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EXHIBIT 10.34
Execution Copy
FIRST AMENDING AGREEMENT
THIS FIRST AMENDING AGREEMENT dated June 29, 1998
BETWEEN:
PIONEER NATURAL RESOURCES CANADA INC.
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THE LENDERS HERETO
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CANADIAN IMPERIAL BANK OF COMMERCE
PREAMBLE:
The parties hereto are parties to the Credit Agreement dated
as of December 18, 1997 (the "Credit Agreement") and wish to amend the Credit
Agreement to reflect changes to the credit established thereunder.
NOW THEREFORE in consideration of the covenants and agreements
between the parties contained in this First Amending Agreement and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. INTERPRETATION
In this First Amending Agreement, capitalized terms which are not
otherwise defined herein shall have the meaning given in the Credit Agreement.
2. AMENDMENTS
The Credit Agreement is hereby amended as follows:
(a) Section 3.12(a) is deleted and replaced with the following:
(a) INTEREST AND FEES. Interest payable by the Borrower
under each Accommodation shall be determined in the
following manner:
(i) each Canadian Prime Rate Loan shall bear
interest at a variable rate of interest per annum
equal to the Canadian Prime Rate;
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(ii) each U.S. Base Rate Loan shall bear interest at
a variable rate per annum equal to the U.S. Base
Rate;
(iii) each Alternate Base Rate Loan shall bear
interest at a variable rate of interest per
annum equal to the Alternate Base Rate;
(iv) each LIBOR Based Loan shall bear interest at a
rate per annum equal to the sum of: (i) LIBOR,
plus (ii) the applicable Commitment Utilization
Margin, plus (iii) the applicable margin based
on the Applicable Rating Level as indicated in
the table below;
(v) each Canadian Eurodollar Loan shall bear
interest at a rate per annum equal to the sum
of: (i) the Canadian Eurodollar Rate, plus (ii)
the applicable Commitment Utilization Margin,
plus (iii) the applicable margin based on the
Applicable Rating Level as indicated on the
table below; and
(vi) for each Bankers' Acceptance, the stamping fee
payable by the Borrower on the acceptance
thereof by the Canadian Resident Lenders shall
be based on the sum of: (i) the applicable
Commitment Utilization Margin, plus (ii) the
applicable margin based on the Applicable Rating
Level as indicated in the table below.
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Applicable Rating Level I II III IV V
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Stamping fee on Bankers' 18 20 23 36 45
Acceptances and margins
on LIBOR Based
Loans/Canadian
Eurodollar Loans (Basis
Points)
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(b) Section 13.1 is amended with the addition of the following as
Section 13.1(r):
(r) YEAR 2000 COMPLIANCE
(i) In this Section 13.1(r):
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"YEAR 2000 PROBLEM" means the risk that computer
applications used by the Borrower or any of its
Subsidiaries (or its suppliers and vendors) may
be unable to recognize and perform properly
date- sensitive functions involving certain
dates prior to, and any date after, December 31,
1999; and
"YEAR 2000 COMPLIANT" means that all computer
applications will on a timely basis be able to
perform properly date-sensitive functions for
all dates before and after January 1, 2000.
(ii) The Borrower has: (i) initiated a review
and assessment of all areas within its and each
of its Subsidiaries' business and operations
(including those affected by suppliers and
vendors) that could be adversely affected by the
Year 2000 Problem, (ii) developed a plan and
time line for addressing the Year 2000 Problem
on a timely basis, and (iii) to date,
implemented that plan in accordance with that
time table. The Borrower reasonably believes
that all computer applications (including those
of its suppliers and vendors) that are material
to its or any of its Subsidiaries' business and
operations will be Year 2000 Compliant, except
to the extent that a failure to do so could not
reasonably be expected to have a Material
Adverse Effect.
(c) Section 14.1 is amended with the addition of the following as
14.1(n):
(n) YEAR 2000 COMPLIANCE. The Borrower will promptly notify
the Agent in the event the Borrower discovers or
determines that any computer application (including
those of its suppliers and vendors) that is material to
its or any of its Subsidiaries' business and operations
will not be Year 2000 Compliant on a timely basis,
except to the extent that such failure could not
reasonably be expected to have a Material Adverse
Effect.
(d) Schedule "A" is amended with the addition of the following
definitions in appropriate alphabetical order:
"Commitment Utilization" means, for any period, the ratio of:
(i) the Outstandings to (ii) the Commitment Amount, provided
that for purposes of determining the Commitment Utilization
Margin for the period ending June 30, 1999, the Commitment
Utilization is deemed to be ">.50".
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"COMMITMENT UTILIZATION LEVEL" means the level set forth below
that corresponds to the lowest of the ratings issued from time
to time by Moody's and S&P, as applicable, for the Parent's
senior unsecured long-term debt:
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Moody's S&P
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Level A Baa3 or better BBB- or better
Level B Less than Baa3 Less than BBB-
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For example, if the Moody's rating is Ba1 and the S&P rating
is BBB, Level B shall apply. For purposes of the foregoing,
(i) if ratings for the Parent's senior unsecured long-term
debt shall not be available from S&P or Moody's, Level B shall
be deemed applicable; and (ii) if any of the Rating Agencies
shall change its ratings nomenclature prior to the date all
Obligations have been paid and the Commitments cancelled, the
Parent and the Lenders shall negotiate in good faith to amend
the reference to specific ratings in this definition to
reflect such change, and pending such amendment, if an
appropriate Commitment Utilization Level is otherwise not
determinable based upon the foregoing grid, the last
Commitment Utilization Level in effect at the time of such
change shall continue to apply.
"Commitment Utilization Margin" means, on any date, the number
of Basis Points per annum set forth below based on the
Commitment Utilization Level on such date:
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Commitment Utilization Margin
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Commitment Commitment Utilization Commitment
Utilization Level is "< or equal to .50" Utilization is ">.50"
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Level A 0 b.p. 5.0 b.p
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Level B 0 b.p. 10.0 b.p
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"Year 2000 Compliant" has the meaning attributed to it in
Section 13.1(r) of the Agreement.
"Year 2000 Problem" has the meaning attributed to it in Section
13.1(r) of the Agreement.
3. Representations and Warranties. To confirm each Lender's understanding
concerning the Borrower and its businesses, properties and obligations, and to
induce the Agent and each Lender to enter into this First Amending Agreement,
the Borrower hereby reaffirms to the Agent and each Lender that, as of the date
hereof, its representations and warranties contained in Section
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13.1 of the Credit Agreement (as amended by this First Amending Agreement) and
in the Documents to which it is a party (except to the extent such
representations and warranties relate solely to an earlier date) are true and
correct and additionally represents and warrants as follows:
(a) The execution and delivery of this First Amending Agreement and
the performance by the Borrower and the Restricted Subsidiaries
of their respective obligations under this First Amending
Agreement, the Credit Agreement and the other Documents, as
amended hereby, are within the Borrower's or such Restrictive
Subsidiaries' corporate powers, have been duly authorized by all
necessary corporate action, have received all necessary
governmental approval (if any shall be required), and do not and
will not contravene or conflict with any provision of Law or of
the Borrower's or such Restrictive Subsidiaries' constating
documents or by-laws or of any Law or material agreement,
judgment, license, order or permit applicable to or binding upon
such Borrower or Restrictive Subsidiary.
(b) This First Amending Agreement and the Credit Agreement, as
amended hereby, are, and the other Documents when fully executed
and delivered will be, legal, valid and binding obligations of
the Borrower and each Restrictive Subsidiary which is a party
hereto or thereto, enforceable in accordance with their terms
except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, winding-up, moratorium
or similar Laws relating to the enforcement of creditors' rights
generally and by general principles of equity.
4. Conditions to Effectiveness. The effectiveness of this First Amending
Agreement is conditional upon the following:
(a) The Borrower shall pay, or cause the payment, to the Agent for
the account of each Lender a non-refundable amendment fee
determined by applying the amendment fee rate of 15 Basis Points
to the Commitments (whether used or unused) as of the date of
this First Amending Agreement. Such amendment fee shall be
allocated among the Lenders based on their Pro-Rata Shares; and
(b) The Borrower shall deliver such other documents or items that
the Agent may reasonably request in a form and substance
reasonably satisfactory to the Agent.
5. Effective Date. The amendments contained herein shall be effective as of the
date of this First Amending Agreement.
6. Continuing Effect. Each of the parties hereto acknowledges and agrees that
the Credit Agreement, as amended by this First Amending Agreement, the Support
Guarantees and the Parent Guarantee each dated as of December 18, 1997 delivered
to the Agent and Lenders, shall be and continue in full force and effect and are
hereby confirmed and the rights and obligations
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of all parties thereunder shall not be affected or prejudiced in any manner
except as specifically provided for herein.
7. Counterparts. This First Amending Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original, but all of which when taken together constitute one and the same
instrument; any party may execute this First Amending Agreement by signing any
counterpart of it.
IN WITNESS WHEREOF, the Parties have caused this First Amending
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
PIONEER NATURAL RESOURCES CANADA INC.,
as Borrower
By: /s/ Jane Stevenson
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Name: Jane Stevenson
Title: Controller
CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Resident Lender and
Administrative Agent
By: /s/ David Swain
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Name: David Swain
Title: Vice President
By: /s/ James Chepyha
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Name: James Chepyha
Title: Executive Director
Address:
Bankers Hall, 10th floor
855-2nd Street S.W.
Calgary, Alberta T2P 4J7
Fax: 403-221-5779
This is a counterpart execution page to the First Amending Agreement
dated June 29, 1998.
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Execution Copy
THE BANK OF NOVA SCOTIA,
as Canadian Resident Lender
By: /s/ Dan Belot
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Name: Dan Belot
Title: Relationship Manager
By: /s/ Michael Jackson
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Name: Michael Jackson
Title: Vice President and Office Head
Address:
Corporate & Energy Banking
Suite 3820, 700-2nd Street S.W.
Calgary, Alberta T2P 2N7
Fax: 403-221-6497
ROYAL BANK OF CANADA,
as Canadian Resident Lender
By: /s/ Bruce Edgelow
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Name: Bruce Edgelow
Title: Senior Account Manager
By: /s/ Lorne Gartner
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Name: Lorne Gartner
Title: Manager
Address:
Oil & Gas Banking Centre
335 8th Avenue S.W., 11th floor,
Calgary, Alberta T2P 1C9
Fax: 403-292-3436
This is a counterpart execution page to the First Amending
Agreement dated June 29, 1998.
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THE CHASE MANHATTAN BANK OF CANADA,
as Canadian Resident Lender
By: /s/ Christine Chan
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Name: Christine Chan
Title: Vice President
Address:
1 First Canadian Place
6900, 100 King Street West
Toronto, Ontario M5X 1A4
Fax: 416-216-4161
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Non-resident Lender
By: /s/ John Kowalczuk
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Name: John Kowalczuk
Title: Vice President
Address:
60 Wall Street, 22nd floor
New York, New York 10260
Fax: 212-648-5014
NATIONSBANK, N.A.,
successor-by-merger to NationsBank of
Texas, N.A. as Non-resident Lender
By: /s/ Frank Stowers
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Name: Frank Stowers
Title: Vice President
Address:
303 West Wall Street
Midland, Texas 79701
Fax: 915-685-2009
This is a counterpart execution page to the First Amending
Agreement dated June 29, 1998.
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THE TORONTO-DOMINION BANK,
as Canadian Resident Lender
By: /s/ Loretta Palandri
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Name: Loretta Palandri
Title: Manager, Corporate Banking
Address:
800 Home Oil Tower
324-8th Avenue S.W.
Calgary, Alberta T2P 2Z2
Fax: 403-292-2772
FIRST UNION NATIONAL BANK,
as Non-resident Lender
By: /s/ Michael Kolosowsky
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Name: Michael Kolosowsky
Title: Vice President
Address:
One First Union Center
301 South College Street, TW-11
Charlotte, North Carolina 28288-0658
Fax: 704-374-6249
WACHOVIA BANK, N.A.,
as Non-resident Lender
By: /s/ Paige Mesaros
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Name: Paige Mesaros
Title: Vice President
Address:
191 Peachtree Street N.E.
MC370, 28th floor
Atlanta, Georgia 30303
Fax: 404-332-6898
This is a counterpart execution page to the First Amending
Agreement dated June 29, 1998.