 Payments; Pro Rata Treatment; Computations, Etc............................ 25
5.1 Payments..................................................................... 25
5.2 Pro Rata Treatment........................................................... 25
5.3 Computations................................................................. 25
5.4 Minimum and Maximum Amounts.................................................. 26
5.5 Certain Actions, Notices, Etc................................................ 26
5.6 Non-Receipt of Funds by Administrative Agent................................. 27
5.7 Sharing of Payments, Etc..................................................... 27
Section 6 Yield Protection and Illegality............................................ 28
6.1 Additional Costs............................................................. 28
6.2 Limitation on Types of Loans................................................. 29
6.3 Illegality................................................................... 30
6.4 Substitute Alternate Base Rate Loans......................................... 31
6.5 Compensation................................................................. 31
6.6 Additional Costs in Respect of Letters of Credit............................. 31
6.7 Capital Adequacy............................................................. 32
6.8 Limitation on Additional Charges; Substitute Lenders; Non-Discrimination..... 32
Section 7 Conditions Precedent....................................................... 33
7.1 Initial Loans................................................................ 33
7.2 Initial and Subsequent Loans................................................. 35
Section 8 Representations and Warranties............................................. 35
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8.1 Corporate Existence.......................................................... 36
8.2 Corporate Power and Authorization............................................ 36
8.3 Binding Obligations.......................................................... 36
8.4 No Legal Bar or Resultant Lien............................................... 36
8.5 No Consent................................................................... 36
8.6 Financial Condition.......................................................... 36
8.7 Investments and Guaranties................................................... 37
8.8 Liabilities and Litigation................................................... 37
8.9 Taxes and Governmental Charges............................................... 37
8.10 Title to Properties.......................................................... 37
8.11 Defaults..................................................................... 37
8.12 Location of Businesses and Offices........................................... 37
8.13 Compliance with Law.......................................................... 38
8.14 Margin Stock................................................................. 38
8.15 Subsidiaries................................................................. 38
8.16 ERISA........................................................................ 38
8.17 Investment Company Act....................................................... 39
8.18 Public Utility Holding Company Act........................................... 39
8.19 Environmental Matters........................................................ 39
8.20 Claims and Liabilities....................................................... 40
8.21 Solvency..................................................................... 40
Section 9 Affirmative Covenants...................................................... 40
9.1 Financial Statements and Reports............................................. 40
9.2 Officers' Certificates....................................................... 41
9.3 Taxes and Other Liens........................................................ 42
9.4 Maintenance.................................................................. 42
9.5 Further Assurances........................................................... 42
9.6 Performance of Obligations................................................... 42
9.7 Reimbursement of Expenses.................................................... 42
9.8 Insurance.................................................................... 43
9.9 Accounts and Records......................................................... 44
9.10 Notice of Certain Events..................................................... 44
9.11 ERISA Information and Compliance............................................. 45
Section 10 Negative Covenants........................................................ 46
10.1 Debts, Guaranties and Other Obligations...................................... 46
10.2 Liens........................................................................ 48
10.3 Dividend Payment Restrictions................................................ 51
10.4 Mergers and Sales of Assets.................................................. 51
10.5 Proceeds of Loans............................................................ 52
10.6 ERISA Compliance............................................................. 52
10.7 Total Leverage Ratio......................................................... 52
10.8 [Intentionally omitted]...................................................... 52
10.9 Minimum Net Worth............................................................ 52
10.10 Nature of Business......................................................... 52
10.11 Covenants in Other Agreements.............................................. 52
Section 11 Defaults.................................................................. 53
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11.1 Events of Default............................................................ 53
11.2 Collateral Account........................................................... 55
11.3 Preservation of Security for Unmatured Reimbursement Obligations............. 55
11.4 Right of Setoff.............................................................. 56
Section 12 Agents.................................................................... 56
12.1 Appointment, Powers and Immunities........................................... 56
12.2 Reliance by Agents........................................................... 57
12.3 Defaults..................................................................... 58
12.4 Rights as a Lender........................................................... 58
12.5 Indemnification.............................................................. 58
12.6 Non-Reliance on Agents and Other Lenders..................................... 59
12.7 Failure to Act............................................................... 59
12.8 Resignation or Removal of Administrative Agent............................... 59
Section 13 Miscellaneous............................................................. 60
13.1 Waiver....................................................................... 60
13.2 Notices...................................................................... 60
13.3 Indemnification.............................................................. 60
13.4 Amendments, Etc.............................................................. 61
13.5 Successors and Assigns....................................................... 62
13.6 Limitation of Interest....................................................... 64
13.7 Survival..................................................................... 65
13.8 Captions..................................................................... 66
13.9 Counterparts................................................................. 66
13.10 GOVERNING LAW; FORUM SELECTION; CONSENT TO JURISDICTION.................... 66
13.11 WAIVER OF JURY TRIAL; PUNITIVE DAMAGES..................................... 66
13.12 Severability............................................................... 67
13.13 Confidential Information................................................... 67
13.14 Tax Forms.................................................................. 68
13.15 Entire Agreement........................................................... 68
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EXHIBITS:
Exhibit A Unrestricted Subsidiaries
Exhibit B Form of Request for Extension of Credit
Exhibit C Subsidiaries (with Addresses)
Exhibit D Form of Compliance Certificate
Exhibit E Assignment and Acceptance
Exhibit F Form of Competitive Bid Request
Exhibit G Form of Notice to Lenders of Competitive Bid Request
Exhibit H Form of Competitive Bid
Exhibit I Form of Competitive Bid Administrative Questionnaire
Exhibit J Continuing Letters of Credit
Exhibit K Form of Guaranty Agreement
Exhibit L Disclosure Statement
Exhibit M Commitments
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of May 31, 2002, is by and
among OCEAN ENERGY, INC. (the "Company"), a corporation duly organized and
validly existing under the laws of the State of Delaware, each of the financial
institutions which is or which may from time to time become a signatory hereto
(individually, a "Lender" and, collectively, the "Lenders"), BANK ONE, NA ("Bank
One") and FLEET NATIONAL BANK ("Fleet"), as Syndication Agents for the Lenders
(in such capacity, the "Syndication Agents"), BNP PARIBAS ("BNP Paribas") and
WELLS FARGO BANK TEXAS, N.A. ("Wells Fargo"), as Documentation Agents for the
Lenders (in such capacity, the "Documentation Agents"), BANK OF AMERICA, N.A.
("Bank of America"), BANK OF MONTREAL ("Bank of Montreal"), THE BANK OF NOVA
SCOTIA ("The Bank of Nova Scotia"), and DEUTSCHE BANK AG NEW YORK BRANCH
("Deutsche Bank"), as Managing Agents for the Lenders (in such capacity, the
"Managing Agents"), and JPMORGAN CHASE BANK ("JPMorgan"), as Administrative
Agent for the Lenders (in such capacity, the "Administrative Agent") and as
Auction Administrative Agent for the Lenders (in such capacity, the "Auction
Administrative Agent").
The parties hereto agree as follows:
SECTION 1 DEFINITIONS AND ACCOUNTING MATTERS.
1.1 Certain Defined Terms. As used herein, each term defined above
shall have the meaning indicated above. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.1 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"Additional Costs" shall have the meaning ascribed to such term in
Section 6.1 hereof.
"Affiliate" shall mean, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person and, if such Person is an individual, any member of
the immediate family (including parents, siblings, spouse, children,
stepchildren, grandchildren, nephews and nieces) of such individual and any
trust whose principal beneficiary is such individual or one or more members of
such immediate family and any Person who is controlled by any such member or
trust. As used in this definition, "control" (including, with correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise).
"Agents" shall mean Administrative Agent, the Auction Administrative
Agent, the Documentation Agents, the Syndication Agents and the Managing Agents,
together with any successors in any such capacities.
"Agreement" shall mean this Revolving Credit Agreement, as such
agreement from time to time may be amended, amended and restated, supplemented
or otherwise modified.
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"Alternate Base Rate" shall mean, for any day, a rate per annum equal
to the higher of (a) the Prime Rate in effect on such day or (b) 1/2 of 1% plus
the Federal Funds Rate in effect for such day (rounded upwards, if necessary, to
the nearest 1/16th of 1%). For purposes hereof, "Federal Funds Rate" shall mean,
for any period, a fluctuating interest rate per annum equal for each day during
such period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
Administrative Agent from three Federal funds brokers of recognized standing
selected by it. For purposes of this Agreement, any change in the Alternate Base
Rate due to a change in the Federal Funds Rate shall be effective on the
effective date of such change in the Federal Funds Rate. If for any reason
Administrative Agent shall have determined (which determination shall be
conclusive and binding, absent manifest error) that it is unable to ascertain
the Federal Funds Rate for any reason, including, without limitation, the
inability or failure of Administrative Agent to obtain sufficient bids or
publications in accordance with the terms hereof, the Alternate Base Rate shall
be the Prime Rate until the circumstances giving rise to such inability no
longer exist. For the purposes hereof, "Prime Rate" shall mean the prime rate as
announced from time to time by Administrative Agent, and thereafter entered in
the minutes of Administrative Agent's Loan and Discount Committee. Without
notice to the Company or any other Person, the Prime Rate shall change
automatically from time to time as and in the amount by which said prime rate
shall fluctuate. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer.
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate. For purposes of this Agreement any
change in the Alternate Base Rate due to a change in the Prime Rate shall be
effective on the date such change in the Prime Rate is announced.
"Alternate Base Rate Loans" shall mean Loans which bear interest at a
rate based upon the Alternate Base Rate.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, such office of such Lender (or of an affiliate of such Lender) as
such Lender may from time to time specify to Administrative Agent and the
Company as the office by which its Loans of such Type are to be made and/or
issued and maintained.
"Applicable Margin" shall mean, on any day, with respect to any
Alternate Base Rate Loan or Eurodollar Loan, the applicable per annum percentage
set forth at the appropriate intersection in the table shown below, based on the
Rating as of the close of business on the preceding Business Day:
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Alternate Base Rate Eurodollar Loan
Rating Loan Applicable Margin Applicable Margin
BBB+/Baa1 and higher 0.00% 0.750%
BBB/Baa2 0.00% 0.875%
BBB-/Baa3 0.00% 1.000%
BB+/Ba1 0.200% 1.200%
BB/Ba2 0.450% 1.450%
BB-/Ba3 and lower 0.700% 1.700%
provided that on each day on which the aggregate unpaid principal amount of all
Loans outstanding exceeds $250,000,000, the then Applicable Margin set forth in
each portion of the grid set forth above shall be increased by an amount equal
to 0.250%, except that no such increase shall occur with respect to the
Applicable Margin for purposes of determining the Letter of Credit Fee.
"Applications" shall mean all applications and agreements for Letters
of Credit, or similar instruments or agreements, now or hereafter executed by
any Person in connection with any Letter of Credit now or hereafter issued or to
be issued.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, as
amended, and any successor statute.
"Business Day" shall mean any day other than a day on which commercial
banks are authorized or required to close in Houston, Texas or New York, New
York, and where such term is used in the definition of "Quarterly Date" in this
Section 1.1 or if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, or an Interest Period for, a Eurodollar Loan or a
notice by the Company with respect to any such borrowing, payment, prepayment or
Interest Period, a day which is also a day on which dealings in Dollar deposits
are carried out in the relevant interbank market.
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Change of Control" shall mean a change resulting when any Unrelated
Person or any Unrelated Persons acting together which would constitute a Group
together with any Affiliates or Related Persons thereof (in each case also
constituting Unrelated Persons) shall at any time either (i) Beneficially Own
more than 35% of the aggregate voting power of all classes of Voting Stock of
the Company or (ii) during any period of two consecutive years ending on or
after the Effective Date, as determined as of the last day of each calendar
quarter after the Effective Date, the individuals (the "Incumbent Directors")
who at the beginning of such period constituted the Board of Directors of the
Company (other than additions thereto or removals therefrom from time to time
thereafter approved by a vote of the Board of Directors in accordance with the
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Company's by-laws) shall cease for any reason to constitute 51% or more of the
Board of Directors of the Company. As used herein (a) "Beneficially Own" means
"beneficially own" as defined in Rule 13d-3 of the Securities Exchange Act of
1934, as amended, or any successor provision thereto; provided, however, that,
for purposes of this definition, a Person shall not be deemed to Beneficially
Own securities tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person's Affiliates until such tendered
securities are accepted for purchase or exchange; (b) "Group" means a "group"
for purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended; (c) "Unrelated Person" means at any time any Person other than the
Company or any Subsidiary and other than any trust for any employee benefit plan
of the Company or any Subsidiary of the Company; (d) "Related Person" of any
Person shall mean any other Person owning (1) 5% or more of the outstanding
common stock of such Person or (2) 5% or more of the Voting Stock of such
Person; and (e) "Voting Stock" of any Person shall mean capital stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"Code" shall mean the Internal Revenue Code of 1986, as amended, or any
successor statute, together with all regulations, rulings and interpretations
thereof or thereunder by the Internal Revenue Service.
"Commitment" shall mean, as to any Lender, the obligation, if any, of
such Lender to make Committed Loans and incur Letter of Credit Liabilities in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount, if any, set forth opposite such Lender's name on Exhibit M under the
caption "Commitment" (as the same may be reduced from time to time pursuant to
Section 2.3 or Section 11.1).
"Commitment Percentage" shall mean, as to any Lender, the percentage
equivalent of a fraction the numerator of which is the amount of such Lender's
Commitment and the denominator of which is the aggregate amount of the
Commitments of all Lenders.
"Committed Loans" shall mean the loans provided for in Section 2.1
hereof.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.9 hereof.
"Competitive Bid Administrative Questionnaire" shall mean a
questionnaire substantially in the form of Exhibit I.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.9 hereof, the fixed rate of interest, in each case,
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall have the meaning ascribed to such term
in Section 2.9 hereof.
"Competitive Loans" shall mean loans provided for in Section 2.9
hereof.
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"Consolidated Net Worth" shall mean, with respect to the Company and
its Subsidiaries, the sum of preferred stock (if any), par value of common
stock, capital in excess of par value of common stock and retained earnings,
less treasury stock (if any), goodwill, cost in excess of fair value of net
assets acquired and all other assets that are properly classified as intangible
assets, but plus the amount of noncash write downs occurring on or after January
1, 2002 of long-lived assets in compliance with GAAP or SEC guidelines, and
excluding any extraordinary or non-recurring net gains or losses together with
any related provision for taxes on such gain or loss, realized in connection
with any extraordinary or nonrecurring gains or losses, and plus or minus, as
appropriate, foreign currency translation adjustments, all as determined on a
consolidated basis.
"Cover" for Letter of Credit Liabilities shall be effected by paying to
Administrative Agent immediately available funds, to be held by Administrative
Agent in a collateral account maintained by Administrative Agent at its
Principal Office and collaterally assigned as security for the financial
accommodations extended pursuant to this Agreement using documentation
satisfactory to Administrative Agent, in an amount equal to any required
prepayment. Such amount shall be retained by Administrative Agent in such
collateral account until such time as (x) in the case of Cover being provided
pursuant to Section 2.2(a), the applicable Letter of Credit shall have expired
and Reimbursement Obligations, if any, with respect thereto shall have been
fully satisfied or (y) in the case of Cover being provided pursuant to Section
3.2(b), the outstanding principal amount of all Revolving Credit Obligations is
not greater than the aggregate amount of the Commitments.
"Default" shall mean an Event of Default or an event which with notice
or lapse of time or both would, unless cured or waived, become an Event of
Default.
"Disclosure Statement" shall mean the Disclosure Statement delivered to
Administrative Agent by the Company and attached as Exhibit L.
"Dividend Payment" shall mean, with respect to any Person, dividends
(in cash, property or obligations) on, or other payments or distributions on
account of, or the redemption of, or the setting apart of money for a sinking or
other analogous fund for the purchase, redemption, retirement or other
acquisition of, any shares of any class of capital stock of such Person, or the
exchange or conversion of any shares of any class of capital stock of such
Person for or into any obligations of or shares of any other class of capital
stock of such Person or any other property, but excluding dividends to the
extent payable in, or exchanges or conversions for or into, shares of common
stock of the Company or options or warrants to purchase common stock of the
Company.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"EBITDAX" shall mean net earnings (excluding material gains and losses
on sales and retirement of assets, non-cash write downs, charges resulting from
accounting convention changes and deductions for exploration expenses) before
deduction for federal and state taxes, interest expense (including capitalized
interest), operating lease rentals or depreciation, depletion and amortization
expense, all determined in accordance with GAAP.
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"Effective Date" shall mean May 31, 2002.
"Environmental Claim" shall mean any third party (including
Governmental Authorities and employees) action, lawsuit, claim or proceeding
(including claims or proceedings at common law or under the Occupational Safety
and Health Act or similar laws relating to safety of employees) which seeks to
impose liability for (i) noise; (ii) pollution or contamination of the air,
surface water, ground water or land or the clean-up of such pollution or
contamination; (iii) solid, gaseous or liquid waste generation, handling,
treatment, storage, disposal or transportation; (iv) exposure to Hazardous
Substances; (v) the safety or health of employees; or (vi) the manufacture,
processing, distribution in commerce or use of Hazardous Substances. An
"Environmental Claim" includes, but is not limited to, a common law action, as
well as a proceeding to issue, modify or terminate an Environmental Permit, or
to adopt or amend a regulation to the extent that such a proceeding attempts to
redress violations of an applicable permit, license, or regulation as alleged by
any Governmental Authority.
"Environmental Liabilities" shall mean all liabilities arising from any
Environmental Claim, Environmental Permit or Requirement of Environmental Law
under any theory of recovery, at law or in equity, and whether based on
negligence, strict liability or otherwise, including but not limited to:
remedial, removal, response, abatement, investigative, monitoring, personal
injury and damage to property or injuries to persons, and any other related
costs, expenses, losses, damages, penalties, fines, liabilities and obligations,
and all costs and expenses necessary to cause the issuance, reissuance or
renewal of any Environmental Permit including reasonable attorneys' fees and
court costs.
"Environmental Permit" shall mean any permit, license, approval or
other authorization under any applicable Legal Requirement relating to pollution
or protection of health or the environment, including laws, regulations or other
requirements relating to emissions, discharges, releases or threatened releases
of pollutants, contaminants or hazardous substances or toxic materials or wastes
into ambient air, surface water, ground water or land, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants or Hazardous Substances.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and all rules, regulations and interpretations by
the Internal Revenue Service or the Department of Labor thereunder.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) which is a member of a group of which any Obligor is a member and
which is under common control within the meaning of the regulations under
Section 414 of the Code.
"Eurodollar Base Rate" shall mean, with respect to any Interest Period
for any Eurodollar Loan, the lesser of (A) the rate per annum (rounded upwards,
if necessary, to the nearest 1/16th of 1%) equal to the average of the offered
quotations appearing on Telerate Page 3750 (or if such Telerate Page shall not
be available, any successor or similar service as may be selected by
Administrative Agent and the Company) as of 11:00 a.m., Houston, Texas time (or
as soon thereafter as practicable) on the day two Business Days prior to the
first day of such Interest Period for Dollar deposits having a term comparable
to such Interest Period and in an amount
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comparable to the principal amount of the Eurodollar Loan to which such Interest
Period relates or (B) the Highest Lawful Rate. If none of such Telerate Page
3750 nor any successor or similar service is available, then the "Eurodollar
Base Rate" shall mean, with respect to any Interest Period for any applicable
Eurodollar Loan, the lesser of (A) the rate per annum (rounded upwards, if
necessary, to the nearest 1/16th of 1%) determined by Administrative Agent to be
the average of the rates quoted by the Reference Lenders at approximately 11:00
a.m., Houston, Texas time (or as soon thereafter as practicable) on the day two
Business Days prior to the first day of such Interest Period for the offering by
such Reference Lenders to leading banks in the London interbank market of Dollar
deposits having a term comparable to such Interest Period and in an amount
comparable to the principal amount of the Eurodollar Loan to which such Interest
Period relates or (B) the Highest Lawful Rate. If any Reference Lender does not
furnish a timely quotation, Administrative Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Lender or Reference Lenders; if none of such quotations is
available on a timely basis, the provisions of Section 6.2 shall apply. Each
determination of the Eurodollar Base Rate shall be conclusive and binding,
absent manifest error, and may be computed using any reasonable averaging and
attribution method.
"Eurodollar Loans" shall mean Loans the interest on which is determined
on the basis of rates referred to in the definition of "Eurodollar Base Rate" in
this Section 1.1.
"Eurodollar Rate" shall mean, for any Interest Period for any
Eurodollar Loan, a rate per annum determined by Administrative Agent to be equal
to the Eurodollar Base Rate for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such term in
Section 11 hereof.
"Facility Amount" shall mean, at any date of determination, the
aggregate amount of the Commitments (which amount shall initially be One Billion
Dollars ($1,000,000,000)), as such amount may be reduced from time to time
pursuant to the terms of this Agreement.
"Facility Fee Percentage" shall mean, on any date, the applicable per
annum percentage set forth at the appropriate intersection in the table shown
below, based on the Rating as of the close of business on the preceding Business
Day:
Rating Facility Fee Percentage
BBB-/Baa3 and higher 0.250%
BB+/Ba1 and lower 0.300%
"Financial Statements" shall mean the financial statement or
statements, together with the notes and schedules thereto, described or referred
to in Sections 8.6 and 9.1.
"GAAP" shall mean as to a particular Person, such accounting practice
as, in the opinion of KPMG LLP or other independent accountants of recognized
national standing retained by such Person and acceptable to the Majority
Lenders, conforms at the time to generally accepted
7
accounting principles, consistently applied. Generally accepted accounting
principles means those principles and practices (a) which are recognized as such
by the Financial Accounting Standards Board, (b) which are applied for all
periods after the Effective Date in a manner consistent with the manner in which
such principles and practices were applied to the most recent audited financial
statements of the relevant Person furnished to the Lenders, except only for such
changes in principles and practices with which the applicable independent public
accountants concur and which are disclosed to the Lenders in writing and (c)
which are consistently applied for all periods after the Effective Date so as to
reflect properly the financial condition and results of operations of such
Person.
"Governmental Authority" shall mean any sovereign governmental
authority, the United States of America, any State of the United States and any
political subdivision of any of the foregoing, and any central bank, agency,
instrumentality, department, commission, board, bureau, authority, court or
other tribunal or quasi-governmental authority in each case whether executive,
legislative, judicial, regulatory or administrative, having jurisdiction over
the Company, any of its Subsidiaries, any of their respective property,
Administrative Agent or any Lender.
"Guarantee" by any Person shall mean any obligation, contingent or
otherwise, of any such Person directly or indirectly guaranteeing any
Indebtedness of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness (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 or
otherwise, other than agreements to purchase assets, goods, securities or
services at an arm's length price in the ordinary course of business) or (ii)
entered into for the purpose of assuring in any other manner the holder of such
Indebtedness of the payment thereof or to protect such holder 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. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" shall mean Ocean Energy, Inc., a Louisiana corporation.
"Guaranty Agreement" shall mean the guaranty agreement substantially in
the form of Exhibit K, with appropriate insertions and deletions, executed or to
be executed by the Guarantor, as such agreement from time to time may be
amended, amended and restated, supplemented or otherwise modified.
"Havre" shall mean Havre Pipeline Company, LLC, a Texas limited
liability company.
"Hazardous Substance" shall mean petroleum products, and any hazardous
or toxic waste or substance defined or regulated as such from time to time by
any law, rule, regulation or order described in the definition of "Requirements
of Environmental Law".
8
"Highest Lawful Rate" shall mean, on any day, the maximum nonusurious
rate of interest permitted for that day by whichever of applicable federal or
New York law permits the higher interest rate, stated as a rate per annum.
"Indebtedness" shall mean, as to any Person, without duplication: (i)
indebtedness of such Person for borrowed money (whether by loan or the issuance
and sale of debt securities) or for the deferred purchase or acquisition price
of property or services, including, without limitation, obligations payable out
of Hydrocarbon production; (ii) obligations, whether fixed or contingent, of
such Person in respect of letters of credit, acceptances or similar instruments
issued or accepted by banks and other financial institutions for the account of
such Person or any other Person; (iii) Capital Lease Obligations of such Person;
(iv) Redemption Obligations of such Person and other obligations of such Person
to redeem or otherwise retire shares of capital stock of such Person or any
other Person, in each case to the extent that the redemption obligations will
arise prior to the stated maturity of the Obligations; (v) indebtedness of
others of the type described in clause (i), (ii), (iii) or (iv) above secured by
a Lien on the property of such Person, whether or not the respective obligation
so secured has been assumed by such Person, to the extent of the fair market
value of such property; and (vii) indebtedness of others of the type described
in clause (i), (ii), (iii) or (iv) above Guaranteed by such Person, to the
extent of such Guarantee.
"Interest Period" shall mean:
(a) With respect to any Eurodollar Loan, the period commencing on
(i) the date such Loan is made or converted into or continued as a Eurodollar
Loan or (ii) in the case of a roll-over to a successive Interest Period, the
last day of the immediately preceding Interest Period and ending on the
numerically corresponding day in the first, second, third or sixth calendar
month thereafter, as the Company may select as provided in Section 5.5 hereof,
except that each such Interest Period which commences on any day for which there
is no numerically corresponding day in the appropriate subsequent calendar month
shall end on the last Business Day of the appropriate subsequent calendar month.
(b) With respect to any other Competitive Loan, the period
commencing on the date such Loan is made and ending on the date specified in the
Competitive Bid in which the offer to make the Competitive Loan was extended;
provided, however, that each such period shall have a duration of not less than
seven calendar days or more than 180 calendar days.
Notwithstanding the foregoing: (i) each Interest Period which would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, in the case of an Interest Period for Eurodollar
Loans, if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); (ii) no Interest Period
applicable to any Eurodollar Loan or any Competitive Loan shall extend beyond
the end of the scheduled Revolving Credit Availability Period; and (iii) no
Interest Period for any Eurodollar Loans shall have a duration of less than one
month and, if the Interest Period therefor would otherwise be a shorter period,
such Loans shall not be available hereunder.
"Investments" shall mean with respect to any Person any advance, loan
or other extension of credit or capital contribution (other than prepaid
expenses in the ordinary course of business)
9
to (by means of transfers of property or assets or otherwise) purchase or own
any stocks, bonds, notes, debentures or other securities of, or incur contingent
liability with respect to (except for the endorsement of checks in the ordinary
course of business and except for the Indebtedness and Liens permitted under
this Agreement), any other Person.
"Issuer" shall mean each Lender or any of its Affiliates issuing a
Letter of Credit hereunder.
"Legal Requirement" shall mean any law, statute, ordinance, decree,
requirement, order, judgment, rule, regulation (or interpretation of any of the
foregoing) of, and the terms of any license or permit issued by, any
Governmental Authority, now or hereafter in effect.
"Letter of Credit" shall mean (i) any letter of credit issued by an
Issuer in the manner and subject to the terms and provisions of Section 2.2
hereof and (ii) each letter of credit outstanding on the Effective Date listed
on Exhibit J which letters of credit will be deemed to be issued and outstanding
under this Agreement as of the Effective Date.
"Letter of Credit Fee" shall mean a per annum rate equal to the
Applicable Margin for Eurodollar Loans in effect from time to time.
"Letter of Credit Liabilities" shall mean, at any time and in respect
of any Letter of Credit, the sum of (i) the amount available for drawings under
such Letter of Credit plus (ii) the aggregate unpaid amount of all Reimbursement
Obligations at the time due and payable in respect of previous drawings made
under such Letter of Credit.
"Lien" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, collateral assignment, security interest or encumbrance of any
kind in respect of such asset. For the purposes of this Agreement, a Person
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loan Documents" shall mean this Agreement, the Guaranty Agreement, all
Applications, all instruments, certificates and agreements now or hereafter
executed or delivered to Administrative Agent or any Lender pursuant to any of
the foregoing, and all amendments, modifications, renewals, extensions,
increases and rearrangements of, and substitutions for, any of the foregoing.
"Loans" shall mean Committed Loans and Competitive Loans.
"Majority Lenders" shall mean (a) prior to the termination of the
Commitments, Lenders having greater than 50% of the Facility Amount and (b)
after the termination of the Commitments, Lenders having greater than 50% of the
aggregate principal amount of the Loans and the Letter of Credit Liabilities.
"Margin Regulations" shall mean, as applicable, Regulations U and X of
the Board of Governors of the Federal Reserve System, as from time to time in
effect.
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"Material Adverse Effect" shall mean a material adverse effect on the
business, condition (financial or otherwise), operations or properties
(including proven oil and gas reserves) of the Company and its Subsidiaries,
taken as a whole, or on the ability of the Company to perform its material
obligations under any Loan Document to which it is a party.
"Obligations" shall mean, as at any date of determination thereof, the
sum of the following: (i) the aggregate principal amount of Loans outstanding
hereunder plus (ii) the aggregate amount of the Letter of Credit Liabilities
hereunder plus (iii) all other liabilities, obligations and indebtedness of the
Company, any Subsidiary of the Company or any other Obligor under any Loan
Document.
"Obligor" shall mean the Company and the Guarantor.
"Organizational Documents" shall mean, with respect to a corporation,
the certificate of incorporation, articles of incorporation and bylaws of such
corporation; with respect to a partnership, the partnership agreement
establishing such partnership; with respect to a joint venture, the joint
venture agreement establishing such joint venture; with respect to a limited
liability company, the certificate of formation and operating agreement (or
comparable documents) of such limited liability company; and with respect to a
trust, the instrument establishing such trust; in each case including any and
all modifications thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" shall mean an individual, a corporation, a company, a bank, a
voluntary association, a partnership, a trust, an unincorporated organization,
any Governmental Authority or any other entity.
"Plan" shall mean an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code and is either (a) maintained by the Company or any ERISA Affiliate
for employees of the Company or any ERISA Affiliate or (b) maintained pursuant
to a collective bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which the Company or any ERISA
Affiliate is then making or accruing an obligation to make contributions or has
within the preceding five plan years made contributions.
"Post-Default Rate" shall mean, in respect of any principal of any
Loan, any Reimbursement Obligation or any other amount payable by the Company
under this Agreement or any other Loan Document 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 lesser of (i) the sum of (x) with respect to Eurodollar Loans, 2%
per annum plus the applicable Eurodollar Rate then in effect plus the Applicable
Margin for Eurodollar Loans until the expiration of the applicable Interest
Period, (y) with respect to Competitive Loans, 2% per annum plus the applicable
fixed rate offered by the applicable Lender and accepted by the Company in
accordance with Section 2.9 hereof, and (z) with respect to Alternate Base Rate
Loans and with respect to Eurodollar Loans after the expiration of the
applicable Interest Period (and also with respect to indebtedness other than
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Loans), 2% plus the Alternate Base Rate as in effect from time to time plus the
Applicable Margin for Alternate Base Rate Loans or (ii) the Highest Lawful Rate.
"Principal Office" shall mean the principal office of Administrative
Agent, presently located at 1 Chase Manhattan Plaza, 8th Floor, New York, New
York 10081, Attention: Agent Services.
"Prior Credit Agreement" shall mean that certain Revolving Credit
Agreement dated as of March 30, 1999 among the Company, the Administrative
Agent, as administrative agent, certain lenders party thereto and other agents,
as amended by that certain First Amendment to Revolving Credit Agreement dated
as of February 29, 2000.
"Quarterly Dates" shall mean the last day of each March, June,
September and December, provided that, if any such date is not a Business Day,
then the relevant Quarterly Date shall be the next succeeding Business Day.
"Rating" shall mean the senior unsecured debt rating for the Company
publicly announced by Standard & Poor's Ratings Group or Moody's Investors
Service, Inc., or their respective successors. In the event the ratings are not
equivalent, the higher rating shall be treated as the "Rating" hereunder;
provided, that if such ratings differ by more than one (1) level, the Rating
shall be the average, rounded upwards, of the two ratings. In the event that
there is no Rating published by either Standard & Poor's Ratings Group or
Moody's Investors Service, Inc. or their respective successors, then the Rating
shall be deemed to be BB-/Ba3.
"Redemption Obligations" shall mean with respect to any Person all
mandatory redemption obligations of such Person with respect to preferred stock
or other equity securities issued by such Person or put rights in favor of the
holder of such preferred stock or other equity securities, to the extent that
such redemption obligations or put rights will arise prior to the stated
maturity of the Obligations. Notwithstanding the foregoing, customary redemption
obligations and put rights associated with a Change of Control or sale of assets
shall not constitute Redemption Obligations.
"Reference Lenders" shall mean JPMorgan and such other Lenders (up to a
maximum of two (2) additional Lenders) as the Company, with the approval of
Administrative Agent (which approval shall not be unreasonably withheld), may
from time to time designate.
"Register" shall have the meaning set forth in Section 13.5(d).
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time and any successor or other regulation relating to reserve requirements.
"Regulatory Change" shall mean, with respect to any Lender, any change
on or after the Effective Date in Legal Requirements (including Regulation D) or
the adoption or making on or after such date of any interpretation, directive or
request applying to a class of lenders including such Lender under any Legal
Requirements (whether or not having the force of law) by any Governmental
Authority.
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"Reimbursement Obligations" shall mean, as at any date, the obligations
of the Company then outstanding in respect of Letters of Credit under this
Agreement to reimburse Administrative Agent for the account of the applicable
Issuer for the amount paid by the applicable Issuer in respect of any drawing
under such Letter of Credit.
"Request for Extension of Credit" shall mean a request for extension of
credit duly executed by any Responsible Officer of the Company, appropriately
completed and substantially in the form of Exhibit B.
"Requirements of Environmental Law" shall mean all requirements imposed
by any law (including for example and without limitation The Resource
Conservation and Recovery Act and The Comprehensive Environmental Response,
Compensation, and Liability Act), rule, regulation, or order of any federal,
state or local executive, legislative, judicial, regulatory or administrative
agency, board or authority in effect at the applicable time which relate to (i)
noise; (ii) pollution, protection or clean-up of the air, surface water, ground
water or land; (iii) solid, gaseous or liquid waste generation, treatment,
storage, disposal or transportation; (iv) exposure to Hazardous Substances; (v)
the safety or health of employees; or (vi) regulation of the manufacture,
processing, distribution in commerce, use, discharge or storage of Hazardous
Substances.
"Reserve Requirement" shall mean, for any Eurodollar Loan for any
Interest Period therefor, the stated maximum rate for all reserves (including
any marginal, supplemental or emergency reserves) required to be maintained
during such Interest Period under Regulation D by any member bank of the Federal
Reserve System or any Lender against "Eurocurrency liabilities" (as such term is
used in Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect and include any other reserves required to be
maintained by such member banks by reason of any Regulatory Change against (i)
any category of liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined as provided in the definition of "Eurodollar
Base Rate" in this Section 1.1 or (ii) any category of extensions of credit or
other assets which include Eurodollar Loans. Any determination by Administrative
Agent of the Reserve Requirement shall be conclusive and binding, absent
manifest error, and may be made using any reasonable averaging and attribution
method.
"Responsible Officer" shall mean the chairman of the board, the
president, any executive vice president, the vice president of finance and
administration, the chief executive officer or the chief operating officer or
any equivalent officer (regardless of title) and in the case of the Company, any
other vice president, and in respect of financial or accounting matters, shall
also include the chief financial officer, the treasurer and the controller or
any equivalent officer (regardless of title).
"Restricted Subsidiary" shall mean each Subsidiary of the Company that,
at the particular time in question, (i) owns directly or indirectly any material
assets or any interest in any other Restricted Subsidiary and (ii) has been
designated as a Restricted Subsidiary by the Company or has not been designated
as an Unrestricted Subsidiary by the Company either (a) on Exhibit A or (b) in
accordance with the terms and provisions of this Agreement. The Unrestricted
Subsidiaries on the Effective Date are listed on Exhibit A and each other
Subsidiary of Company as of the Effective Date shall be a Restricted Subsidiary.
A Restricted Subsidiary shall remain
13
such (even if it no longer owns directly or indirectly any interest in any of
the material assets or any interest in any other Restricted Subsidiary) until
designated as an Unrestricted Subsidiary in accordance with the terms and
provisions of this Agreement.
"Revolving Credit Availability Period" shall mean the period from and
including the Effective Date to but not including the Revolving Credit
Termination Date.
"Revolving Credit Obligations" shall mean, as at any date of
determination thereof, the sum of the following (determined without
duplication): (i) the aggregate principal amount of Loans outstanding hereunder
plus (ii) the aggregate amount of the Letter of Credit Liabilities hereunder.
"Revolving Credit Termination Date" shall mean May 31, 2006 or the date
the Commitments are terminated pursuant to Section 11.1, whichever is first to
occur.
"Senior Debt" shall mean Total Debt, other than Subordinated
Indebtedness.
"Subordinated Indebtedness" shall mean all unsecured Indebtedness of
the Company which is subordinated in right of payment to the payment in full of
all Obligations.
"Subsidiary" shall mean, with respect to any Person (the "parent"), (a)
any corporation of which at least a majority of the outstanding shares of stock
having by the terms thereof ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by the parent or one or more of the
Subsidiaries of the parent or by the parent and one or more of the Subsidiaries
of the parent, and (b) any partnership, limited partnership, joint venture or
other form of entity, the majority of the legal or beneficial ownership of which
is at the time directly or indirectly owned or controlled by the parent or one
or more of the Subsidiaries of the parent or by the parent and one or more of
the Subsidiaries of the parent.
"Tangible Net Worth" shall mean with respect to any Person the sum of
the redemption price of preferred stock, par value of common stock, capital in
excess of par value of common stock (additional paid-in capital) and retained
earnings, less treasury stock, goodwill, deferred development costs, franchises,
licenses, patents, trademarks and copyrights and all other assets which are
properly classified as intangible assets in accordance with GAAP and any
Redemption Obligations.
"Total Debt" shall mean all Indebtedness of the Company and its
Restricted Subsidiaries on a consolidated basis, but excluding (i) Indebtedness
of the Company or any Restricted Subsidiary of the types described in Section
10.1, part (i), clauses (c) through (g), (j), (k) and (l), (ii) fifty percent
(50%) of the amount of (A) obligations in respect of letters of credit or
similar instruments not supporting indebtedness for borrowed money and (B)
obligations in connection with bank guarantees, bonds, surety or similar
obligations required or requested by Governmental Authorities in connection with
the usual and customary operation of and the obtaining of oil and gas
properties, and (iii) Indebtedness of the Company or any Restricted
14
Subsidiary of the types described in Section 10.1, part (i), clause (h), up to
an aggregate amount of $10,000,000.
"Total Leverage Ratio" shall mean the ratio of (a) Total Debt to (b)
EBITDAX of the Company and its Restricted Subsidiaries on a consolidated basis
for the last four rolling fiscal quarters.
"Type" shall have the meaning assigned to such term in Section 1.3
hereof.
"Unfunded Liabilities" shall mean, with respect to any Plan, at any
time, the amount (if any) by which (a) the present value of all benefits under
such Plan exceeds (b) the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent actuarial valuation report
for such Plan, but only to the extent that such excess represents a potential
liability of any ERISA Affiliate to the PBGC or a Plan under Title IV of ERISA.
"United States" or "U.S." shall mean the United States of America, its
fifty states and the District of Columbia.
"Unrestricted Subsidiary" shall mean each Subsidiary of the Company
which is (i) designated as an Unrestricted Subsidiary on Exhibit A or (ii)
designated as an Unrestricted Subsidiary by the Company at any time after the
Effective Date and either (A) such Subsidiary has a Tangible Net Worth of less
than $25,000,000 or (B) with the consent of Administrative Agent and the
Majority Lenders. An Unrestricted Subsidiary shall remain such until designated
as a Restricted Subsidiary in accordance with the terms and provisions of this
Agreement.
1.2 Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be delivered hereunder shall be prepared, in accordance with GAAP.
To enable the ready determination of compliance with the provisions hereof, the
Company will not change from December 31 in each year the date on which its
fiscal year ends, nor from March 31, June 30 and September 30 the dates on which
the first three fiscal quarters in each fiscal year end.
1.3 Types of Loans. Loans hereunder are distinguished by "Type".
The "Type" of a Loan refers to the determination whether such Loan is a
Eurodollar Loan, a Competitive Loan or an Alternate Base Rate Loan.
1.4 Miscellaneous. The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. Any
reference to Sections shall refer to Sections of this Agreement.
SECTION 2 COMMITMENTS; COMPETITIVE BID FACILITY.
2.1 Committed Loans. From time to time on or after the Effective
Date and during the Revolving Credit Availability Period, each Lender shall make
Committed Loans under this Section to the Company in an aggregate principal
amount at any one time outstanding up to but
15
not exceeding such Lender's Commitment Percentage of the amount by which the
Facility Amount exceeds the aggregate unpaid principal balance of all
Competitive Loans and Letter of Credit Liabilities from time to time
outstanding. Subject to the conditions herein, any such Committed Loan repaid
prior to the end of the Revolving Credit Availability Period may be reborrowed
pursuant to the terms of this Agreement; provided, that any and all such
Committed Loans shall be due and payable in full at the end of the Revolving
Credit Availability Period.
2.2 Letters of Credit.
(a) Letters of Credit. Subject to the terms and
conditions hereof, and on the condition that aggregate Letter of Credit
Liabilities shall never exceed $150,000,000.00, the Company shall have the
right, in addition to Committed Loans provided for in Section 2.1 hereof, to
utilize the Commitments from time to time from and after the Effective Date
through the expiration of the Revolving Credit Availability Period by obtaining
the issuance of letters of credit for the account of the Company and on behalf
of the Company by the applicable Issuer if the Company shall so request in the
notice referred to in Section 2.2(b)(i). Upon the date of the issuance of a
Letter of Credit, the applicable Issuer shall be deemed, without further action
by any party hereto, to have sold to each Lender, and each Lender shall be
deemed, without further action by any party hereto, to have purchased from the
applicable Issuer, a participation, to the extent of such Lender's Commitment
Percentage, in such Letter of Credit and the related Letter of Credit
Liabilities. Any Letter of Credit having an expiry date after the end of the
Revolving Credit Availability Period shall have been fully Covered or shall be
backed by a letter of credit in form and substance, and issued by an issuer,
acceptable to Administrative Agent in its reasonably exercised discretion.
Subject to the terms and conditions hereof, upon the request of the Company, if
JPMorgan is the designated Issuer, JPMorgan shall issue the applicable Letter of
Credit and if any other Lender is the designated Issuer, such Lender may, but
shall not be obligated to, issue such Letter of Credit.
(b) Additional Provisions. The following
additional provisions shall apply to each Letter of Credit:
(i) The Company shall give
Administrative Agent at least three (3) Business Days' prior notice
(effective upon receipt) specifying the proposed Issuer and the date
such Letter of Credit is to be issued and describing the proposed terms
of such Letter of Credit and the nature of the transaction proposed to
be supported thereby, and shall furnish such additional information
regarding such transaction as Administrative Agent or the applicable
Issuer may reasonably request. Upon receipt of such notice
Administrative Agent shall promptly notify each Lender of the contents
thereof and of such Lender's Commitment Percentage of the amount of
such proposed Letter of Credit.
(ii) No Letter of Credit may be issued
if after giving effect thereto the Revolving Credit Obligations would
exceed the Facility Amount. On each day during the period commencing
with the issuance of any Letter of Credit and until such Letter of
Credit shall have expired or been terminated, the Commitment of each
Lender shall be deemed to be utilized for all purposes hereof in an
amount equal to such
16
Lender's Commitment Percentage of the amount then available for
drawings under such Letter of Credit.
(iii) Upon receipt from the beneficiary
of any Letter of Credit of any demand for payment thereunder, the
applicable Issuer shall promptly notify the Company and each Lender as
to the amount to be paid as a result of such demand and the payment
date. If at any time the applicable Issuer shall have made a payment to
a beneficiary of a Letter of Credit in respect of a drawing under such
Letter of Credit, each Lender will pay to the applicable Issuer
immediately upon demand by the applicable Issuer at any time during the
period commencing after such payment until reimbursement thereof in
full by the Company, an amount equal to such Lender's Commitment
Percentage of such payment, together with interest on such amount for
each day from the date of demand for such payment (or, if such demand
is made after 11:00 a.m. Houston, Texas time on such date, from the
next succeeding Business Day) to the date of payment by such Lender of
such amount at a rate of interest per annum equal to the Federal Funds
Rate for such period.
(iv) The Company shall be irrevocably
and unconditionally obligated forthwith to reimburse the applicable
Issuer for any amount paid by the applicable Issuer upon any drawing
under any Letter of Credit, without presentment, demand, protest or
other formalities of any kind. Such reimbursement may, subject to
satisfaction of any other applicable conditions set forth in this
Agreement be made by borrowing of Loans. In the event any such
reimbursement is not made by borrowing of Loans, the Company shall make
such reimbursement in immediately available funds within five (5) days
after demand therefor by the applicable Issuer. The applicable Issuer
will pay to each Lender such Lender's Commitment Percentage of all
amounts received from the Company for application in payment, in whole
or in part, of the Reimbursement Obligation in respect of any Letter of
Credit, but only to the extent such Lender has made payment to the
applicable Issuer in respect of such Letter of Credit pursuant to
clause (iii) above.
(v) The Company will pay to
Administrative Agent at the Principal Office for the account of each
Lender a fee on such Lender's Commitment Percentage of the daily
average amount available for drawings under each Letter of Credit, in
each case for the period from and including the date of issuance of
such Letter of Credit to and including the date of expiration or
termination thereof at a rate per annum equal to the Letter of Credit
Fee in effect from time to time, such fee to be paid in arrears on the
Quarterly Dates and on the date of the expiration or termination
thereof. Administrative Agent will pay to each Lender, promptly after
receiving any payment in respect of letter of credit fees referred to
in the preceding sentence of this clause (v), an amount equal to such
Lender's Commitment Percentage of such fees. The Company shall pay to
the applicable Issuer an administration and issuance fee in an amount
equal to 1/8 of 1% per annum of the daily average amount available for
drawings under such Letter of Credit, in each case for the period from
and including the date of issuance of such Letter of Credit to and
including the date of expiration or termination thereof, such fee to be
paid in arrears on the Quarterly Dates and on the date of the
expiration or
17
termination thereof. Such administration and issuance fee shall be
retained by the applicable Issuer.
(vi) The issuance by the applicable
Issuer of each Letter of Credit shall, in addition to the conditions
precedent set forth in Section 7 hereof, be subject to the conditions
precedent that such Letter of Credit shall be in such form and contain
such terms as shall be reasonably satisfactory to the applicable Issuer
and that the Company shall have executed and delivered such other
instruments and agreements relating to such Letter of Credit as the
applicable Issuer shall have reasonably requested and are not
inconsistent with the terms of this Agreement including an Application
therefor. In the event of a conflict between the terms of this
Agreement and the terms of any Application, the terms of this Agreement
shall control. Without limiting the generality of the foregoing
sentence, in the event any such Application shall include requirements
for Cover, it is agreed that there shall be no requirements for the
Company to provide Cover except as expressly required in this
Agreement.
(c) Indemnification. The Company hereby
indemnifies and holds harmless the Agents, the applicable Issuer and each Lender
from and against any and all claims and damages, losses, liabilities, costs or
expenses which such Lender, the applicable Issuer or Agent may incur (or which
may be claimed against such Lender, the applicable Issuer or any Agent by any
Person whatsoever) in connection with the execution and delivery or transfer of
or payment or failure to pay under any Letter of Credit, including, without
limitation, any claims, damages, losses, liabilities, costs or expenses which
such Agent, the applicable Issuer or such Lender, as the case may be, may incur
(WHETHER INCURRED AS A RESULT OF ITS OWN NEGLIGENCE OR OTHERWISE) by reason of
or in connection with the failure of any other Lender (whether as a result of
its own negligence or otherwise) to fulfill or comply with its obligations to
such Agent, the applicable Issuer or such Lender, as the case may be, hereunder
(but nothing herein contained shall affect any rights the Company may have
against such defaulting Lender); provided that, the Company shall not be
required to indemnify any Lender, the applicable Issuer or such Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (i) the willful misconduct or gross negligence of the
party seeking indemnification, or (ii) such Lender's, the applicable Issuer's or
the applicable Agent's, as the case may be, failure to pay under any Letter of
Credit after the presentation to it of a request required to be paid under
applicable law. Nothing in this Section 2.2(c) is intended to limit the
obligations of the Company under any other provision of this Agreement or any
claims, damages, losses, liabilities, costs or expenses between or among the
Agents, the Lenders, the applicable Issuer and their respective shareholders.
(d) Co-issuance or Separate Issuance of Letters
of Credit. The Company may, at its option, request that any requested Letter of
Credit which exceeds $1,000,000 be issued severally, but not jointly, by any two
or more of the Lenders or issued through separate Letters of Credit issued by
any two or more of the Lenders, respectively, each in an amount equal to a
portion of the amount of the applicable Letter of Credit requested by the
Company. In either such event, the Lenders issuing such Letters of Credit shall
each constitute an "Issuer" and the Letters of Credit so issued shall each
constitute a "Letter of Credit" for all purposes hereunder and under the Loan
Documents. Notwithstanding the foregoing, no Lender
18
other than JPMorgan shall have any obligation to issue any Letter of Credit, but
may do so at its option.
(e) Letters of Credit Under Prior Credit
Agreement. On the Effective Date, the Letters of Credit listed on Exhibit J
shall be deemed to have been issued under this Agreement by the Issuer specified
therein without payment of any fees otherwise due upon the issuance of a Letter
of Credit, and the applicable Issuer shall be deemed, without further action by
any party hereto, to have sold to each Lender, and each Lender shall be deemed,
without further action by any party hereto, to have purchased from the
applicable Issuer, a participation, to the extent of such Lender's Commitment
Percentage, in such Letter of Credit and the related Letter of Credit
Liabilities.
2.3 Reductions and Changes of Commitments.
(a) Mandatory Reduction. On the Revolving Credit
Termination Date, all Commitments shall be terminated in their entirety unless
terminated at an earlier date pursuant to Section 11.1.
(b) Optional Reductions. The Company shall have
the right to terminate or reduce the unused portion of the Commitments at any
time or from time to time, provided that: (i) the Company shall give notice of
each such termination or reduction to Administrative Agent as provided in
Section 5.5 hereof and (ii) each such partial reduction shall be permanent and
in an aggregate amount equal to an integral multiple of $1,000,000 which equals
or exceeds $5,000,000.
(c) No Reinstatement. Any reduction in or
termination of the Commitments may not be reinstated without the approval of
Administrative Agent and any Lender whose Commitment (or the applicable part
thereof) is to be so reinstated.
2.4 Fees.
(a) The Company shall pay to Administrative
Agent for the account of each Lender a facility fee accruing from the Effective
Date, computed for each day at a rate per annum equal to the Facility Fee
Percentage times such Lender's pro rata share (based on its respective
Commitment) of the Facility Amount on such day. Such facility fees shall be
payable on the Quarterly Dates and on the earlier of the date the Commitments
are terminated in their entirety or the Revolving Credit Termination Date.
(b) The Company agrees to pay to Administrative
Agent and the Lenders, as applicable, the fees as provided in the separate
letter agreements executed by and between Administrative Agent and the Company.
2.5 Affiliates; Lending Offices.
(a) Any Lender may, if it so elects, fulfill any
obligation to make a Eurodollar Loan or Competitive Loan by causing a branch,
foreign or otherwise, or Affiliate of such Lender to make such Loan and may
transfer and carry such Loan at, to or for the account of any branch office or
Affiliate of such Lender; provided that, in such
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event for the purposes of this Agreement such Loan shall be deemed to have been
made by such Lender and the obligation of the Company to repay such Loan shall
nevertheless be to such Lender and shall be deemed to be held by such Lender
and, to the extent of such Loan, to have been made for the account of such
branch or Affiliate.
(b) Notwithstanding any provision of this
Agreement to the contrary, each Lender shall be entitled to fund and maintain
its funding of all or any part of its Loans hereunder 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 Lender had actually funded and
maintained each Eurodollar Loan during each Interest Period through the purchase
of deposits having a maturity corresponding to such Interest Period and bearing
an interest rate equal to the Eurodollar Rate for such Interest Period.
2.6 Several Obligations. The failure of any Lender to make any
Loan to be made by it on the date specified therefor shall not relieve any other
Lender of its obligation to make its Loan on such date, but neither
Administrative Agent nor any Lender shall be responsible for the failure of any
other Lender to make a Loan to be made by such other Lender.
2.7 Repayment of Loans; Evidence of Debt.
(a) Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of
Company to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(b) Administrative Agent shall maintain accounts
in which it shall record (i) the amount of each Loan made hereunder and, if
applicable, the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from Company
to each Lender hereunder and (iii) the amount of any sum received by
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(c) The entries made in the accounts maintained
pursuant to paragraph (a) or (b) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Obligor
to repay the Loans or other Obligations in accordance with the terms of this
Agreement or the other Loan Documents.
(d) Any Lender may request that Loans made by it
be evidenced by a promissory note. In such event, Company shall prepare, execute
and deliver to such Lender promissory notes payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns and
in a form approved by Administrative Agent). Thereafter, the Loans evidenced by
such promissory notes and interest thereon may (including after assignment
pursuant to Section 13.5) be represented by one or more promissory notes in such
form payable to the order of the payee named therein.
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2.8 Use of Proceeds. The proceeds of the Loans shall be used for
general corporate purposes.
2.9 Competitive Bid Procedure.
(a) In order to request Competitive Bids, the
Company shall hand deliver, telecopy to Auction Administrative Agent a duly
completed request substantially in the form of Exhibit F, with the blanks
appropriately completed (a "Competitive Bid Request"), to be received by Auction
Administrative Agent not later than 11:00 a.m., Houston, Texas time, five (5)
Business Days before the date specified for a proposed Competitive Loan. No
Alternate Base Rate Loan shall be requested in, or, except pursuant to Section
6, made pursuant to, a Competitive Bid Request. A Competitive Bid Request that
does not conform substantially to the format of Exhibit F may be rejected at
Auction Administrative Agent's sole discretion, and Auction Administrative Agent
shall promptly notify the Company of such rejection by telecopier. Each
Competitive Bid Request shall in each case refer to this Agreement and specify
(x) the date of such Competitive Loans (which shall be a Business Day) and the
aggregate principal amount thereof (which shall not be less than $25,000,000 or
greater than the unused portion of the Facility Amount on such date and shall be
an integral multiple of $5,000,000) and (y) the Interest Period with respect
thereto (which may not end after the termination of the Revolving Credit
Availability Period). Promptly after its receipt of a Competitive Bid Request
that is not rejected as aforesaid, Auction Administrative Agent shall invite by
telecopier (in substantially the form set forth in Exhibit H) the Lenders to
bid, on the terms and conditions of this Agreement, to make Competitive Loans
pursuant to such Competitive Bid Request. Notwithstanding the foregoing, Auction
Administrative Agent shall have no obligation to invite any Lender to make a
Competitive Bid pursuant to this Section until such Lender has delivered a
properly completed Competitive Bid Administrative Questionnaire to Auction
Administrative Agent.
(b) Each Lender may, in its sole discretion,
make one or more Competitive Bids to the Company responsive to each Competitive
Bid Request. Each Competitive Bid by a Lender must be received by Auction
Administrative Agent via telecopier, in the form of Exhibit H, not later than
11:00 a.m., Houston, Texas time, four (4) Business Days before the date
specified for a proposed Competitive Loan. Competitive Bids that do not conform
substantially to the format of Exhibit H may be rejected by Auction
Administrative Agent after conferring with, and upon the instruction of, the
Company, and Auction Administrative Agent shall notify the Lender of such
rejection as soon as practicable. Each Competitive Bid shall refer to this
Agreement and (x) specify the principal amount (which shall be in a minimum
principal amount of $5,000,000 and in an integral multiple of $1,000,000 and
which may equal the entire aggregate principal amount of the Competitive Loan
requested by the Company) of the Competitive Loan that the Lender is willing to
make to the Company, (y) specify the Competitive Bid Rate at which the Lender is
prepared to make the Competitive Loan and (z) confirm the Interest Period with
respect thereto specified by the Company in its Competitive Bid Request. A
Competitive Bid submitted by a Lender pursuant to this paragraph (b) shall be
irrevocable.
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(c) Auction Administrative Agent shall, by 2:00
p.m. four (4) Business Days before the date specified for a proposed Competitive
Loan, notify the Company by telecopier of all the Competitive Bids made, the
Competitive Bid Rate and the maximum principal amount of each Competitive Loan
in respect of which a Competitive Bid was made and the identity of the Lender
that made each bid. Auction Administrative Agent shall send a copy of all
Competitive Bids to the Company for its records as soon as practicable after
completion of the bidding process set forth in this Section 2.9.
(d) The Company may in its sole and absolute
discretion, subject only to the provisions of this Section 2.9(d), accept or
reject any Competitive Bid referred to in Section 2.9(c); provided, however,
that the aggregate amount of the Competitive Bids so accepted by the Company may
not exceed the principal amount of the Competitive Loan requested by the
Company. The Company shall notify Auction Administrative Agent by telecopier
whether and to what extent it has decided to accept or reject any or all of the
bids referred to in Section 2.9(c), not later than 11:00 a.m., Houston, Texas
time, three (3) Business Days before the date specified for a proposed
Competitive Loan; provided, however, that (w) the failure by the Company to give
such notice shall be deemed to be a rejection of all the bids referred to in
Section 2.9(c) and (x) no bid shall be accepted for a Competitive Loan unless
such Competitive Loan is in a minimum principal amount of $5,000,000 and an
integral multiple of $1,000,000. Notwithstanding the foregoing, if the Company
accepts more than one bid made in response to a Competitive Bid Request and the
available principal amount of Competitive Loans to be allocated among the
Lenders whose bid has been accepted is not sufficient to enable Competitive
Loans to be allocated to each Lender in a minimum principal amount of $5,000,000
and in integral multiples of $1,000,000, then the Company shall select the
Lenders to be allocated such Competitive Loans and shall round allocations up or
down to the next higher or lower multiple of $1,000,000 as it shall deem
appropriate. In addition, the Company shall be permitted under the foregoing
procedures to accept a bid or bids in a principal amount of less than $5,000,000
(i) in order to enable the Company to accept bids equal to (but not in excess
of) the principal amount of the Competitive Loan requested by the Company or
(ii) in order to enable the Company to accept all remaining bids, or all
remaining bids at a particular Competitive Bid Rate. A notice given by Company
pursuant to this paragraph (d) shall be irrevocable.
(e) Auction Administrative Agent shall promptly
notify each bidding Lender whether or not its Competitive Bid has been accepted
(and if so, in what amount and at what Competitive Bid Rate) by telecopier sent
by Auction Administrative Agent, and each successful bidder will thereupon
become bound, subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted. After completing
the notifications referred to in the immediately preceding sentence, Auction
Administrative Agent shall (iii) notify Administrative Agent of each Competitive
Bid that has been accepted, the amount thereof and the Competitive Bid Rate
therefor and (iv) notify each Lender of the aggregate principal amount of all
Competitive Bids accepted.
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(f) No Competitive Loan shall be made within
five (5) Business Days of the date of any other Competitive Loan, unless the
Company and Auction Administrative Agent shall mutually agree otherwise.
(g) If Administrative Agent shall at any time
have a Commitment hereunder and shall elect to submit a Competitive Bid in its
capacity as a Lender, it shall submit such bid directly to the Company one
quarter of an hour earlier than the latest time at which the other Lenders are
required to submit their bids to Auction Administrative Agent pursuant to
paragraph (b) above.
(h) All notices required by this Section 2.9
shall be made in accordance with Section 13.2 and the Competitive Bid
Administrative Questionnaire most recently placed on file by each Lender with
Auction Administrative Agent.
SECTION 3 BORROWINGS, PREPAYMENTS AND SELECTION OF INTEREST RATES.
3.1 Borrowings. The Company shall give Administrative Agent notice
of each borrowing to be made hereunder as provided in Sections 2.9 and 5.5
hereof. Not later than 2:00 p.m. Houston, Texas time on the date specified for
each such borrowing hereunder, each Lender shall make available the amount of
the Loan, if any, to be made by it on such date to Administrative Agent, at its
Principal Office, in immediately available funds, for the account of the
Company. The amount so received by Administrative Agent shall, subject to the
terms and conditions of this Agreement, be made available to the Company by
depositing the same, in immediately available funds, in an account designated by
the Company maintained with Administrative Agent at the Principal Office.
3.2 Prepayments.
(a) Optional Prepayments. Subject to the
provisions of Sections 4, 5 and 6, the Company shall have the right to prepay,
on any Business Day, in whole or in part, without the payment of any penalty or
fee, Loans at any time or from time to time, provided that, the Company shall
give Administrative Agent notice of each such prepayment as provided in Section
5.5 hereof. Neither Eurodollar Loans nor Competitive Loans may be otherwise
prepaid unless prepayment is accompanied by payment of all compensation required
by Section 6.5.
(b) Mandatory Prepayments and Cover. The Company
shall from time to time on demand by Administrative Agent prepay the Loans (or
provide Cover for Letter of Credit Liabilities) in such amounts as shall be
necessary so that at all times the aggregate outstanding principal amount of all
Revolving Credit Obligations shall not be in excess of the sum of (i) the
Facility Amount as then in effect plus (ii) any Cover provided under this
Section 3.2(b).
3.3 Selection of Interest Rates. Subject to the terms and
provisions of this Agreement, the Company shall have the right either to convert
any Loan (in whole or in part) into a Loan of another Type (provided that no
such conversion of Eurodollar Loans or Competitive Loans shall be permitted
other than on the last day of an Interest Period applicable thereto) or to
continue such Loan (in whole or in part) as a Loan of the same Type. In the
event the Company fails to so give such notice prior to the end of the
applicable Interest Period with
23
respect to any Eurodollar Loan or Competitive Loan, such Loan shall become an
Alternate Base Rate Loan on the last day of such Interest Period.
Notwithstanding any other provision of this Agreement, if a Default shall have
occurred and be continuing on the last day of an Interest Period applicable to a
Eurodollar Loan or Competitive Loan, such Loan shall automatically be converted
to an Alternate Base Rate Loan.
SECTION 4 PAYMENTS OF PRINCIPAL AND INTEREST.
4.1 Repayment of Loans and Reimbursement Obligations. The Company
hereby unconditionally promises to pay to Administrative Agent for the account
of each Lender, without set off or counterclaim, (a) the then unpaid principal
amount of all outstanding Loans on the Revolving Credit Termination Date, and
(b) the amount of each Reimbursement Obligation promptly upon its occurrence.
The amount of any Reimbursement Obligation may, if the applicable conditions
precedent specified in Section 7 hereof have been satisfied, be paid with the
proceeds of Loans.
4.2 Interest.
(a) Subject to Section 13.6, the Company will
pay to Administrative Agent for the account of each Lender interest on the
unpaid principal amount of each Loan made by such Lender for the period
commencing on the date of such Loan to but excluding the date such Loan shall be
paid in full, at the lesser of (I) the following rates per annum:
(i) if such Loan is an Alternate Base Rate Loan,
the Alternate Base Rate plus the Applicable Margin,
(ii) if such Loan is a Eurodollar Loan, the
applicable Eurodollar Rate plus the Applicable Margin, and
(iii) if such Loan is a Competitive Loan, the
applicable fixed rate offered by the applicable Lender and accepted by the
Company in accordance with Section 2.9 hereof
or (II) the Highest Lawful Rate.
(b) Notwithstanding any of the foregoing, but
subject to Section 13.6 hereof, the Company will pay to Administrative Agent for
the account of each Lender interest at the applicable Post-Default Rate on any
principal of any Loan made by such Lender, on any Reimbursement Obligation and
on any other amount payable by the Company hereunder to or for the account of
such Lender (but, if such amount is interest, only to the extent legally
allowed), which shall not be paid in full when due (whether at stated maturity,
by acceleration or otherwise), for the period commencing on the due date thereof
until the same is paid in full.
(c) Accrued interest on each Alternate Base Rate
Loan shall be payable on each Quarterly Date. Accrued interest on each
Eurodollar Loan or Competitive Bid Loan shall be payable on the last day of each
Interest Period for such
24
Loan (and, if such Interest Period exceeds three months' duration, on the last
day of each three month period, commencing on the first three month anniversary
of such Interest Period). Notwithstanding the foregoing, (i) accrued interest
payable at the Post-Default Rate shall be due and payable from time to time on
demand of Administrative Agent or the Majority Lenders (through Administrative
Agent) and (ii) accrued interest on any amount prepaid or converted shall be
paid on the amount so prepaid or converted.
SECTION 5 PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS, ETC.
5.1 Payments.
(a) Except to the extent otherwise provided
herein, all payments of principal, interest, Reimbursement Obligations and other
amounts to be made by the Company or any other Obligor hereunder shall be made
in Dollars, in immediately available funds, to Administrative Agent at the
Principal Office (or in the case of a successor Administrative Agent, at the
principal office of such successor Administrative Agent in the United States),
not later than 11:00 a.m., Houston, Texas time on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day).
(b) The Company or such other Obligor shall, at
the time of making each payment hereunder, specify to Administrative Agent the
Loans or other amounts payable by the Company or such Obligor hereunder or
thereunder to which such payment is to be applied. Each payment received by
Administrative Agent hereunder or any other Loan Document for the account of a
Lender shall be paid promptly to such Lender, in immediately available funds for
the account of such Lender's Applicable Lending Office.
(c) If the due date of any payment hereunder or
any other Loan Document falls on a day which is not a Business Day, the due date
for such payment (subject to the definition of Interest Period) shall be
extended to the next succeeding Business Day and interest shall be payable for
any principal so extended for the period of such extension.
5.2 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each borrowing from the Lenders under Section 2.1 hereof shall be
made ratably from the Lenders on the basis of their respective Commitments and
each payment of facility fees shall be made for the account of the Lenders, and
each termination or reduction of the Commitments of the Lenders under Section
2.3 shall be applied, pro rata, according to the Lenders' respective
Commitments; (b) each payment by the Company of principal of or interest on
Loans of a particular Type shall be made to Administrative Agent for the account
of the Lenders pro rata in accordance with the respective unpaid principal
amounts of such Loans held by the Lenders; and (c) the Lenders (other than the
applicable Issuer) shall purchase from the applicable Issuer participations in
the Letters of Credit to the extent of their respective Commitment Percentages.
5.3 Computations. Interest on Competitive Loans and interest based
on the Eurodollar Base Rate or the Federal Funds Rate will be computed on the
basis of a year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the
25
period for which such interest is payable, unless the effect of so computing
shall be to cause the rate of interest to exceed the Highest Lawful Rate, in
which case interest shall be calculated on the basis of the actual number of
days elapsed in a year composed of 365 or 366 days, as the case may be. All
other interest and fees shall be computed on the basis of a year of 365 (or 366)
days and actual days elapsed (including the first day but excluding the last
day) occurring in the period for which such interest is payable.
5.4 Minimum and Maximum Amounts. Except for prepayments made
pursuant to Section 3.2(b) hereof, and subject to the provisions of Section 2.9
hereof with respect to Competitive Loans, each borrowing and repayment of
principal of Loans, each termination or reduction of Commitments, each optional
prepayment and each conversion of Type shall be in an aggregate principal amount
at least equal to (a) in the case of Eurodollar Loans and Competitive Loans,
$5,000,000, and (b) in the case of Alternate Base Rate Loans, $1,000,000
(borrowings or prepayments of Loans of different Types or, in the case of
Eurodollar Loans and Competitive Loans, having different Interest Periods at the
same time hereunder to be deemed separate borrowings and prepayments for
purposes of the foregoing, one for each Type or Interest Period). Upon any
mandatory prepayment that would reduce Eurodollar Loans or Competitive Loans,
respectively, having the same Interest Period to less than $5,000,000 such Loans
shall automatically be converted into Alternate Base Rate Loans on the last day
of the applicable Interest Period. Notwithstanding anything to the contrary
contained in this Agreement, there shall not be, at any one time, more than
eight (8) Interest Periods in effect with respect to Eurodollar Loans or
Competitive Loans, in the aggregate.
5.5 Certain Actions, Notices, Etc. Notices to Administrative Agent
of any termination or reduction of Commitments, of borrowings and prepayments,
conversions and continuations of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by Administrative
Agent not later than 11:00 a.m., Houston, Texas time on the number of Business
Days prior to the date of the relevant termination, reduction, borrowing and/or
repayment, conversion or continuance specified below:
Notice Number of Business Days Prior
Termination or Reduction 2
of Commitments
Borrowing or prepayment of same day
or conversion into Alternate
Base Rate Loans
Borrowing or prepayment of 3
or conversion into or continuance
of Eurodollar Loans
Each such notice of termination or reduction shall specify the amount
of the Commitments to be terminated or reduced. Each such notice of borrowing or
prepayment shall
26
specify the amount and Type of the Loans to be borrowed or prepaid (subject to
Sections 3.2(a) and 5.4 hereof), the date of borrowing or prepayment (which
shall be a Business Day) and, in the case of Eurodollar Loans, the duration of
the Interest Period therefor (subject to the definition of "Interest Period").
Each such notice of conversion of a Loan into a Loan of another Type shall
identify such Loan (or portion thereof) being converted and specify the Type of
Loan into which such Loan is being converted (subject to Section 5.4 hereof) and
the date for conversion (which shall be a Business Day) and, unless such Loan is
being converted into an Alternate Base Rate Loan, the duration (subject to the
definition of "Interest Period") of the Interest Period therefor which is to
commence as of the last day of the then current Interest Period therefor (or the
date of conversion, if such Loan is being converted from an Alternate Base Rate
Loan). Each such notice of continuation of a Loan (or portion thereof) as the
same Type of Loan shall identify such Loan (or portion thereof) being continued
(subject to Section 5.4 hereof) and the duration (subject to the definition of
"Interest Period") of the Interest Period therefor which is to commence as of
the last day of the then current Interest Period therefor. Administrative Agent
shall promptly notify the affected Lenders of the contents of each such notice.
Notice of any prepayment having been given, the principal amount specified in
such notice, together with interest thereon to the date of prepayment, shall be
due and payable on such prepayment date. Section 2.9 hereof shall control the
time periods applicable to Competitive Loans.
5.6 Non-Receipt of Funds by Administrative Agent. Unless
Administrative Agent shall have been notified by a Lender or the Company (the
"Payor") prior to the date on which such Lender is to make payment to
Administrative Agent of the proceeds of a Loan to be made by it hereunder (or
the payment of any amount by such Lender to reimburse the applicable Issuer for
a drawing under any Letter of Credit) or the Company is to make a payment to
Administrative Agent for the account of one or more of the Lenders, as the case
may be (such payment being herein called the "Required Payment"), which notice
shall be effective upon receipt, that the Payor does not intend to make the
Required Payment to Administrative Agent, Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient on such date and, if the Payor has not in fact made the
Required Payment to Administrative Agent on or before such date, the recipient
of such payment (or, if such recipient is the beneficiary of a Letter of Credit,
the Company and, if the Company fails to pay the amount thereof to
Administrative Agent forthwith upon demand, the Lenders ratably in proportion to
their respective Commitment Percentages) shall, on demand, pay to Administrative
Agent the amount made available to it together with interest thereon in respect
of the period commencing on the date such amount was so made available by
Administrative Agent until the date Administrative Agent recovers such amount at
a rate per annum equal to the Federal Funds Rate for such period.
5.7 Sharing of Payments, Etc. If a Lender shall obtain payment of
any principal of or interest on any Loan made by it under this Agreement, or on
any Reimbursement Obligation or other obligation then due to such Lender
hereunder, through the exercise of any right of set-off, banker's lien,
counterclaim or similar right, or otherwise, it shall promptly purchase from the
other Lenders participations in the Loans made, or Reimbursement Obligations or
other obligations held, by the other Lenders in such amounts, and make such
other adjustments from time to time as shall be equitable to the end that all
the Lenders shall share the benefit of such payment (net of any expenses which
may be incurred by such Lender in obtaining or preserving
27
such benefit) pro rata in accordance with the unpaid principal and interest on
the Obligations then due to each of them (provided, however, that the foregoing
shall not apply to payments of Competitive Loans made prior to the termination
of the Commitments following the occurrence of an Event of Default). To such end
all the Lenders shall make appropriate adjustments among themselves (by the
resale of participations sold or otherwise) if such payment is rescinded or must
otherwise be restored. The Company agrees, to the fullest extent it may
effectively do so under applicable law, that any Lender so purchasing a
participation in the Loans made, or Reimbursement Obligations or other
obligations held, by other Lenders may exercise all rights of set-off, bankers'
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans and Reimbursement Obligations or
other obligations in the amount of such participation. Nothing contained herein
shall require any Lender to exercise any such right or shall affect the right of
any Lender to exercise, and retain the benefits of exercising, any such right
with respect to any other Indebtedness or obligation of any Obligor.
SECTION 6 YIELD PROTECTION AND ILLEGALITY.
6.1 Additional Costs.
(a) Subject to Section 13.6, the Company shall
pay to Administrative Agent, on demand for the account of each Lender from time
to time such amounts as such Lender may determine to be necessary to compensate
it for any costs incurred by such Lender which such Lender determines are
attributable to its making or maintaining of any Eurodollar Loan or any
Competitive Loan hereunder or its obligation to make any such Loan hereunder, or
any reduction in any amount receivable by such Lender hereunder in respect of
any of such Loans or such obligation (such increases in costs and reductions in
amounts receivable being herein called "Additional Costs"), in each case
resulting from any Regulatory Change which:
(i) subjects such Lender (or makes it apparent
that such Lender is subject) to any tax (including without limitation any United
States interest equalization tax), levy, impost, duty, charge or fee
(collectively, "Taxes"), or any deduction or withholding for any Taxes on or
from the payment due under any Eurodollar Loan or any Competitive Loan or other
amounts due hereunder, other than income and franchise taxes of each
jurisdiction (or any subdivision thereof) in which such Lender has an office or
its Applicable Lending Office; or
(ii) changes the basis of taxation of any amounts
payable to such Lender under this Agreement in respect of any of such Loans
(other than changes which affect taxes measured by or imposed on the overall net
income or franchise taxes of such Lender or of its Applicable Lending Office for
any of such Loans by each jurisdiction (or any subdivision thereof) in which
such Lender has an office or such Applicable Lending Office); or
(iii) imposes or modifies or increases or deems
applicable any reserve, special deposit or similar requirements (including,
without limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System) relating
28
to any extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender or loans made by such Lender, or against any other
funds, obligations or other property owned or held by such Lender (including any
of such Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.1 hereof) and such Lender actually incurs such additional
costs.
Each Lender (if so requested by the Company through Administrative
Agent) will designate a different available Applicable Lending Office for the
Eurodollar Loans or the Competitive Loans of such Lender or take such other
action as the Company may request if such designation or action will avoid the
need for, or reduce the amount of, such compensation and will not, in the sole
opinion of such Lender exercised in good faith, be disadvantageous to such
Lender (provided that such Lender shall have no obligation so to designate an
Applicable Lending Office for Eurodollar Loans located in the United States of
America). Each Lender will furnish the Company with a statement setting forth
the basis and amount of each request by such Lender for compensation under this
Section 6.1(a); subject to Section 6.8, such certificate shall be conclusive,
absent manifest error, and may be prepared using any reasonable averaging and
attribution methods.
(b) Without limiting the effect of the foregoing
provisions of this Section 6.1, in the event that, by reason of any Regulatory
Change, any Lender either (i) incurs Additional Costs based on or measured by
the excess above a specified level of the amount of a category of deposits or
other liabilities of such Lender which includes deposits by reference to which
the interest rate on Eurodollar Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
which includes Eurodollar Loans or Competitive Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets which it
may hold, then, if such Lender so elects by notice to the Company (with a copy
to Administrative Agent), the obligation of such Lender to make Eurodollar Loans
or Competitive Loans, as the case may be, hereunder shall be suspended until the
date such Regulatory Change ceases to be in effect (in which case the provisions
of Section 6.4 hereof shall be applicable).
(c) Good faith determinations and allocations by
any Lender for purposes of this Section 6.1 of the effect of any Regulatory
Change on its costs of maintaining its obligations to make Loans or of making or
maintaining Loans or on amounts receivable by it in respect of Loans, and of the
additional amounts required to compensate such Lender in respect of any
Additional Costs, shall be conclusive, absent manifest error.
(d) The Company's obligation to pay Additional
Costs and compensation with regard to each Eurodollar Loan and each Competitive
Loan shall survive termination of this Agreement.
6.2 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, with respect to any Eurodollar Loans:
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(a) Administrative Agent determines in good
faith (which determination shall be conclusive) that quotations of interest
rates for the relevant deposits referred to in the definition of "Eurodollar
Base Rate" in Section 1.1 hereof are not being provided by the Reference Lenders
in the relevant amounts or for the relevant maturities for purposes of
determining the rate of interest for such Loans for Interest Periods therefor as
provided in this Agreement; or
(b) the Majority Lenders determine in good faith
(which determination shall be conclusive) and notify Administrative Agent that
the relevant rates of interest referred to in the definition of "Eurodollar Base
Rate" in Section 1.1 hereof upon the basis of which the rates of interest for
such Loans are to be determined do not accurately reflect the cost to such
Lenders of making or maintaining such Loans for Interest Periods therefor; or
(c) Administrative Agent determines in good
faith (which determination shall be conclusive) that by reason of circumstances
affecting the interbank Dollar market generally, deposits in United States
dollars in the relevant interbank Dollar market are not being offered for the
applicable Interest Period and in an amount equal to the amount of the
Eurodollar Loan requested by the Company;
then Administrative Agent shall promptly notify the Company and each Lender
thereof, and, so long as such condition remains in effect, the Lenders shall be
under no obligation to make Eurodollar Loans with the applicable Interest Period
(but shall maintain until the end of the Interest Period then in effect the
Eurodollar Loans then outstanding).
6.3 Illegality. Notwithstanding any other provision of this
Agreement to the contrary, if (x) by reason of the adoption of any applicable
Legal Requirement or any change in any applicable Legal Requirement or in the
interpretation or administration thereof by any Governmental Authority or
compliance by any Lender with any request or directive (whether or not having
the force of law) of any central bank or other Governmental Authority or (y)
circumstances affecting the relevant interbank Dollar market or the position of
a Lender therein shall at any time make it unlawful or impracticable in the sole
discretion of a Lender exercised in good faith for such Lender or its Applicable
Lending Office to (a) honor its obligation to make Eurodollar Loans or
Competitive Loans hereunder, or (b) maintain Eurodollar Loans or Competitive
Loans hereunder, then such Lender shall promptly notify the Company thereof
through Administrative Agent and such Lender's obligation to make or maintain
Eurodollar Loans or Competitive Loans, as the case may be, hereunder shall be
suspended until such time as such Lender may again make and maintain Eurodollar
Loans or Competitive Loans, as the case may be (in which case the provisions of
Section 6.4 and 6.8 hereof shall be applicable). Before giving such notice
pursuant to this Section 6.3, such Lender will designate a different available
Applicable Lending Office for the Eurodollar Loans or the Competitive Loans, as
the case may be, of such Lender or take such other action as the Company may
request if such designation or action will avoid the need to suspend such
Lender's obligation to make Eurodollar Loans or Competitive Loans, as the case
may be, hereunder and will not, in the sole opinion of such Lender exercised in
good faith, be disadvantageous to such Lender (provided, that such Lender shall
have no obligation so to designate an Applicable Lending Office for Eurodollar
Loans located in the United States of America).
30
6.4 Substitute Alternate Base Rate Loans. If the obligation of any
Lender to make or maintain Eurodollar Loans or Competitive Loans, as the case
may be, shall be suspended pursuant to Section 6.1, 6.2 or 6.3 hereof, all Loans
which would otherwise be made by such Lender as Eurodollar Loans or Competitive
Loans, as the case may be, shall be made instead as Alternate Base Rate Loans
(and, if an event referred to in Section 6.1(b) or 6.3 hereof has occurred and
such Lender so requests by notice to the Company with a copy to Administrative
Agent, each Eurodollar Loan or each Competitive Loan, as the case may be, of
such Lender then outstanding shall be automatically converted into an Alternate
Base Rate Loan on the last day of the Interest Period for such Loan) and, to the
extent that Eurodollar Loans or Competitive Loans, as the case may be, are so
made as (or converted into) Alternate Base Rate Loans, all payments of principal
which would otherwise be applied to such Eurodollar Loans or such Competitive
Loans, as the case may be, shall be applied instead to such Alternate Base Rate
Loans.
6.5 Compensation. Subject to Section 13.6 hereof, the Company
shall pay to Administrative Agent for the account of each Lender, within four
(4) Business Days after demand therefor by such Lender through Administrative
Agent, such amount or amounts as shall be sufficient (in the reasonable opinion
of such Lender) to compensate it for any loss, cost or expense actually incurred
by it (exclusive of any lost profits or opportunity costs) as a result of:
(a) any payment, prepayment or conversion of a
Eurodollar Loan or a Competitive Loan made by such Lender on a date other than
the last day of an Interest Period for such Loan; or
(b) any failure by the Company to borrow a
Eurodollar Loan or a Competitive Loan to be made by such Lender on the date for
such borrowing specified in the relevant notice of borrowing under Section 5.5
or Section 2.9 hereof;
such compensation to include, without limitation, any loss or expense actually
incurred (exclusive of any lost profits or opportunity costs) by reason of the
liquidation or reemployment of deposits or other funds acquired by the
applicable Lender to fund or maintain its share of any Loan. Subject to Section
6.8, each determination of the amount of such compensation by a Lender shall be
conclusive and binding, absent manifest error, and may be computed using any
reasonable averaging and attribution method.
6.6 Additional Costs in Respect of Letters of Credit. If as a
result of any Regulatory Change there shall be imposed, modified or deemed
applicable any tax, reserve, special deposit or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder or participations in such Letters of Credit, and the result
shall be to increase the cost to any Lender of issuing or maintaining any Letter
of Credit or any participation therein, or reduce any amount receivable by any
Lender hereunder in respect of any Letter of Credit or any participation therein
(which increase in cost, or reduction in amount receivable, shall be the result
of such Lender's reasonable allocation of the aggregate of such increases or
reductions resulting from such event), then such Lender shall notify the Company
through Administrative Agent, and upon demand therefor by such Lender through
Administrative Agent, the Company (subject to Section 13.6 hereof) shall pay to
such Lender, from time to time as specified by such Lender, such additional
amounts as shall be sufficient to compensate such Lender for such increased
costs or reductions in amount. Before making such
31
demand pursuant to this Section 6.6, such Lender will designate a different
available Applicable Lending Office for the Letter of Credit of such Lender or
take such other action as the Company may request, if such designation or action
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole opinion of such Lender exercised in good faith, be
disadvantageous to such Lender. A statement as to such increased costs or
reductions in amount incurred by such Lender, submitted by such Lender to the
Company, shall be conclusive as to the amount thereof, absent manifest error.
6.7 Capital Adequacy. If any Lender shall have determined that a
Regulatory Change resulting in the adoption after the Effective Date or
effectiveness after the Effective Date (whether or not previously announced) of
any applicable law, rule, regulation or treaty regarding capital adequacy, or
any change therein after the Effective Date, or any change in the interpretation
or administration thereof after the Effective Date by any Governmental Authority
charged with the interpretation or administration thereof, or compliance by any
Lender (or its Applicable Lending Office) with any request or directive after
the Effective Date regarding capital adequacy (whether or not having the force
of law) of any such Governmental Authority has or would have the effect of
reducing the rate of return on such Lender's capital as a consequence of such
Lender's obligations hereunder, under the Loans made by it and under the Letters
of Credit to a level below that which such Lender could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, upon satisfaction of the conditions
precedent set forth in this Section 6.7, upon demand by such Lender (with a copy
to Administrative Agent), the Company (subject to Section 13.6 hereof) shall pay
to such Lender such additional amount or amounts as will compensate such Lender
for such reduction. A certificate as to such amounts, submitted to the Company
and Administrative Agent by such Lender, setting forth the basis for such
Lender's determination of such amounts, shall constitute a demand therefor and
shall be conclusive and binding for all purposes, absent manifest error. The
Company shall pay the amount shown as due on any such certificate within four
(4) Business Days after delivery of such certificate. Subject to Section 6.8, in
preparing such certificate, a Lender may employ such assumptions and allocations
of costs and expenses as it shall in good faith deem reasonable and may use any
reasonable averaging and attribution method.
6.8 Limitation on Additional Charges; Substitute Lenders;
Non-Discrimination. Anything in this Section 6 notwithstanding:
(a) the Company shall not be required to pay to
any Lender reimbursement with regard to any costs or expenses, unless such
Lender notifies the Company of such costs or expenses within 90 days after the
date paid or incurred;
(b) none of the Lenders shall be permitted to
pass through to the Company charges and costs under this Section 6 on a
discriminatory basis (i.e., which are not also passed through by such Lender to
other customers of such Lender similarly situated where such customer is subject
to documents providing for such pass through); and
32
(c) if any Lender elects to pass through to the
Company any material charge or cost under this Section 6 or elects to terminate
the availability of Eurodollar Loans for any material period of time, the
Company may, within 60 days after the date of such event and so long as no
Default shall have occurred and be continuing, elect to terminate such Lender as
a party to this Agreement; provided that, concurrently with such termination the
Company shall (i) pay that Lender all principal, interest and fees and other
amounts (including, without limitation, any amounts due under Section 6.5) owed
to such Lender through such date of termination or (ii) have arranged for
another financial institution approved by Administrative Agent (such approval
not to be unreasonably withheld) as of such date, to become a substitute Lender
for all purposes under this Agreement in the manner provided in Section 13.5;
provided further that, prior to substitution for any Lender, the Company shall
have given written notice to Administrative Agent of such intention and the
Lenders shall have the option, but no obligation, for a period of 60 days after
receipt of such notice, to increase their Commitments in order to replace the
affected Lender in lieu of such substitution.
SECTION 7 CONDITIONS PRECEDENT.
7.1 Initial Loans. The obligation of each Lender or any applicable
Issuer to make its initial Loans on or after the Effective Date or issue or
participate in a Letter of Credit on or after the Effective Date (if such Letter
of Credit is issued prior to the funding of the initial Loans on or after the
Effective Date) hereunder is subject to the following conditions precedent, each
of which shall have been fulfilled or waived to the satisfaction of
Administrative Agent:
(a) Corporate Action and Status. Administrative
Agent shall have received from the appropriate Governmental Authorities
certified copies of the Organizational Documents (other than bylaws) of the
Company and the Guarantor, and evidence satisfactory to Administrative Agent of
all corporate action taken by the Company and the Guarantor authorizing the
execution, delivery and performance of the Loan Documents and all other
documents related to this Agreement to which it is a party (including, without
limitation, a certificate of the secretary of each such party setting forth the
resolutions of its Board of Directors authorizing the transactions contemplated
thereby and attaching a copy of its bylaws), together with such certificates as
may be appropriate to demonstrate the qualification and good standing of the
Company and the Guarantor in Delaware, Texas and Louisiana, as applicable.
(b) Incumbency. Each Obligor shall have
delivered to Administrative Agent a certificate in respect of the name and
signature of each of the officers (i) who is authorized to sign on its behalf
the applicable Loan Documents related to any Loan or the issuance of any Letter
of Credit and (ii) who will, until replaced by another officer or officers duly
authorized for that purpose, act as its representative for the purposes of
signing documents and giving notices and other communications in connection with
any Loan or the issuance of any Letter of Credit. Administrative Agent and each
Lender may conclusively rely on such certificates until they receive notice in
writing from the appropriate Obligor to the contrary.
(c) Loan Documents. Each Obligor shall have duly
executed and delivered the other Loan Documents to which it is a party (in such
number of copies as Administrative Agent shall have requested) and each such
Loan Document shall be in form
33
satisfactory to Administrative Agent. Each such Loan Document shall be in
substantially the form furnished to the Lenders prior to their execution of this
Agreement, together with such changes therein as Administrative Agent may
approve.
(d) Fees and Expenses. The Company shall have
paid to Administrative Agent for the account of each Lender all accrued and
unpaid commitment fees and other fees in the amounts previously agreed upon in
writing among the Company and Administrative Agent; and shall have in addition
paid to each Agent all amounts payable under the letter agreements referred to
in Section 2.4(b) hereof and under Section 9.7 hereof on or before the Effective
Date.
(e) Opinions of Counsel. Administrative Agent
shall have received an opinion of Vinson & Elkins LLP, counsel to the Company
and the Guarantor, in form and substance reasonably satisfactory to the Agents.
(f) Execution by Lenders and Agents.
Administrative Agent shall have received counterparts of this Agreement executed
and delivered by or on behalf of each of the Lenders and the Agents or
Administrative Agent shall have received evidence satisfactory to it of the
execution and delivery by each of the Lenders and Agents of a counterpart
hereof.
(g) Consents. Administrative Agent shall have
received evidence satisfactory to it that, except as disclosed in the Disclosure
Statement, all material consents of each Governmental Authority and of each
other Person, if any, reasonably required in connection with (a) the Loans and
the Letters of Credit and (b) the execution, delivery and performance of this
Agreement and the other Loan Documents have been satisfactorily obtained.
(h) Margin Regulations. After giving effect to
such Loan or Letters of Credit, the Company and Lenders shall be in compliance
with the Margin Regulations.
(i) Financial Reports; Filings. Administrative
Agent shall have received copies of the financial statements, referred to in
Section 8.6 or otherwise requested by any Lender.
(j) Lien Searches. Administrative Agent shall
have received certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report certified by a
party acceptable to Administrative Agent, dated a date reasonably near to the
date of the initial Loan, listing all effective financing statements which name
the Company or the Guarantor as the debtor and which are filed in the following
jurisdictions: Delaware, Texas and Louisiana, together with copies of such
financing statements.
(k) Termination of Prior Credit Agreement.
Administrative Agent shall have received (i) from the Company, a letter, in form
and substance reasonably satisfactory to Administrative Agent, terminating the
commitments of the lenders under the Prior Credit Agreement upon payment in full
of all amounts due thereunder, and (ii) evidence satisfactory to it that all
principal, interest, fees and other amounts owing by the Company to the agents
and the lenders under the Prior Credit Agreement have been paid in full with the
proceeds of the initial funding of Loans hereunder.
34
(l) Other Documents. Administrative Agent shall
have received such other documents consistent with the terms of this Agreement
and relating to the transactions contemplated hereby as Administrative Agent may
reasonably request.
All provisions and payments required by this Section 7.1 are subject to the
provisions of Section 13.6.
7.2 Initial and Subsequent Loans. The obligation of each Lender or
any applicable Issuer to make any Loan (including, without limitation, its
initial Loan) to be made by it hereunder (excluding conversions of Loans to
Alternate Base Rate Loans, as to which no conditions precedent shall exist) or
to issue or participate in any Letter of Credit is subject to the additional
conditions precedent that (i) Administrative Agent shall have received a Request
for Extension of Credit and such other certifications as Administrative Agent
may reasonably require, (ii) in the case of Competitive Loans, the Company shall
have complied with the provisions of Section 2.9 hereof and (iii) as of the date
of such Loan or such issuance, and after giving effect thereto:
(a) no Default shall have occurred and be
continuing;
(b) except for facts timely disclosed to
Administrative Agent from time to time in writing, which facts (i) are not
materially more adverse to the Company and its Subsidiaries or any other
Obligor, (ii) do not materially decrease the ability of the Lenders to collect
the Obligations as and when due and payable and (iii) do not materially increase
the liability of any Agent or any of the Lenders, in each case compared to those
facts existing on the Effective Date and the material details of which have been
set forth in the Financial Statements delivered to Administrative Agent prior to
the Effective Date or in the Disclosure Statement, and except for the
representations set forth in the Loan Documents which, by their terms, are
expressly (or by means of similar phrasing) made as of the Effective Date or as
of the date hereof, as the case may be, only, the representations and warranties
made in each Loan Document shall be true and correct in all material respects on
and as of the date of the making of such Loan or such issuance, with the same
force and effect as if made on and as of such date;
(c) the making of such Loan or the issuance of
such Letter of Credit shall not violate any Legal Requirement applicable to any
Lender; and
(d) no event or condition shall have occurred
since the Effective Date which reasonably could be expected to result in a
Material Adverse Effect.
Each Request for Extension of Credit by the Company hereunder or
request for issuance of a Letter of Credit shall include a representation and
warranty by the Company to the effect set forth in Sections 7.2(a) and (b) (both
as of the date of such notice and, unless the Company otherwise notifies
Administrative Agent prior to the date of such borrowing or issuance, as of the
date of such borrowing or issuance).
SECTION 8 REPRESENTATIONS AND WARRANTIES. To induce the Lenders
to enter into this Agreement and to make the Loans and issue or participate in
the Letters of Credit, the Company represents and warrants (such representations
and warranties to survive any
35
investigation and the making of the Loans and the issuance of the Letters of
Credit) to the Lenders and the Agents as follows:
8.1 Corporate Existence. The Company, the Guarantor and each
Subsidiary of the Company are duly organized, legally existing and in good
standing under the laws of the respective jurisdictions in which they are
formed, and are duly qualified in all jurisdictions wherein the property owned
or the business transacted by them makes such qualification necessary and the
failure to so qualify could reasonably be expected to result in a Material
Adverse Effect.
8.2 Corporate Power and Authorization. Each Obligor is duly
authorized and empowered to execute, deliver, and perform this Agreement and the
other Loan Documents to which it is a party; and all corporate action on the
part of such Obligor for the due execution, delivery, and performance of this
Agreement and the other Loan Documents to which such Obligor is a party has been
duly and effectively taken.
8.3 Binding Obligations. This Agreement and the other Loan
Documents constitute legal, valid and binding obligations of each Obligor, to
the extent each is a party thereto, enforceable against it, to the extent each
is a party thereto, in accordance with their respective terms, except as may be
limited by any bankruptcy, insolvency, moratorium or other similar laws or
judicial decisions affecting creditors' rights generally and general principles
of equity whether considered at law or in equity.
8.4 No Legal Bar or Resultant Lien. Each Obligor's creation,
issuance, execution, delivery and performance of this Agreement and the other
Loan Documents, to the extent it is a party thereto, does not and will not
violate any provisions of the Organizational Documents of such Obligor or any
Legal Requirement to which such Obligor is subject or by which its property may
be presently bound or encumbered or any other material contractual obligation of
such Obligor, or result in the creation or imposition of any Lien upon any
properties of the Company, the Guarantor or any Subsidiary of the Company, other
than those permitted by this Agreement.
8.5 No Consent. Except as set forth in the Disclosure Statement,
each Obligor's execution, delivery, and performance of this Agreement and the
other Loan Documents to which it is a party does not and will not require the
consent or approval of any Person other than such consents and/or approvals
obtained by the Company contemporaneously with or prior to the execution of this
Agreement, including, without limitation, any Governmental Authorities, other
than those consents the failure to obtain which could not be reasonably expected
to have a Material Adverse Effect.
8.6 Financial Condition. The audited consolidated annual financial
statements of the Company and its consolidated Subsidiaries for the year ended
December 31, 2001, which have been delivered to the Lenders, have been prepared
in accordance with GAAP, and present fairly, in all material respects the
consolidated financial condition and results of the operations of the Company
and its consolidated Subsidiaries for the period stated. No Material Adverse
Effect has occurred since December 31, 2001, except as disclosed to the Lenders
in the Disclosure Statement.
36
8.7 Investments and Guaranties. As of the Effective Date, no
Subsidiary of the Company had made Investments in or advances to, and neither
the Company nor any Subsidiary of the Company had made Guarantees of, the
obligations of any Person, except as (a) disclosed to the Lenders in the
Disclosure Statement or (b) not prohibited by applicable provisions of Section
10.
8.8 Liabilities and Litigation. Neither the Company nor any
Subsidiary of the Company, has any material (individually or in the aggregate)
liabilities, direct or contingent, except as (a) disclosed or referred to in the
Financial Statements, (b) disclosed to the Lenders in the Disclosure Statement,
(c) disclosed in a notice to Administrative Agent pursuant to Section 9.10 with
respect to such as could reasonably be expected to have a Material Adverse
Effect or (d) not prohibited by applicable provisions of Section 10. Except as
(a) described in the Financial Statements, (b) otherwise disclosed to the
Lenders in the Disclosure Statement, (c) disclosed in a notice to Administrative
Agent pursuant to Section 9.10 with respect to such as could reasonably be
expected to have a Material Adverse Effect or (d) not prohibited by applicable
provisions of Section 10, no litigation, legal, administrative or arbitral
proceeding, investigation, or other action of any nature exists or (to the
knowledge of the Company) is threatened against or affecting the Company or any
Subsidiary of the Company which could reasonably be expected to result in any
judgment which could reasonably be expected to have a Material Adverse Effect,
or which in any manner challenges or may challenge or draw into question the
validity of this Agreement or any other Loan Document, or enjoins or threatens
to enjoin or otherwise restrain any of the transactions contemplated by any of
them.
8.9 Taxes and Governmental Charges. The Company and its
Subsidiaries have filed, or obtained extensions with respect to the filing of,
all material tax returns and reports required to be filed and have paid all
material taxes, assessments, fees and other governmental charges levied upon any
of them or upon any of their respective properties or income which are due and
payable, including interest and penalties, or have provided adequate reserves
for the payment thereof.
8.10 Title to Properties. The Company and its Subsidiaries have
good and defensible title to their respective properties (including, without
limitation, all fee and leasehold interests), free and clear of all Liens except
(a) those referred to in the Financial Statements, (b) as disclosed to the
Lenders in the Disclosure Statement or (c) as permitted by Section 10.2.
8.11 Defaults. Neither the Company nor any Subsidiary of the
Company is in default, which default could reasonably be expected to have a
Material Adverse Effect, under any indenture, mortgage, deed of trust, agreement
or other instrument to which the Company or any Subsidiary of the Company is a
party or by which the Company or any Subsidiary of the Company or any of their
property is bound, except for defaults that could not reasonably be expected to
have a Material Adverse Effect. No Default under this Agreement or any other
Loan Document has occurred and is continuing.
8.12 Location of Businesses and Offices. Except to the extent that
Administrative Agent has been furnished written notice to the contrary, or of
additional locations pursuant to Section 9.10, the Company's jurisdiction of
organization is Delaware and the name of the
37
Company as listed in the public records of its jurisdiction of organization is
"Ocean Energy, Inc."
8.13 Compliance with Law. Neither the Company nor any Subsidiary of
the Company (except as (a) disclosed to the Lenders in the Disclosure Statement,
(b) disclosed in a notice to Administrative Agent pursuant to Section 9.10 with
respect to such as could reasonably be expected to have a Material Adverse
Effect or (c) not prohibited by applicable provisions of Section 10):
(a) is in violation of any Legal Requirement; or
(b) has failed to obtain any license, permit,
franchise or other governmental authorization necessary to the ownership of any
of their respective properties or the conduct of their respective business;
which violation or failure could reasonably be expected to have a Material
Adverse Effect.
8.14 Margin Stock. None of the proceeds of the Loans will be used
for the purpose of, and neither the Company, the Guarantor nor any Subsidiary of
the Company is engaged in the business of extending credit for the purpose of
(a) purchasing or carrying any "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System (12 C.F.R. Part 221) or (b)
reducing or retiring any indebtedness which was originally incurred to purchase
or carry margin stock, if such purpose under either (a) or (b) above would
constitute this transaction a "purpose credit" within the meaning of said
Regulation U, or for any other purpose which would constitute this transaction a
"purpose credit". Neither the Company, the Guarantor nor any Subsidiary of the
Company is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying margin
stocks. Neither the Company, the Guarantor nor any Subsidiary of the Company nor
any Person acting on behalf of the Company, the Guarantor or any Subsidiary of
the Company has taken or will take any action which might cause any of the Loan
Documents, including this Agreement, to violate Regulation U or any other
regulation of the Board of Governors of the Federal Reserve System, or to
violate any similar provision of the Securities Exchange Act of 1934 or any rule
or regulation under any such provision thereof.
8.15 Subsidiaries. The Company has no Subsidiaries as of the
Effective Date except those shown in Exhibit C.
8.16 ERISA. With respect to each Plan, the Company and each ERISA
Affiliate have fulfilled their obligations, including obligations under the
minimum funding standards of ERISA and the Code, and are in compliance in all
material respects with the provisions of ERISA and the Code. The Company has no
knowledge of any event which could result in a liability of the Company or any
ERISA Affiliate to the PBGC or a Plan (other than to make contributions in the
ordinary course). Since the effective date of Title IV of ERISA, there have not
been any nor are there now existing any events or conditions that would cause
the Lien provided under Section 4068 of ERISA to attach to any property of the
Company or any ERISA Affiliate. There are no Unfunded Liabilities with respect
to any Plan. No "prohibited transaction" has occurred with respect to any Plan.
38
8.17 Investment Company Act. Neither the Company nor any of its
Subsidiaries is an investment company within the meaning of the Investment
Company Act of 1940, as amended, or, directly or indirectly, controlled by or
acting on behalf of any Person which is an investment company, within the
meaning of said Act.
8.18 Public Utility Holding Company Act. Neither the Company nor
any of its Subsidiaries (i) is subject to regulation under the Public Utility
Holding Company Act of 1935, as amended (the "PUHC Act"), except as to Section
9(a)(2) thereof (15 U.S.C.A. Section 79(i)(a)(2)), or (ii) is in violation of
any of the provisions, rules, regulations or orders of or under the PUHC Act.
Further, none of the transactions contemplated under this Agreement, including
without limitation, the making of the Loans and the issuance of the Letters of
Credit, shall cause or constitute a violation of any of the provisions, rules,
regulations or orders of or under the PUHC Act and the PUHC Act does not in any
manner impair the legality, validity or enforceability of this Agreement.
8.19 Environmental Matters. Except as disclosed in the Disclosure
Statement, (i) the Company and its Subsidiaries have obtained and maintained in
effect all Environmental Permits (or has initiated the necessary steps to
transfer the Environmental Permits into its name), the failure to obtain which
could reasonably be expected to have a Material Adverse Effect, (ii) the Company
and its Subsidiaries and their properties, assets, business and operations have
been and are in compliance with all applicable Requirements of Environmental Law
and Environmental Permits failure to comply with which could reasonably be
expected to have a Material Adverse Effect, (iii) the Company and its
Subsidiaries and their properties, assets, business and operations are not
subject to any (i) Environmental Claims or (ii) Environmental Liabilities, in
either case direct or contingent, and whether known or unknown, arising from or
based upon any act, omission, event, condition or circumstance occurring or
existing on or prior to the Effective Date which could reasonably be expected to
have a Material Adverse Effect, and (iv) no Responsible Officer of the Company
or any of its Subsidiaries has received any notice of any violation or alleged
violation of any Requirements of Environmental Law or Environmental Permit or
any Environmental Claim in connection with its assets, properties, business or
operations which could reasonably be expected to have a Material Adverse Effect.
The liability (including without limitation any Environmental Liability and any
other damage to persons or property), if any, of the Company and its
Subsidiaries and with respect to their properties, assets, business and
operations which is reasonably expected to arise in connection with Requirements
of Environmental Laws currently in effect and other environmental matters
presently known by a Responsible Officer of the Company will not have a Material
Adverse Effect. No Responsible Officer of the Company knows of any event or
condition with respect to Environmental Matters with respect to any of its
properties or the properties of any of its Subsidiaries which could reasonably
be expected to have a Material Adverse Effect. For purposes of this Section
8.19, "Environmental Matters" shall mean matters relating to pollution or
protection of the environment, including, without limitation, emissions,
discharges, releases or threatened releases of Hazardous Substances into the
environment (including, without limitation, ambient air, surface water or ground
water, or land surface or subsurface), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Substances.
39
8.20 Claims and Liabilities. Except as disclosed to the Lenders in
writing, neither the Company or any of its Subsidiaries nor the Guarantor has
accrued any liabilities under gas purchase contracts for gas not taken, but for
which it is liable to pay if not made up and which, if not paid, would have a
Material Adverse Effect. Except as disclosed to the Lenders in writing, no
claims exist against the Company or its Subsidiaries or the Guarantor for gas
imbalances which claims if adversely determined would have a Material Adverse
Effect. No purchaser of product supplied by the Company or any of its
Subsidiaries or the Guarantor has any claim against the Company or any of its
Subsidiaries for product paid for, but for which delivery was not taken as and
when paid for, which claim if adversely determined would have a Material Adverse
Effect.
8.21 Solvency. Neither the Company, the Guarantor nor the Company
and its Subsidiaries, on a consolidated basis, is "insolvent", as such term is
used and defined in the Bankruptcy Code.
SECTION 9 AFFIRMATIVE COVENANTS. A deviation from the
provisions of this Section 9 will not constitute a Default under this Agreement
if such deviation is consented to in writing by the Majority Lenders. Without
the prior written consent of the Majority Lenders, the Company agrees with the
Lenders and the Agents that, so long as any of the Commitments is in effect and
until payment in full of all Obligations and the termination or expiry of all
Letters of Credit:
9.1 Financial Statements and Reports. The Company will promptly
furnish to any Lender from time to time upon request such information regarding
the business and affairs and financial condition of the Company and its
Subsidiaries and the Guarantor as such Lender may reasonably request, and will
furnish to the Agents and each of the Lenders:
(a) Annual Reports - promptly after becoming
available and in any event within 100 days after the close of each fiscal year
of the Company:
(i) the audited consolidated balance
sheet of the Company and its Subsidiaries as of the end of such year;
(ii) the audited consolidated statement
of earnings of the Company and its Subsidiaries for such year;
(iii) the audited consolidated statement
of cash flows of the Company and its Subsidiaries for such year;
setting forth in each case in comparative form the corresponding figures for the
preceding fiscal year, and, in the case of the audited Financial Statements,
audited and accompanied by the related opinion of KPMG LLP or other independent
certified public accountants of recognized national standing acceptable to the
Majority Lenders, which opinion shall state that such audited balance sheets and
statements have been prepared in accordance with GAAP consistently followed
throughout the period indicated and fairly present, in all material respects the
consolidated financial condition and results of operations of the applicable
Persons as at the end of, and for, such fiscal year; and
40
(b) Quarterly Reports - as soon as available and
in any event within 50 days after the end of each of the first three quarterly
periods in each fiscal year of the Company:
(i) the unaudited consolidated balance
sheet of the Company and its Subsidiaries as of the end of such quarter;
(ii) the unaudited consolidated
statement of earnings of the Company and its Subsidiaries for such quarter and
for the period from the beginning of the fiscal year to the close of such
quarter;
(iii) the unaudited consolidated
statement of cash flows of the Company and its Subsidiaries for such quarter and
for the period from the beginning of the fiscal year to the close of such
quarter;
all of items (i) through (iii) above prepared on substantially the same
accounting basis as the annual reports described in Subsection 9.1(a), subject
to normal changes resulting from year-end adjustments; and
(c) [Intentionally omitted]; and
(d) SEC and Other Reports - promptly upon their
becoming publicly available, one copy of each financial statement, report,
notice or definitive proxy statement sent by the Company or any Subsidiary to
shareholders generally, and of each regular or periodic report and any
registration statement, prospectus or written communication (other than
transmittal letters) in respect thereof filed by the Company or any of its
Subsidiaries with, or received by the Company or any of its Subsidiaries in
connection therewith from, any securities exchange or the Securities and
Exchange Commission or any successor agency.
All of the balance sheets and other financial statements referred to in
this Section 9.1 will be in such detail as any Lender may reasonably request and
will conform to GAAP applied on a basis consistent with those of the Financial
Statements as of December 31, 2001. In addition, if GAAP shall change with
respect to any matter relative to determination of compliance with this
Agreement, the Company will also provide financial information necessary for the
Lenders to determine compliance with this Agreement.
9.2 Officers' Certificates.
(a) Concurrently with the furnishing of the
annual financial statements pursuant to Subsection 9.1(a), commencing with the
annual financial statements required to be delivered in 2002, the Company will
furnish or cause to be furnished to Administrative Agent a certificate signed by
the principal financial officer of the Company in the form of Exhibit D.
(b) Concurrently with the furnishing of the
quarterly financial statements pursuant to Subsection 9.1(b), the Company will
furnish to Administrative Agent a principal financial officer's certificate in
the form of Exhibit D.
41
9.3 Taxes and Other Liens. The Company will and will cause each
Subsidiary of the Company to pay and discharge promptly all taxes, assessments
and governmental charges or levies imposed upon the Company or such Subsidiary,
or upon the income or any property of the Company or such Subsidiary, as well as
all claims of any kind (including claims for labor, materials, supplies, rent
and payment of proceeds attributable to Hydrocarbon production) which, if
unpaid, might result in or become a Lien upon any or all of the property of the
Company or such Subsidiary; provided, however, that neither the Company nor such
Subsidiary will be required to pay any such tax, assessment, charge, levy or
claims if the amount, applicability or validity thereof will currently be
contested in good faith by appropriate proceedings diligently conducted and if
the Company or such Subsidiary will have set up reserves therefor adequate under
GAAP.
9.4 Maintenance. Except as referred to in Sections 8.1 and 8.13
and except as permitted under Section 10.4 the Company will and will cause each
Subsidiary of the Company to: (i) maintain its corporate existence; (ii)
maintain its rights and franchises, except for any mergers or consolidations
otherwise permitted by this Agreement and except to the extent failure to so
maintain the same would not have a Material Adverse Effect; (iii) observe and
comply (to the extent that any failure would have a Material Adverse Effect)
with all valid Legal Requirements (including without limitation Requirements of
Environmental Law); and (iv) maintain (except to the extent failure to so
maintain the same would not have a Material Adverse Effect) its properties (and
any properties leased by or consigned to it or held under title retention or
conditional sales contracts) consistent with the standards of a reasonably
prudent operator at all times and make all repairs, replacements, additions,
betterments and improvements to its properties consistent with the standards of
a reasonably prudent operator.
9.5 Further Assurances. The Company will, and will cause each
Subsidiary of the Company to, cure promptly any defects in the execution and
delivery of the Loan Documents, including this Agreement. The Company at its
expense will promptly execute and deliver to Administrative Agent upon request
all such other and further documents, agreements and instruments (or cause any
of its Subsidiaries to take such action) in compliance with or accomplishment of
the covenants and agreements of the Company or any of its Subsidiaries in the
Loan Documents, including this Agreement, or to correct any omissions in the
Loan Documents, or to make any recordings, to file any notices, or obtain any
consents, all as may be necessary or appropriate in connection therewith.
9.6 Performance of Obligations. The Company will pay the Loans
according to the reading, tenor and effect of this Agreement; and the Company
will do and perform every act and discharge all of the obligations provided to
be performed and discharged by the Company under this Agreement and the other
Loan Documents at the time or times and in the manner specified, and cause each
of its Subsidiaries to take such action with respect to their obligations to be
performed and discharged under the Loan Documents to which they respectively are
parties.
9.7 Reimbursement of Expenses. Whether or not any Loan is ever
made or any Letter of Credit is ever issued, the Company agrees to pay or
reimburse Administrative Agent for paying the reasonable fees and expenses of
Mayer, Brown, Rowe & Maw, special counsel to the Agents in connection with the
negotiation of the terms and structure of the Obligations, the preparation,
execution and delivery of this Agreement and the other Loan Documents and the
42
making of the Loans and the issuance of Letters of Credit hereunder, as well as
any modification, supplement or waiver of any of the terms of this Agreement and
the other Loan Documents. The Company will promptly upon request and in any
event within 30 days from the date of receipt by the Company of a copy of a bill
for such amounts, reimburse any Lender or any Agent for all amounts reasonably
expended, advanced or incurred by such Lender or such Agent to satisfy any
obligation of the Company under this Agreement or any other Loan Document, to
protect the properties or business of the Company or any Subsidiary of the
Company, to collect the Obligations, or to enforce the rights of such Lender or
such Agent under this Agreement or any other Loan Document, which amounts will
include without limitation all court costs, attorneys' fees (but not including
allocated costs of in-house counsel), any engineering fees and expenses, fees of
auditors, accountants and appraisers, investigation expenses, all transfer,
stamp, documentary or similar taxes, assessments or charges levied by any
Governmental Authority in respect of any of the Loan Documents or any other
document referred to therein, all costs, expenses, taxes, assessments and other
charges incurred in connection with any filing, registration, recording or
perfection of any Lien contemplated by any of the Loan Documents or any document
referred to therein, fees and expenses incurred in connection with such Lender's
participation as a member of a creditors' committee in a case commenced under
the Bankruptcy Code or other similar law of the United States or any state
thereof, fees and expenses incurred in connection with lifting the automatic
stay prescribed in Section 362 Title 11 of the United States Code, and fees and
expenses incurred in connection with any action pursuant to Section 1129 Title
11 of the United States Code and all other customary out-of-pocket expenses
incurred by such Lender or such Agent in connection with such matters, together
with interest after the expiration of the 30-day period stated above in this
Section if no Event of Default has occurred and is continuing, or from the date
of the request to the Company if an Event of Default has occurred and is
continuing, at either (i) the Post-Default Rate on each such amount until the
date of reimbursement to such Lender or such Agent, or (ii) if no Event of
Default will have occurred and be continuing, the Alternate Base Rate plus the
highest Applicable Margin for Alternate Base Rate Loans (not to exceed the
Highest Lawful Rate) on each such amount until the date of the Company's receipt
of written demand or request by such Lender or such Agent for the reimbursement
of same, and thereafter at the applicable Post-Default Rate until the date of
reimbursement to such Lender or such Agent. The obligations of the Company under
this Section are compensatory in nature, shall be deemed liquidated as to amount
upon receipt by the Company of a copy of any invoice therefor, and will survive
the non-assumption of this Agreement in a case commenced under the Bankruptcy
Code or other similar law of the United States or any state thereof, and will
remain binding on the Company and any trustee, receiver, or liquidator of the
Company appointed in any such case.
9.8 Insurance. The Company and its Subsidiaries will maintain,
with financially sound and reputable insurers, insurance with respect to their
respective properties and business against such liabilities, casualties, risks
and contingencies and in such types and amounts as is customary in the case of
corporations engaged in the same or similar businesses and similarly situated.
Upon the request of Administrative Agent acting at the instruction of the
Majority Lenders, the Company will furnish or cause to be furnished to
Administrative Agent from time to time a summary of the insurance coverage of
the Company and its Subsidiaries in form and substance satisfactory to the
Majority Lenders in their reasonable judgment, and if requested will furnish
Administrative Agent copies of the applicable policies.
43
9.9 Accounts and Records. The Company will keep and will cause
each Subsidiary of the Company to keep books of record and account which fairly
reflect all dealings or transactions in relation to their respective businesses
and activities, in accordance with GAAP, which books of record and account will
be maintained, to the extent necessary to enable compliance with all provisions
of this Agreement, separately for each such Subsidiary, the Company and any
division of the Company.
9.10 Notice of Certain Events. The Company will promptly notify
Administrative Agent (and Administrative Agent will then notify all of the
Lenders and other Agents) if a Responsible Officer of the Company learns of the
occurrence of, or if the Company causes or intends to cause, as the case may be:
(i) any event which constitutes a Default,
together with a detailed statement by a Responsible Officer of the
Company of the steps being taken to cure the effect of such Default; or
(ii) the receipt of any notice from, or the
taking of any other action by, the holder of any promissory note,
debenture or other evidence of indebtedness of the Company or any
Subsidiary of the Company or of any security (as defined in the
Securities Act of 1933, as amended) of the Company or any Subsidiary of
the Company with respect to a claimed default, together with a detailed
statement by a Responsible Officer of the Company specifying the notice
given or other action taken by such holder and the nature of the
claimed default and what action the Company or such Subsidiary is
taking or proposes to take with respect thereto; or
(iii) any legal, judicial or regulatory
proceedings affecting the Company or any Subsidiary of the Company or
any of the properties of the Company or any Subsidiary of the Company
in which the amount involved is materially adverse to the Company and
its Subsidiaries taken as a whole, and is not covered by insurance or
which, if adversely determined, would have a Material Adverse Effect;
or
(iv) any dispute between the Company or any
Subsidiary of the Company and any Governmental Authority or any other
Person which, if adversely determined, could reasonably be expected to
have a Material Adverse Effect; or
(v) the occurrence of a default or event of
default by the Company or any Subsidiary of the Company under any other
agreement to which it is a party, which default or event of default
could reasonably be expected to have a Material Adverse Effect; or
(vi) any material change in the accuracy of the
representations and warranties of the Company or any Subsidiary
contained in this Agreement or any other Loan Document; or
(vii) any material violation or alleged material
violation of any Requirements of Environmental Law or Environmental
Permit or any Environmental Claim or any Environmental Liability; or
44
(viii) any tariff and rate cases and other material
reports filed by the Company or any of its Subsidiaries with any
Governmental Authority and any notice to the Company or any of its
Subsidiaries from any Governmental Authority concerning noncompliance
with any applicable material Legal Requirement; or
(ix) any requirement for the payment of all or
any portion of any Indebtedness of the Company or any of its
Subsidiaries prior to the stated maturity thereof (whether by
acceleration or otherwise) or as the result of any failure to maintain
or the reaching of any threshold amount provided in any promissory
note, bond, debenture, or other evidence of Indebtedness or under any
credit agreement, loan agreement, indenture or similar agreement
executed in connection with any of the foregoing; or
(x) any notice from the Securities and Exchange
Commission with respect to any Application (as defined in Section 8.18
hereof).
9.11 ERISA Information and Compliance. The Company will promptly
furnish to Administrative Agent (i) immediately upon receipt, a copy of any
notice of complete or partial withdrawal liability under Title IV of ERISA and
any notice from the PBGC under Title IV of ERISA of an intent to terminate or
appoint a trustee to administer any Plan, (ii) if requested by Administrative
Agent, acting on the instruction of the Majority Lenders, promptly after the
filing thereof with the United States Secretary of Labor or the PBGC or the
Internal Revenue Service, copies of each annual and other report with respect to
each Plan or any trust created thereunder, (iii) immediately upon becoming aware
of the occurrence of any "reportable event", as such term is defined in Section
4043 of ERISA, for which the disclosure requirements of Regulation Section
2615.3 promulgated by the PBGC have not been waived, or of any "prohibited
transaction", as such term is defined in Section 4975 of the Code, in connection
with any Plan or any trust created thereunder, a written notice signed by the
President or the principal financial officer of the Company or the applicable
ERISA Affiliate specifying the nature thereof, what action the Company or the
applicable ERISA Affiliate is taking or proposes to take with respect thereto,
and, when known, any action taken by the PBGC, the Internal Revenue Service or
the Department of Labor with respect thereto, (iv) promptly after the filing or
receiving thereof by the Company or any ERISA Affiliate of any notice of the
institution of any proceedings or other actions which may result in the
termination of any Plan, and (v) each request for waiver of the funding
standards or extension of the amortization periods required by Sections 303 and
304 of ERISA or Section 412 of the Code promptly after the request is submitted
by the Company or any ERISA Affiliate to the Secretary of the Treasury, the
Department of Labor or the Internal Revenue Service, as the case may be. To the
extent required under applicable statutory funding requirements, the Company
will fund, or will cause each ERISA Affiliate to fund, all current service
pension liabilities as they are incurred under the provisions of all Plans from
time to time in effect, and comply with all applicable provisions of ERISA,
except to the extent that any such failure to comply could not reasonably be
expected to have a Material Adverse Effect. The Company covenants that it shall
and shall cause each ERISA Affiliate to (A) make contributions to each Plan in a
timely manner and in an amount sufficient to comply with the contribution
obligations under such Plan and the minimum funding standards requirements of
ERISA; (B) prepare and file in a timely manner all notices and reports required
under the terms of ERISA
45
including but not limited to annual reports; and (C) pay in a timely manner all
required PBGC premiums, in each case, to the extent failure to do so would have
a Material Adverse Effect.
SECTION 10 NEGATIVE COVENANTS. A deviation from the provisions of this
Section 10 will not constitute a Default under this Agreement if such deviation
is consented to in writing by the Majority Lenders. The Company agrees with the
Lenders and the Agents that, so long as any of the Commitments is in effect and
until payment in full of all Obligations and the termination or expiry of all
Letters of Credit:
10.1 Debts, Guaranties and Other Obligations.
(i) Of Restricted Subsidiaries. The
Company will not permit any of its Restricted Subsidiaries to incur,
create, assume or in any manner become or be liable in respect of any
Indebtedness (including obligations for the payment of rentals); and
the Company will not permit any of its Restricted Subsidiaries to
Guarantee or otherwise in any way become or be responsible for
obligations of any other Person, whether by agreement to purchase the
Indebtedness of any other Person or agreement for the furnishing of
funds to any other Person through the purchase or lease of goods,
supplies or services (or by way of stock purchase, capital
contribution, advance or loan) for the purpose of paying or discharging
the Indebtedness of any other Person, or otherwise, except that the
foregoing restrictions will not apply to:
(a) Indebtedness pursuant to the Loan Documents;
(b) Indebtedness of any Restricted Subsidiary
existing on the Effective Date which is described in the Disclosure
Statement, and any extensions, renewals or replacements of such
Indebtedness upon terms no more onerous to such Restricted Subsidiary
than the terms of this Agreement;
(c) endorsements of negotiable or similar
instruments for collection or deposit in the ordinary course of
business;
(d) trade payables, lease acquisition and lease
maintenance obligations, extensions of credit from suppliers or
contractors, liabilities incurred in exploration, development and
operation of any Restricted Subsidiary's oil and gas properties or
similar obligations from time to time incurred in the ordinary course
of business, other than for borrowed money, which are paid within 90
days after the invoice date (inclusive of applicable grace periods) or
(i) are being contested in good faith, if such reserve as required by
GAAP has been made therefor or (ii) trade accounts payable of any
Restricted Subsidiaries (with respect to which no legal proceeding to
enforce collection has been commenced or, to the knowledge of any
Responsible Officer of the Company, threatened);
(e) taxes, assessments or other government
charges which are not yet due or are being contested in good faith by
appropriate action promptly initiated and diligently conducted, if such
reserve as will be required by GAAP will have been made therefor;
46
(f) intercompany Indebtedness owed to the
Company by any Restricted Subsidiary and intercompany Indebtedness owed
to any Restricted Subsidiary by any other Restricted Subsidiary;
(g) any Guarantee existing on the Effective Date
of payment or performance by any Person under any agreement so long as
the obligation guaranteed does not constitute Indebtedness for borrowed
money;
(h) obligations of any Restricted Subsidiary
under oil or gas purchase contracts for oil or gas not taken, as to
which such Restricted Subsidiary is liable to pay if not made up;
(i) obligations of any Restricted Subsidiary
under any contract for sale for future delivery of oil or gas (whether
or not the subject oil or gas is to be delivered) or other similar
agreement;
(j) obligations of any Restricted Subsidiary
under any hedging contract, forward contract, swap agreement, futures
contract or other similar agreement;
(k) obligations of any Restricted Subsidiary
under any interest rate or currency swap agreement, or any contract
implementing any interest rate or currency cap, collar or floor, or any
similar interest rate or currency hedging contract;
(l) obligations in connection with gas
imbalances arising in the ordinary course of business;
(m) Guarantees of obligations of Havre by
Guarantor in an amount not exceeding $20,000,000 in the aggregate in
connection with Indebtedness of Havre;
(n) liabilities under capital leases and lease
agreements which do not cover oil and gas properties to the extent the
incurrence and existence of such liabilities do not cause an Event of
Default; provided that, unless such Restricted Subsidiary shall have
executed a guaranty agreement, in substantially the form of Exhibit K,
in favor of the Lenders and the Agents pursuant to which such
Restricted Subsidiary guarantees the obligations of the Borrower
hereunder, such liabilities shall not exceed $35,000,000 in the
aggregate at any time outstanding;
(o) until such time as the Guaranty Agreement is
no longer in effect, any Guarantee by Guarantor of the payment or
performance of the Company with respect to Indebtedness of Company
permitted by Section 10.1(iii);
(p) obligations in connection with bank
guarantees, bonds, surety or similar obligations required or requested
by Governmental Authorities in connection with the usual and customary
operation of and the obtaining of oil and gas properties; and
(q) in addition to Indebtedness permitted by
clauses (a) through (p) above, Indebtedness of any Restricted
Subsidiary in an aggregate principal amount not exceeding $10,000,000
at any time outstanding.
47
(ii) Of Unrestricted Subsidiaries. The
Company will not permit any of its Unrestricted Subsidiaries to (a)
incur, create, assume or in any manner become or be liable in respect
of any Indebtedness (including obligations for the payment of rentals),
or (b) Guarantee or otherwise in any way become or be responsible for
obligations of any other Person, whether by agreement to purchase the
Indebtedness of any other Person or agreement for the furnishing of
funds to any other Person through the purchase or lease of goods,
supplies or services (or by way of stock purchase, capital
contribution, advance or loan) for the purpose of paying or discharging
the Indebtedness of any other Person, or otherwise, except that the
foregoing restrictions will not apply to any Indebtedness not exceeding
$200,000,000 in the aggregate for all Unrestricted Subsidiaries.
(iii) Of the Company. The Company may
incur Indebtedness for borrowed money only if such Indebtedness is at
prevailing market rates of interest and contains covenants, conditions
and events of default not materially more onerous to the Company than
the covenants, conditions and event of default set forth in one or more
of the various indentures and other debt instruments of the Company in
existence on the Effective Date.
10.2 Liens. The Company will not and will not permit any of its
Restricted Subsidiaries to create, incur, assume or permit to exist any Lien on
any of its or their properties (now owned or hereafter acquired), except:
(a) Liens securing (i) the Loans or other
obligations under the Loan Documents and (ii) the obligations under any
debt facility permitted pursuant to Section 10.1(iii) of this Agreement
which by its terms requires that such debt facility be secured on a
ratable basis with other Senior Debt upon the incurrence of Liens
generally, provided that such Liens (i) are for the equal and ratable
benefit of the Agents and the Lenders under each of this Agreement and
such debt facilities and (ii) cover the same collateral;
(b) Liens for taxes, assessments or other
governmental charges or levies not yet due or which are being contested
in good faith by appropriate action promptly initiated and diligently
conducted, if such reserve as will be required by GAAP will have been
made therefor;
(c) Liens of landlords, vendors, contractors,
subcontractors, carriers, warehousemen, mechanics, laborers or
materialmen or other like Liens arising by law or contract in the
ordinary course of business for sums not yet due or being contested in
good faith by appropriate action promptly initiated and diligently
conducted, if such reserve as will be required by GAAP will have been
made therefor;
(d) Liens existing on property owned by the
Company or any of its Restricted Subsidiaries on the Effective Date
which have been disclosed to the Lenders in the Disclosure Statement,
together with any renewals, extensions, amendments, refinancings,
rearrangements, modifications, restatements or supplements, but not
increases, thereof from time to time;
48
(e) pledges or deposits made in the ordinary
course of business in connection with worker's compensation,
unemployment insurance, social security and other like laws;
(f) inchoate liens arising under ERISA to secure
the contingent liability of the Company permitted by Section 9.11;
(g) Liens in the ordinary course of business,
not to exceed in the aggregate $50,000,000 as to the Company and its
Restricted Subsidiaries at any time in effect, regarding (i) the
performance of bids, tenders, contracts (other than for the repayment
of borrowed money or the deferred purchase price of property or
services) or leases, (ii) statutory obligations, (iii) surety appeal
bonds or (iv) Liens to secure progress or partial payments made to the
Company or any of its Restricted Subsidiaries and other Liens of like
nature;
(h) covenants, restrictions, easements,
servitudes, permits, conditions, exceptions, reservations, minor
rights, minor encumbrances, minor irregularities in title or
conventional rights of reassignment prior to abandonment which do not
materially interfere with the occupation, use and enjoyment by the
Company or any Restricted Subsidiary of its respective assets in the
normal course of business as presently conducted, or materially impair
the value thereof for the purpose of such business;
(i) Liens under joint operating agreements or
similar contractual arrangements with respect to the relevant entity's
proportionate share of the expense of exploration, development and
operation of oil, gas and mineral leasehold or fee interests owned
jointly with others, to the extent that same relate to sums not yet due
or which are being contested in good faith by appropriate action
promptly initiated and diligently conducted, if such reserve as will be
required by GAAP will have been made therefor;
(j) Liens created pursuant to the creation of
trusts or other arrangements funded solely with cash, cash equivalents
or other marketable investments or securities of the type customarily
subject to such arrangements in customary financial practice with
respect to long-term or medium-term indebtedness for borrowed money,
the sole purpose of which is to make provision for the retirement or
defeasance, without prepayment, of Indebtedness permitted under Section
10.1;
(k) [Intentionally omitted];
(l) Liens securing purchase money Indebtedness
or Capital Lease Obligations incurred in compliance with Section 10.1
of this Agreement;
(m) Liens on the capital stock or other equity
interest of any Unrestricted Subsidiary securing obligations of such
Unrestricted Subsidiary;
(n) any Lien existing on any real or personal
property of any Person at the time it becomes a Restricted Subsidiary,
or existing prior to the time of acquisition upon any real or personal
property acquired by the Company or any of its Restricted
49
Subsidiaries;
(o) legal or equitable encumbrances deemed to
exist by reason of the existence of any litigation or other legal
proceeding or arising out of a judgment or award with respect to which
an appeal is being prosecuted in good faith by appropriate action
promptly initiated and diligently conducted, if such reserve as will be
required by GAAP will have been made therefor;
(p) any Liens securing Indebtedness neither
assumed nor guaranteed by the Company or any of its Restricted
Subsidiaries nor on which it customarily pays interest, existing upon
real estate or rights in or relating to real estate acquired by the
Company or any of its Restricted Subsidiaries for substation, metering
station, pump station, storage, gathering line, transmission line,
transportation line, distribution line or right-of-way purposes, and
any Liens reserved in leases for rent and full compliance with the
terms of the leases in the case of leasehold estates, to the extent
that any such Lien referred to in this clause arises in the normal
course of business as presently conducted and does not materially
impair the use of the property covered by such Lien for the purposes
for which such property is held by the Company or its applicable
Restricted Subsidiary;
(q) rights reserved to or vested in any
municipality or governmental, statutory or public authority by the
terms of any right, power, franchise, grant, license or permit, or by
any provision of law, to terminate such right, power, franchise, grant,
license or permit or to purchase, condemn, expropriate or recapture or
to designate a purchaser of any of the property of the Company or any
of its Restricted Subsidiaries;
(r) rights reserved to or vested in any
municipality or governmental, statutory or public authority to control
or regulate any property of the Company or any of its Restricted
Subsidiaries, or to use such property in a manner which does not
materially impair the use of such property for the purposes for which
it is held by the Company or its applicable Restricted Subsidiary;
(s) any obligations or duties affecting the
property of the Company or any of its Restricted Subsidiaries to any
municipality, governmental, statutory or public authority with respect
to any franchise, grant, license or permit;
(t) rights of a common owner of any interest in
real estate, rights-of-way or easements held by the Company or any of
its Restricted Subsidiaries and such common owner as tenants in common
or through other common ownership;
(u) as to assets located in Canada,
reservations, limitations, provisos and conditions in any original
grant from the Crown or freehold lessor of any of the properties of the
Company or its Subsidiaries;
(v) other Liens securing Indebtedness not
exceeding, in the aggregate, $10,000,000 at any one time outstanding;
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(w) Liens covering cash collateral accounts
relating to obligations pursuant to Letters of Credit issued in
connection with this Agreement;
(x) Liens securing Indebtedness of the Company
or any Restricted Subsidiary of the types described in Section
10.1(i)(p) covering the oil and gas properties to which such
Indebtedness relates, provided that the aggregate amount of all such
Indebtedness so secured under this Section 10.2(x) shall not exceed
$50,000,000 in the aggregate at any one time outstanding; and
(y) Liens (i) granted to or existing in favor of
third parties on margin accounts of the Company or any of its
Restricted Subsidiaries relating to exchange traded contracts for the
delivery of natural gas pursuant to which the Company or any such
Restricted Subsidiary intends to take actual delivery of such natural
gas within forty (40) days from the then current date in the ordinary
course of business and not for speculative purposes, and (ii) on margin
accounts of the Company or any of its Restricted Subsidiaries relating
to exchange traded contracts for the delivery of natural gas, provided,
however, the aggregate balance of the margin accounts subject to the
Liens permitted by this clause (ii) shall not exceed from time to time
$10,000,000.
10.3 Dividend Payment Restrictions. The Company will not declare or
make any Dividend Payment if any Default or Event of Default has occurred and is
continuing or would result therefrom.
10.4 Mergers and Sales of Assets. The Company will not (a) merge or
consolidate with, or sell, assign, lease or otherwise dispose of, whether in one
transaction or in a series of transactions, more than (i) ten percent (10%) in
the aggregate of the Company's and its Restricted Subsidiaries' consolidated
total assets (whether now owned or hereafter acquired) to any Person or Persons
during any twelve month period or (ii) twenty-five percent (25%) in the
aggregate of the Company's and its Restricted Subsidiaries' consolidated total
assets as of the Effective Date to any Person or Persons during the Revolving
Credit Availability Period, or permit any Restricted Subsidiary to do so (other
than to the Company or another Restricted Subsidiary or the issuance by any
Restricted Subsidiary of any stock to the Company or another Restricted
Subsidiary), or (b) sell, assign, lease or otherwise dispose of, whether in one
transaction or in a series of transactions, any other properties if receiving
therefor consideration other than cash or other consideration readily
convertible to cash or which is less than the fair market value of the relevant
properties, or permit any Restricted Subsidiary to do so; provided that the
Company or any Restricted Subsidiary may merge or consolidate with any other
Person and any Restricted Subsidiary may transfer properties to any other
Restricted Subsidiary or to the Company so long as, in each case, (i)
immediately thereafter and giving effect thereto, no event will occur and be
continuing which constitutes a Default, (ii) in the case of any such merger or
consolidation to which the Company is a party, the Company is the surviving
Person, (iii) in the case of any such merger or consolidation to which any
Restricted Subsidiary is a party (but not the Company), after giving effect to
all transactions closing concurrently relating to such merger or consolidation,
the surviving Person is a Restricted Subsidiary and (iv) the surviving Person
ratifies each applicable Loan Document and provided further that any Restricted
Subsidiary may merge or consolidate with any other Restricted Subsidiary so long
as, in each case (i)
51
immediately thereafter and giving effect thereto, no event will occur and be
continuing which constitutes a Default and (ii) the surviving Person ratifies
each applicable Loan Document.
10.5 Proceeds of Loans. The Company will not permit the proceeds of
the Loans to be used for any purpose other than those permitted by this
Agreement.
10.6 ERISA Compliance. The Company will not at any time permit any
Plan maintained by it or any Restricted Subsidiary to:
(a) engage in any "prohibited transaction" as
such term is defined in Section 4975 of the Code;
(b) incur any "accumulated funding deficiency"
as such term is defined in Section 302 of ERISA; or
(c) terminate or be terminated in a manner which
could result in the imposition of a Lien on the property of the Company
or any Restricted Subsidiary pursuant to Section 4068 of ERISA,
(d) in each case, to the extent that permitting
the Plan to do so would have a Material Adverse Effect.
10.7 Total Leverage Ratio. The Company will not permit its Total
Leverage Ratio to be at any time more than 3.50 to 1.00.
10.8 [Intentionally omitted].
10.9 Minimum Net Worth. The Company will not permit its
Consolidated Net Worth as of the end of any fiscal quarter to be less than (i)
$1,075,000,000 plus (ii) an amount equal to 50% of the sum of the Company's and
its Restricted Subsidiaries' consolidated net income for each calendar quarter,
beginning with the calendar quarter ending June 30, 2002, during which such
consolidated net income is greater than $0 plus (iii) an amount equal to 50% of
the net cash proceeds received by the Company and its Restricted Subsidiaries
from the issuance of any common stock, preferred stock or other equity for each
calendar quarter, beginning with the calendar quarter ending June 30, 2002.
10.10 Nature of Business. The Company will not engage in, and will
not permit any Restricted Subsidiary to engage in, businesses other than oil and
gas exploration and production, gas processing, transmission, distribution,
marketing and storage and gas and liquids pipeline operations and activities
related or ancillary thereto; provided, that if the Company acquires one or more
Restricted Subsidiaries in transactions otherwise permitted by the terms hereof,
any such Restricted Subsidiary may be engaged in businesses other than those
listed in this Section so long as the assets of such Restricted Subsidiaries
which are used in the conduct of such other businesses do not constitute more
than five percent (5%) of the consolidated total assets of the Company
(inclusive of the assets of the Restricted Subsidiary so acquired).
10.11 Covenants in Other Agreements. The Company will not and will
not permit any of its Restricted Subsidiaries to become a party to or to agree
that it or any of its property is
52
bound by any agreement, indenture, mortgage, deed of trust or any other
instrument ("Instruments") directly or indirectly (i) restricting any loans,
advances or any other Investments to or in the Company by any of its Restricted
Subsidiaries, (ii) restricting the ability of any Restricted Subsidiary to make
tax payments or management fee payments to the Company, or (iii) restricting the
ability or capacity of any Restricted Subsidiary to make Dividend Payments to
the Company, except for (a) instruments in existence on the Effective Date and
(b) instruments entered into after the Effective Date containing restrictions
not materially more restrictive than the restrictions permitted under clause (a)
above.
SECTION 11 DEFAULTS.
11.1 Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) Payments - (i) the Company or the Guarantor
fails to make any payment or prepayment of any installment of principal
on the Loans or any Reimbursement Obligation payable under this
Agreement or the other Loan Documents when due or (ii) the Company or
the Guarantor fails to make any payment or prepayment of interest with
respect to the Loans, any Reimbursement Obligation or any other fee,
amount or Obligation under this Agreement or the other Loan Documents
and such failure to pay continues unremedied for a period of five (5)
Business Days; or
(b) Representations and Warranties - any
representation or warranty made by any Obligor in this Agreement or in
any other Loan Document or in any instrument executed in connection
herewith or therewith proves to have been incorrect in any material
respect as of the date thereof; or any representation, statement
(including Financial Statements), certificate or data furnished or made
by any Obligor (or any officer of such Obligor) under or in connection
with this Agreement or any other Loan Document, including without
limitation in the Disclosure Statement, proves to have been untrue in
any material respect, as of the date as of which the facts therein set
forth were stated or certified; or
(c) Affirmative Covenants - (i) default shall be
made in the due observance or performance of any of the covenants or
agreements contained in Sections 9.10 (or in Section 9.6 to the extent
such default is considered an Event of Default under the other
Subsections of this Section 11.1) or (ii) default is made in the due
observance or performance of any of the other covenants or agreements
contained in Section 9 of this Agreement or any other affirmative
covenant of any Obligor contained in this Agreement or any other Loan
Document and such default continues unremedied for a period of 30 days
after (x) notice thereof is given by Administrative Agent to the
Company or (y) such default otherwise becomes known to the Company,
whichever is earlier; or
(d) Negative Covenants - default is made in the
due observance or performance by the Company of any of the covenants or
agreements contained in Section 10 of this Agreement or of any other
negative covenant of any Obligor contained in this Agreement or any
other Loan Document; or
53
(e) Other Obligations - default is made in the
due observance or performance by the Company, the Guarantor or any of
its Restricted Subsidiaries (as principal or guarantor or other surety)
of any of the covenants or agreements contained in any bond, debenture,
note or other evidence of Indebtedness in excess of $25,000,000 (singly
or aggregating several such bonds, debentures, notes or other evidence
of Indebtedness) which default gives the holder the right to accelerate
the maturity of such Indebtedness, other than the Loan Documents, or
under any credit agreement, loan agreement, indenture, promissory note
or similar agreement or instrument executed in connection with any of
the foregoing, to which it (respectively) is a party and such default
is unwaived or continues unremedied beyond the expiration of any
applicable grace period which may be expressly allowed under such
instrument or agreement; or
(f) Involuntary Bankruptcy or Receivership
Proceedings - a receiver, conservator, liquidator or trustee of the
Company, the Guarantor, any Restricted Subsidiary or of any of their
property is appointed by the order or decree of any court or agency or
supervisory authority having jurisdiction, and such decree or order
remains in effect for more than 60 days; or the Company, the Guarantor
or any Restricted Subsidiary is adjudicated bankrupt or insolvent; or
any of its property is sequestered by court order and such order
remains in effect for more than 60 days; or a petition is filed against
the Company, the Guarantor or any Restricted Subsidiary under any state
or federal bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution, liquidation or receivership law of
any jurisdiction, whether now or hereafter in effect, and is not
dismissed within 60 days after such filing; or
(g) Voluntary Petitions or Consents - the
Company, the Guarantor or any Restricted Subsidiary commences a
voluntary case or other proceeding seeking liquidation, reorganization,
arrangement, insolvency, readjustment of debt, dissolution, liquidation
or other relief with respect to itself or its debt or other liabilities
under any bankruptcy, insolvency or other similar law nor 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 consents 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 fails
generally to, or cannot, pay its debts generally as they become due or
takes any corporate action to authorize or effect any of the foregoing;
or
(h) Assignments for Benefit of Creditors or
Admissions of Insolvency - the Company, the Guarantor or any Restricted
Subsidiary makes an assignment for the benefit of its creditors, or
admits in writing its inability to pay its debts generally as they
become due, or consents to the appointment of a receiver, trustee, or
liquidator of the Company, the Guarantor, any Restricted Subsidiary or
of all or any part of their property; or
(i) Undischarged Judgments - judgments
(individually or in the aggregate) for the payment of money in excess
of $20,000,000 in excess of insurance coverage are rendered by any
court or other governmental body against the Company or any of its
Restricted Subsidiaries or the Guarantor and the Company or such
Restricted Subsidiary or the Guarantor does not discharge the same or
provide for its discharge in
54
accordance with its terms, or procure a stay of execution thereof
within 60 days from the date of entry thereof, and within said period
of 60 days from the date of entry thereof or such longer period during
which execution of such judgment will have been stayed, the Company,
such Restricted Subsidiary or the Guarantor fails to appeal therefrom
and cause the execution thereof to be stayed during such appeal while
providing such reserves therefor as may be required under GAAP; or
(j) Change in Control - there should occur any
Change of Control.
THEREUPON: the Majority Lenders may (a) declare the Commitments terminated
(whereupon the Commitments shall be terminated) and/or (b) terminate any Letter
of Credit providing for such termination by sending a notice of termination as
provided therein and/or (c) declare the principal amount then outstanding of and
the accrued interest on the Loans and Reimbursement Obligations and all fees and
all other Obligations to be forthwith due and payable, whereupon such amounts
shall be and become immediately due and payable, without notice (including
without limitation notice of acceleration and notice of intent to accelerate),
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Company; provided that in the case of the
occurrence of an Event of Default with respect to the Company referred to in
clause (f) or (g) of this Section 11.1, the Commitments shall be automatically
terminated and the principal amount then outstanding of and the accrued interest
on the Loans and Reimbursement Obligations and all fees and all other
Obligations payable hereunder shall be and become automatically and immediately
due and payable, without notice (including but not limited to notice of intent
to accelerate and notice of acceleration) and without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by the Company and/or (d) exercise any and all other rights available to
it under the Loan Documents, at law or in equity.
11.2 Collateral Account. The Company hereby agrees, in addition to
the provisions of Section 11.1 hereof, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by the Majority
Lenders (through Administrative Agent), pay to Administrative Agent an amount in
immediately available funds equal to the then aggregate amount available for
drawings under all Letters of Credit issued for the account of the Company,
which funds shall be held by Administrative Agent as Cover.
11.3 Preservation of Security for Unmatured Reimbursement
Obligations. In the event that, following (i) the occurrence of an Event of
Default and the exercise of any rights available to Administrative Agent under
the Loan Documents, and (ii) payment in full of the principal amount then
outstanding of and the accrued interest on the Loans and Reimbursement
Obligations and fees and all other Obligations payable hereunder and under any
Letters of Credit shall remain outstanding and undrawn upon, Administrative
Agent shall be entitled to hold (and the Company hereby grants and conveys to
Administrative Agent a security interest in and to) all cash or other property
("Proceeds of Remedies") realized or arising out of the exercise by
Administrative Agent of any rights available to it under the Loan Documents, at
law or in equity, including, without limitation, the proceeds of any
foreclosure, as collateral for the payment of any amounts due or to become due
under or in respect of such Letters of Credit. Such Proceeds of Remedies shall
be held for the ratable benefit of the applicable Issuers. The rights, titles,
benefits, privileges, duties and obligations of Administrative Agent with
respect thereto shall be
55
governed by the terms and provisions of this Agreement. Administrative Agent
may, but shall have no obligation to, invest any such Proceeds of Remedies in
such manner as Administrative Agent, in the exercise of its sole discretion,
deems appropriate. Such Proceeds of Remedies shall be applied to Reimbursement
Obligations arising in respect of any such Letters of Credit and/or the payment
of any Issuer's obligations under any such Letter of Credit when such Letter of
Credit is drawn upon. The Company hereby agrees to execute and deliver to the
Agents and the Lenders such security agreements, pledges or other documents as
any of the Agents or any of the Lenders may, from time to time, require to
perfect the pledge, lien and security interest in and to any such Proceeds of
Remedies provided for in this Section 11.3.
11.4 Right of Setoff. Upon (i) the occurrence and during the
continuance of any Event of Default referred to in clauses (f), (g) or (h) of
Section 11.1, or upon (ii) the occurrence and continuance of any other Event of
Default and upon the making of the notice specified in Section 11.1 to authorize
the Majority Lenders to declare the Loans due and payable pursuant to the
provisions of this Agreement, or if (iii) the Company or any of its Subsidiaries
becomes insolvent, however evidenced, the Lenders are hereby authorized at any
time and from time to time, without notice to the Company or any of its
Subsidiaries (any such notice being expressly waived by the Company and its
Subsidiaries), to setoff and apply any and all deposits (general or special,
time or demand, provisional or final, whether or not such setoff results in any
loss of interest or other penalty, and including without limitation all
certificates of deposit) at any time held, and any other funds or property at
any time held, and other Indebtedness at any time owing by any Lender to or for
the credit or the account of the Company against any and all of the Obligations
irrespective of whether or not such Lender will have made any demand under this
Agreement and although such obligations may be unmatured. Should the right of
any Lender to realize funds in any manner set forth hereinabove be challenged
and any application of such funds be reversed, whether by court order or
otherwise, the Lenders shall make restitution or refund to the Company pro rata
in accordance with their Commitments. The Lenders agree promptly to notify the
Company and Administrative Agent after any such setoff and application, provided
that the failure to give such notice will not affect the validity of such setoff
and application. The rights of the Agents and the Lenders under this Section are
in addition to other rights and remedies (including without limitation other
rights of setoff) which the Agents or the Lenders may have.
SECTION 12 AGENTS.
12.1 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes each Agent to act as its agent hereunder and
under the Letters of Credit and the other Loan Documents with such powers as are
specifically delegated to such Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. Each Agent (which
term as used in this Section 12 shall include reference to its Affiliates and
its own and their Affiliates' officers, directors, employees and agents) shall
not (a) have any duties or responsibilities except those expressly set forth in
this Agreement, the Letters of Credit, and the other Loan Documents, or shall by
reason of this Agreement or any other Loan Document be a trustee or fiduciary
for any Lender; (b) be responsible to any Lender for any recitals, statements,
representations or warranties contained in this Agreement, the Letters of Credit
or any other Loan
56
Document, or in any certificate or other document referred to or provided for
in, or received by any of them under, this Agreement, the Letters of Credit or
any other Loan Document, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, the Letters of Credit, or any
other Loan Document or any other document referred to or provided for herein or
therein or any property covered thereby or for any failure by any Obligor or any
other Person to perform any of its obligations hereunder or thereunder; (c) be
required to initiate or conduct any litigation or collection proceedings
hereunder or under the Letters of Credit or any other Loan Document except to
the extent such Agent is so requested by the Majority Lenders, or (d) be
responsible for any action taken or omitted to be taken by it hereunder or under
the Letters or Credit or any other Loan Document or any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, INCLUDING, WITHOUT LIMITATION, PURSUANT TO THEIR OWN
NEGLIGENCE, except for its own gross negligence or willful misconduct. Each
Agent may employ agents and attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. Without in any way limiting any of the foregoing, each
Lender acknowledges that neither any Agent nor any Issuer shall have any greater
responsibility in the operation of the Letters of Credit than is specified in
either (i) the Uniform Customs and Practice for Documentary Credits (1993
Revision, International Chamber of Commerce Publication No. 500) and (ii) the
International Standby Practices (ISP98, International Chamber of Commerce
Publication No. 590). In any foreclosure proceeding concerning any collateral
for the Loans, each holder of a Loan if bidding for its own account or for its
own account and the accounts of other Lenders is prohibited from including in
the amount of its bid an amount to be applied as a credit against Obligations
owing to such Lender or the Obligations owing to the other Lenders; instead,
such holder must bid in cash only; provided that this provision is for the sole
benefit of the Agents and the Lenders and shall not inure to the benefit of the
Company or any of its Subsidiaries. However, in any such foreclosure proceeding,
Administrative Agent may (but shall not be obligated to) submit a bid for all
Lenders (including itself) in the form of a credit against the Obligations of
all of the Lenders, and Administrative Agent or its designee may (but shall not
be obligated to) accept title to such collateral for and on behalf of all
Lenders.
12.2 Reliance by Agents. Each Agent shall be entitled to rely upon
any certification, notice or other communication (including any thereof by
telephone, telegram or cable) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel (which may be counsel for the
Company), independent accountants and other experts selected by such Agent. As
to any matters not expressly provided for by this Agreement, the Letters of
Credit, or any other Loan Document, each Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and thereunder in
accordance with instructions of the Majority Lenders (or, where unanimous
consent is required by the terms hereof or of the other Loan Documents, all of
the Lenders), and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders. Pursuant to instructions of the Majority Lenders
(except as otherwise provided in Section 13.4 hereof), Administrative Agent
shall have the authority to execute releases of security documents on behalf of
the Lenders without the joinder of any Lender. The Company and any third-party
may conclusively rely upon any such release delivered by Administrative Agent
without investigation as to whether such release has been approved by the
Majority Lenders.
57
12.3 Defaults. Administrative Agent shall not be deemed to have
knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on Loans or Reimbursement Obligations) unless it has
received notice from a Lender or the Company specifying such Default and stating
that such notice is a "Notice of Default". In the event that Administrative
Agent receives such a notice of the occurrence of a Default, Administrative
Agent shall give prompt notice thereof to the Lenders (and shall give each
Lender prompt notice of each such non-payment). Administrative Agent shall
(subject to Section 12.7 hereof) take such action with respect to such Default
as shall be directed by the Majority Lenders and within its rights under the
Loan Documents and at law or in equity, provided that, unless and until
Administrative Agent shall have received such directions, Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, permitted hereby with respect to such Default as it shall deem
advisable in the best interests of the Lenders and within its rights under the
Loan Documents, at law or in equity.
12.4 Rights as a Lender. With respect to its Commitments and the
Loans made and the Letter of Credit Liabilities, JPMorgan, Bank One, Fleet, BNP
Paribas, Wells Fargo, Bank of America, Bank of Montreal, The Bank of Nova
Scotia, and Deutsche Bank, respectively, each in its capacity as a Lender
hereunder, shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as an Agent and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include
JPMorgan, Bank One, Fleet, BNP Paribas, Wells Fargo, Bank of America, Bank of
Montreal, The Bank of Nova Scotia, and Deutsche Bank, respectively, each in its
individual capacity. Administrative Agent may (without having to account
therefor to any Lender) accept deposits from, lend money to and generally engage
in any kind of banking, trust, letter of credit, agency or other business with
the Company (and any of its Affiliates) as if it were not acting as
Administrative Agent, and Administrative Agent may accept fees and other
consideration from the Company and its Affiliates (in addition to the fees
heretofore agreed to between the Company and Administrative Agent) for services
in connection with this Agreement or otherwise without having to account for the
same to the Lenders.
12.5 Indemnification. The Lenders agree to indemnify each Agent (to
the extent not reimbursed under Section 2.2(c), Section 9.7 or Section 13.3
hereof, but without limiting the obligations of the Company under said Sections
2.2(c), 9.7 and 13.3), ratably in accordance with their respective Commitments,
for any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever (INCLUDING, BUT NOT LIMITED TO, THE CONSEQUENCES OF THE NEGLIGENCE OF
AGENT) which may be imposed on, incurred by or asserted against such Agent in
any way relating to or arising out of this Agreement, the Letters of Credit or
any other Loan Document or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby (including,
without limitation, the costs and expenses which the Company is obligated to pay
under Sections 2.2(c), 9.7 and 13.3 hereof but excluding, unless a Default has
occurred and is continuing, normal administrative costs and expenses incident to
the performance of their respective agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the party to be indemnified.
The obligations of the Lenders
58
under this Section 12.5 shall survive the termination of this Agreement and the
repayment of the Obligations.
12.6 Non-Reliance on Agents and Other Lenders. Each Lender agrees
that it has received current financial information with respect to the Company
and its Subsidiaries and that it has, independently and without reliance on any
Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Company and its
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or any of the other Loan Documents. Each Agent shall not be
required to keep itself informed as to the performance or observance by any
Obligor of this Agreement, the Letters of Credit or any of the other Loan
Documents or any other document referred to or provided for herein or therein or
to inspect the properties or books of the Company and its Subsidiaries. Except
for notices, reports and other documents and information expressly required to
be furnished to the Lenders by Administrative Agent hereunder, under the Letters
of Credit or the other Loan Documents, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Company and its
Subsidiaries which may come into the possession of such Agent.
12.7 Failure to Act. Except for action expressly required of
Administrative Agent hereunder, under the Letters of Credit and under the other
Loan Documents, Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction by the Lenders of their indemnification
obligations under Section 12.5 hereof against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action.
12.8 Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, Administrative Agent may resign at any time by giving notice thereof to
the Lenders and the Company, and Administrative Agent may be removed at any time
with or without cause by the Majority Lenders. Upon any such resignation or
removal, the Majority Lenders shall have the right to appoint a successor
Administrative Agent (subject to the consent of the Company, which consent shall
not be unreasonably withheld), provided deposits with a successor Administrative
Agent shall be insured by the Federal Deposit Insurance Corporation or its
successor. If no successor Administrative Agent shall have been so appointed by
the Majority Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent (subject to the consent of the Company, which consent shall
not be unreasonably withheld). Any successor Administrative Agent shall be a
bank which has an office in the United States and a combined capital and surplus
of at least $1,000,000,000. 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 retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations
59
hereunder. A successor Administrative Agent shall promptly specify by notice to
the Company and the Lenders its Principal Office referred to in Sections 3.1 and
5.1. After any retiring Administrative Agent's resignation or removal hereunder
as Administrative Agent, the provisions of this Section 12 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as an Administrative Agent.
SECTION 13 MISCELLANEOUS.
13.1 Waiver. No waiver of any Default shall be a waiver of any
other Default. No failure on the part of any Agent or any Lender to exercise and
no delay in exercising, and no course of dealing with respect to, any right,
power or privilege under any Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege
thereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies provided in the Loan Documents are
cumulative and not exclusive of any remedies provided by law or in equity.
13.2 Notices. All notices and other communications provided for
herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made by telegraph, telecopy
(confirmed by mail), cable, mail or other writing and telecopied, telegraphed,
cabled, mailed or delivered to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof; or, as to any
party, at such other address as shall be designated by such party in a notice to
the Company, Administrative Agent given in accordance with this Section 13.2.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly received when transmitted by telecopier during regular
business hours, delivered to the telegraph or cable office or personally
delivered or, in the case of a mailed notice, three (3) days after deposit in
the United States mails, postage prepaid, certified mail with return receipt
requested (or upon actual receipt, if earlier), in each case given or addressed
as aforesaid.
13.3 Indemnification. The Company shall indemnify the Agents, the
Lenders, and each Affiliate thereof and their respective directors, officers,
employees and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims or damages to which any of them may become subject
(REGARDLESS OF WHETHER CAUSED IN WHOLE OR IN PART BY THE SIMPLE (BUT NOT GROSS)
NEGLIGENCE OF THE PERSON INDEMNIFIED), insofar as such losses, liabilities,
claims or damages arise out of or result from any (i) actual or proposed use by
the Company of the proceeds of any extension of credit (whether a Loan or a
Letter of Credit) by any Lender hereunder, (ii) breach by the Company of this
Agreement or any other Loan Document, (iii) violation by the Company or any of
its Subsidiaries of any Legal Requirement, including but not limited to those
relating to Hazardous Substances, (iv) Liens or security interests previously or
hereafter granted on any real or personal property, to the extent resulting from
any Hazardous Substance located in, on or under any such property, (v) ownership
by the Lenders or the Agents of any real or personal property following
foreclosure, to the extent such losses, liabilities, claims or damages arise out
of or result from any Hazardous Substance located in, on or under such property,
including, without limitation, losses, liabilities, claims or damages which are
imposed upon Persons under laws relating to or regulating Hazardous Substances
solely by virtue of ownership, (vi) Lender's or Agent's being deemed an operator
of any such real or personal property by a court or other regulatory or
60
administrative agency or tribunal in circumstances in which neither any of the
Agents nor any of the Lenders is generally operating or generally exercising
control over such property, to the extent such losses, liabilities, claims or
damages arise out of or result from any Hazardous Substance located in, on or
under such property, (vii) investigation, litigation or other proceeding
(including any threatened investigation or proceeding) relating to any of the
foregoing, and the Company shall reimburse each Agent, each Lender, and each
Affiliate thereof and their respective directors, officers, employees and
agents, upon demand, for any expenses (including legal fees) incurred in
connection with any such investigation or proceeding or (viii) taxes (excluding
income taxes and franchise taxes) payable or ruled payable by any Governmental
Authority in respect of any Loan Document, together with interest and penalties,
if any; provided, however, that the Company shall not have any obligations
pursuant to this Section 13.3 with respect to any losses, liabilities, claims,
damages or expenses (a) arising from or relating solely to events, conditions or
circumstances which, as to clauses (iv), (v) or (vi) above, first came into
existence or which first occurred after the date on which the Company or any of
its Subsidiaries conveyed to an unrelated third party all of the Company's or
the applicable Subsidiary's rights, titles and interests to the applicable real
or personal property (whether by deed, deed-in-lieu, foreclosure or otherwise)
other than a conveyance made in violation of any Loan Document, (b) incurred by
the Person seeking indemnification by reason of the gross negligence or willful
misconduct of such Person, or (c) asserted by one or more indemnified parties or
stockholders thereof against one or more indemnified parties. If the Company
ever disputes a good faith claim for indemnification under this Section 13.3 on
the basis of the proviso set forth in the preceding sentence, the full amount of
indemnification provided for shall nonetheless be paid, subject to later
adjustment or reimbursement at such time (if any) as a court of competent
jurisdiction enters a final judgment as to the applicability of any such
exceptions or an agreement is reached with respect thereto.
13.4 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Loan Document, nor any consent to any departure by
the Company therefrom, shall in any event be effective unless the same shall be
agreed or consented to by the Majority Lenders and the Company, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment, waiver or consent
shall, unless in writing and signed by each Lender affected thereby, do any of
the following: (a) increase the Commitment of such Lender (it being understood
that the waiver of any reduction in the Commitments or any mandatory repayment
other than (x) the repayment of all Loans at the end of the Revolving Credit
Availability Period and (y) the mandatory reductions of the Commitments provided
for in Section 2.3(a) and (z) the mandatory prepayments required by the terms of
Section 3.2(b), shall not be deemed to be an increase in any Commitment) or
subject the Lenders to any additional obligation; (b) reduce the principal of,
or interest on, any Loan, Reimbursement Obligation or fee hereunder; (c)
postpone any scheduled date fixed for any payment or mandatory prepayment of
principal of, or interest on, any Loan, Reimbursement Obligation, fee or other
sum to be paid hereunder; (d) change the percentage of (i) the Commitments or
(ii) the aggregate unpaid principal amount of the Loans and Letter of Credit
Liabilities, which shall be required for the Lenders or any of them to take any
action under this Agreement; (e) change any provision contained in Sections
2.2(c), 9.7 or 13.3 hereof or this Section 13.4 or Section 6.7 hereof, or (f)
release the Guarantor, except as specifically provided for by the Guaranty
Agreement. Anything in this Section 13.4 to the contrary, no amendment,
61
waiver or consent shall be made with respect to Section 12 without the consent
of Administrative Agent.
13.5 Successors and Assigns.
(a) This Agreement shall be binding upon and
inure to the benefit of the Company, the Agents and the Lenders and
their respective successors and assigns. The Company may not assign or
transfer any of its rights or obligations hereunder without the prior
written consent of all of the Lenders. Each Lender may sell
participations to any Person in all or part of any Loan or Letter of
Credit, or all or part of its Commitments, in which event, without
limiting the foregoing, the provisions of Section 6 shall inure to the
benefit of each purchaser of a participation and the pro rata treatment
of payments, as described in Section 5.2, shall be determined as if
such Lender had not sold such participation. In the event any Lender
shall sell any participation, such Lender shall retain the sole right
and responsibility to enforce the obligations of the Company relating
to the Loans or Letters of Credit, including, without limitation, the
right to approve any amendment, modification or waiver of any provision
of this Agreement or any other Loan Document other than amendments,
modifications or waivers with respect to (i) any fees payable hereunder
to the Lenders and (ii) the amount of principal or the rate of interest
payable on, or the dates fixed for the scheduled repayment of principal
of, the Loans.
(b) Each Lender may assign to one or more
Lenders or any other Person all or a portion of its interests, rights
and obligations under this Agreement, provided, however, that (i) other
than in the case of an assignment to another Lender that is, at the
time of such assignment, a party hereto or an Affiliate of such Lender,
the Company must, unless an Event of Default has occurred and is
continuing, give its prior written consent, which consent will not be
unreasonably withheld, (ii) the aggregate amount of the Commitment
and/or Loans or Letters of Credit of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Acceptance (as defined below) with respect to such assignment is
delivered to Administrative Agent) shall in no event be less than
$10,000,000 (or $5,000,000 in the case of an assignment to an Affiliate
of a Lender or between Lenders) unless either (A) if Lender's
Commitment is less than $10,000,000 or $5,000,000, as applicable, such
amount is equal to all of such Lender's Commitment under this Agreement
or (B) each of the Company and Administrative Agent otherwise consents,
(iii) notwithstanding any other term or provision of this Agreement,
unless the Company shall have otherwise consented in writing (such
consent not to be unreasonably withheld), each such assignment shall be
pro rata with respect to the Loans, the Letters of Credit and the
Commitment of the assignor, and (iv) the parties to each such
assignment shall execute and deliver to Administrative Agent, for its
acceptance and recording in the Register (as defined below), an
Assignment and Acceptance in the form of Exhibit E (each an "Assignment
and Acceptance") with blanks appropriately completed, together with any
note or notes subject to such assignment and a processing and
recordation fee of $3,500 paid by the assignee (for which the Company
shall have no liability). Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five
Business
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Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and
(B) the Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this
Agreement. Notwithstanding anything contained in this Agreement to the
contrary, any Lender may at any time assign all or any portion of its
rights under this Agreement and the notes issued to it as collateral to
a Federal Reserve Bank; provided, that no such assignment shall release
the assigning Lender from any of its obligations hereunder.
(c) By executing and delivering an Assignment
and Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other parties
hereto as follows: (i) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim, such Lender assignor makes
no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any of the other Loan Documents or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant
thereto; (ii) such Lender assignor makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of the Company and its Subsidiaries or the performance or observance by
the Company and its Subsidiaries of any of its obligations under this
Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that
it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 8.6 and 9.1 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon any Agent, such Lender assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents; (v) such
assignee appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement
and the other Loan Documents as are delegated to such Agent by the
terms hereof, together with such powers as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all obligations that by the terms of this
Agreement and the other Loan Documents are required to be performed by
it as a Lender.
(d) Administrative Agent shall maintain at its
office a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders
and the Commitments of, and principal amount of the Loans owing to,
each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Company, the Agents and the Lenders may treat each Person the name of
which is recorded in the Register as a Lender hereunder for all
purposes of this Agreement and the other Loan Documents. The Register
shall be available for inspection by the Company or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
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(e) Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and the assignee thereunder
together with any note or notes subject to such assignment, the written
consent to such assignment executed by the Company and the fee payable
in respect thereto, Administrative Agent shall, if such Assignment and
Acceptance has been completed with blanks appropriately filled, (i)
accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof
to the Company. If applicable, within five (5) Business Days after
receipt of notice, the Company, at its own expense, shall execute and
deliver to Administrative Agent in exchange for the surrendered notes
new notes to the order of such assignee in an amount equal to the
Commitments and/or Loans or Letters of Credit assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Lender has
retained Commitments and/or Loans hereunder, new notes to the order of
the assigning Lender in an amount equal to the Commitment and/or Loans
retained by it hereunder. Such new notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of the
respective note. Thereafter, such surrendered notes, if any, shall be
marked renewed and substituted and the originals delivered to the
Company (with copies, certified by the Company as true, correct and
complete, to be retained by Administrative Agent).
(f) Any Lender may, in connection with any
assignment or participation or proposed assignment or participation
pursuant to this Section 13.5, disclose to the assignee or participant
or proposed assignee or participant, any information relating to the
Company furnished to such Lender by or on behalf of the Company;
provided, however, that, prior to any such disclosure, the Company
shall have consented thereto, which consent shall not be unreasonably
withheld, and each such assignee or participant, or proposed assignee
or participant, shall execute an agreement whereby such assignee or
participant shall agree to preserve the confidentiality of any
Confidential Information (defined in Section 13.13) on terms
substantially the same as those provided in Section 13.13.
(g) The Company will have the right to consent
to any material intercreditor arrangements in connection with an
assignment by any Lender of any interest, right or obligation under
this Agreement which is not pro rata with respect to the Loans, the
Letters of Credit and the Commitment of the assignor and the Company
may deny its consent to any such arrangements which, in the reasonable
judgment of the Company, would adversely affect the Company in a
material respect.
(h) The provisions of this Section shall not
apply to the assignment and pledge of a Lender's rights hereunder or
under any note to any Federal Reserve Bank for collateral purposes
pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal
Reserve Bank; provided that such assignment and pledge shall not
relieve such Lender of any of its obligations hereunder.
13.6 Limitation of Interest. The Company, the Agents and the
Lenders intend to strictly comply with all applicable laws, including applicable
usury laws. Accordingly, the
64
provisions of this Section 13.6 shall govern and control over every other
provision of this Agreement or any other Loan Document which conflicts or is
inconsistent with this Section, even if such provision declares that it
controls. As used in this Section, the term "interest" includes the aggregate of
all charges, fees, benefits or other compensation which constitute interest
under applicable law, provided that, to the maximum extent permitted by
applicable law, (a) any non-principal payment shall be characterized as an
expense or as compensation for something other than the use, forbearance or
detention of money and not as interest, and (b) all interest at any time
contracted for, reserved, charged or received shall be amortized, prorated,
allocated and spread, in equal parts during the full term of the Obligations. In
no event shall the Company or any other Person be obligated to pay, or any
Lender have any right or privilege to contract for, charge, reserve, receive or
retain, (a) any interest in excess of the maximum amount of nonusurious interest
permitted under the laws of the State of New York or the applicable laws (if
any) of the United States or of any other applicable state, or (b) total
interest in excess of the amount which such Lender could lawfully have
contracted for, reserved, received, retained or charged had the interest been
calculated for the full term of the Obligations at the Highest Lawful Rate. On
each day, if any, that the interest rate (the "Stated Rate") called for under
this Agreement or any other Loan Document exceeds the Highest Lawful Rate, the
rate at which interest shall accrue shall automatically be fixed by operation of
this sentence at the Highest Lawful Rate for that day, and shall remain fixed at
the Highest Lawful Rate for each day thereafter until the total amount of
interest accrued equals the total amount of interest which would have accrued if
there were no such ceiling rate as is imposed by this sentence. Thereafter,
interest shall accrue at the Stated Rate unless and until the Stated Rate again
exceeds the Highest Lawful Rate when the provisions of the immediately preceding
sentence shall again automatically operate to limit the interest accrual rate.
The daily interest rates to be used in calculating interest at the Highest
Lawful Rate shall be determined by dividing the applicable Highest Lawful Rate
per annum by the number of days in the calendar year for which such calculation
is being made. None of the terms and provisions contained in this Agreement or
in any other Loan Document which directly or indirectly relate to interest shall
ever be construed without reference to this Section 13.6, or be construed to
create a contract to pay for the use, forbearance or detention of money at an
interest rate in excess of the Highest Lawful Rate. If the term of any
Obligation is shortened by reason of acceleration of maturity as a result of any
Default or by any other cause, or by reason of any required or permitted
prepayment, and if for that (or any other) reason any Lender at any time,
including but not limited to, the stated maturity, is owed or receives (and/or
has received) interest in excess of interest calculated at the Highest Lawful
Rate, then and in any such event all of any such excess interest shall be
canceled automatically as of the date of such acceleration, prepayment or other
event which produces the excess, and, if such excess interest has been paid to
such Lender, it shall be credited pro tanto against the then-outstanding
principal balance of the Company's obligations to such Lender, effective as of
the date or dates when the event occurs which causes it to be excess interest,
until such excess is exhausted or all of such principal has been fully paid and
satisfied, whichever occurs first, and any remaining balance of such excess
shall be promptly refunded to its payor.
13.7 Survival. The obligations of the Company under Sections
2.2(c), 6, 9.7 and 13.3 hereof and the obligations of the Lenders under Sections
13.6 and 13.13 hereof shall survive the repayment of the Loans and Reimbursement
Obligations and the termination of the Commitments and the Letters of Credit.
65
13.8 Captions. Captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
13.9 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agreement and any of the parties hereto may execute this Agreement by signing
any such counterpart.
13.10 GOVERNING LAW; FORUM SELECTION; CONSENT TO JURISDICTION. THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE PERFORMABLE IN NEW YORK COUNTY, NEW
YORK, WHICH SHALL BE A PROPER PLACE OF VENUE FOR SUIT ON OR IN RESPECT THEREOF.
THE COMPANY IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING IN RESPECT OF THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE BROUGHT IN THE DISTRICT COURTS OF
NEW YORK COUNTY, NEW YORK OR THE UNITED STATES DISTRICT COURT LOCATED IN SUCH
COUNTY (COLLECTIVELY, THE "SPECIFIED COURTS"). THE COMPANY HEREBY IRREVOCABLY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE
STATE OF NEW YORK. THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENT BROUGHT IN ANY SPECIFIED COURT, AND HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIMS THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, TO THE COMPANY AT ITS
ADDRESS AS PROVIDED IN THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
ANY AGENT OR ANY LENDER TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY JURISDICTION OR TO SERVE PROCESS IN ANY MANNER
PERMITTED BY APPLICABLE LAW. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE APPLICABLE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES)
OF THE STATE OF NEW YORK AND THE UNITED STATES OF AMERICA FROM TIME TO TIME IN
EFFECT.
13.11 WAIVER OF JURY TRIAL; PUNITIVE DAMAGES. THE COMPANY, EACH
AGENT AND EACH LENDER HEREBY (I) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR
66
INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN
DOCUMENTS OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED THEREWITH,
BEFORE OR AFTER MATURITY; (II) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (III) CERTIFIES
THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY
HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (IV)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
13.12 Severability. Whenever possible, each provision of the Loan
Documents shall be interpreted in such manner as to be effective and valid under
applicable law. If any provision of any Loan Document shall be invalid, illegal
or unenforceable in any respect under any applicable law, the validity, legality
and enforceability of the remaining provisions of such Loan Document shall not
be affected or impaired thereby.
13.13 Confidential Information. Each Agent and each Lender
separately agrees that:
(a) As used herein, the term "Confidential
Information" means written information about the Company or any of its
Subsidiaries or the transactions contemplated herein furnished by the
Company to the Agents and/or the Lenders which is specifically
designated as confidential by the Company; Confidential Information,
however, shall not include information which (i) was publicly known or
available, or otherwise available on a non-confidential basis to any
Lender, at the time of disclosure from a source other than the Company,
(ii) subsequently becomes publicly known through no act or omission by
such Lender, (iii) otherwise becomes available on a non-confidential
basis to any Lender other than through disclosure by the Company or
(iv) has been in the possession of any Lender for a period of more than
two years from the date on which such information originally was
furnished to such Lender by the Company, unless the Company shall have
requested the Agents and the Lenders in writing, at least 30 days prior
to the end of such two-year period, to maintain the confidentiality of
such information for another two (2) year period (or for successive two
(2) year periods); provided that the Company shall not unreasonably
withhold its consent to a request made after the initial two (2) year
period to eliminate information from "Confidential Information".
(b) Each Agent and each Lender agrees that it
will take normal and reasonable precautions to maintain the
confidentiality of any Confidential Information furnished to such
Person; provided, however, that such Person may disclose Confidential
Information (i) upon the Company's consent; (ii) to its auditors; (iii)
when required by any Legal Requirement; (iv) as may be required or
appropriate in any report, statement or testimony submitted to any
Governmental Authority having or claiming to have
67
jurisdiction over it; (v) to such Person's and its Subsidiaries' or
Affiliates' officers, directors, employees, agents, representatives and
professional consultants in connection with this Agreement or
administration of the Loans and Letters of Credit; (vi) as may be
required or appropriate, should such Lender elect to assign or grant
participations in any of the Obligations in connection with (1) the
enforcement of the Obligations by any such Person under any of the Loan
Documents or related agreements, or (2) any potential transfer pursuant
to this Agreement of any Obligation owned by any Lender (provided any
potential transferee has been approved by the Company if required by
this Agreement, which approval shall not be unreasonably withheld, and
has agreed in writing to be bound by substantially the same provisions
regarding Confidential Information contained in this Section); (vii) as
may be required or appropriate in response to any summons or subpoena
or in connection with any litigation or administrative proceeding;
(viii) to any other Lender; (ix) to the extent reasonably required in
connection with the exercise of any remedy hereunder or under the other
Loan Documents; or (x) to correct any false or misleading information
which may become public concerning such Person's relationship to the
Company.
13.14 Tax Forms. With respect to each Lender which is organized
under the laws of a jurisdiction outside the United States, on the Effective
Date and from time to time thereafter if requested by the Company or
Administrative Agent, such Lender shall provide Administrative Agent and the
Company with the forms prescribed by the Internal Revenue Service of the United
States certifying as to such Lender's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to such Lender hereunder or other documents satisfactory to the Company
and Administrative Agent indicating that all payments to be made to such Lender
hereunder are subject to such tax at a rate reduced by an applicable tax treaty.
Unless the Company and Administrative Agent shall have received such forms or
such documents indicating that payments hereunder are not subject to United
States withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Company or Administrative Agent shall withhold taxes
from such payments at the applicable statutory rate in the case of payments to
or for any Lender organized under the laws of a jurisdiction outside the United
States.
13.15 Entire Agreement. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
OCEAN ENERGY, INC., a Delaware corporation
By: /s/ Stephen A. Thorington
----------------------------------
Stephen A. Thorington
Senior Vice President, Finance and
Corporate Development
Address for Notices:
1001 Fannin, Suite 1600
Houston, Texas 77002
Attention: Stephen A. Thorington
Phone: (713)265-6190
Fax: (713)265-8024
with a copy to:
1001 Fannin, Suite 1600
Houston, Texas 77002
Attention: Robert K. Reeves
Phone: (713)265-6540
Fax: (713)265-8840
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
S-1
JPMORGAN CHASE BANK, as a Lender, as
Administrative Agent and as Auction
Administrative Agent
By: /s/ Russell A. Johnson
------------------------------
Name: Russell A. Johnson
Title: Vice President
Address for Notices:
1 Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Ms. Debbie Rockower
Phone: (212) 552-7446
Fax: (212) 552-5777
with a copy to:
JPMorgan Chase Bank
600 Travis St., 20th Floor
Houston, TX 77002
Attention: Peter Licalzi
Phone: (713) 216-8869
Fax: (713) 216-4117
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-2
BANK ONE, NA (MAIN OFFICE CHICAGO), as
a Lender and as a Syndication Agent
By: /s/ Thomas Okamoto
-------------------
Name: Thomas E. Okamoto
Title: Associate Director
Address for Notices:
910 Travis, TX2-4375
Houston, TX 77002
Attention: Tom Okamoto
Phone:(713)751-3548
Fax: (713)751-3982
with a copy to:
910 Travis, TX2-4330
Houston, TX 77002
Attention: Ronald L. Dierker
Phone:(713)751-3733
Fax: (713)751-3544
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-3
FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.), as a Lender and as a Syndication
Agent
By: /s/ Michael Brochetti
------------------------------------
Name: Michael Brochetti
Title: Vice President -- Global Energy
Address for Notices:
100 Federal Street
Boston, MA 02110
Attention: Michael Brochetti
Phone: (617) 434-3017
Fax: (617) 434-3652
with a copy to:
100 Federal Street
Boston, MA 02110
Attention: Fidel Vasquez
Loan Officer
Phone: (617) 434-1906
Fax: (617) 434-3652
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-4
BNP PARIBAS, as a Lender and as a
Documentation Agent
By: /s/ David Dodd
-----------------------------
Name: David Dodd
Title: Director
By: /s/ Gabe Ellisor
-----------------------------
Name: Gabe Ellisor
Title: Vice President
Addresses for Notices:
1200 Smith Street, Suite 3100
Houston, TX 77002
Attention: Leah Evans Hughes
Phone: (713) 982-1126
Fax: (713) 659-5303
with a copy to:
1200 Smith Street, Suite 3100
Houston, TX 77002
Attention: Candace Grayson/Sandra Nelson
Phone: (713) 982-1120/951-1238
Fax: (713) 659-5303
and
1200 Smith Street, Suite 3100
Houston, TX 77002
Attention: David Dodd
Phone: (713) 982-1100
Fax: (713) 659-6915
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-5
WELLS FARGO BANK TEXAS, N.A., as a
Lender and as a Documentation Agent
By: /s/ Paul Squires
-------------------------------
Name: Paul Squires
Title: Vice President
Address for Notices:
Wells Fargo Bank, N.A.
201 Third Street, 8th Floor
San Francisco, CA 94103
Attention: Oscar Enriquez
Phone: (415) 477-5425
Fax: (415) 979-0675
with a copy to:
Wells Fargo Bank (TX), N.A.
Energy Dept.
1000 Louisiana, 3rd Floor
Houston, TX 77002
Attention: Paul Squires
Phone: (713) 319-1314
Fax: (713) 739-1087
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-6
BANK OF AMERICA, N.A., as a Lender and as
a Managing Agent
By: /s/ Richard L. Stein
_____________________
Richard L. Stein
Principal
Address for Notices:
Bank of America, N.A.
901 Main Street
Dallas, TX 75202-3714
Attention: Terri Y. Smith
Phone: (214) 209-2141
Fax: (214) 290-8376
with a copy to:
Bank of America, N.A.
333 Clay St., Suite 4550
Houston, TX 77002
Attention: Pamela K. Rodgers
Phone: (713) 651-4880
Fax: (713) 651-4904
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-7
BANK OF MONTREAL, as a Lender and as a
Managing Agent
By: /s/ James V. Ducote
____________________
James V. Ducote
Director
Address for Notices:
115 S. LaSalle, 11th Floor
Chicago, IL 60603
Attention: Debra Ann Delaney
Phone: (312) 750-6047
Fax: (312) 750-6061
with a copy to:
700 Louisiana Suite, 4400
Houston, TX 77002
Attention: Jim Ducote
Phone: (713) 546-9760
Fax: (713) 223-0477
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-8
THE BANK OF NOVA SCOTIA, as a Lender
and as a Managing Agent
By: /s/ N. Bell
__________________
Name: N. Bell
Title: Senior Manager
Address for Notices:
600 Peachtree Street N.E., Suite 2700
Atlanta, GA 30308
Attention: Donna Gardner
Phone: (404) 877-1559
Fax: (404) 888-8998
with further notice to:
1100 Louisiana, Suite 3000
Houston, Texas 77002
Attention: Greg Smith
Phone: (713) 759-3440
Fax: (713) 759-2425
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-9
DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender and as a Managing Agent
By: /s/ Joel Makowsky
--------------------------------
Name: Joel Makowsky
Title: Vice President
By: /s/ David G. Dickinson, Jr.
--------------------------------
Name: David G. Dickinson, Jr.
Title: Vice President
Address for Notices:
90 Hudson Street
Jersey City, NJ 07302
Attention: Joe Cusmai
Phone: (201) 593-2202
Fax: (201) 593-2313
with a copy to:
31 West 52nd Street, 24th Floor
New York, NY 10019
Attention: Michael Keating, Managing Director
Phone: (212) 469-8538
Fax: (212) 469-5711
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-10
THE BANK OF NEW YORK, as a Lender
By: /s/ Peter W. Keller
-----------------------------
Name: Peter W. Keller
Title: Vice President
Address for Notices:
One Wall Street, 19th Floor
New York, NY 10286
Attention: Wynnette Williams
Phone: (212)635-7921
Fax: (212)635-7923
with a copy to:
One Wall Street, 19th Floor
New York, NY 10286
Attention: Peter Keller
Phone: (212)635-7861
Fax: (212)635-7923
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-11
CITIBANK, N.A., as a Lender
By: /s/ Douglas A. Whiddon
----------------------
Name: Douglas A. Whiddon
Title: Attorney-in-Fact
Address for Notices:
Global Loans Support Services
Two Penns Way, Suite 200
New Castle, DE 19720
Attn: Dennis Banfield
Phone: (302) 894-6109
Fax: (302) 894-6120
With a copy to:
1200 Smith St., Suite 2000
Houston, TX 77002
Attn: Douglas Whiddon
Phone: (713) 654-2908
Fax: (713) 654-2849
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-12
CREDIT LYONNAIS NEW YORK BRANCH, as
a Lender
By: /s/ Philippe Soustra
------------------------------------
Name: Philippe Soustra
Title: Senior Vice President
Address for Notices:
Credit Lyonnais
1301 Travis Street, Suite 2100
Houston, TX 77002
Attention: John Grandstaff
Phone: (713) 890-8617
Fax: (713) 890-8668
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-13
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ JAMES P. MORAN
--------------------------------
Name: James P. Moran
Title: Director
By: /s/ DAVID M. KOCZAN
--------------------------------
Name: David M. Koczan
Title: Associate
Address for Notices:
11 Madison Avenue, 10th Floor
New York, NY 10010-3629
Attention: James Moran
Phone: (212) 325-9176
Fax: (212) 325-8615
with a copy to:
600 Travis Street, 30th Floor
Houston, TX 77002
Attention: R. Scott Brown
Phone: (713) 220-6774
Fax: (713) 237-0325
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-14
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as a Lender
By: /s/ Stephen B. King
______________________
Name: STEPHEN B. KING
AUTHORIZED SIGNATORY
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-15
MERRILL LYNCH BANK USA, as a Lender
By: /s/ D. Kevin Imlay
________________________
Name: D. Kevin Imlay
Title: Senior Credit Officer
Address for Notices:
15 W. South Temple, Suite 300
Salt Lake City, UT 84101
Attention: Butch Alder
Phone: (801) 526-8324
Fax: (801) 531-7470
with a copy to:
15 W. South Temple, Suite 300
Salt Lake City, UT 84101
Attention: Kevin Imlay/Frank Stepan
Phone: (801) 526-8310/526-8316
Fax: (801) 531-7470/359-4667
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-16
SOCIETE GENERALE, as a Lender
By: /s/ Spencer N. Smith
--------------------------
Name: Spencer Smith
Title: Vice President
Address for Notices:
2001 Ross Avenue, Suite 4800
Dallas, TX 75201
Attention: Stacie Row
Phone: (214) 979-2749
Fax: (214) 754-0171
with a copy to:
1111 Bagby, Suite 2020
Houston, TX 77002
Attention: Spencer Smith
Phone: (713) 759-6301
Fax: (713) 650-0824
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-17
TORONTO DOMINION (NEW YORK), INC., as
a Lender
By: /s/ Susan K. Strong
-----------------------------
Name: SUSAN STRONG
Title: VICE PRESIDENT
Address for Notices:
909 Fannin Street, 17th Floor
Houston, TX 77010
Attention: Mark Baird
Phone: (713) 653-8289
Fax: (713) 951-9921
with a copy to:
--------------------------------
--------------------------------
--------------------------------
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-18
THE BANK OF TOKYO-MITSUBISHI, LTD., as
a Lender
By: /s/ Kelton Glasscock
----------------------------
Kelton Glasscock
Vice President and Manager
Address for Notices:
1100 Louisiana Street, Suite 2800
Houston, TX 77002-5216
Attention: Joan Stanton
Phone: (713) 655-3824
Fax: (713) 655-3855
with a copy to:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-19
THE ROYAL BANK OF SCOTLAND PLC, as a
Lender
By: /s/ Keith Johnson
---------------------------------
Name: KEITH JOHNSON
Title: Senior Vice President
By:
---------------------------------
Name:
Title:
Address for Notices:
600 Travis Street, Suite 6070
Houston, TX 77002
Attention: Paul McDonagh/Iris Munoz
Phone: (713) 221-2436/221-2409
Fax: (713) 221-2430
with a copy to:
101 Park Avenue, 12th Floor
New York, NY 10178
Attention: Sheila Shaw/Juanita Baird
Phone: (212) 401-1406/1420
Fax: (212) 401-1494
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-20
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Monte E. Deckerd
--------------------------------
Monte E. Deckerd
Vice President
Address for Notices:
918 17th Street, DNCOBB3E
Denver, CO 80202
Attention: Monte E. Deckerd
Phone: (303) 585-4212
Fax: (303) 585-4362
with a copy to:
555 SW Oak, PL0631
Portland, OR 97208
Attention: Suzanne Patton
Phone: (503) 275-3191
Fax: (303) 275-8181
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-21
SOUTHWEST BANK OF TEXAS, N.A., as a
Lender
By: /s/ Ken Batson
--------------------------------
Name: Ken Batson
Title: Assistant Vice President
Address for Notices:
4400 Post Oak Parkway
Houston, TX 77027
Attention: Ann Greer
Phone: (713) 232-1792
Fax: (713) 439-5954
with a copy to:
4400 Post Oak Parkway
Houston, TX 77027
Attention: Ken Batson
Phone: (713) 232-1247
Fax: (713) 232-1357
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
S-22
Exhibit A
Unrestricted Subsidiaries
Havre Pipeline Company, LLC
Lion GPL, S.A.
Ocean Energy (Argentina), Inc.
Ocean Pakistan, Ltd.
Ocean Yemen Corporation
Texneft Inc.
Thousand Oaks Development Corp. J.V.
Exhibit A-1
Exhibit B
Form of Request for Extension of Credit
[OCEAN ENERGY, INC. LETTERHEAD]
REQUEST FOR EXTENSION OF CREDIT
________________, _____
JPMorgan Chase Bank,
as Administrative Agent
1 Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Agent Services
Gentlemen:
The undersigned hereby certifies that he is the_________________________ of
OCEAN ENERGY, INC., a Delaware corporation (the "Company"), and that as such he
is authorized to execute this Request for Extension of Credit (the "Request") on
behalf of the Company pursuant to the Revolving Credit Agreement (as it may be
amended, supplemented or restated from time to time, the "Agreement") dated as
of May 31, 2002, among the Company, you, as Administrative Agent and the other
Agents and Lenders therein named. The Loan being requested hereby is to be in
the amount set forth in (b) below and is requested to be made on
________________, _______, which is a Business Day. The Loan is to be (check
one) [___] a Eurodollar Loan [___] an Alternate Base Rate Loan. If the Loan is
to be a Eurodollar Loan, the Interest Period is to be (check one) [__] 1, [__]
2, [__] 3 or [__] 6 months. On behalf of the Company, the undersigned further
certifies, represents and warrants that to his knowledge, after due inquiry
(each capitalized term used herein having the same meaning given to it in the
Agreement unless otherwise specified herein):
(a) As of the date hereof:
(1) The Facility Amount [COMPLETE WITH THE AGGREGATE
COMMITMENTS) is: $__________
(2) Aggregate outstanding amount of Revolving Credit
Obligations is: $__________
(3) Amount currently available under the Agreement (the
amount in (a)(1) above minus the amount in (a)(2)
above) is: $__________
Exhibit B-1
(b) If and only if the amount shown in Line (a)(3) above is
positive, the Company hereby requests under this Request a
Loan in the amount of $__________ (which is no more than the
positive amount set forth in Line (a)(3) above).
(c) Except for the facts heretofore disclosed to Administrative
Agent in writing, which facts (I) are not materially more
adverse to the Company and its Subsidiaries or any other
Obligor, (II) do not materially decrease the ability of the
Lenders to collect the Obligations as and when due and payable
and (III) do not materially increase the liability of any
Agent or any of the Lenders, in each case compared to those
facts existing on the Effective Date and the material details
of which have been set forth in the Financial Statements
delivered to Administrative Agent prior to the Effective Date
or in the Disclosure Statement, and except for the
representations set forth in the Loan Documents which, by
their terms, are expressly (or by means of similar phrasing)
made as of the date of the Agreement, only, the
representations and warranties made in each Loan Document are
true and correct in all material respects on and as of the
time of delivery hereof, with the same force and effect as if
made on and as of the time of delivery hereof.
(d) The interest rate and Interest Period selected above comply
with all applicable provisions of the Agreement.
(e) No Default has occurred and is continuing.
(f) No event or condition shall have occurred since December 31,
2001, which is reasonably expected to result in a Material
Adverse Effect.
[ITEMS (c), (d) AND (f) ABOVE MAY BE OMITTED AT THE DISCRETION OF THE COMPANY IF
APPROPRIATE IN THE CASE OF THE CONVERSION OF COMPETITIVE LOAN OR A EURODOLLAR
LOAN TO AN ALTERNATE BASE RATE LOAN. IN THE EVENT OF THE OCCURRENCE AND
CONTINUATION OF A DEFAULT, ITEM (e) MAY BE REPLACED WITH A STATEMENT REGARDING
THE EXISTENCE OF SUCH DEFAULT.]
Thank you for your attention to this matter.
Very truly yours,
OCEAN ENERGY, INC., a Delaware corporation
By:
________________________________________
Name:
Title:
Exhibit B-2
Exhibit C
Subsidiaries (with Addresses)
Big Sky Gas Marketing Corporation
Energy Arrow Exploration, L.L.C.
GAJH 1989 Limited Partnership
Global Natural Resources Inc.
Havre Pipeline Company, LLC
Lion GPL, S.A.
Ocean Angola Corporation
Ocean Brazil Santos Limitada
Ocean (C1-01) Corporation
Ocean (C1-02) Corporation
Ocean (C1-105), Ltd.
Ocean (Cote D'Ivoire) CI-104 Ltd
Ocean (Cote D'Ivoire) CI-12 Ltd.
Ocean (Cote D'Ivoire) Ltd.
Ocean East Zeit Petroleum Ltd.
Ocean (Egypt) East Beni Suef, Ltd.
Ocean Egypt Holdings, Ltd.
Ocean (Egypt) Ltd.
Ocean Energy (Argentina), Inc.
Ocean Energy, Inc. (a Louisiana corporation)
Ocean Energy International, LLC
Ocean Energy Limitada
Ocean Energy Nigeria Limited
Ocean Equatorial Guinea Corporation
Ocean Field Services Company
Ocean International Holdings, Ltd.
Ocean International, Ltd.
Ocean Offshore, Ltd.
Ocean Pakistan, Ltd.
Ocean Permian, LLC
Ocean SE Gulf of Suez, Ltd.
Ocean SW Gebel El-Zeit, Ltd.
Ocean WAG Petroleum Ltd.
Ocean Yemen Corporation
Orion 1981 Drilling Fund Ltd.
Seagull Marketing Services, Inc.
Seagull Pipeline & Marketing Company
Seagull Series 1995 LLC
Seagull Series 1995 Trust
Texneft Inc.
Thousand Oaks Development Corp. J.V.
Exhibit C-1
Thousand Oaks Development Corporation
UMC Colorado LLC (a Colorado limited liability company)
In each case (unless otherwise noted), the address for notice is:
c/o Ocean Energy, Inc.
1001 Fannin, Suite 1600
Houston, Texas 77002
Exhibit C-2
Exhibit D
Form of
Compliance Certificate
The undersigned, the ___________________ of OCEAN ENERGY, INC., a
Delaware corporation (the "Company"), hereby certifies that he is authorized to
execute this certificate on behalf of the Company, pursuant to the Revolving
Credit Agreement (the "Credit Agreement") dated as of May 31 2002, among the
Company, JPMorgan Chase Bank, as Administrative Agent and the other Agents and
Lenders therein named, as the same may be amended from time to time; and that a
review of the Company and its Subsidiaries has been made under his supervision
with a view to determining whether the Company and its Subsidiaries have
fulfilled all of their respective obligations under the Credit Agreement and the
other Loan Documents (as defined in the Credit Agreement); and on behalf of the
Company further certifies, represents and warrants that to his knowledge, after
due inquiry (each capitalized term used herein having the same meaning given to
it in the Credit Agreement unless otherwise specified):
As of ________________, ______:
(a) The Company and its Subsidiaries have fulfilled their
respective obligations under the Credit Agreement and the other Loan
Documents as each applies after giving effect to any amendments,
consents and/or waivers that may be in effect from time to time.
(b) Except for the facts heretofore disclosed to
Administrative Agent under the Credit Agreement in writing, which facts
(I) are not materially more adverse to the Company and its Subsidiaries
or any other Obligor, (II) do not materially decrease the ability of
any Agent or any of the Lenders to collect the Obligations as and when
due and payable and (III) do not materially increase the liability of
the Agents or any of the Lenders, in each case compared to those facts
existing on the Effective Date and the material details of which have
been set forth in the Financial Statements delivered to Administrative
Agent under the Credit Agreement prior to the Effective Date or in the
Disclosure Statements provided for in the Credit Agreement, and except
for the representations set forth in the Loan Documents which, by their
terms, are expressly (or by means of similar phrasing) made as of the
date of the Credit Agreement, only, the representations and warranties
made in each Loan Document are true and correct in all material
respects on and as of the time of delivery hereof, with the same force
and effect as if made on and as of the time of delivery hereof.
(c) The Financial Statements delivered to Administrative Agent
under the Credit Agreement concurrently with this Compliance
Certificate have been prepared in accordance with GAAP consistently
followed throughout the period indicated and fairly present, in all
material respects, the consolidated financial condition and results of
operations of the applicable Persons as at the end of, and for, the
period indicated (subject, in the case of quarterly Financial
Statements, to normal changes resulting from year-end adjustments).
Exhibit D-1
(d) No Default has occurred and is continuing. In this regard
the compliance with the provisions of Sections 10.7 and 10.9 of the
Credit Agreement is as follows:
(i) SECTION 10.7 OF THE CREDIT AGREEMENT - TOTAL LEVERAGE RATIO
Total Debt (1) $__________
EBITDAX (2) $__________
Total Leverage Ratio (1)/(2) ________
NOTE: MUST BE NO GREATER THAN 3.50 TO 1.00.
(iii) SECTION 10.9 OF THE CREDIT AGREEMENT - MINIMUM CONSOLIDATED NET WORTH
Preferred stock (if any), par value of common stock, capital in excess
of par value of common stock and retained earnings
of Company and its Restricted Subsidiaries (1) $__________
Less treasury stock (if any), goodwill, cost in excess of fair value of
net assets acquired and all other assets that are properly classified
as intangible assets of Company and its Restricted Subsidiaries (2) $__________
Plus the amount of noncash write downs of long-lived
assets in compliance with GAAP or SEC guidelines (3) $__________
Plus or minus, as appropriate, any extraordinary or non-recurring net
gains or losses together with any related provision for taxes on such
gain or loss, realized in connection with any extraordinary or
nonrecurring gains or losses (4) $__________
Plus or minus, as appropriate, foreign currency translation
adjustments applicable to Company and its Restricted Subsidiaries (5) $__________
Consolidated Net Worth [(1) - (2) + (3) +/- (4) +/- (5)] $__________
Consolidated Net Worth Requirement Initial Amount (i) $1,075,000,000
Plus 50% of the sum of Company's and its Restricted Subsidiaries
consolidated net income for each fiscal quarter beginning with the
calendar quarter ending June 30, 2002 (ii) $__________
Plus 50% of the net cash proceeds received by the Company and its
Restricted Subsidiaries from the issuance of any common stock,
preferred stock or other equity for each fiscal quarter beginning
with the calendar quarter ending June 30, 2002 (iii) $__________
Exhibit D-2
Total CNW Requirement [(i) + (ii) + (iii)] $__________
NOTE: CONSOLIDATED NET WORTH MUST BE EQUAL TO OR GREATER THAN
THE TOTAL CNW REQUIREMENT
(f) There has occurred no Material Adverse Effect since the date of the
most recent Financial Statements delivered to the Lenders.
DATED as of ____________________, ____.
OCEAN ENERGY, INC.
By: ______________________________________
Name:
Title:
Exhibit D-3
Exhibit E
Form of
Assignment and Acceptance
Dated: _______________, _____
Reference is made to the Revolving Credit Agreement dated as of May 31,
2002 (as restated, amended, modified, supplemented and in effect from time to
time, the "Credit Agreement"), among OCEAN ENERGY, INC., a Delaware corporation
(the "Company"), JPMorgan Chase Bank as administrative agent ("Administrative
Agent"), and the other Agents and Lenders therein named. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Credit Agreement. This Assignment and Acceptance, between the Assignor
(as defined and set forth on Schedule I hereto and made a part hereof) and the
Assignee (as defined and set forth on Schedule I hereto and made a part hereof)
is dated as of the Effective Date (as set forth on Schedule I hereto and made a
part hereof).
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date, an undivided interest (the "Assigned Interest") in and to all
the Assignor's rights and obligations under the Credit Agreement respecting
those, and only those, credit facilities contained in the Credit Agreement as
are set forth on Schedule 1 (collectively, the "Assigned Facilities,"
individually, an "Assigned Facilities"), in a principal amount for each Assigned
Facility as set forth on Schedule I.
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto, other than that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Company or its Subsidiaries or the performance or observance by the
Company or its Subsidiaries of any of its respective obligations under the
Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto; and (iii) if applicable, attaches the note(s) held
by it evidencing the Assigned Facility or Facilities, as the case may be, and
requests that Administrative Agent exchange such note(s) for a new note or notes
payable to the Assignor (if the Assignor has retained any interest in the
Assigned Facility or Facilities) and a new note or notes payable to the Assignee
in the respective amounts which reflect the assignment being made hereby (and
after giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance and that it is a
permitted assignee under Section 13.5 of the
Exhibit E-1
Credit Agreement; (ii) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 8.6, or if later, the most recent financial statements delivered
pursuant to Section 9.1 thereof, and such other documents and information as it
has deemed appropriate to make its own credit analysis; (iii) agrees that it
will, independently and without reliance upon Administrative Agent, the Assignor
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iv) appoints and authorizes the
each Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement as are delegated to such Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; (v)
agrees that it will be bound by the provisions of the Credit Agreement and will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender; (vi) if the
Assignee is organized under the laws of a jurisdiction outside the United
States, attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee's exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement or such other documents as are necessary to indicate that
all such payments are subject to such tax at a rate reduced by an applicable tax
treaty; and (vii) has supplied the information requested on the administrative
questionnaire attached hereto as Exhibit A.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to Administrative Agent for acceptance by it and the Company and
recording by Administrative Agent pursuant to Section 13.5(e) of the Credit
Agreement, effective as of the Effective Date (which Effective Date shall,
unless otherwise agreed to by Administrative Agent, be at least five Business
Days after the execution of this Assignment and Acceptance).
5. Upon such acceptance and recording, from and after the Effective
Date, Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee, whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and Assignee shall make
all appropriate adjustments in payments for periods prior to the Effective Date
by Administrative Agent or with respect to the making of this assignment
directly between themselves.
6. From and after the Effective Date, (i) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder, and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective duly authorized officers on
Schedule I hereto.
Exhibit E-2
Schedule I to Assignment and Acceptance
Legal Name of Assignor:
--------------------------------------------------------
Legal Name of Assignee:
--------------------------------------------------------
Effective Date of Assignment: ,
--------------- ------
||
Principal Percentage Assigned of Each
Amount (or, Facility (to at least 8 decimals)
with respect (Shown as a percentage of aggregate
to Letters of original principal amount [or, with
Assigned Credit, face respect to Letters Credit, face
Facilities amount) Assigned amount] of all Lenders
---------- ---------------- -------------------------------------
Committed Loans: $ %
Letter of Credit $ %
participation interests:
Competitive Loans: $
||
Accepted:
JP MORGAN CHASE BANK, -----------------------------------
as Administrative Agent as Assignor
By: By:
------------------------ --------------------------------
Name: Name:
Title: Title:
OCEAN ENERGY, INC.
-----------------------------------
as Assignee
By: By:
-------------------------- ------------------------------
Name: Name:
Title: Title:
Schedule I
Exhibit F
Form of
Competitive Bid Request
---------------, -----
JPMorgan Chase Bank,
as Auction Administrative Agent
1 Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Agent Services
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of May 31,
2002, as modified and amended (the "Credit Agreement"), among the undersigned,
JPMORGAN CHASE BANK, as Administrative Agent, and the other Agents and Lenders
named therein. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby gives you notice pursuant to Section 2.9 of the
Credit Agreement that it requests a Competitive Loan under the Credit Agreement,
and in that connection sets forth below the terms on which such Competitive Loan
is requested to be made:
(A) Borrowing Date of Competitive Loan
(which is a Business Day)
---------------------
(B) Principal Amount of Competitive Loan(1)
---------------------
(C) Interest Period and the last day thereof(2)
---------------------
By each of the delivery of this Request for Competitive Bids and the
acceptance of any or all of the Loans offered by the Lenders in response to this
Competitive Bid Request, the undersigned represents and warrants that the
applicable conditions to lending specified in the Credit Agreement have been
satisfied with respect to the Competitive Loan requested hereby.
- ----------------
(1) Not less than $25,000,000 or greater than the unused Total Commitment and in
integral multiples of $5,000,000.
(2) Which, subject to the Credit Agreement, shall have a duration of not less
than seven calendar days nor more than 180 calendar days, and which shall end
not later than the Revolving Credit Termination Date.
Exhibit F-1
Very truly yours,
OCEAN ENERGY, INC.
By:
-------------------------------
Name:
Title:
Exhibit F-2
Exhibit G
Form of
Notice to Lenders of Competitive Bid Request
[Name of Lender]
[Address of Lender]
Attention:____________________ __________________, _____
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of May 31, 2002, as
modified and amended (the "Credit Agreement"), among OCEAN ENERGY, INC. (the
"Company"), JPMORGAN CHASE BANK, as Administrative Agent, and the other Agents
and Lenders named therein. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Company delivered a Request for Competitive Bid by [Date]
/Time].(1) Your Competitive Bid must comply with Section 2.9 of the Credit
Agreement and the terms set forth below on which the Notice of Competitive Loan
was made:
(A) Date of Competitive Loan ____________________________
(B) Principal Amount of Competitive Loan ____________________________
(C) Interest Period and the last day thereof ____________________________
Very truly yours,
JPMORGAN CHASE BANK, as Auction
Administrative Agent
By: _______________________
Name:
Title:
(1) The Competitive Bid must be received by Auction Administrative Agent not
later than 11:00 a.m., Houston, Texas time, four Business Days before the date
of the proposed Competitive Loan.
Exhibit G-1
Exhibit H
Form of
Competitive Bid
JPMorgan Chase Bank,
as Auction Administrative Agent
1 Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Agent Services __________, ______
Dear Sirs:
The undersigned, [Name of Lender], referred to in the Revolving Credit
Agreement dated as of May 31, 2002, as modified and amended (the "Credit
Agreement"), among OCEAN ENERGY, INC. (the "Company"), JPMORGAN CHASE BANK, as
Administrative Agent, and the other Agents and Lenders named therein.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section 2.9
ss of the Credit Agreement, in response to the Request for Competitive Bids (the
"Competitive Bid Request") made by the Company on _______________, _____, and in
that connection sets forth below the terms on which such Competitive Bid is
made:
(A) Principal Amount(1) _____________________
(B) Competitive Bid Rate(2) _____________________
(C) Interest Period and the last day thereof(3) _____________________
The undersigned hereby confirms that it is prepared to extend credit to
the Company upon acceptance by the Company of this bid in accordance with
Section 2.9 of the Credit Agreement.
- ------------
(1) Not less than $25,000,000 or greater than the available Total Commitment and
in integral multiples of $5,000,000. Multiple bids will be accepted by the
Auction Administrative Agent.
(2) Expressed as a percentage.
(3) The Interest Period must be the Interest Period specified in the Competitive
Bid Request.
Exhibit H-1
Very truly yours,
[NAME OF LENDER]
By: _______________________
Name:
Title:
Exhibit H-2
Exhibit I
Form of
Competitive Bid Administrative Questionnaire
Primary Contact
Competitive Auctions
Lender Name:
------------------------------------------------------------------
Address:
----------------------------------------------------------------------
Primary Contact:
--------------------------------------------------------------
Title:
------------------------------------------------------------------------
Department:
-------------------------------------------------------------------
Telephone Number:
-------------------------------------------------------------
Telecopier Number:
------------------------------------------------------------
Alternate Contact
Competitive Auctions
Alternate Contact:
------------------------------------------------------------
Title:
------------------------------------------------------------------------
Department:
-------------------------------------------------------------------
Telephone Number:
-------------------------------------------------------------
Telecopier Number:
------------------------------------------------------------
Exhibit I-1
Exhibit J
Continuing Letters of Credit
1. Issuer: JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank)
Beneficiary: Insurance Company of North America (CIGNA/ACE)
L/C No.: P259686
Amount: $25,000.00
Date of Issue: 05/14/91
Expiration: 01/30/03
2. Issuer: JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank)
Beneficiary: American Home Assurance Co. + 3 other insurance companies
L/C No.: P753484
Amount: $998,000
Date of Issue: 02/18/94
Expiration: 01/30/03
3. Issuer: JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank)
Beneficiary: American Home Assurance Co. + 3 other insurance companies
L/C No.: P770604
Amount: $362,000.00
Date of Issue: 01/03/95
Expiration: 12/01/03
4. Issuer: JPMorgan Chase Bank (formerly known as Chase Bank of Texas,
National Association)
Beneficiary: National Union Fire Insurance
L/C No.: D299353
Amount: $600,000.00
Date of Issue: 03/29/00
Expiration: 03/21/03
5. Issuer: JPMorgan Chase Bank (formerly known as Chase Bank of Texas,
National Association)
Beneficiary: National Union Fire Insurance
L/C No.: D213486
Amount: $350,000.00
Date of Issue: 05/09/01
Expiration: 05/08/02
6. Issuer: Bank of America, N.A. (formerly known as Nations)
Beneficiary: Hambros Trust Company (Jersey) Ltd.
L/C No.: 913560
Amount: $16,087,713.71
Exhibit J-1
Date of Issue: 08/10/93
Expiration: 08/11/02
7. Issuer: JPMorgan Chase Bank (formerly known as Chase Bank of Texas,
National Association)
Beneficiary: Sociedade Nacional de Combustiveis de Angola
L/C No.: D287153
Amount: $5,625,000.00
Date of Issue: 05/03/99
Expiration: 07/15/03
8. Issuer: JPMorgan Chase Bank (formerly known as Chase Bank of Texas,
National Association)
Beneficiary: Sociedade Nacional de Combustiveis de Angola
L/C No.: D286640
Amount: $5,000,000.00
Date of Issue: 07/01/99
Expiration: 02/01/03
9. Issuer: JPMorgan Chase Bank (formerly known as Chase Bank of Texas,
National Association)
Beneficiary: Agencia Nacional do Petroleo
L/C No.: D216621
Amount: $1,300,000.00
Date of Issue: 08/14/01
Expiration: 03/30/05
10. Issuer: JPMorgan Chase Bank (formerly known as Chase Bank of Texas,
National Association)
Beneficiary: Agencia Nacional do Petroleo
L/C No.: D216598
Amount: $500,000.00
Date of Issue: 08/14/01
Expiration: 03/30/05
Exhibit J-2
Exhibit K
[Form of]
GUARANTY AGREEMENT
by and among
OCEAN ENERGY, INC.,
as Guarantor,
JPMORGAN CHASE BANK,
as Administrative Agent and
as Auction Administrative Agent,
BANK ONE, NA,
and
FLEET NATIONAL BANK,
as Syndication Agents,
BNP PARIBAS,
and
WELLS FARGO BANK TEXAS, N.A.,
as Documentation Agents,
BANK OF AMERICA, N.A.,
BANK OF MONTREAL,
THE BANK OF NOVA SCOTIA
and
DEUTSCHE BANK AG NEW YORK BRANCH,
as Managing Agents,
Dated as of May 31, 2002
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.1 Terms Defined in Recitals...................................................................... 1
Section 1.2 Certain Definitions............................................................................ 1
Section 1.3 Credit Agreement Definitions................................................................... 2
ARTICLE II
GUARANTY
Section 2.1 Obligations Guaranteed......................................................................... 2
Section 2.2 Nature of Guaranty............................................................................. 2
Section 2.3 Lenders' Rights................................................................................ 2
Section 2.4 Guarantor's Waivers............................................................................ 3
Section 2.5 Maturity of Obligations; Payment............................................................... 3
Section 2.6 Lenders' Expenses.............................................................................. 3
Section 2.7 Obligation..................................................................................... 3
Section 2.8 Events and Circumstances Not Reducing or Discharging the Guarantor's Obligations............... 3
Section 2.9 Limitations on Obligation of the Guarantor Hereunder........................................... 5
Section 2.10 Subrogation........................................................................... 5
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1 Representations and Warranties................................................................. 6
Section 3.2 Covenants...................................................................................... 7
ARTICLE IV
SUBORDINATION OF INDEBTEDNESS
Section 4.1 Subordination of all Guarantor Claims.......................................................... 7
Section 4.2 Claims in Bankruptcy........................................................................... 7
Section 4.3 Payments Held in Trust......................................................................... 8
Section 4.4 Liens Subordinate.............................................................................. 8
Section 4.5 Notation of Records............................................................................ 8
ARTICLE V
MISCELLANEOUS
Section 5.1 Successors and Assigns......................................................................... 8
Section 5.2 Notices........................................................................................ 9
Section 5.3 Authority of Administrative Agent.............................................................. 9
Section 5.4 CONSTRUCTION................................................................................... 9
Section 5.5 Survival of Obligations........................................................................ 10
Section 5.6 Interest....................................................................................... 10
i
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT dated as of May 31, 2002 is by Ocean Energy,
Inc., a corporation duly organized and validly existing under the laws of the
state of Louisiana (the "Guarantor"), in favor of each of the financial
institutions that is now or hereafter a party to the Credit Agreement (as
defined below) as a "Lender" (individually, a "Lender" and, collectively, the
"Lenders"), JPMorgan Chase Bank, as administrative agent (in such capacity, the
"Administrative Agent") and auction administrative agent (in such capacity, the
"Auction Administrative Agent"), Bank One, NA and Fleet National Bank, as
syndication agents (in such capacity, the "Syndication Agents"), BNP Paribas and
Wells Fargo Bank Texas, N.A., as documentation agents (in such capacity, the
"Documentation Agents"), Bank of America, N.A., Bank of Montreal, The Bank of
Nova Scotia, and Deutsche Bank AG New York Branch, as managing agents (in such
capacity, the "Managing Agents").
Recitals
A. Ocean Energy, Inc., a Delaware corporation (the "Company"), the
Administrative Agent, the Syndication Agents, the Documentation Agents, the
Managing Agents and the Auction Administrative Agent (collectively the "Agents")
and the Lenders have executed that certain Revolving Credit Agreement dated as
of even date herewith (such credit agreement, as amended, the "Credit
Agreement").
B. One of the terms and conditions stated in the Credit Agreement for
the making of the Loans and extensions of credit described in the Credit
Agreement is the execution and delivery to the Agents and the Lenders of this
Guaranty Agreement.
C. NOW, THEREFORE, (i) in order to comply with the terms and conditions
of the Credit Agreement, (ii) to induce the Lenders to enter into the Credit
Agreement and (iii) for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.1 Terms Defined in Recitals. As used in this Guaranty
Agreement, the terms defined in the Recitals shall have the meanings indicated
in the Recitals.
Section 1.2 Certain Definitions. As used in this Guaranty Agreement,
including the Recitals, the following terms shall have the following meanings,
unless the context otherwise requires:
"Guarantor Claims" shall have the meaning indicated in Section 4.1.
"Guaranty Agreement" shall mean this Guaranty Agreement, as the same
may from time to time be amended, amended and restated, supplemented or
otherwise modified.
"Obligations" shall mean: (a) the payment and performance of all
present and future "Obligations" (as defined in the Credit Agreement) and any
other obligations and liabilities of
the Company to the Agents and the Lenders under the Credit Agreement, including
but not limited to, the full and punctual payment of the Loans and any and all
promissory notes given in connection with the Credit Agreement, or in
modification, renewal, extension or rearrangement thereof in whole or in part;
(b) all obligations of the Guarantor under this Guaranty Agreement; and (c) all
interest (whether pre- or post- petition), charges, expenses, reasonable
attorneys' or other fees and any other sums payable to the Agents and the
Lenders in connection with the execution, administration or enforcement of any
of their rights and remedies hereunder or any other Loan Document.
Section 1.3 Credit Agreement Definitions. Unless otherwise defined herein, all
terms beginning with a capital letter which are defined in the Credit Agreement
shall have the same meanings herein as therein.
ARTICLE II
GUARANTY
Section 2.1 Obligations Guaranteed. The Guarantor hereby irrevocably
and unconditionally guarantees the full and prompt payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise, of the Obligations.
Section 2.2 Nature of Guaranty. This guaranty is an absolute,
irrevocable, completed and continuing guaranty of payment and not a guaranty of
collection, and no notice of the Obligations or any extension of credit already
or hereafter contracted by or extended to the Company need be given to the
Guarantor. This guaranty may not be revoked by the Guarantor and shall continue
to be effective with respect to debt under the Obligations arising or created
after any attempted revocation by the Guarantor and shall remain in full force
and effect until the Obligations are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto no Obligations
may be outstanding. The Company, the Agents and the Lenders may modify, alter,
rearrange, extend for any period and/or renew from time to time, the Obligations
and the Agents and the Lenders may waive any Defaults or Events of Default
without notice to the Guarantor and in such event the Guarantor will remain
fully bound hereunder on the Obligations. Subject to the terms of the Credit
Agreement, this Guaranty Agreement may be enforced by the Agents and/or the
Lenders and any subsequent holder of the Obligations and shall not be discharged
by the assignment or negotiation of all or part of the Obligations. The
Guarantor hereby expressly waives presentment, demand, notice of non-payment,
protest and notice of protest and dishonor, notice of Event of Default, notice
of intent to accelerate the maturity and notice of acceleration of the maturity
and any other notice in connection with the Obligations, and also notice of
acceptance of this Guaranty Agreement, acceptance on the part of the Agents and
the Lenders being conclusively presumed by their request for this Guaranty
Agreement and delivery of the same to the Administrative Agent.
Section 2.3 Lenders' Rights. Subject to the terms of the Credit
Agreement, the Guarantor authorizes the Lenders (or the Administrative Agent on
behalf of the Lenders), without notice or demand and without affecting the
Guarantor's obligation hereunder, to take and hold agreed-upon security for the
payment of the Obligations, and exchange, enforce, waive and release any such
security; and to apply such security and direct the order or manner of sale
thereof as the Agents and the Lenders in their discretion may determine; and to
obtain a guaranty
2
of the Obligations from any one or more Persons and at any time or times to
enforce, waive, rearrange, modify, limit or release any of such other Persons
from their obligations under such guaranties.
Section 2.4 Guarantor's Waivers. The Guarantor waives any right to
require the Agents and the Lenders to (a) proceed against the Company or any
other Person liable on the Obligations, (b) enforce their rights against any
other guarantor of the Obligations, (c) proceed or enforce their rights against
or exhaust any security given to secure the Obligations, (d) have the Company
joined with the Guarantor in any suit arising out of this Guaranty Agreement
and/or the Obligations or (e) pursue any other remedy whatsoever. Neither the
Agents nor the Lenders shall be required to mitigate damages or take any action
to reduce, collect or enforce the Obligations. The Guarantor waives any defense
arising by reason of any disability, lack of corporate authority or power, or
other defense of the Company or any other guarantor of the Obligations, and
shall remain liable hereon regardless of whether the Company or any other
guarantor be found not liable thereon for any reason.
Section 2.5 Maturity of Obligations; Payment. The Guarantor agrees that
if the maturity of the Obligations is accelerated by bankruptcy or otherwise,
such maturity shall also be deemed accelerated for the purpose of this Guaranty
Agreement without demand or notice to the Guarantor. The Guarantor will,
forthwith upon notice from the Administrative Agent of the Company's failure to
pay the Obligations at maturity, pay to the Administrative Agent for the benefit
of the Agents and the Lenders at the Administrative Agent's Principal Office,
the amount due and unpaid by the Company and guaranteed hereby. The failure of
the Administrative Agent to give this notice shall not in any way release the
Guarantor hereunder.
Section 2.6 Lenders' Expenses. If the Guarantor fails to pay the
Obligations after notice from the Administrative Agent of the Company's failure
to pay any Obligations at maturity (whether by acceleration or otherwise), and
if the Agents or the Lenders obtain the services of an attorney for collection
of amounts owing by the Guarantor hereunder, or obtain advice of counsel in
respect of any of their rights under this Guaranty Agreement, or if suit is
filed to enforce this Guaranty Agreement, or if proceedings are had in any
bankruptcy, receivership or other judicial proceedings for the establishment or
collection of any amount owing by the Guarantor hereunder, or if any amount
owing by the Guarantor hereunder is collected through such proceedings, the
Guarantor agrees to pay to the Administrative Agent at its Principal Office the
reasonable attorneys' fees of the Agents and the Lenders.
Section 2.7 Obligation. It is expressly agreed that the obligation of
the Guarantor for the payment of the Obligations guaranteed hereby shall be
primary and not secondary.
Section 2.8 Events and Circumstances Not Reducing or Discharging the
Guarantor's Obligations. The Guarantor hereby consents and agrees, to each of
the following to the fullest extent permitted by law, that its obligations under
this Guaranty Agreement shall not be released, diminished, impaired, reduced or
adversely affected by any of the following, and waives any rights (including
without limitation rights to notice) which it might otherwise have as a result
of or in connection with any of the following:
3
(a) Modifications, etc. any renewal, extension, modification,
or increase in the amount of the Commitments as in effect on the date hereof,
decrease, alteration or rearrangement of all or any part of the Obligations, any
Loan Document or any instrument executed in connection therewith, or any
contract or understanding between the Company, any Agent and/or the Lenders, or
any other Person, pertaining to the Obligations;
(b) Adjustment, etc. any adjustment, indulgence, forbearance
or compromise that might be granted or given by the Agents or the Lenders to the
Company, the Guarantor or any Person liable on the Obligations;
(c) Condition of the Company or the Guarantor. the insolvency,
bankruptcy, arrangement, reorganization, adjustment, composition, liquidation,
disability, dissolution or lack of power of the Company or the Guarantor or any
other Person at any time liable for the payment of all or part of the
Obligations; or any sale, lease or transfer of any or all of the assets of the
Company or the Guarantor, or any changes in the shareholders of the Company or
the Guarantor;
(d) Invalidity of Obligations. the invalidity, illegality or
unenforceability of all or any part of the Obligations or any Loan Document for
any reason whatsoever, including without limitation the fact that the
Obligations, or any part thereof, exceed the amount permitted by law, the act of
creating the Obligations or any part thereof is ultra vires, the officers or
representatives executing any Loan Document or otherwise creating the
Obligations acted in excess of their authority, the Obligations violate
applicable usury laws, the Company has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Obligations wholly
or partially uncollectible from the Company, the creation, performance or
repayment of the Obligations (or the execution, delivery and performance of any
Loan Document) is illegal, uncollectible, legally impossible or unenforceable,
or the Credit Agreement or other Loan Documents have been forged or otherwise
are irregular or not genuine or authentic;
(e) Release of Obligors. any full or partial release of the
obligation of the Company on the Obligations or any part thereof, of any
co-guarantors, or any other Person now or hereafter liable, whether directly or
indirectly, jointly, severally, or jointly and severally, to pay, perform,
guarantee or assure the payment of the Obligations or any part thereof, it being
recognized, acknowledged and agreed by the Guarantor that the Guarantor may be
required to pay the Obligations in full without assistance or support of any
other Person, and the Guarantor has not been induced to enter into this Guaranty
Agreement on the basis of a contemplation, belief, understanding or agreement
that other parties other than the Company will be liable to perform the
Obligations, or that the Agents and the Lenders will look to other parties to
perform the Obligations;
(f) Security. the taking or accepting of any security,
collateral or guaranty, or other assurance of payment, for all or any part of
the Obligations;
(g) Release of Collateral, etc. any release, surrender,
exchange, subordination, deterioration, waste, loss or impairment (including
without limitation negligent, willful, unreasonable or unjustifiable impairment)
of any collateral, property or security, at any
4
time existing in connection with, or assuring or securing payment of, all or any
part of the Obligations;
(h) Care and Diligence. the failure of any Agent or any Lender
or any other Person to exercise diligence or reasonable care in the
preservation, protection, enforcement, sale or other handling or treatment of
all or any part of such collateral, property or security;
(i) Status of Liens. the fact that any collateral, security or
Lien contemplated or intended to be given, created or granted as security for
the repayment of the Obligations shall not be properly perfected or created, or
shall prove to be unenforceable or subordinate to any other Lien, it being
recognized and agreed by the Guarantor that the Guarantor is not entering into
this Guaranty Agreement in reliance on, or in contemplation of the benefits of,
the validity, enforceability, collectability or value of any of the collateral
for the Obligations;
(j) Payments Rescinded. any payment by the Company to any
Agent or Lender is held to constitute a preference under the bankruptcy laws, or
for any reason an Agent or Lender is required to refund such payment or pay such
amount to the Company or someone else; or
(k) Other Actions Taken or Omitted. any other action taken or
omitted to be taken with respect to the Credit Agreement or the other Loan
Documents, the Obligations, or the security and collateral therefor, whether or
not such action or omission prejudices the Guarantor or increases the likelihood
that the Guarantor will be required to pay the Obligations pursuant to the terms
hereof; it being the unambiguous and unequivocal intention of the Guarantor that
the Guarantor shall be obligated to pay the Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not otherwise
or particularly described herein, except for the full and final payment and
satisfaction of the Obligations.
Section 2.9 Limitations on Obligation of the Guarantor Hereunder. The
parties hereto (i) intend that the obligation of the Guarantor hereunder be
limited to the maximum amount that would not result in the obligation created
hereby being avoidable under Section 548 of the Federal Bankruptcy Code (11
U.S.C. Section 548; hereinafter "Section 548") or other applicable state
fraudulent conveyance or transfer law and (ii) agree that this Guaranty
Agreement shall be so construed. Accordingly, the obligation of the Guarantor
hereunder is limited to an amount that is the greater of (x) the "reasonably
equivalent value" or "fair consideration" received by the Guarantor in exchange
for the obligation incurred hereunder, within the meaning of Section 548, as
amended, or any applicable state fraudulent conveyance or transfer law, as
amended, or (y) the lesser of (1) the maximum amount that will not render the
Guarantor insolvent or (2) the maximum amount that will not leave the Guarantor
with any Property deemed an unreasonably small capital. Clauses (1) and (2) are
and shall be determined pursuant to Section 548, as amended, or other applicable
state fraudulent conveyance or transfer law, as amended.
Section 2.10 Subrogation. The Guarantor shall not exercise any rights
which it may acquire by way of subrogation, reimbursement, exoneration,
indemnification or participation, by any payment made under this Guaranty
Agreement, under any other Loan Document or otherwise until the Obligations have
been paid in full and the Commitments are terminated.
5
Except as described in this Section, the Guarantor further waives any benefit of
any right to participate in any security now or hereafter held by the Agents
and/or the Lenders.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1 Representations and Warranties. In order to induce the
Agents and the Lenders to accept this Guaranty Agreement, the Guarantor
represents and warrants to the Agents and Lenders (which representations and
warranties will survive the creation of the Obligations and any extension of
credit thereunder) that:
(a) Benefit to the Guarantor. The Guarantor is a wholly-owned
Subsidiary of the Company and the Guarantor's guaranty pursuant to this Guaranty
Agreement reasonably may be expected to benefit, directly or indirectly, the
Guarantor; and the Guarantor has determined that this Guaranty Agreement is
necessary and convenient to the conduct, promotion and attainment of the
business of the Guarantor and the Company.
(b) Corporate Existence. The Guarantor: (i) is duly organized
and validly existing under the laws of the jurisdiction of its formation; (ii)
has all requisite power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being conducted; and (iii) is qualified to do business in
all jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would have a Material
Adverse Effect.
(c) No Breach. The execution and delivery by the Guarantor of
this Guaranty Agreement and the other Loan Documents to which it is a party, the
consummation of the transactions herein or therein contemplated, and the
compliance with the terms and provisions hereof will not (i) conflict with or
result in a breach of, or require any consent under (A) the charter or by-laws
of the Guarantor or (B) any applicable law or regulation, or any order, writ,
injunction or decree of any court or other Governmental Authority, or any
material agreement or instrument to which the Guarantor is a party or by which
it is bound or to which it is subject in each case in such manner as could
reasonably be expected to have a Material Adverse Effect; or (ii) constitute a
default under any such agreement or instrument, or result in the creation or
imposition of any Lien upon any of the revenues or property of the Guarantor in
each case in such manner as could reasonably be expected to have a Material
Adverse Effect.
(d) Corporate Action. The Guarantor has all necessary
corporate power and authority to execute, deliver and perform its obligations
under this Guaranty Agreement and the Loan Documents to which it is a party; and
the execution, delivery and performance by the Guarantor of this Guaranty
Agreement and the other Loan Documents to which such Person is a party have been
duly authorized by all necessary corporate action on its part. This Guaranty
Agreement and the Loan Documents to which the Guarantor is a party constitute
the legal, valid and binding obligation of the Guarantor, enforceable against
the Guarantor in accordance with their terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights and general principals of equity.
6
(e) Approvals. Other than consents heretofore obtained or
described in the Credit Agreement, no authorizations, approvals or consents of,
and no filings or registrations with, any Governmental Authority are necessary
for the execution, delivery or performance by the Guarantor of this Guaranty
Agreement or the Loan Documents to which it is a party or for the validity or
enforceability thereof. It is understood that continued performance by the
Guarantor of this Guaranty Agreement and the other Loan Documents to which it is
a party will require various filings, such as filings related to environmental
matters, ERISA matters, Taxes and intellectual property, filings required to
maintain corporate and similar standing and existence, filings pursuant to the
Uniform Commercial Code and other security filings and recordings and filings
required by the SEC, routine filings in the ordinary course of business, and
filings required in connection with the exercise by the Lenders and the Agents
of remedies in connection with the Loan Documents.
(f) Solvency. The Guarantor (i) is not insolvent and will not
be rendered insolvent as a result of this Guaranty Agreement; (ii) is not
engaged in a business or a transaction, or about to engage in a business or a
transaction, for which any property or assets remaining with the Guarantor are
unreasonably small capital; and (iii) does not intend to incur, or believe it
will incur, debts that will be beyond its ability to pay as such debts mature.
(g) No Representation by Agents or Lenders. Neither any Agent,
any Lender nor any other Person has made any representation, warranty or
statement to the Guarantor in order to induce the Guarantor to execute this
Guaranty Agreement.
Section 3.2 Covenants. The Guarantor acknowledges that it is has read
the Credit Agreement and hereby covenants and agrees to comply with covenants
and agreements set forth therein which restrict Restricted Subsidiaries of the
Company in so far as such covenants and agreements apply to it.
ARTICLE IV
SUBORDINATION OF INDEBTEDNESS
Section 4.1 Subordination of all Guarantor Claims. As used herein, the
term "Guarantor Claims" shall mean all debts and obligations of the Company to
the Guarantor, whether such debts and obligations now exist or are hereafter
incurred or arise, or whether the obligation be direct, contingent, primary,
secondary, several, joint and several, or otherwise, and irrespective of whether
such debts or obligations be evidenced by note, contract, open account, or
otherwise, and irrespective of the Person or Persons in whose favor such debts
or obligations may, at their inception, have been, or may hereafter be created,
or the manner in which they have been or may hereafter be acquired by the
Guarantor. Except for payments permitted by the Credit Agreement, until the
Obligations shall be paid and satisfied in full, the Commitments are terminated
and the Guarantor shall have performed all of its obligations hereunder and the
Loan Documents to which it is a party, the Guarantor shall not receive or
collect, directly or indirectly, from the Company any amount upon the Guarantor
Claims.
Section 4.2 Claims in Bankruptcy. In the event of receivership,
bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency
proceedings involving the Company, the Administrative Agent on behalf of the
Agents and the Lenders shall have the right
7
to prove their claim in any proceeding, so as to establish their rights
hereunder and receive directly from the receiver, trustee or other court
custodian, dividends and payments which would otherwise be payable upon
Guarantor Claims. The Guarantor hereby assigns such dividends and payments to
the Administrative Agent for the benefit of the Agents and the Lenders. Should
any Agent or Lender receive, for application upon the Obligations, any such
dividend or payment which is otherwise payable to the Guarantor, and which, as
between the Company and the Guarantor, shall constitute a credit upon the
Guarantor Claims, then upon payment in full of the Obligations and the
termination of the Commitments, the Guarantor shall become subrogated to the
rights of the Agents and the Lenders to the extent that such payments to the
Agents and the Lenders on the Guarantor Claims have contributed toward the
liquidation of the Obligations, and such subrogation shall be with respect to
that proportion of the Obligations which would have been unpaid if the Agents
and the Lenders had not received dividends or payments upon the Guarantor
Claims.
Section 4.3 Payments Held in Trust. In the event that notwithstanding
Sections 4.1 and 4.2, the Guarantor should receive any funds, payments, claims
or distributions which are prohibited by such Sections, the Guarantor agrees (a)
to hold in trust for the Agents and the Lenders an amount equal to the amount of
all funds, payments, claims or distributions so received, and (b) that it shall
have absolutely no dominion over the amount of such funds, payments, claims or
distributions except to pay them promptly to the Administrative Agent, for the
benefit of the Agents and the Lenders; and the Guarantor covenants promptly to
pay the same to the Administrative Agent.
Section 4.4 Liens Subordinate. The Guarantor agrees that, until the
Obligations are paid in full and the Commitments terminated, any Liens upon the
Company's assets securing payment of the Guarantor Claims shall be and remain
inferior and subordinate to any Liens upon the Company's assets securing payment
of the Obligations, regardless of whether such encumbrances in favor of the
Guarantor, any Agent or Lender presently exist or are hereafter created or
attach. Without the prior written consent of the Administrative Agent, the
Guarantor, during the period in which any of the Obligations are outstanding or
the Commitments are in effect, shall not (a) exercise or enforce any creditor's
right it may have against the Company or (b) foreclose, repossess, sequester or
otherwise take steps or institute any action or proceeding (judicial or
otherwise, including without limitation the commencement of or joinder in any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any Lien, mortgages, deeds of trust, security interest,
collateral rights, judgments or other encumbrances on assets of the Company held
by the Guarantor.
Section 4.5 Notation of Records. All promissory notes and, upon the
request of the Administrative Agent, all accounts receivable ledgers or other
evidence of the Guarantor Claims accepted by or held by the Guarantor shall
contain a specific written notice thereon that the indebtedness evidenced
thereby is subordinated under the terms of this Guaranty Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1 Successors and Assigns. This Guaranty Agreement is and
shall be in every particular available to the successors and assigns of the
Agents and the Lenders and is and
8
shall always be fully binding upon the legal representatives, successors and
assigns of the Guarantor, notwithstanding that some or all of the monies, the
repayment of which this Guaranty Agreement applies, may be actually advanced
after any bankruptcy, receivership, reorganization or other event affecting
either the Company or the Guarantor.
Section 5.2 Notices. Any notice or demand to the Guarantor under or in
connection with this Guaranty Agreement may be given and shall conclusively be
deemed and considered to have been given and received in the manner provided for
in Section 13.2 of the Credit Agreement and to the address of the Guarantor set
forth on the signature page to this Guaranty Agreement.
Section 5.3 Authority of Administrative Agent. The Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guaranty Agreement with respect to any action taken by the
Administrative Agent or the exercise or non-exercise by the Administrative Agent
of any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Guaranty Agreement shall, as between
the Agents and the Lenders, be governed by the Credit Agreement and by such
other agreements with respect thereto as may exist from time to time among them,
but, as between the Administrative Agent and the Guarantor, the Administrative
Agent shall be conclusively presumed to be acting as agent for the Lenders with
full and valid authority so to act or refrain from acting; and the Guarantor
shall not be under any obligation, or entitlement, to make any inquiry
respecting such authority.
Section 5.4 CONSTRUCTION.
(a) THIS GUARANTY AGREEMENT (INCLUDING, BUT NOT LIMITED TO,
THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY AGREEMENT OR THE OTHER LOAN DOCUMENTS TO WHICH THE GUARANTOR IS A PARTY
MAY BE BROUGHT IN THE DISTRICT COURTS OF NEW YORK COUNTY, NEW YORK OR THE UNITED
STATES DISTRICT COURT LOCATED IN SUCH COUNTY, AND, BY EXECUTION AND DELIVERY OF
THIS GUARANTY AGREEMENT, THE GUARANTOR HEREBY ACCEPTS FOR ITSELF AND (TO THE
EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE GUARANTOR HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS. THIS SUBMISSION TO JURISDICTION IS NONEXCLUSIVE
AND DOES NOT PRECLUDE THE ADMINISTRATIVE AGENT OR ANY LENDER FROM OBTAINING
JURISDICTION OVER THE GUARANTOR IN ANY COURT OTHERWISE HAVING JURISDICTION.
9
(c) THE GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO IT, AS THE CASE MAY BE, AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT OR ANY
LENDER OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE GUARANTOR
IN ANY OTHER JURISDICTION.
(e) THE GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, EACH AGENT
AND EACH LENDER HEREBY (I) IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS GUARANTY AGREEMENT OR ANY LOAN DOCUMENT TO WHICH IT IS A PARTY
AND FOR ANY COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT
NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (III) CERTIFY THAT NO PARTY
HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (IV)
ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY AGREEMENT, THE
LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION
5.4.
Section 5.5 Survival of Obligations. To the extent that any payments on
the Obligations or proceeds of any collateral are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, debtor in possession, receiver or other Person under any bankruptcy
law, common law or equitable cause, then to such extent, the Obligations so
satisfied shall be revived and continue as if such payment or proceeds had not
been received and the Agents' and the Lenders' Liens, rights, powers and
remedies under this Guaranty Agreement and each Loan Document shall continue in
full force and effect. In such event, each Loan Document shall be automatically
reinstated and the Guarantor shall take such action as may be reasonably
requested by the Administrative Agent and the Lenders to effect such
reinstatement.
Section 5.6 Interest. It is in the interest of the Guarantor and the
Agents and the Banks to conform strictly to all applicable usury laws.
Accordingly, reference is made to Section 13.6 of the Credit Agreement which is
incorporated herein by reference for all purposes.
10
WITNESS THE EXECUTION HEREOF, effective as of the date first written above.
OCEAN ENERGY, INC., a Louisiana corporation
By: __________________________________
Stephen A. Thorington
Senior Vice President, Finance and
Corporate Development
Address for Notices:
c/o Ocean Energy, Inc.
1001 Fannin, Suite 1600
Houston, Texas 77002
Attention: Stephen A. Thorington
Phone: (713) 265-6190
Fax: (713) 265-8024
with a copy to:
1001 Fannin, Suite 1600
Houston, Texas 77002
Attention: Robert K. Reeves
Phone: (713) 265-6540
Fax: (713) 265-8840
11
Exhibit L
DISCLOSURE STATEMENT
I. Indebtedness of any Restricted Subsidiary existing on the Effective
Date per Section 10.1(i)(b):
A. Ocean Energy, Inc., a Louisiana corporation, has guaranteed
the following:
1) Senior Indenture dated as of July 15, 1993 between Seagull
Energy Corporation, as issuer, and The Bank of New York, as
Trustee.
a) as amended by First Supplemental Indenture dated as
of March 30, 1999 among Ocean Energy, Inc. (formerly
Seagull Energy Corporation), as issuer, the
Subsidiary Guarantors named therein, and The Bank of
New York, as Trustee.
b) as amended by Second Supplemental Indenture dated as
of May 9, 2001 among Ocean Energy, Inc., a Delaware
corporation (as successor by merger to Ocean Energy,
Inc., a Texas corporation), as Issuer, Ocean Energy,
Inc., a Louisiana corporation, as Subsidiary
Guarantor and The Bank of New York, as Trustee.
2) Indenture dated as of July 2, 1997 among Ocean Energy, Inc.,
as issuer, the Subsidiary Guarantors named therein, and State
Street Bank and Trust Company, as Trustee.
a) as amended by First Supplemental Indenture dated as
of March 27, 1998 among Ocean Energy, Inc., a
Delaware corporation, as issuer, Ocean Energy, Inc.,
a Louisiana corporation, as Subsidiary Guarantor, and
State Street Bank and Trust Company, as Trustee.
b) as amended by Second Supplemental Indenture dated as
of March 30, 1999 among Ocean Energy, Inc., a Texas
corporation (successor by merger to Ocean Energy,
Inc., a Delaware corporation), as issuer, Ocean
Energy, Inc., a Louisiana corporation, as Subsidiary
Guarantor, and State Street Bank and Trust Company,
as Trustee.
c) as amended by Third Supplemental Indenture dated as
of May 9, 2001 among Ocean Energy, Inc., a Delaware
corporation (as successor by merger to Ocean Energy,
Inc., a Texas corporation), as Issuer, Ocean Energy,
Inc., a Louisiana corporation, as Subsidiary
Guarantor, and State Street Bank and Trust Company,
as Trustee.
Exhibit L-1
3) Senior Indenture dated as of September 1, 1997 among Seagull
Energy Corporation, as issuer, and The Bank of New York, as
Trustee.
a) as amended by First Supplemental Indenture dated as
of March 30, 1999 among Ocean Energy, Inc. (formerly
Seagull Energy Corporation), as issuer, the
Subsidiary Guarantors named therein, and The Bank of
New York, as Trustee.
b) as amended by Second Supplemental Indenture dated as
of May 9, 2001 among Ocean Energy, Inc., a Delaware
corporation (as successor by merger to Ocean Energy,
Inc., a Texas corporation), as Issuer, Ocean Energy,
Inc., a Louisiana corporation, as Subsidiary
Guarantor and The Bank of New York, as Trustee.
4) Indenture (7-5/8% Senior Notes due 2005) dated as of July 8,
1998 among Ocean Energy, Inc., as issuer, the Subsidiary
Guarantors named therein, and Norwest Bank Minnesota, National
Association, as Trustee.
a) as amended by First Supplemental Indenture dated as
of March 30, 1999 among Ocean Energy, Inc., a Texas
corporation (successor by merger to Ocean Energy,
Inc., a Delaware corporation), as issuer, Ocean
Energy, Inc., a Louisiana corporation, as Subsidiary
Guarantor, and Norwest Bank Minnesota, National
Association, as Trustee.
b) as amended by Second Supplemental Indenture dated as
of May 9, 2001 among Ocean Energy, Inc., a Delaware
corporation (as successor by merger to Ocean Energy,
Inc., a Texas corporation), as Issuer, Ocean Energy,
Inc., a Louisiana corporation, as Subsidiary
Guarantor, and Wells Fargo Bank Minnesota, NA. (as
successor to Norwest Bank Minnesota, NA), as Trustee.
5) Indenture (8-1/4% Senior Notes due 2018) dated as of July 8,
1998 among Ocean Energy, Inc., as issuer, the Subsidiary
Guarantors named therein, and Norwest Bank Minnesota, National
Association, as Trustee.
a) as amended by First Supplemental Indenture dated as
of March 30, 1999 among Ocean Energy, Inc., a Texas
corporation (successor by merger to Ocean Energy,
Inc., a Delaware corporation), as issuer, Ocean
Energy, Inc., a Louisiana corporation, as Subsidiary
Guarantor, and Norwest Bank Minnesota, National
Association, as Trustee.
b) as amended by Second Supplemental Indenture dated as
of May 9, 2001 among Ocean Energy, Inc., a Delaware
corporation (as successor by merger to Ocean Energy,
Inc., a Texas corporation), as Issuer, Ocean Energy,
Inc., a Louisiana corporation, as Subsidiary
Guarantor and Wells
Exhibit L-2
Fargo Bank Minnesota, NA. (as successor to Norwest
Bank Minnesota, NA), as Trustee.
6) Indenture (8-3/8% Series A & 8-3/8% Series B Senior Notes due
2008) dated as of July 8, 1998 among Ocean Energy, Inc., as
issuer, the Subsidiary Guarantors named therein, and U.S. Bank
Trust National Association, as Trustee.
a) as amended by First Supplemental Indenture dated as
of March 30, 1999 among Ocean Energy, Inc., a Texas
corporation (successor by merger to Ocean Energy,
Inc., a Delaware corporation), as issuer, Ocean
Energy, Inc., a Louisiana corporation, as Subsidiary
Guarantor, and U.S. Bank Trust National Association,
as Trustee.
b) as amended by Second Supplemental Indenture dated as
of May 9, 2001 among Ocean Energy, Inc., a Delaware
corporation (as successor by merger to Ocean Energy,
Inc., a Texas corporation), as Issuer, Ocean Energy,
Inc., a Louisiana corporation, as Subsidiary
Guarantor and U.S. Bank Trust National Association,
as Trustee.
7) Senior Indenture dated as of September 28, 2001 between Ocean
Energy, Inc., a Delaware corporation, as issuer, Ocean Energy,
Inc., a Louisiana corporation, as guarantor, and The Bank of
New York, as trustee.
B. Ocean Energy, Inc., a Louisiana corporation, is party to the
following agreements:
1) Crude Oil Forward Sale Contract dated as of June 25, 1999
among Ocean Energy, Inc., a Louisiana corporation, as seller,
and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank), a New York State banking corporation, as purchaser.
2) Natural Gas Advance Sale Contract dated as of September 28,
2000 between Ocean Energy Resources, Inc. and Mahonia Limited.
a) as amended by First Amendment to Natural Gas Advance
Sale Contract between Ocean Energy, Inc., a Louisiana
corporation, and Mahonia Limited, effective as of
December 12, 2001.
3) Guaranty by Ocean Energy, Inc., a Louisiana corporation, of
the obligations of Havre Pipeline Company, LLC under its
$19,000,000 term loan facility and $999,999 revolver facility
with U.S. Bank National Association.
Exhibit L-3
Exhibit M
Commitments
Name of Lender Commitment
- -------------- ----------
JPMorgan Chase Bank $ 65,000,000
Bank of America, N.A. $ 65,000,000
Bank of Montreal $ 65,000,000
The Bank of Nova Scotia $ 65,000,000
Bank One, NA (Main Office Chicago) $ 65,000,000
BNP Paribas $ 65,000,000
Deutsche Bank AG New York Branch $ 65,000,000
Fleet National Bank (f/k/a BankBoston, N.A.) $ 65,000,000
Wells Fargo Bank Texas, N.A. $ 65,000,000
The Bank of New York $ 41,000,000
Citibank, N.A. $ 41,000,000
Credit Lyonnais New York Branch $ 41,000,000
Credit Suisse First Boston $ 41,000,000
Goldman Sachs Credit Partners L.P. $ 41,000,000
Merrill Lynch Bank USA $ 41,000,000
Societe Generale $ 41,000,000
Toronto-Dominion (New York), Inc. $ 41,000,000
The Bank of Tokyo-Mitsubishi, Ltd. $ 22,500,000
The Royal Bank of Scotland PLC $ 22,500,000
U.S. Bank National Association $ 22,000,000
Southwest Bank of Texas, N.A. $ 20,000,000
Totals: $1,000,000,000.00
Exhibit M-1