EXHIBIT 10.6
CREDIT AGREEMENT
AMONG
ENSERCH EXPLORATION, INC.
AS BORROWER,
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT,
THE CHASE MANHATTAN BANK, N.A.,
AS SYNDICATION AGENT
CHEMICAL BANK,
AS AUCTION AGENT
AND
THE LENDERS NOW OR HEREAFTER PARTIES HERETO
DATED AS OF MAY 1, 1995
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01 Terms Defined Above.................. 1
Section 1.02 Certain Defined Terms................ 1
Section 1.03 Accounting Terms and Determinations.. 14
ARTICLE II
BORROWINGS
Section 2.01 Committed Loans...................... 14
Section 2.02 Borrowings, Continuations and
Conversions of Committed Loans....... 15
Section 2.03 Changes of Commitments............... 17
Section 2.04 Fees................................. 17
Section 2.05 Several Obligations.................. 17
Section 2.06 Notes................................ 17
Section 2.07 Prepayments.......................... 18
Section 2.08 Lending Offices...................... 19
Section 2.09 Competitive Loans.................... 19
Section 2.10 Designated Subsidiaries.............. 23
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 Repayment of Loans................... 23
Section 3.02 Interest............................. 24
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01 Payments............................. 25
Section 4.02 Pro Rata Treatment................... 25
Section 4.03 Computations......................... 26
Section 4.04 Non-receipt of Funds by the
Administrative Agent................. 26
Section 4.05 Sharing of Payments, Etc............. 26
Section 4.06 Taxes................................ 27
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ARTICLE V
CAPITAL ADEQUACY, ADDITIONAL COSTS, ETC.
Section 5.01 Additional Costs..................... 30
Section 5.02 Limitation on Eurodollar Loans....... 31
Section 5.03 Illegality........................... 31
Section 5.04 Base Rate Loans Pursuant to Sections
5.02 and 5.03........................ 31
Section 5.05 Compensation......................... 32
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.01 Initial Funding...................... 32
Section 6.02 Initial and Subsequent Loans......... 33
Section 6.03 Loans to Designated Subsidiaries..... 33
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.01 Corporate Existence.................. 34
Section 7.02 Financial Condition.................. 35
Section 7.03 Litigation........................... 35
Section 7.04 No Breach............................ 35
Section 7.05 Authority............................ 35
Section 7.06 Approvals............................ 36
Section 7.07 Use of Loans......................... 36
Section 7.08 ERISA................................ 36
Section 7.09 Taxes................................ 37
Section 7.10 Titles, etc.......................... 37
Section 7.11 No Material Misstatements............ 38
Section 7.12 Investment Company Act............... 38
Section 7.13 Public Utility Holding Company Act... 38
Section 7.14 Subsidiaries and Partnerships........ 38
Section 7.15 Location of Business and Offices..... 38
Section 7.16 Defaults............................. 38
Section 7.17 Environmental Matters................ 39
Section 7.18 Compliance with Laws................. 40
Section 7.19 Pari Passu........................... 40
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ARTICLE VIII
AFFIRMATIVE COVENANTS
Section 8.01 Financial Statements................. 40
Section 8.02 Litigation........................... 42
Section 8.03 Maintenance, Etc..................... 42
Section 8.04 Environmental Matters................ 43
Section 8.05 Further Assurances................... 43
Section 8.06 ERISA Information and Compliance..... 43
Section 8.07 Lease Payments....................... 44
Section 8.08 Subsidiary Guaranty Agreements....... 44
ARTICLE IX
NEGATIVE COVENANTS
Section 9.01 Debt to Capital Ratio................ 45
Section 9.02 Liens................................ 45
Section 9.03 Investments, Loans and Advances...... 47
Section 9.04 Dividends, Distributions and
Redemptions.......................... 47
Section 9.05 Nature of Business................... 47
Section 9.06 Mergers, Etc......................... 47
Section 9.07 Proceeds of Notes.................... 48
Section 9.08 ERISA Compliance..................... 48
Section 9.09 Environmental Matters................ 49
Section 9.10 Transactions with Affiliates......... 49
Section 9.11 Restrictive Dividend Agreements...... 49
ARTICLE X
EVENTS OF DEFAULT; REMEDIES
Section 10.01 Events of Default................... 49
Section 10.02 Remedies............................ 51
ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.01 Appointment, Powers and Immunities.. 52
Section 11.02 Reliance by Agent................... 53
Section 11.03 Defaults............................ 53
Section 11.04 Rights as a Lender.................. 53
Section 11.05 INDEMNIFICATION..................... 53
Section 11.06 Non-Reliance on the Agents and other
Lenders............................. 54
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Section 11.07 Action by Agent....................... 54
Section 11.08 Resignation or Removal of the Agents.. 55
ARTICLE XII
MISCELLANEOUS
Section 12.01 Waiver................................ 55
Section 12.02 Notices............................... 56
Section 12.03 Payment of Expenses, Indemnities, etc. 56
Section 12.04 Amendments, Etc....................... 58
Section 12.05 Successors and Assigns................ 59
Section 12.06 Assignments and Participations........ 59
Section 12.07 Invalidity............................ 60
Section 12.08 Counterparts.......................... 60
Section 12.09 References............................ 60
Section 12.10 Survival.............................. 61
Section 12.11 Captions.............................. 61
Section 12.12 NO ORAL AGREEMENTS.................... 61
Section 12.13 GOVERNING LAW; SUBMISSION TO
JURISDICTION.......................... 61
Section 12.14 Interest.............................. 62
Section 12.15 Confidentiality....................... 63
Section 12.16 Effectiveness......................... 64
Section 12.17 EXCULPATION PROVISIONS................ 64
Annex 1 - List of Commitments
Exhibit A - Form of Committed Note
Exhibit B - Form of Competitive Note
Exhibit C - Form of Competitive Bid Request
Exhibit D - Form of Notice to Lenders of Competitive Bid
Request
Exhibit E - Form of Competitive Bid
Exhibit F - Form of Competitive Bid Administration
Questionnaire
Exhibit G - Form of Borrowing, Continuation and Conversion
Request
Exhibit H - Form of Compliance Certificate
Exhibit I - Form of Legal Opinion of Counsel for the Company
Exhibit J - Form of Legal Opinion of Counsel for the
Designated Subsidiary
Exhibit K - Form of Assignment Agreement
Exhibit L - Form of Notice of Designation of Designated
Subsidiaries
Exhibit M - Form of Permitted Subordinated Debt Subordination
Provisions
Exhibit N - Form of Legal Opinion of Counsel for the Subsidiary
Guarantor
Schedule 1.02 - Capital and Operating Lease Obligations
Schedule 7.02 - Liabilities
Schedule 7.03 - Litigation
Schedule 7.09 - Taxes
iv
[S] [C]
Schedule 7.10 - Titles, etc.
Schedule 7.14 - Subsidiaries and Partnerships
Schedule 7.17 - Environmental Matters
v
THIS CREDIT AGREEMENT dated as of May 1, 1995 is among: ENSERCH
EXPLORATION, INC., a corporation formed under the laws of the State of
Texas (the "Company"); each of the lenders that is a signatory hereto or
which becomes a signatory hereto as provided in Section 12.06
(individually, together with its successors and assigns, a "Lender" and,
collectively, the "Lenders"); TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a
national banking association (in its individual capacity, "TCB"), as
administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Administrative Agent"); CHEMICAL BANK,
a New York banking corporation (in its individual capacity, "Chemical"),
as auction agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Auction Agent"); and THE CHASE MANHATTAN
BANK, N.A., a national association (in its individual capacity, "Chase"),
as syndication agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Syndication Agent").
R E C I T A L S
A. The Company has requested that the Lenders provide certain loans to
the Company and to certain of its subsidiaries; and
B. The Lenders have agreed to make such loans subject to the terms and
conditions of this Agreement.
C. In consideration of the mutual covenants and agreements herein
contained and of the loans and commitments hereinafter referred to, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01 Terms Defined Above. As used in this Agreement, the
terms "Administrative Agent," "Auction Agent," "Company," "Chase,"
"Chemical," "Lender," "Lenders," "Syndication Agent," and "TCB" shall have
the meanings indicated above.
Section 1.02 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this Article
I 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 assigned such term in
Section 5.01(a).
"Affected Loans" shall have the meaning assigned such term in Section
5.04.
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"Affiliate" shall mean with respect to any Person, any other Person
that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such
Person. For purposes of the foregoing definition, "control" means the
direct or indirect ownership of more than 50% of the outstanding capital
stock or other equity interests having ordinary voting power.
"Agents" shall mean the Administrative Agent, the Syndication Agent
and/or the Auction Agent.
"Agreement" shall mean this Credit Agreement, as the same may from
time to time be amended or supplemented.
"Aggregate Commitments" at any time shall equal the sum of the
Commitments of the Lenders ($350,000,000), as the same may be reduced
pursuant to Section 2.03(a).
"Applicable Lending Office" shall mean, for each Lender, the lending
office of such Lender (or an Affiliate of such Lender) designated for each
Type of Loan on the signature pages hereof or such other offices of such
Lender (or of an Affiliate of such Lender) as such Lender may from time to
time specify to the Administrative Agent and the Company as the office by
which its Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean the following rates per annum as are
applicable based upon the Debt to Capital Ratio calculated as of the last
day of a fiscal quarter of the Company to be effective for any Committed
Loan outstanding or for the facility fee during the period from the
Financial Statement Delivery Date following such fiscal quarter to but not
including the next succeeding Financial Statement Delivery Date:
DEBT TO CAPITAL RATIO
---------------------------------
40% 45% 50%
BUT BUT BUT
40% 45% 50% 55% 55%
---- ---- ---- ---- ----
Facility Fee .150% .175% .200% .225% .250%
Eurodollar Loans .350% .425% .500% .575% .750%
Base Rate Loans 0% 0% 0% 0% 0%
"Assignment" shall have the meaning assigned such term in Section
12.06(b).
"Base Rate" shall mean, with respect to any Base Rate Loan, for any
day, the higher of (i) the Federal Funds Rate for any such day plus 1/2 of
1%
2
or (ii) the Prime Rate for such day. Each change in any interest rate
provided for herein based upon the Base Rate resulting from a change in
the Base Rate shall take effect at the time of such change in the Base
Rate.
"Base Rate Loans" shall mean Loans that bear interest at rates based
upon the Base Rate.
"Benefit Plan" shall mean any employee pension benefit plan, as
defined in section 3(2) of ERISA (other than a Multiemployer Plan), which
(a) is currently or hereafter sponsored, maintained or contributed to by
the Company, a Subsidiary or an ERISA Affiliate or (b) was at any time
during the six preceding years, sponsored, maintained or contributed to by
the Company, a Subsidiary or an ERISA Affiliate.
"Borrowing" shall mean a borrowing pursuant to a Borrowing Request or
a Competitive Bid Request or a continuation or a conversion pursuant to
Section 2.02 consisting, in each case, of the same Type of Loans having,
in the case of Eurodollar Loans and Fixed Rate Loans, the same Interest
Period.
"Borrowing Request" shall mean a request for a Borrowing of Committed
Loans pursuant to Section 2.02, substantially in the form attached as
Exhibit G.
"Business Day" shall mean any day other than a day on which commercial
banks are authorized or required to close in New York, New York, Dallas,
Texas, or at the location of the Principal Office and, where such term is
used in the definition of "Quarterly Date" or if such day relates to a
Borrowing or continuation of, a payment or prepayment of principal of or
interest on, or a conversion of or into, or the Interest Period for, a
Eurodollar Loan or a notice by the Company with respect to any such
Borrowing or continuation, payment, prepayment, conversion or Interest
Period, any day which is also a day on which dealings in Dollar deposits
are carried out in the London interbank market.
"Capital Lease Obligations" shall mean, as to the Company or any
Subsidiary, 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 liability for a capital lease on a balance sheet of
such Person in accordance with GAAP and, for purposes of this Agreement,
the amount of such obligations shall be the capitalized amount thereof.
"Closing Date" shall mean the as of date of this Agreement set forth
in the first paragraph hereof.
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"Code" shall mean the Internal Revenue Code of 1986, as amended, and
any successor statute.
"Commitment" shall mean, for any Lender, its obligation to make
Committed Loans up to the amount set forth opposite such Lender's name on
Annex 1 under the caption "Commitments" (as the same may be reduced
pursuant to Section 2.03(a) pro rata to each Lender based on its
Percentage Share) as modified from time to time to reflect any assignments
permitted by Section 12.06(b).
"Committed Loan" shall mean a Loan made pursuant to Section 2.01.
"Committed Note" shall mean for each Obligor a promissory note of such
Obligor described in Section 2.06(a) payable to any Lender and being
substantially in the form of Exhibit A, evidencing the aggregate
Indebtedness of such Obligor to such Lender resulting from Committed Loans
made by such Lender, together with all renewals, extensions, modifications
and replacements thereof and substitutions therefor.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.09.
"Competitive Bid Administrative Questionnaire" shall mean a
questionnaire in the form of Exhibit F.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by
a Lender pursuant to Section 2.09, (a) in the case of a Eurodollar Loan,
the Margin (which will be added to or subtracted from the Eurodollar Rate)
and (b) in the case of a Fixed Rate Loan, the fixed rate of interest, in
each case, offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall have the meaning assigned such term in
Section 2.09.
"Competitive Loans" shall mean the loans provided for in Section 2.09.
"Competitive Note" shall mean for each Obligor a promissory note of
such Obligor described in Section 2.06(b) payable to any Lender and being
substantially in the form of Exhibit B, evidencing the aggregate
Indebtedness of such Obligor to such Lender resulting from Competitive
Loans made by such Lender, together with all renewals, extensions,
modifications and replacements thereof and substitutions therefor.
"Consolidated Subsidiaries" shall mean each Subsidiary (whether now
existing or hereafter created or acquired) the financial statements of
which
4
shall be (or should have been) consolidated with the financial statements
of the Company in accordance with GAAP.
"Debt" shall mean, for the Company or any Subsidiary the sum of the
following (without duplication): (i) all obligations for borrowed money or
evidenced by bonds, debentures, mandatorily redeemable preferred stock
with maturities before the Revolving Credit Termination Date, notes or
other similar instruments (excluding interest, fees and charges); (ii) all
obligations in respect of bankers' acceptances, unreimbursed drawings on
letters of credit, surety or other bonds; (iii) all Capital Lease
Obligations, but excluding such Capital Lease Obligations in existence as
of the Closing Date and set forth on Schedule 1.02 and any renewals and
rearrangements, but not increases in the amount thereof; (iv) all
Operating Lease Obligations, but excluding such Operating Lease
Obligations in existence as of the Closing Date and set forth on Schedule
1.02 and any renewals and rearrangements and increases up to an additional
15% in the amount thereof; (v) all financial guaranties in respect of Debt
of unconsolidated Affiliates and unrelated Persons; (vi) all obligations
secured by a Lien on any asset, whether or not such Debt is assumed, but
excluding obligations secured by Liens permitted by Sections 9.02(c), (e),
(f), (h), (i), (j), (k) and (l); (vii) all production payments in
connection with oil and gas properties; and (viii) all Debt of Special
Entities to the extent the Company or any Subsidiary is liable for such
Debt under GAAP or such Debt is reflected on the consolidated balance
sheet of the Company or any Subsidiary. "Debt" shall not include
Permitted Subordinated Debt.
"Debt to Capital Ratio" shall have the meaning assigned such term in
Section 9.01.
"Default" shall mean an Event of Default or an event which with notice
or lapse of time or both would become an Event of Default.
"Designated Subsidiary" shall mean a Subsidiary during the period that
it has been designated by the Company pursuant to Section 2.10 to have the
right to borrow hereunder.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Effective Date" shall mean the date on which (i) each of the
conditions precedent set forth in Article VI has been satisfied or waived
by each of the Lenders and (ii) the conditions to effectiveness set forth
in Section 12.16 have been satisfied. Subject to Section 6.01, the
Effective Date and Closing Date may be the same date.
5
"Environmental Laws" shall mean any and all Governmental Requirements
pertaining to health or the environment in effect in any and all
jurisdictions in which the Company or any Subsidiary is conducting or at
any time has conducted business, or where any Property of the Company or
any Subsidiary is located, including without limitation, the Oil Pollution
Act of 1990, as amended, ("OPA"), the Clean Air Act, as amended, the
Comprehensive Environmental, Response, Compensation, and Liability Act of
1980, as amended, ("CERCLA"), the Federal Water Pollution Control Act, as
amended, the Occupational Safety and Health Act of 1970, as amended, the
Resource Conservation and Recovery Act of 1976, as amended, ("RCRA"), the
Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as
amended, the Superfund Amendments and Reauthorization Act of 1986, as
amended, the Hazardous Materials Transportation Act, as amended, and other
environmental conservation or protection laws. The term "oil" shall have
the meaning specified in OPA, the terms "hazardous substance" and
"release" (or "threatened release") shall have the meanings specified in
CERCLA, and the terms "solid waste" and "disposal" (or "disposed") shall
have the meanings specified in RCRA; provided, however, that (i) in the
event either OPA, CERCLA or RCRA is amended so as to broaden the meaning
of any term defined thereby, such broader meaning shall apply subsequent
to the effective date of such amendment and (ii) to the extent the laws of
the state in which any Property of the Company or any Subsidiary is
located establish a meaning for "oil," "hazardous substance," "release,"
"solid waste" or "disposal" which is broader than that specified in either
OPA, CERCLA or RCRA, such broader meaning shall apply.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and any successor statute.
"ERISA Affiliate" shall mean each trade or business (whether or not
incorporated) which together with the Company or a Subsidiary would be
deemed to be a "single employer" within the meaning of section 4001(b)(1)
of ERISA or subsections (b), (c), (m) or (o) of section 414 of the Code.
"ERISA Event" shall mean (i) a "Reportable Event" described in section
4043 of ERISA and the regulations issued thereunder (other than a
"Reportable Event" not subject to the provision for 30-day notice to the
PBGC), (ii) the withdrawal of the Company, a Subsidiary or any ERISA
Affiliate from a Plan during a plan year in which it was a "substantial
employer" as defined in section 4001(a)(2) of ERISA, (iii) the filing of
a notice of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under section 4041 of ERISA, (iv) the
institution of proceedings to terminate a Plan by the PBGC, (v) any other
event or condition which might constitute grounds under section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan
6
or (vi) the partial or complete withdrawal of the Company, a Subsidiary
or any ERISA Affiliate from a Multiemployer Plan.
"Eurodollar Loans" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of
"Eurodollar Rate".
"Eurodollar Rate" shall mean, with respect to any Eurodollar Loan, the
rate per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%)
quoted by the Administrative Agent at approximately 11:00 a.m. London time
(or as soon thereafter as practicable) two (2) Business Days prior to the
first day of the Interest Period for such Loan for the offering by the
Administrative Agent 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, if a
Committed Loan, to be made by the Administrative Agent for such Interest
Period, or, if a Competitive Loan, requested for such Interest Period.
"Event of Default" shall have the meaning assigned such term in
Section 10.01.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight federal funds transactions with
a member of the Federal Reserve System arranged by federal funds brokers
on such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that (i) if the date for
which such rate is to be determined is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding
Business Day, and (ii) if such rate is not so published for any day, the
Federal Funds Rate for such day shall be the average rate charged to the
Administrative Agent on such day on such transactions as determined by the
Administrative Agent.
"Fee Letter" shall mean collectively that certain letter agreement
from the Company to the Administrative Agent and the Syndication Agent
dated April 4, 1995 and that certain letter agreement from the Company to
the Auction Agent, both letters concerning certain fees in connection with
this Agreement and any agreements or instruments executed in connection
therewith, as the same may be amended or replaced from time to time.
"Financial Statement Delivery Date" means the date on which the
quarterly or annual financial statements of the Company are delivered
pursuant to Section 8.01(a) or (b), as the case may be.
7
"Financial Statements" shall mean the financial statement or
statements of the Company and its Consolidated Subsidiaries described or
referred to in Section 7.02.
"Fixed Rate Loan" shall mean any Competitive Loan made by a Lender
pursuant to Section 2.09 bearing interest based upon an actual percentage
rate per annum offered by such Lender (as opposed to a Margin over the
Eurodollar Rate) and accepted by the Company.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any Person exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Governmental Requirement" shall mean any law, statute, code,
ordinance, order, determination, rule, regulation, judgment, decree,
injunction, franchise, permit, certificate, license, authorization or
other directive or requirement (whether or not having the force of law),
including, without limitation, Environmental Laws, energy regulations and
occupational, safety and health standards or controls, of any Governmental
Authority.
"Guarantors" shall mean the Company and the Subsidiary Guarantors.
"Guaranty Agreements" shall mean the Parent Guaranty Agreement and the
Subsidiary Guaranty Agreements.
"Highest Lawful Rate" shall mean, with respect to each Lender, the
maximum nonusurious interest rate, if any, that at any time or from time
to time may be contracted for, taken, reserved, charged or received on the
Notes or on other Indebtedness under laws applicable to such Lender which
are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
"Indebtedness" shall mean any and all amounts owing or to be owing by
the Obligors to the Administrative Agent and/or Lenders in connection with
the Loan Documents and all renewals, extensions and/or rearrangements of
any of the above.
"Indemnified Parties" shall have the meaning assigned such term in
Section 12.03(b).
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"Indemnity Matters" shall mean any and all actions, suits, proceedings
(including any investigations, litigation or inquiries), claims, demands
and causes of action made or threatened against a Person and, in
connection therewith, all losses, liabilities, damages (including, without
limitation, punitive damages except those arising from the gross
negligence or wilful misconduct of such Indemnified Party) or reasonable
costs and expenses of any kind or nature whatsoever incurred by such
Person whether caused by the negligent acts or omissions of such Person
seeking indemnification.
"Initial Funding" shall mean the funding of the initial Loans pursuant
to Section 6.01.
"Interest Period" shall mean, (a) with respect to any Eurodollar Loan,
the period commencing on the date such Eurodollar Loan is made 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 2.02 (or such longer period as may be requested by the Company and
agreed to by the Majority Lenders), except that each Interest Period which
commences on the last Business Day of a calendar month (or 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; and (b) with respect to any Fixed
Rate Loan, the period commencing on the date such Fixed Rate Loan is made
and ending on the date set forth in the Competitive Bid in which the offer
to make such Fixed Rate Loan was extended.
Notwithstanding the foregoing: (i) no Interest Period may commence
before and end after the Revolving Credit Termination Date; (ii) 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, for Eurodollar
Loans, if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); (iii) no Interest
Period for Eurodollar Loans shall have a duration of less than one month
and, if the Interest Period for any Eurodollar Loans would otherwise be
for a shorter period, such Loans shall not be available hereunder; and
(iv) no Interest Period for Fixed Rate Loans shall have a duration of less
than one (1) day nor more than 365 days.
"Lien" shall mean any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property, whether
such interest is based on the common law, statute or contract, and whether
such obligation or claim is fixed or contingent, and including but not
limited to (i) the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale or trust receipt
or a lease, consignment or bailment for security purposes or (ii)
production payments
9
and the like payable out of Properties. For the purposes of this
Agreement, the Company or any Subsidiary shall be deemed to be the owner
of any Property which it has acquired or holds subject to a conditional
sale agreement, or leases under a financing lease or other arrangement
pursuant to which title to the Property has been retained by or vested in
some other Person in a transaction intended to create a financing.
"Loan Documents" shall mean this Agreement, the Notes, the Borrowing
Requests, the Competitive Bid Requests, the Fee Letter, the Guaranty
Agreements and the Notices of Designation of Designated Subsidiaries.
"Loans" shall mean Committed Loans or Competitive Loans.
"Majority Lenders" shall mean, at any time while no Committed Loans
are outstanding, Lenders having at least fifty-one percent (51%) of the
Aggregate Commitments and, at any time while Committed Loans are
outstanding, Lenders holding at least fifty-one percent (51%) of the
outstanding aggregate principal amount of the Committed Loans (without
regard to any sale by a Lender of a participation in any Loan under
Section 12.06(c)).
"Margin" shall mean, as to any Competitive Bid relating to a
Eurodollar Loan, the margin (expressed as a percentage rate per annum) to
be added to or subtracted from the Eurodollar Rate in order to determine
the interest rate payable to such Lender with respect to such Eurodollar
Loan.
"Material Adverse Effect" shall mean any material and adverse change
in the financial condition, business or results of operations of the
Company and its Subsidiaries taken as a whole which makes them unable to
perform their obligations under the Loan Documents.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
section 3(37) or 4001(a)(3) of ERISA which is, or within the six preceding
years was, contributed to by the Company, a Subsidiary or an ERISA
Affiliate.
"Net Worth" shall mean, as at any date, the sum of the following for
the Company and its Consolidated Subsidiaries determined (without
duplication) in accordance with GAAP:
(i) the amount of preferred stock (excluding mandatorily redeemable
preferred stock) and common stock at par plus the amount of paid in
capital of the Company, plus
10
(ii) the amount of retained earnings (or, in the case of a retained
earnings deficit, minus the amount of such deficit), minus
(iii) the cost of treasury shares, minus
(iv) unamortized restricted stock compensation, plus
(v) foreign currency translation adjustment gains (or minus losses),
plus
(vi) any other additions (or minus any other deductions) to the net
worth of the Company required by GAAP.
"Notes" shall mean the Committed Notes and the Competitive Notes.
"Notice of Designation of Designated Subsidiaries" shall be
substantially in the form of Exhibit L and delivered pursuant to Section
6.03.
"Obligor" shall mean either the Company or any Designated Subsidiary.
"Operating Lease Obligations" shall mean, as to the Company or any
Subsidiary, 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 not required to be
classified and accounted for as a liability for a capital lease on a
balance sheet of such Person and, for purposes of this Agreement, the
amount of such obligations shall be the discounted present value of the
lease payments, discounted in the same manner a capital lease would be
discounted according to GAAP.
"Other Taxes" shall have the meaning assigned such term in Section
4.06(b).
"Parent Guaranty Agreement" shall mean the Guaranty Agreement of even
date with this Agreement executed by the Company guaranteeing the
Indebtedness of the Designated Subsidiaries as such agreement may be
amended, supplemented or restated from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Percentage Share" shall mean the percentage of the Aggregate
Commitments to be provided by a Lender under this Agreement as indicated
on Annex 1 hereto, as modified from time to time to reflect any
assignments permitted by Section 12.06(b).
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"Permitted Subordinated Debt" shall mean Debt of the Company or a
Subsidiary owing to the Company, ENSERCH Corporation or another Subsidiary
subordinated to the Indebtedness on terms substantially similar to the
terms set forth in Exhibit M or on terms and pursuant to documentation
acceptable to the Administrative Agent and the Syndication Agent.
"Person" shall mean any individual, corporation, company, limited
liability company, voluntary association, partnership, joint venture,
trust, unincorporated organization or government or any agency,
instrumentality or political subdivision thereof, or any other form of
entity.
"Plan" shall mean each Benefit Plan and Multiemployer Plan.
"Post-Default Rate" shall mean, in respect of any principal of any
Loan 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 or the default is cured
or waived equal to 2% per annum plus the Base Rate as in effect from time
to time plus the Applicable Margin (if any), but in no event to exceed the
Highest Lawful Rate provided that, if such amount in default is principal
of a Eurodollar Loan or a Fixed Rate Loan, the "Post-Default Rate" for
such principal shall be, for the period commencing on the due date and
ending on the last day of the Interest Period therefor, 2% per annum plus
the applicable interest rate for such Loan as provided in Section 3.02(b),
(c) or (d), but in no event to exceed the Highest Lawful Rate.
"Prime Rate" shall mean the rate of interest from time to time
announced publicly by the Administrative Agent at the Principal Office as
its prime rate. Such rate is set by the Administrative Agent as a general
reference rate of interest, taking into account such factors as the
Administrative Agent may deem appropriate, it being understood that many
of the Administrative Agent's commercial or other loans are priced in
relation to such rate, that it is not necessarily the lowest or best rate
actually charged to any customer and that the Administrative Agent may
make various commercial or other loans at rates of interest having no
relationship to such rate.
"Principal Office" shall mean the principal office of the
Administrative Agent, presently located at 2200 Ross Avenue, Dallas, Texas
75201, Attention: Energy Group.
"Property" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
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"Quarterly Dates" shall mean the last day of each March, June,
September, and December, in each year, the first of which shall be June
30, 1995; provided, however, that if any such day is not a Business Day,
such Quarterly Date shall be the next succeeding Business Day.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System (or any successor), as the same may be amended
or supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
after the Closing Date in any Governmental Requirement (including
Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of lenders
(including such Lender or its Applicable Lending Office) of or under any
Governmental Requirement (whether or not having the force of law) by any
Governmental Authority charged with the interpretation or administration
thereof.
"Required Payment" shall have the meaning assigned such term in
Section 4.04.
"Responsible Officer" shall mean, as to the Company or any Subsidiary,
the Chief Executive Officer, the President or any Vice President of such
Person and, with respect to financial matters, the term "Responsible
Officer" shall include the Chief Financial Officer, Controller, Treasurer
or Treasury Officer of such Person. Unless otherwise specified, all
references to a Responsible Officer herein shall mean a Responsible
Officer of the Company.
"Revolving Credit Termination Date" shall mean, unless the Commitments
are sooner terminated pursuant to Sections 2.03(a) or 10.02, May 1, 1999.
"SEC" shall mean the Securities and Exchange Commission or any
successor Governmental Authority.
"Special Entity" shall mean any joint venture, limited liability
company, general or limited partnership or any other type of partnership
or company in which the Company or one or more of its other Subsidiaries
is a member, owner, partner or joint venturer and owns at least a majority
of the equity of such entity.
"Subsidiary" shall mean 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
13
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 Company or one or more of its Subsidiaries or
by the Company and one or more of its Subsidiaries.
"Subsidiary Guarantor" shall mean any Subsidiary or Special Entity
that has executed a Subsidiary Guaranty Agreement.
"Subsidiary Guaranty Agreement" shall mean any Guaranty Agreement
executed by a Subsidiary or a Special Entity as required by Section 8.08
as such agreement may be amended, supplemented or restated from time to
time.
"Taxes" shall have the meaning assigned such term in Section 4.06(a).
"Type" shall mean, with respect to any Loan, a Base Rate Loan,
Eurodollar Loan or Fixed Rate Loan.
"Withdrawal Liability" shall have the meaning given such term under
Part I of Subtitle E of Title IV of ERISA.
Section 1.03 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 furnished to the Administrative Agent or
the Lenders hereunder shall be prepared, in accordance with GAAP, applied
on a basis consistent with the audited financial statements of the Company
referred to in Section 7.02 (except for changes concurred with by the
Company's independent public accountants).
ARTICLE II
BORROWINGS
Section 2.01 Committed Loans.
(a) Loans. Each Lender severally agrees, on the terms of this
Agreement, to make Committed Loans to any Obligor during the period from
and including (i) the Effective Date or (ii) such later date that such
Lender becomes a party to this Agreement as provided in Section 12.06(b),
to and up to, but excluding, the Revolving Credit Termination Date in an
aggregate principal amount at any one time outstanding and owing by all
Obligors up to but not exceeding the amount of such Lender's Commitment as
then in effect; provided, however, that the aggregate principal amount of
all Committed Loans and Competitive Loans by all Lenders to any or all
Obligors at any one time outstanding shall not exceed the Aggregate
14
Commitments. Subject to the terms of this Agreement, during the period
from the Effective Date to and up to, but excluding, the Revolving Credit
Termination Date, any Obligor may borrow, repay and reborrow the amount
described in this Section 2.01.
(b) Limitation on Types of Loans. Subject to the other terms and
provisions of this Agreement, at the option of the Company, the Committed
Loans may be Base Rate Loans or Eurodollar Loans; provided that, without
the prior written consent of the Majority Lenders, no more than seven (7)
Eurodollar Loans which are Committed Loans to any or all Obligors by any
Lender may be outstanding at any time.
Section 2.02 Borrowings, Continuations and Conversions of Committed
Loans.
(a) Borrowings. An Obligor shall cause the Company to give the
Administrative Agent (which shall promptly notify the Lenders) advance
notice as hereinafter provided of each Borrowing of a Committed Loan
hereunder, which shall specify the name of the Obligor making such
Borrowing; the aggregate amount of such Borrowing, the Type and the date
(which shall be a Business Day) of the Committed Loans to be borrowed and
(in the case of Eurodollar Loans) the duration of the Interest Period
therefor.
(b) Minimum Amounts. All Borrowings of Base Rate Loans shall be in
amounts of at least $10,000,000 or the remaining balance of the Aggregate
Commitments, if less, or any whole multiple of $1,000,000 in excess
thereof, and all Borrowings in the form of Eurodollar Loans shall be in
amounts of at least $10,000,000 or any whole multiple of $1,000,000 in
excess thereof.
(c) Notices. All Borrowings, continuations and conversions of
Committed Loans shall require advance written notice to the Administrative
Agent (which shall promptly notify the Lenders) in the form of Exhibit G
(or telephonic notice promptly confirmed by such a written notice), which
in each case shall be irrevocable, from the Company on behalf of an
Obligor to be received by the Administrative Agent not later than 10:00
a.m. Central time on the Business Day of each Base Rate Loan borrowing and
three Business Days prior to the date of each Eurodollar Loan borrowing,
continuation or conversion. Without in any way limiting the Company's
obligation to confirm in writing any telephonic notice, the Administrative
Agent may act without liability upon the basis of telephonic notice
believed by the Administrative Agent in good faith to be from the Company
prior to receipt of written confirmation. In each such case, each Obligor
hereby waives the right to dispute the Administrative Agent's record of
the terms of such telephonic notice except in the case of gross negligence
or willful misconduct by the Administrative Agent.
15
(d) Continuation Options. With respect to Committed Loans and subject
to the provisions made in this Section 2.02(d), the Company on behalf of
an Obligor may elect to continue all or any part of any Borrowing of
Eurodollar Loans beyond the expiration of the then current Interest Period
relating thereto by giving advance notice as provided in Section 2.02(c)
to the Administrative Agent (which shall promptly notify the Lenders) of
such election, specifying the amount of such Loan to be continued and the
Interest Period therefor. In the absence of such a timely and proper
election, the Company on behalf of an Obligor shall be deemed to have
elected to convert such Eurodollar Loan to a Base Rate Loan pursuant to
Section 2.02(e). All or any part of any Eurodollar Loan may be continued
as provided herein, provided that (i) any continuation of any such Loan
shall be (as to each Borrowing as continued for an applicable Interest
Period) in amounts of at least $10,000,000 or any whole multiple of
$1,000,000 in excess thereof and (ii) no Default shall have occurred and
be continuing. If a Default shall have occurred and be continuing, each
Eurodollar Loan shall be converted to a Base Rate Loan on the last day of
the Interest Period applicable thereto.
(e) Conversion Options. With respect to Committed Loans, the Company
on behalf of an Obligor may elect to convert all or any part of any
Eurodollar Loan on the last day of the then current Interest Period
relating thereto to a Base Rate Loan by giving notice as provided in
Section 2.02(c) to the Administrative Agent (which shall promptly notify
the Lenders) of such election. Subject to the provisions made in this
Section 2.02(e), the Company on behalf of an Obligor may elect to convert
all or any part of any Base Rate Loan at any time and from time to time to
a Eurodollar Loan by giving advance notice as provided in Section 2.02(c)
to the Administrative Agent (which shall promptly notify the Lenders) of
such election. All or any part of any outstanding Base Rate Loan may be
converted as provided herein, provided that (i) any conversion of any Base
Rate Loan into a Eurodollar Loan shall be (as to each such Borrowing into
which there is a conversion for an applicable Interest Period) in amounts
of at least $10,000,000 or any whole multiple of $1,000,000 in excess
thereof and (ii) no Default shall have occurred and be continuing. If a
Default shall have occurred and be continuing, no Base Rate Loan may be
converted into a Eurodollar Loan.
(f) Advances. Not later than 1:00 p.m. (Central time) on the date
specified for each Borrowing hereunder, each Lender shall make available
the amount of the Committed Loan to be made by it on such date to the
Administrative Agent, to an account which the Administrative Agent shall
specify, in immediately available funds, for the account of the Company.
The amounts so received by the Administrative Agent shall, subject to the
terms and conditions of this Agreement, be made available to the Company
on behalf of an Obligor by depositing the same, in immediately available
funds, in an account of the Company, designated by the Company on behalf
of an Obligor and maintained at the Principal Office, or to be deposited
at the direction of the Company on behalf of an Obligor.
16
Section 2.03 Changes of Commitments.
(a) The Company on behalf of an Obligor shall have the right to
terminate or to reduce the amount of the Aggregate Commitments at any time
or from time to time upon not less than two (2) Business Days' prior
notice to the Administrative Agent (which shall promptly notify the
Lenders) of each such termination or reduction, which notice shall specify
the effective date thereof and the amount of any such reduction (which
shall not be less than $10,000,000 or any whole multiple of $1,000,000 in
excess thereof) and shall be irrevocable and effective only upon receipt
by the Administrative Agent.
(b) The Aggregate Commitments once terminated or reduced may not be
reinstated.
Section 2.04 Fees.
(a) The Company shall pay to the Administrative Agent for the account
of each Lender a facility fee on the daily average amount of the Aggregate
Commitments (regardless of usage) for the period from and including the
Closing Date up to but excluding the earlier of the date the Aggregate
Commitments are terminated or the Revolving Credit Termination Date at a
rate per annum equal to the amount set forth in the definition of
Applicable Margin for the period designated therein. Accrued facility
fees shall be payable quarterly in arrears on each Quarterly Date and on
the earlier of the date the Aggregate Commitments are terminated or the
Revolving Credit Termination Date.
(b) The Company shall pay to the Administrative Agent for its own
account an administration fee of $25,000.00 per annum payable on the
Closing Date and each anniversary of the Closing Date during the term of
this Agreement.
Section 2.05 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 no
Lender shall be responsible for the failure of any other Lender to make a
Loan to be made by such other Lender.
Section 2.06 Notes.
(a) The Committed Loans made by each Lender to an Obligor shall be
evidenced by a single promissory note of such Obligor in substantially the
form of Exhibit A, dated (i) the Closing Date or (ii) the effective date
of an Assignment pursuant to Section 12.06(b) or (iii) the date that the
Company designates a Designated Subsidiary pursuant to Section 2.10,
payable to the order of such Lender in a principal amount equal to its
Commitment and otherwise duly completed. The date, amount, Type, interest
rate and Interest Period, if any, of each Committed Loan made by each
Lender, and all payments made on account of the principal
17
thereof, shall be recorded by such Lender on its books for its Committed
Note, and, prior to any transfer, endorsed by such Lender on the schedule
attached to such Committed Note or any continuation thereof. Failure to
make any such notation shall not affect the Obligor's obligations in
respect of such Loans, or affect the validity of such transfer by any
Lender of such Note.
(b) The Competitive Loans made by each Lender to an Obligor shall be
evidenced by a single promissory note of such Obligor in substantially the
form of Exhibit B, dated (i) the Closing Date or (ii) the effective date
of an Assignment pursuant to Section 12.06(b) or (iii) the date that the
Company designates a Designated Subsidiary pursuant to Section 2.10,
payable to the order of such Lender in a principal amount equal to the
Aggregate Commitments and otherwise duly completed. The date, amount,
Type, interest rate and Interest Period of each Competitive Loan made by
each Lender, and all payments made on account of the principal thereof,
shall be recorded by such Lender on its books for its Competitive Note,
and, prior to any transfer, endorsed by such Lender on the schedule
attached to such Competitive Note or any continuation thereof. Failure to
make any such notation shall not affect the Obligor's obligations in
respect of such Loans, or affect the validity of such transfer by any
Lender of such Note.
Section 2.07 Prepayments.
(a) Any Obligor may prepay its Base Rate Loans upon prior notice to
the Administrative Agent (which shall promptly notify the Lenders), which
notice shall specify the prepayment date (which shall be a Business Day)
and the amount of the prepayment (which shall be at least $5,000,000 or
any whole multiple of $1,000,000 in excess thereof or the remaining
aggregate principal balance outstanding on the Notes) and shall be
irrevocable and effective only upon receipt by the Administrative Agent,
provided that interest on the principal prepaid, accrued to the prepayment
date, shall be paid on the prepayment date. Any Obligor may prepay its
Eurodollar Loans and Fixed Rate Loans on the same condition as for Base
Rate Loans and in addition such prepayments of Eurodollar Loans and Fixed
Rate Loans shall be subject to the terms of Section 5.05 and shall be in
an amount equal to all of the Eurodollar Loans and Fixed Rate Loans for
such Obligor for the Interest Period prepaid.
(b) If, after giving effect to any termination or reduction of the
Aggregate Commitments pursuant to Section 2.03, the outstanding aggregate
principal amount of the Loans exceeds the Aggregate Commitments, the
Obligors shall prepay the Loans on the date of such termination or
reduction in an aggregate principal amount equal to the excess, together
with interest on the principal amount paid accrued to the date of such
prepayment.
18
(c) Prepayments permitted or required under this Section 2.07 shall be
without premium or penalty, except as required under Section 5.05 for
prepayment of Eurodollar Loans or Fixed Rate Loans.
Section 2.08 Lending Offices. The Loans of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending
Office for Loans of such Type.
Section 2.09 Competitive Loans.
(a) In accordance with the terms, conditions and procedures set forth
in this Section 2.09, the Company on behalf of any Obligor may on any
Business Day prior to the Revolving Credit Termination Date request
Competitive Bids.
(i) Provided, however, no Lender shall be obligated to make
Competitive Loans to an Obligor unless such Lender has irrevocably offered
to make such a Competitive Loan pursuant to Section 2.09(c); and,
provided, further, the aggregate principal amount of all Competitive Loans
to any or all Obligors at any one time outstanding shall not, at any date,
exceed an amount equal to (A) the Aggregate Commitments as of such date,
less (B) the aggregate principal amount of the Committed Loans to any or
all Obligors outstanding as of such date. For purposes of determining the
amount to be calculated pursuant to the foregoing sentence, any Committed
Loans that the Company on behalf of an Obligor has requested be made,
which have not yet been made, shall be given effect as if made in the full
requested amount with respect thereto.
(ii) Notwithstanding the limitations on the aggregate amount of
Competitive Loans that the Obligors may borrow under this Agreement set
forth in clause (i) of this Section 2.09(a), the making of any Competitive
Loan to an Obligor by any Lender shall not be deemed to be a utilization
of such Lender's Commitment (although it shall be deemed to be a
utilization of the Aggregate Commitments for all purposes of this
Agreement).
(b) In order to request Competitive Bids, the Company on behalf of an
Obligor shall hand deliver, telex or telecopy to the Administrative Agent
and the Auction Agent a duly completed request substantially in the form
of Exhibit C, with the blanks appropriately completed (a "Competitive Bid
Request"), to be received by such Agents (i) in the case of Eurodollar
Loans, not later than 9:00 a.m. (Central time) four (4) Business Days
before the date specified for a proposed Competitive Loan, and (ii) in the
case of Fixed Rate Loans, not later than 9:00 a.m. (Central time) one (1)
Business Day before the date specified for a proposed Competitive Loan.
No Base Rate Loan shall be requested in, or made pursuant to, a
Competitive Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit C may be rejected at the Auction
Agent's sole
19
discretion, and the Auction Agent shall promptly notify the Company of
such rejection by telex or telecopier. Each Competitive Bid Request shall
in each case refer to this Agreement and specify (A) whether the
Competitive Loans then being requested are to be Eurodollar Loans or Fixed
Rate Loans, (B) the date of such Competitive Loans (which shall be a
Business Day), (C) the aggregate principal amount thereof (which shall not
be less than $10,000,000 and shall be an integral multiple of $1,000,000),
and (D) the Interest Period with respect thereto. Promptly after its
receipt of a Competitive Bid Request that is not rejected as aforesaid,
the Auction Agent shall invite by telex or telecopier (in substantially
the form set forth in Exhibit D) 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, the Auction Agent
shall have no obligation to invite any Lender to make a Competitive Bid
pursuant to this Section 2.09(b) until such Lender has delivered a
properly completed Competitive Bid Administrative Questionnaire to the
Auction Agent.
(c) Each Lender may, in its sole discretion, make one or more
Competitive Bids to an Obligor responsive to each Competitive Bid Request.
Each Competitive Bid by a Lender must be received by the Auction Agent via
telex or telecopier, in the form of Exhibit E, (i) in the case of
Eurodollar Loans, not later than 8:30 a.m. (Central time) three (3)
Business Days before the date specified for a proposed Competitive Loan
and (ii) in the case of Fixed Rate Loans, not later than 8:30 a.m.
(Central time) on the date specified for a proposed Competitive Loan.
Competitive Bids that do not conform substantially to the format of
Exhibit E may be rejected by the Auction Agent after conferring with, and
upon the instruction of, the Company on behalf of an Obligor, and the
Auction Agent shall notify the applicable Lender of such rejection as soon
as practicable. Each Competitive Bid shall refer to this Agreement and
(A) specify the principal amount (which shall be in a minimum principal
amount of $10,000,000 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 on behalf of an Obligor) of the Competitive Loan
that the applicable Lender is willing to make to such Obligor, (B) specify
the Competitive Bid Rate at which such Lender is prepared to make such
Competitive Loan and (C) confirm the Interest Period with respect thereto
specified by the Company on behalf of an Obligor in its Competitive Bid
Request. If any Lender shall elect not to make a Competitive Bid, such
Lender shall so notify the Auction Agent via telex or telecopier in the
case of Fixed Rate Loans, not later than 8:30 a.m. (Central time) on the
date of the proposed Competitive Loan and in the case of Eurodollar Loans,
not later than 8:30 a.m. (Central time) three (3) Business Days before the
date specified for a proposed Competitive Loan; provided, however, that
failure by any Lender to give such notice shall not cause such Lender to
be obligated to make any Competitive Loan. A Competitive Bid submitted by
a Lender pursuant to this Subsection 2.09(c) shall be irrevocable.
20
(d) The Auction Agent shall promptly notify the Company by telex or
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
Competitive Bid. The Auction 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 2.09.
(e) The Company on behalf of an Obligor may in the sole and absolute
discretion of the applicable Obligor, subject only to the provisions of
this Section 2.09(e), accept or reject any Competitive Bid referred to in
Section 2.09(d); provided, however, that the aggregate amount of the
Competitive Bids so accepted by the Company on behalf of an Obligor may
not exceed the principal amount of the Competitive Loan requested by the
Company on behalf of an Obligor. The Company on behalf of an Obligor
shall notify the Auction Agent by telex or telecopier whether and to what
extent the Obligor has decided to accept or reject any or all of the
Competitive Bids referred to in Section 2.09(d), (i) in the case of
Eurodollar Loans, not later than 9:30 a.m. (Central time) three (3)
Business Days before the date specified for a proposed Competitive Loan,
and (ii) in the case of Fixed Rate Loans, not later than 9:30 a.m.
(Central time) on the date specified for a proposed Competitive Loan;
provided, however, that (A) the failure by the Company on behalf of an
Obligor to give such notice shall be deemed to be a rejection of all the
Competitive Bids referred to in Section 2.03(c), (B) the Company on behalf
of an Obligor shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if the Company on behalf of an Obligor has decided to
reject a Competitive Bid made at a lower Competitive Bid Rate, (C) if the
Company on behalf of an Obligor shall accept Competitive Bids made at a
particular Competitive Bid Rate but shall be restricted by other
conditions hereof from borrowing the maximum principal amount of
Competitive Loans in respect of which Competitive Bids at such Competitive
Bid Rate have been made, then the Company on behalf of an Obligor shall
accept a pro rata portion of each Competitive Bid made at such Competitive
Bid Rate based as nearly as possible on the respective maximum principal
amounts of Competitive Loans for which such Competitive Bids were made and
(D) no Competitive Bid shall be accepted for a Competitive Loan unless
such Competitive Loan is in a minimum principal amount of $10,000,000 and
an integral multiple of $1,000,000. Notwithstanding the foregoing, if it
is necessary for the Company on behalf of an Obligor to accept a pro rata
allocation of the Competitive Bids made in response to a Competitive Bid
Request (whether pursuant to the events specified in clause (C) above or
otherwise) and the available principal amount of Competitive Loans to be
allocated among the Lenders is not sufficient to enable Competitive Loans
to be allocated to each Lender in a minimum principal amount of
$10,000,000 and in integral multiples of $1,000,000, then the Company on
behalf of an Obligor 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 on behalf of an Obligor shall
21
be permitted under the foregoing procedures to accept a Competitive Bid
or Competitive Bids in a principal amount of less than $10,000,000 (i) in
order to enable the Company on behalf of an Obligor to accept Competitive
Bids equal to (but not in excess of) the principal amount of the
Competitive Loan requested by the Company on behalf of an Obligor or (ii)
in order to enable the Company on behalf of an Obligor to accept all
remaining Competitive Bids, or all remaining Competitive Bids at a
particular Competitive Bid Rate. A notice given by the Company on behalf
of an Obligor pursuant to this Subsection (e) shall be irrevocable.
(f) The Auction Agent shall promptly notify each bidding Lender by
telex or telecopy whether or not its Competitive Bid has been accepted
(and if so, in what amount and at what Competitive Bid Rate). Each
successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of
which its Competitive Bid has been accepted. After completing the
notifications referred to in the immediately preceding sentence, the
Auction Agent shall notify each Lender and the Administrative Agent of the
aggregate principal amount of all Competitive Bids accepted.
(g) Upon receipt from the Administrative Agent of the notice of
Eurodollar Rate applicable to any Eurodollar Loan to be made by any Lender
pursuant to a Competitive Bid that has been accepted by the Company on
behalf of an Obligor pursuant to Section 2.03(e), the Auction Agent shall
notify such Lender of (i) the applicable Eurodollar Rate and (ii) the sum
of the applicable Eurodollar Rate plus the Margin bid by such Lender.
(h) No Competitive Loan shall be made within five (5) Business Days of
the date of any other Competitive Loan, unless the Company and the Auction
Agent shall mutually agree otherwise.
(i) If the Auction 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 Competitive Bid directly to the Company on behalf of
an Obligor one quarter of an hour earlier than the time at which the other
Lenders are required to submit their Competitive Bids to the Auction Agent
pursuant to Section 2.09(c).
(j) All notices required by this Section 2.09 shall be made in
accordance with Section 12.02 and the Competitive Bid Administrative
Questionnaire most recently placed on file by each Lender with the Auction
Agent.
(k) No Competitive Loan may be continued or converted, except to the
extent converted to a Base Rate Loan pursuant to Section 5.04; provided,
however, a Competitive Loan may be repaid with the proceeds of a Borrowing
of Competitive Loans or Committed Loans made pursuant to the terms of this
Agreement, and the Administrative Agent is authorized to net the Borrowing
and repayments for convenience.
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(l) Not later than 12:00 noon (Central time) on the date specified for
each Borrowing hereunder, each Lender that is a successful bidder shall
make available the amount of the Competitive Loan to be made by it on such
date to the Administrative Agent, to an account which the Administrative
Agent shall specify, in immediately available funds, for the account of
the Company on behalf of an Obligor. The amounts so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Company on behalf of an Obligor by
depositing the same, in immediately available funds, in an account of the
Company on behalf of an Obligor, designated by the Company on behalf of an
Obligor and maintained at the Principal Office.
Section 2.10 Designated Subsidiaries. The Company may from time to
time designate one or more of its Subsidiaries to have the right to borrow
both Committed Loans and Competitive Loans by sending to the
Administrative Agent a Notice of Designation of a Designated Subsidiary
and otherwise complying with Section 6.03. Each Designated Subsidiary
shall be liable for (i) the principal and interest on Loans made to it as
requested in any Borrowing Request or Competitive Bid Requests signed by
it or the Company on its behalf, (ii) all fees, indemnities and
reimbursement obligations as set forth in this Agreement and (iii) to the
extent the Designated Subsidiary is a Guarantor pursuant to Section 8.08,
the obligations set forth in its Subsidiary Guaranty Agreement. No
Designated Subsidiary shall be liable for any principal or interest on any
Loan to another Obligor except to the extent that such Designated
Subsidiary is a Guarantor pursuant to Section 8.08. The Company shall be
liable for all Indebtedness of all Obligors as set forth either in this
Agreement or the Parent Guaranty Agreement. As agreed to in each Notice
of Designation of Designated Subsidiary executed and delivered by the
Company and each Designated Subsidiary, each Designated Subsidiary
appoints the Company as its agent to execute all Borrowing Requests and
Competitive Bid Requests, give and receive all notices on its behalf and
take whatever other action is required of it under the Loan Documents, and
the Agents and Lenders are entitled to fully rely on all action taken and
notices given by the Company on behalf of any Designated Subsidiary.
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 Repayment of Loans. Each Obligor will pay to the
Administrative Agent, for the account of each applicable Lender, the
principal payments required by this Section 3.01. On the last day of the
Interest Period for each Competitive Loan to an Obligor, such Obligor
shall repay the outstanding aggregate principal and accrued and unpaid
interest on such Loan. On the Revolving Credit Termination Date each
Obligor shall repay the outstanding aggregate principal and accrued and
unpaid interest under its Notes.
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Section 3.02 Interest. Each Obligor will pay to the Administrative
Agent, for the account of each Lender, interest on the unpaid principal
amount of each Loan made by such Lender to such Obligor for the period
commencing on the date such Loan is made to but excluding the date such
Loan shall be paid in full, at the following rates per annum:
(a) if such Loan is a Committed Loan and a Base Rate Loan, the Base
Rate (as in effect from time to time), but in no event to exceed the
Highest Lawful Rate;
(b) if such Loan is a Committed Loan and a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan plus
the Applicable Margin, but in no event to exceed the Highest Lawful Rate;
(c) if such Loan is a Competitive Loan and a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan plus
or minus the Margin as accepted by the Company on behalf of an Obligor,
but in no event to exceed the Highest Lawful Rate; and
(d) if such Loan is a Competitive Loan and a Fixed Rate Loan, for each
Interest Period relating thereto, the fixed rate per annum offered by the
respective Lender in its Competitive Bid and accepted by the Company on
behalf of an Obligor pursuant to Section 2.09, but in no event to exceed
the Highest Lawful Rate.
Notwithstanding the foregoing, each Obligor will pay to the Administrative
Agent, for the account of each applicable Lender interest at the
applicable Post-Default Rate on any principal of any Loan made by such
Lender to such Obligor, 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. To the
fullest extent permitted by law, each Obligor will pay to the
Administrative Agent for the account of each applicable Lender interest at
the Base Rate on interest and any other amount payable by such Obligor
hereunder other than principal on the Loans, under any other Loan Document
or under any Note held by such Lender to or for the account of such
Lender, 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.
Accrued interest on Base Rate Loans shall be payable on each Quarterly
Date commencing on June 30, 1995, and accrued interest on each Eurodollar
Loan and Fixed Rate Loan shall be payable on the last day of the Interest
Period therefor and, if such Interest Period is longer than three months
at three-month intervals following the first day of such Interest Period,
except that interest payable at the Post-Default Rate or otherwise
accruing on past due amounts shall be payable from time to time on demand
and interest on any Eurodollar Loan or Fixed Rate Loan that is converted
into a Base Rate Loan (pursuant to Section 5.04) shall be payable on the
date of conversion (but only to the extent so converted).
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Promptly after the determination of any interest rate provided for herein
or any change therein, the Administrative Agent or the Auction Agent shall
notify the Lenders to which such interest is payable and the Company
thereof. Each determination by the Administrative Agent or the Auction
Agent of an interest rate or fee hereunder shall, except in cases of
manifest error, be final, conclusive and binding on the parties.
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01 Payments. Except to the extent otherwise provided
herein, all payments of principal, interest and other amounts to be made
by each Obligor under this Agreement and the Notes shall be made in
Dollars, in immediately available funds, to the Administrative Agent at
such account as the Administrative Agent shall specify by notice to the
Company on behalf of each Obligor from time to time, not later than 1:00
p.m. (Central time) on the date on which such payments 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). Such payments shall
be made without (to the fullest extent permitted by applicable law)
defense, set-off or counterclaim. Each payment received by the
Administrative Agent under this Agreement or any Note for the account of
a Lender shall be paid promptly to such Lender in immediately available
funds. If the due date of any payment under this Agreement or any Note
would otherwise fall on a day which is not a Business Day such date 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.
At the time of each payment to the Administrative Agent of any principal
of or interest on any Borrowing, the Company on behalf of the Obligors
shall notify the Administrative Agent of the Loans to which such payment
shall apply. In the absence of such notice the Administrative Agent may
specify the Loans to which such payment shall apply, but to the extent
possible such payment or prepayment will be applied first to the Loans
comprised of Base Rate Loans.
Section 4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein each Lender agrees that: (i) each Borrowing from the
Lenders under Section 2.01 shall be made from the Lenders pro rata in
accordance with their Percentage Share, each payment of facility fees
under Section 2.04(a) shall be made for the account of the Lenders pro
rata in accordance with their Percentage Share, and each termination or
reduction of the amount of the Aggregate Commitments under Section 2.03(a)
shall be applied to the Commitment of each Lender, pro rata according to
the amounts of its respective Commitment; (ii) each payment of principal
of Loans by the Company on behalf of an Obligor shall be made for the
account of the Lenders pro rata in accordance with the respective unpaid
principal amount of the Loans held by the Lenders due or past due on such
date or intended to be prepaid by the Company on behalf of such Obligor;
and (iii) each payment of interest on Loans by the Company on behalf of an
Obligor shall be
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made for the account of the Lenders pro rata in accordance with the
amounts of interest due and payable to the respective Lenders.
Section 4.03 Computations. Interest on Eurodollar Loans and Fixed
Rate Loans shall 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 period for which such interest is payable, unless such
calculation would exceed the Highest Lawful Rate, in which case interest
shall be calculated on the per annum basis of a year of 365 or 366 days,
as the case may be. Interest on Base Rate Loans and fees shall be
computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last
day) occurring in the period for which such interest or fee is payable.
Section 4.04 Non-receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Lender or the
Company on behalf of an Obligor prior to the date on which such notifying
party is scheduled to make payment to the Administrative Agent (in the
case of a Lender) of the proceeds of a Loan to be made by it hereunder or
(in the case of an Obligor) a payment to the Administrative Agent for the
account of one or more of the Lenders hereunder (such payment being herein
called the "Required Payment"), which notice shall be effective upon
receipt, that it does not intend to make the Required Payment to the
Administrative Agent, the 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(s) on such date and, if such Lender or the Company on
behalf of an Obligor (as the case may be) has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such
payment shall, on demand, repay to the Administrative Agent the amount so
made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available
by the Administrative Agent until but excluding the date the
Administrative Agent recovers such amount at a rate per annum which, for
any Lender as recipient, will be equal to the Federal Funds Rate, and for
an Obligor as recipient, will be equal to the Post-Default Rate.
Section 4.05 Sharing of Payments, Etc. If after an Event of Default
and during its continuance any Lender shall obtain payment of any
principal of or interest on any Loan made by it to an Obligor under this
Agreement through whatever means other than an assignment pursuant to
Section 12.06(b), and, as a result of such payment, such Lender shall have
received a greater percentage of the principal or interest then due
hereunder by such Obligor to such Lender than the percentage received by
any other Lenders, it shall promptly (i) notify the Administrative Agent
and each other Lender thereof and (ii) purchase from such other Lenders
participations in (or, if and to the extent specified by such Lender,
direct interests in) the Loans made by such other Lenders (or in interest
due thereon, as the case may be) 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 excess payment (net of any
expenses which may be incurred by such Lender in obtaining or preserving
such excess payment) pro rata in accordance with
26
the unpaid principal and/or interest on the Loans to such Obligor held by
each of the Lenders. 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.
Section 4.06 Taxes.
(a) Payments Free and Clear. Any and all payments by an Obligor
hereunder shall be made, in accordance with Section 4.01, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the
Administrative Agent, taxes imposed on its income, and franchise or
similar taxes imposed on it, by (i) any jurisdiction (or political
subdivision thereof) of which the Administrative Agent or such Lender, as
the case may be, is a citizen or resident or in which such Lender has an
Applicable Lending Office, (ii) the jurisdiction (or any political
subdivision thereof) in which the Administrative Agent or such Lender is
organized, or (iii) any jurisdiction (or political subdivision thereof) in
which such Lender or the Administrative Agent is presently doing business
which taxes are imposed solely as a result of doing business in such
jurisdiction (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
"Taxes"). If an Obligor shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to the Lenders or the
Administrative Agent (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 4.06)
such Lender or the Administrative Agent (as the case may be) shall receive
an amount equal to the sum it would have received had no such deductions
been made, (ii) such Obligor shall make such deductions and (iii) such
Obligor shall pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with applicable
law.
(b) Other Taxes. In addition, to the fullest extent permitted by
applicable law, each Obligor agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, any Assignment or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH OBLIGOR WILL INDEMNIFY EACH LENDER AND THE AGENTS FOR THE FULL
AMOUNT OF TAXES AND OTHER TAXES (INCLUDING, BUT NOT LIMITED TO, ANY TAXES
OR OTHER TAXES IMPOSED BY ANY GOVERNMENTAL AUTHORITY ON AMOUNTS PAYABLE
UNDER THIS SECTION 4.06) PAID BY SUCH LENDER OR ANY AGENT (ON THEIR BEHALF
OR ON BEHALF OF ANY LENDER), AS THE CASE MAY BE, AND ANY LIABILITY
(INCLUDING PENALTIES, INTEREST AND EXPENSES) ARISING THEREFROM OR WITH
RESPECT
27
THERETO, WHETHER OR NOT SUCH TAXES OR OTHER TAXES WERE CORRECTLY OR
LEGALLY ASSERTED UNLESS THE PAYMENT OF SUCH TAXES WAS NOT CORRECTLY OR
LEGALLY ASSERTED AND SUCH LENDER'S PAYMENT OF SUCH TAXES OR OTHER TAXES
WAS THE RESULT OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ANY PAYMENT
PURSUANT TO SUCH INDEMNIFICATION SHALL BE MADE WITHIN THIRTY (30) DAYS
AFTER THE DATE ANY LENDER OR ANY AGENT, AS THE CASE MAY BE, MAKES WRITTEN
DEMAND THEREFOR. IF ANY LENDER OR ANY AGENT RECEIVES A REFUND OR CREDIT
IN RESPECT OF ANY TAXES OR OTHER TAXES FOR WHICH SUCH LENDER OR SUCH AGENT
HAS RECEIVED PAYMENT FROM AN OBLIGOR IT SHALL PROMPTLY NOTIFY THE COMPANY
ON BEHALF OF SUCH OBLIGOR OF SUCH REFUND OR CREDIT AND SHALL, IF NO
DEFAULT HAS OCCURRED AND IS CONTINUING, WITHIN THIRTY (30) DAYS AFTER
RECEIPT OF A REQUEST BY THE COMPANY ON BEHALF OF SUCH OBLIGOR (OR PROMPTLY
UPON RECEIPT, IF THE COMPANY ON BEHALF OF SUCH OBLIGOR HAS REQUESTED
APPLICATION FOR SUCH REFUND OR CREDIT PURSUANT HERETO), PAY AN AMOUNT
EQUAL TO SUCH REFUND OR CREDIT TO THE COMPANY ON BEHALF OF SUCH OBLIGOR
WITHOUT INTEREST (BUT WITH ANY INTEREST SO REFUNDED OR CREDITED), PROVIDED
THAT SUCH OBLIGOR, UPON THE REQUEST OF SUCH LENDER OR SUCH AGENT, AGREES
TO RETURN SUCH REFUND OR CREDIT (PLUS PENALTIES, INTEREST OR OTHER
CHARGES) TO SUCH LENDER OR SUCH AGENT IN THE EVENT SUCH LENDER OR SUCH
AGENT IS REQUIRED TO REPAY SUCH REFUND OR CREDIT.
(d) Lender Representations.
(i) Each Lender represents that it is either (i) a corporation
organized under the laws of the United States of America or any state
thereof or (ii) it is entitled to complete exemption from United States
withholding tax imposed on or with respect to any payments, including
fees, to be made to it pursuant to this Agreement (A) under an applicable
provision of a tax convention to which the United States of America is a
party or (B) because it is acting through a branch, agency or office in
the United States of America and any payment to be received by it
hereunder is effectively connected with a trade or business in the United
States of America. Each Lender that is not a corporation organized under
the laws of the United States of America or any state thereof agrees to
provide to the Company and the Administrative Agent on the Closing Date,
or on the date of its delivery of the Assignment pursuant to which it
becomes a Lender, and at such other times as required by United States law
or as the Company or the Administrative Agent shall reasonably request,
two accurate and complete original signed copies of either (A) Internal
Revenue Service Form 4224 (or successor form) certifying that all payments
to be made to it hereunder will be effectively connected to a United
States trade or business (the "Form 4224 Certification") or (B) Internal
Revenue Service Form 1001 (or successor form) certifying that it is
entitled to the benefit of a provision of a tax convention to which the
United States of America is a party which completely exempts from United
States withholding tax all payments to be made to it hereunder (the "Form
1001
28
Certification"). In addition, each Lender agrees that if it
previously filed a Form 4224 Certification, it will deliver to the Company
and the Administrative Agent a new Form 4224 Certification prior to the
first payment date occurring in each of its subsequent taxable years; and
if it previously filed a Form 1001 Certification, it will deliver to the
Company and the Administrative Agent a new certification prior to the
first payment date falling in the third year following the previous filing
of such certification. Each Lender also agrees to deliver to the Company
and the Administrative Agent such other or supplemental forms as may at
any time be required as a result of changes in applicable law or
regulation in order to confirm or maintain in effect its entitlement to
exemption from United States withholding tax on any payments hereunder,
provided that the circumstances of such Lender at the relevant time and
applicable laws permit it to do so. If a Lender determines, as a result
of any change in either (i) a Governmental Requirement or (ii) its
circumstances, that it is unable to submit any form or certificate that it
is obligated to submit pursuant to this Section 4.06, or that it is
required to withdraw or cancel any such form or certificate previously
submitted, it shall promptly notify the Company and the Administrative
Agent of such fact. If a Lender is organized under the laws of a
jurisdiction outside the United States of America, unless the Company and
the Administrative Agent have received a Form 1001 Certification or Form
4224 Certification satisfactory to them indicating that all payments to be
made to such Lender hereunder are not subject to United States withholding
tax, the Company on behalf of each Obligor shall withhold taxes from such
payments at the applicable statutory rate. Each Lender agrees to indemnify
and hold harmless from any United States taxes, penalties, interest and
other expenses, costs and losses incurred or payable by (i) the
Administrative Agent as a result of such Lender's failure to submit any
form or certificate that it is required to provide pursuant to this
Section 4.06 or (ii) the Company or the Administrative Agent as a result
of their reliance on any such form or certificate which such Lender has
provided to them pursuant to this Section 4.06.
(ii) For any period with respect to which a Lender required to do so
has failed to provide the Company with the form required pursuant to this
Section 4.06, if any (other than if such failure is due to a change in a
Governmental Requirement occurring subsequent to the date on which a form
originally was required to be provided), such Lender shall not be entitled
to indemnification under Section 4.06 with respect to taxes imposed by the
United States which taxes would not have been imposed but for such failure
to provide such forms; provided, however, that should a Lender, which is
otherwise exempt from or subject to a reduced rate of withholding tax,
becomes subject to taxes because of its failure to deliver a form required
hereunder, the Company on behalf of each Obligor shall take such steps as
such Lender shall reasonably request to assist such Lender to recover such
taxes.
29
(iii) Any Lender claiming any additional amounts payable pursuant to this
Section 4.06 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by
the Company or the Administrative Agent or to change the jurisdiction of
its Applicable Lending Office or to contest any tax imposed if the making
of such a filing or change or contesting such tax would avoid the need for
or reduce the amount of any such additional amounts that may thereafter
accrue and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender.
ARTICLE V
CAPITAL ADEQUACY, ADDITIONAL COSTS, ETC.
Section 5.01 Additional Costs.
(a) Regulatory Changes. In the event of any introduction of and/or
any change in any applicable law, rule, regulation (including Regulation
D), official interpretation thereof or official directive after the date
of this Agreement (whether or not having the force of law) which will
result in an increase in the cost to any Lender of making or maintaining
the Loans by reason of reserve or similar requirements, or which will
result in a reduction of amounts otherwise receivable by any Lender from
any Obligor of principal, interest or other fees and charges thereunder by
reason of a tax, levy, impost, fee, charge, withholding or similar
requirements of any kind, or modifies any capital adequacy or similar
requirement (including, without limitation, a requirement which affects
any Lender's or its parent's or its holding company's allocation of
capital resources to its obligations or commitments) and, as a result, the
cost to such Lender or its parent or holding company of making or
maintaining amounts available under this Agreement is increased or the
Lender's or its parent's or holding company's return under this Agreement
or on all or any of its capital is reduced, the Obligors will pay to the
Administrative Agent for such Lender upon notice as provided in Section
5.01(b) an amount equal to such actual increased cost or reduction of
yield allocable to this facility.
(b) Compensation Procedure. Any Lender notifying the Company of the
incurrence of additional costs under this Section 5.01 shall in such
notice to the Company and the Administrative Agent set forth in reasonable
detail the basis and amount of its request for compensation.
Determinations and allocations by each Lender for purposes of this Section
5.01 of the effect of any Regulatory Change pursuant to Section 5.01(a) on
its costs or rate of return of maintaining Loans or its obligation to make
Loans, or on amounts receivable by it in respect of Loans, and of the
amounts required to compensate such Lender under this Section 5.01, shall
be conclusive and binding for all purposes, provided that such
determinations and
30
allocations are made on a reasonable basis. Any request for additional
compensation under this Section 5.01 shall be paid by each Obligor to the
Administrative Agent for the applicable Lender within thirty (30) days of
the receipt by the Company of the notice described in this Section
5.01(b).
Section 5.02 Limitation on Eurodollar Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any
Eurodollar Rate for any Interest Period:
(i) the Administrative Agent determines (which determination shall be
conclusive, absent manifest error) that quotations of interest rates for
the relevant deposits referred to in the definition of "Eurodollar Rate"
in Section 1.02 are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for
Eurodollar Loans as provided herein; or
(ii) the Administrative Agent determines (which determination shall be
conclusive, absent manifest error) that the relevant rates of interest
referred to in the definition of "Eurodollar Rate" in Section 1.02 upon
the basis of which the rate of interest for Eurodollar Loans for such
Interest Period is to be determined are not sufficient to adequately cover
the cost to the Lenders of making or maintaining Eurodollar Loans;
then the Administrative Agent shall give the Company prompt notice
thereof, and so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans or
continue or convert into Eurodollar Loans.
Section 5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful or legally restricted for
any Lender or its Applicable Lending Office to honor its obligation to
make or maintain, continue or convert into Eurodollar Loans or Fixed Rate
Loans hereunder, then such Lender shall promptly notify the Company
thereof and such Lender's obligation to make, continue or convert into
Eurodollar Loans or Fixed Rate Loans shall be suspended until such time as
such Lender may again make and maintain, continue or convert into
Eurodollar Loans or Fixed Rate Loans (in which case the provisions of
Section 5.04 shall be applicable).
Section 5.04 Base Rate Loans Pursuant to Sections 5.02 and 5.03. If
the obligation of any Lender to make, continue or convert into Eurodollar
Loans or Fixed Rate Loans shall be suspended pursuant to Sections 5.02 or
5.03 ("Affected Loans"), all Affected Loans which would otherwise be made
by such Lender shall be made instead as Base Rate Loans (and, if an event
referred to in Section 5.03 has occurred and such Lender so requests by
notice to the Administrative Agent and the Company, all Affected Loans of
such Lender then outstanding shall be automatically converted into Base
Rate Loans on the date specified by such Lender in such notice) and, to
the extent that Affected Loans are so made as (or converted into) Base
Rate Loans, all payments of principal which would
31
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans.
Section 5.05 Compensation. Each Obligor shall pay to the
Administrative Agent for each Lender within thirty (30) days of receipt of
written request of such Lender to the Administrative Agent and the Company
(which request shall set forth, in reasonable detail, the basis for
requesting such amounts and which shall be conclusive and binding for all
purposes provided that such determinations are made on a reasonable
basis), such amount or amounts as shall compensate it for any loss, cost,
expense or liability which such Lender determines are attributable to:
(i) any payment, prepayment or conversion of a Eurodollar Loan or
Fixed Rate Loan properly made by such Lender or such Obligor for any
reason (including, without limitation, the acceleration of the Loans
pursuant to Section 10.01) on a date other than the last day of the
Interest Period for such Loan; or
(ii) any failure by such Obligor for any reason (including but not
limited to, the failure of any of the conditions precedent specified in
Article VI to be satisfied) to borrow, continue or convert into a
Eurodollar Loan that is a Committed Loan or to borrow a Competitive Loan
from such Lender on the date for such Borrowing, continuation or
conversion specified in the relevant notice given pursuant to Section 2.02
or Section 2.09.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.01 Initial Funding.
The obligation of the Lenders to make the Initial Funding is subject
to the receipt by the Administrative Agent and the Lenders of all fees
payable pursuant to Section 2.04 on or before the Closing Date and the
receipt by the Administrative Agent of the following documents and
satisfaction of the other conditions provided in this Section 6.01:
(a) A certificate of the Secretary or an Assistant Secretary of the
Company setting forth (i) resolutions of its board of directors with
respect to the authorization of the Company to execute and deliver the
Loan Documents to which it is a party and to enter into the transactions
contemplated in those documents, (ii) the officers of the Company (y) who
are authorized to sign the Loan Documents to which the Company is a party
and (z) 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 this Agreement and the transactions contemplated hereby,
(iii) specimen signatures of
32
the authorized officers, and (iv) the articles or certificate of
incorporation and bylaws of the Company, certified as being true and
complete. The Administrative Agent and the Lenders may conclusively rely
on such certificate until the Administrative Agent receives notice in
writing from the Company to the contrary.
(b) Certificates of the appropriate state agencies with respect to the
existence, qualification and good standing of the Company in the State of
Texas.
(c) A compliance certificate which shall be substantially in the form
of Exhibit H, duly and properly executed by a Responsible Officer and
dated as of the date of the Initial Funding.
(d) The Notes of the Company, duly completed and executed.
(e) The Parent Guaranty Agreement, duly completed and executed.
(f) An opinion of W. T. Satterwhite, counsel to the Company,
substantially in the form of Exhibit I hereto.
(g) A certificate of insurance for the Company and its Subsidiaries.
Section 6.02 Initial and Subsequent Loans. The obligation of the
Lenders to make Loans to any Obligor upon the occasion of each Borrowing
hereunder (including the Initial Funding) is subject to the further
conditions precedent that, as of the date of such Borrowing and after
giving effect thereto: (i) no Default shall have occurred and be
continuing and (ii) the representations and warranties made by the Company
in Article VII and by each Designated Subsidiary in its respective Notice
of Designation of a Designated Subsidiary shall be true on and as of the
date of the making of such Borrowing with the same force and effect as if
made on and as of such date and following such new Borrowing, except to
the extent such representations and warranties are expressly limited to an
earlier date or the Majority Lenders have expressly consented in writing
to the contrary. Each request for a borrowing by the Company hereunder
shall constitute a certification by the Company to the effect set forth in
the preceding sentence (both as of the date of such notice and, unless the
Company otherwise notifies the Administrative Agent prior to the date of
and immediately following such Borrowing as of the date thereof).
Section 6.03 Loans to Designated Subsidiaries. The obligation of the
Lenders to make Loans to a Designated Subsidiary is subject to receipt by
the Administrative Agent of the following documents and satisfaction of
the conditions set forth in this Section 6.03 as well as the conditions
set forth in Sections 6.01 and 6.02, each of which shall be satisfactory
to the Administrative Agent in form and substance:
(a) A Notice of Designation of Designated Subsidiary executed by the
Company and such Designated Subsidiary.
33
(b) A certificate of the Secretary or an Assistant Secretary of such
Designated Subsidiary setting forth (i) resolutions of its board of
directors with respect to the authorization of such Subsidiary to execute
and deliver the Loan Documents to which it is a party and to enter into
the transactions contemplated in those documents, (ii) the officers of
such Subsidiary (y) who are authorized to sign the Loan Documents to which
such Subsidiary is a party and (z) 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 this Agreement and the
transactions contemplated hereby, (iii) specimen signatures of the
authorized officers, and (iv) the articles or certificate of incorporation
and bylaws of such Subsidiary, certified as being true and complete. The
Agents and the Lenders may conclusively rely on such certificate until the
Administrative Agent receives notice in writing from the Company to the
contrary.
(c) The Notes of such Designated Subsidiary, duly completed and
executed.
(d) An opinion of counsel to such Designated Subsidiary, substantially
in the form of Exhibit J.
(e) Such Designated Subsidiary shall be a Subsidiary.
(f) The most recent unaudited balance sheet of such Designated
Subsidiary certified by a Responsible Officer.
(g) Such other documents as the Administrative Agent may reasonably
request.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and the
Lenders that (each representation and warranty herein is given as of the
Closing Date and shall be deemed repeated and reaffirmed on the dates of
each Borrowing as provided in Section 6.02):
Section 7.01 Corporate Existence. Each of the Company and each
Designated Subsidiary and each Subsidiary Guarantor: (i) is a corporation
duly organized, legally existing and in good standing under the laws of
the jurisdiction of its incorporation; (ii) has all requisite corporate
power, and has all material governmental licenses, authorizations,
consents and approvals necessary to own its assets and carry on its
business as now being or as proposed to be conducted; and (iii) is
qualified to do business in all
34
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.
Section 7.02 Financial Condition. The audited balance sheet of the
Company as at December 31, 1994 and the related statements of operations,
cash flows and changes in partners' capital and common shareholders'
equity of the Company and its predecessor for each of the three years in
the period ended on said date, with the opinion thereon of Deloitte &
Touche LLP heretofore furnished to each of the Lenders, are complete and
correct and fairly present the financial condition of the Company as at
said date and the results of operations and cash flows of the Company and
its predecessor for the stated periods then ended, all in accordance with
GAAP. Neither the Company nor any Subsidiary has on the Closing Date any
material Debt, contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated losses from
any unfavorable commitments, except as referred to or reflected or
provided for in the Financial Statements or in Schedule 7.02. Since
December 31, 1994 to the Closing Date, there has been no change or event
having a Material Adverse Effect. Since the date of the Financial
Statements to the Closing Date, neither the business nor the Properties of
the Company or any Subsidiary have been materially and adversely affected
as a result of any fire, explosion, earthquake, flood, drought, windstorm,
accident, strike or other labor disturbance, embargo, requisition or
taking of Property or cancellation of contracts, permits or concessions by
any Governmental Authority, riot, activities of armed forces or acts of
God or of any public enemy.
Section 7.03 Litigation. As of the Closing Date, except as disclosed
to the Lenders in Schedule 7.03, there is no litigation, legal,
administrative or arbitral proceeding, investigation or other action of
any nature pending or, to the knowledge of the Company threatened against
or affecting the Company or any Subsidiary which involves the possibility
of any judgment or liability against the Company or any Subsidiary not
fully covered by insurance (except for normal deductibles), and which
would have a Material Adverse Effect.
Section 7.04 No Breach. Neither the execution and delivery of the
Loan Documents, nor compliance with the terms and provisions hereof will
conflict with or result in a breach of, or require any consent which has
not been obtained as of the Closing Date under, the respective charter or
by-laws of the Company or any Subsidiary, or any Governmental Requirement
or any agreement or instrument for borrowed money to which the Company or
any Subsidiary is a party or by which it is bound or to which it or its
Properties are subject, or 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 assets of the Company or any Subsidiary pursuant to
the terms of any such agreement or instrument other than the Liens created
by the Loan Documents.
Section 7.05 Authority. The Company and each Subsidiary have all
necessary corporate power and authority to execute, deliver and perform
its obligations under the Loan Documents to which it is a party; and the
execution, delivery and performance by the
35
Company and each Subsidiary of the Loan Documents to which it is a party,
have been duly authorized by all necessary corporate action on its part;
and the Loan Documents constitute the legal, valid and binding obligations
of the Company and each Subsidiary, enforceable in accordance with their
terms, except to the extent that enforcement may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditor's rights
generally.
Section 7.06 Approvals. 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 Company or any
Subsidiary of the Loan Documents or for the validity or enforceability
thereof.
Section 7.07 Use of Loans. The proceeds of the Loans shall be used
for acquisition funding, working capital or general corporate purposes of
the Company. Neither the Company nor any Designated Subsidiary is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying margin stock (within the meaning of
Regulation G, U or X of the Board of Governors of the Federal Reserve
System). Following application of the proceeds of each Borrowing, not
more than 25 percent of the value of the assets (either of each Obligor
only or of the Company and its Subsidiaries on a consolidated basis),
which are subject to any arrangement with the Administrative Agent or any
Lender (herein or otherwise) whereby the Company's or any Subsidiary's
right or ability to sell, pledge or otherwise dispose of assets is in any
way restricted, will be margin stock (within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System).
Section 7.08 ERISA. As of the Closing Date, except as would not have
a Material Adverse Effect:
(a) The Company, the Subsidiaries and each ERISA Affiliate have
complied in all material respects with ERISA and, where applicable, the
Code regarding each Plan.
(b) No act, omission or transaction has occurred which could result in
imposition on the Company, any Subsidiary or any ERISA Affiliate (whether
directly or indirectly) of (i) either a material civil penalty assessed
pursuant to subsections (c), (i) or (l) of section 502 of ERISA or a tax
imposed pursuant to Chapter 43 of Subtitle D of the Code or (ii) breach of
fiduciary duty liability damages under section 409 of ERISA.
(c) No liability to the PBGC (other than for the payment of current
premiums which are not past due) by the Company, any Subsidiary or any
ERISA Affiliate has been or is expected by the Company, any Subsidiary or
any ERISA Affiliate to be incurred with respect to any Plan. No ERISA
Event with respect to any Plan has occurred which could result in a
liability of the Company, any Subsidiary or any ERISA Affiliate.
36
(d) Full payment when due has been made of all amounts which the
Company, the Subsidiaries or any ERISA Affiliate is required under the
terms of each Plan or applicable law to have paid as contributions to such
Plan as of the date hereof, and no accumulated funding deficiency (as
defined in section 302 of ERISA and section 412 of the Code), whether or
not waived, exists with respect to any Benefit Plan.
(e) The actuarial present value of the benefit liabilities under each
Benefit Plan which is subject to Title IV of ERISA does not, as of the end
of the Company's most recently ended fiscal year, exceed the current value
of the assets (computed on a plan termination basis in accordance with
Title IV of ERISA) of such Benefit Plan allocable to such benefit
liabilities. The term "actuarial present value of the benefit
liabilities" shall have the meaning specified in section 4041 of ERISA.
(f) Neither the Company, the Subsidiaries nor any ERISA Affiliate has
received any notification (or has knowledge of any reason to expect) that
any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, within the meaning of Title IV of ERISA.
(g) Neither the Company, the Subsidiaries nor any ERISA Affiliate is
required to provide security under section 401(a)(29) of the Code due to
a Plan amendment that results in an increase in current liability for the
Plan.
Section 7.09 Taxes. Except as set out in Schedule 7.09, each of the
Company and its Subsidiaries has filed all United States Federal income
tax returns and all other tax returns which are required to be filed by
them and has paid all material taxes due pursuant to such returns or
pursuant to any assessment received by the Company or any Subsidiary
except for any such tax, assessment, charge or levy the payment of which
is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained. The charges, accruals and
reserves on the books of the Company and its Subsidiaries in respect of
taxes and other governmental charges are, in the opinion of the Company,
adequate. No tax lien has been filed and, to the knowledge of the
Company, no claim is being asserted with respect to any such tax, fee or
other charge.
Section 7.10 Titles, etc. To the best of the Company's knowledge:
(a) Except as set out in Schedule 7.10, each of the Company and the
Designated Subsidiaries and Subsidiary Guarantors has good and defensible
title to its material (individually or in the aggregate) Properties in all
material respects, free and clear of all Liens except Liens permitted by
Section 9.02.
(b) All leases and agreements necessary for the conduct of the
business of the Company and the Designated Subsidiaries and Subsidiary
Guarantors are valid and subsisting, in full force and effect and there
exists no default or event or circumstance which with the giving of notice
or the passage of time or both would
37
give rise to a default under any such lease or leases, which would affect
in any material respect the conduct of the business of the Company and the
Designated Subsidiaries and Subsidiary Guarantors.
(c) The rights, properties and other assets presently owned, leased or
licensed by the Company and the Designated Subsidiaries and Subsidiary
Guarantors including, without limitation, all easements and rights of way,
include all rights, Properties and other assets necessary to permit the
Company and the Designated Subsidiaries and Subsidiary Guarantors to
conduct their business in all material respects in the same manner as its
business has been conducted prior to the Closing Date.
Section 7.11 No Material Misstatements. No information, exhibit or
report furnished to the Agents or the Lenders by or on behalf of the
Company or any Subsidiary in connection with the negotiation and
administration of this Agreement contains any material misstatement of
fact or omits to state a material fact necessary in order to make the
statements contained therein not misleading.
Section 7.12 Investment Company Act. Neither the Company nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of
1940, as amended.
Section 7.13 Public Utility Holding Company Act. Neither the Company
nor any Subsidiary is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," or a "public utility" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
Section 7.14 Subsidiaries and Partnerships. On the Closing Date,
except as set forth on Schedule 7.14, the Company has no Subsidiaries and
neither the Company nor any Subsidiary has any interest in any general or
limited partnerships, but excluding solely tax partnerships and oil and
gas joint ventures under joint operating agreements.
Section 7.15 Location of Business and Offices. On the Closing Date,
the Company's chief executive offices are located at the address stated on
the signature page of this Agreement. On the Closing Date, the chief
executive office of each Subsidiary is located at the addresses stated on
Schedule 7.14.
Section 7.16 Defaults.
(a) As of the Closing Date, neither the Company nor any Subsidiary is
in default nor has any event or circumstance occurred which, but for the
expiration of any applicable grace period or the giving of notice, or
both, would constitute a default under any agreement or instrument for
borrowed money to which the
38
Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound.
(b) No Default has occurred and is continuing.
Section 7.17 Environmental Matters. As of the Closing Date except
(i) as provided in Schedule 7.17 or (ii) as would not have a Material
Adverse Effect (or with respect to (c), (d) and (e) below, where the
failure to take such actions would not have a Material Adverse Effect):
(a) Neither any Property of the Company or any Subsidiary nor the
operations conducted thereon violate any order or requirement of any court
or Governmental Authority or any Environmental Laws;
(b) Without limitation of clause (a) above, no Property of the Company
or any Subsidiary nor the operations currently conducted thereon or, to
the best knowledge of the Company, by any prior owner or operator of such
Property or operation, are in violation of or subject to any existing,
pending or threatened action, suit, investigation, inquiry or proceeding
by or before any court or Governmental Authority or to any remedial
obligations under Environmental Laws;
(c) All notices, permits, licenses or similar authorizations, if any,
required to be obtained or filed in connection with the operation or use
of any and all Property of the Company and each Subsidiary, including
without limitation past or present treatment, storage, disposal or release
of a hazardous substance or solid waste into the environment, have been
duly obtained or filed, and the Company and each Subsidiary are in
compliance with the terms and conditions of all such notices, permits,
licenses and similar authorizations;
(d) All hazardous substances, solid waste, and oil and gas exploration
and production wastes, if any, generated at any and all Property of the
Company or any Subsidiary have in the past been transported, treated and
disposed of in accordance with Environmental Laws and so as not to pose an
imminent and substantial endangerment to public health or welfare or the
environment, and, to the best knowledge of the Company, all such transport
carriers and treatment and disposal facilities have been and are operating
in compliance with Environmental Laws and so as not to pose an imminent
and substantial endangerment to public health or welfare or the
environment, and are not the subject of any existing, pending or
threatened action, investigation or inquiry by any Governmental Authority
in connection with any Environmental Laws;
(e) The Company has taken all steps reasonably necessary to determine
and has determined that no hazardous substances, solid waste, or oil and
gas exploration and production wastes, have been disposed of or otherwise
released and there has been no threatened release of any hazardous
substances on or to any
39
Property of the Company or any Subsidiary except in compliance with
Environmental Laws and so as not to pose an imminent and substantial
endangerment to public health or welfare or the environment;
(f) To the extent applicable, all Property of the Company and each
Subsidiary currently satisfies all design, operation, and equipment
requirements imposed by the OPA or scheduled as of the Closing Date to be
imposed by OPA during the term of this Agreement, and the Company does not
have any reason to believe that such Property, to the extent subject to
OPA, will not be able to maintain compliance with the OPA requirements
during the term of this Agreement; and
(g) Neither the Company nor any Subsidiary has any known contingent
liability in connection with any release or threatened release of any oil,
hazardous substance or solid waste into the environment.
Section 7.18 Compliance with Laws. As of the Closing Date, neither
the Company nor any Subsidiary has violated any Governmental Requirement
or failed to obtain any license, permit, franchise or other governmental
authorization necessary for the ownership of any of its Properties or the
conduct of its business, which violation or failure would have (in the
event such violation or failure were asserted by any Person through
appropriate action) a Material Adverse Effect.
Section 7.19 Pari Passu. The Indebtedness ranks and will rank at
least pari passu in priority with all other senior debt of each Obligor,
except for secured debt permitted by Section 9.02.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as any of the Commitments
are in effect and until payment in full of all Loans hereunder, all
interest thereon and all other amounts payable by the Obligors hereunder:
Section 8.01 Financial Statements. The Company shall deliver, or
shall cause to be delivered, to the Administrative Agent with sufficient
copies of each for the Lenders:
(a) As soon as available and in any event within one hundred twenty
(120) days after the end of each fiscal year of the Company, (i) the
Company's Form 10-K filed with the SEC or (ii) the audited consolidated
statements of income, shareholders' equity, and cash flows of the Company
and its Consolidated Subsidiaries for such fiscal year, and the related
consolidated balance sheet of the Company and its Consolidated
Subsidiaries as at the end of such fiscal year, and setting forth in each
case in comparative form the corresponding figures as of the
40
end of and for the preceding fiscal year, and accompanied by the related
opinion of independent public accountants of recognized national standing
acceptable to the Administrative Agent which opinion shall state that said
financial statements fairly present the consolidated financial condition,
results of operations and cash flows of the Company and its Consolidated
Subsidiaries as at the end of, and for, such fiscal year and that such
financial statements have been prepared in accordance with GAAP except for
such changes in such principles with which the independent public
accountants shall have concurred and such opinion shall not contain a
"going concern" or like qualification or exception, and a certificate of
such accountants stating that, in making the examination necessary for
their opinion, they obtained no knowledge, except as specifically stated,
of any Default.
(b) As soon as available and in any event within sixty (60) days after
the end of each of the first three fiscal quarterly periods of each fiscal
year of the Company, (i) the Company's Form 10-Q filed with the SEC or
(ii) unaudited consolidated statements of income, shareholders' equity,
and cash flows of the Company and its Consolidated Subsidiaries for such
period and for the period from the beginning of the respective fiscal year
to the end of such period, and the related consolidated balance sheets as
at the end of such period, and setting forth in each case in comparative
form the corresponding figures as of the end of and for the corresponding
period in the preceding fiscal year, accompanied by the certificate of a
Responsible Officer, which certificate shall state that said financial
statements fairly present the consolidated financial condition, results of
operations and cash flows of the Company and its Consolidated Subsidiaries
in accordance with GAAP, as at the end of, and for, such period (subject
to normal year-end adjustments).
(c) Promptly after a Responsible Officer of the Company knows that any
Default has occurred, a notice of such Default, describing the same in
reasonable detail and the action the Company proposes to take with respect
thereto.
(d) Promptly upon its becoming available, each financial statement,
report, notice or proxy statement sent by the Company to stockholders
generally and each regular or periodic report and any registration
statement or prospectus in respect thereof filed by the Company with or
received by the Company in connection therewith from any securities
exchange or the SEC or any successor agency, including without limitation,
Form 10-K's and Form 10-Q's.
(e) As soon as available and in any event within one hundred twenty
(120) days after the end of the fiscal year of the Company, the unaudited
balance sheet of each Designated Subsidiary as at the end of the Company's
fiscal year, certified by a Responsible Officer, which certificate shall
state that said balance sheet fairly presents the financial condition of
the respective Designated Subsidiary.
The Company will furnish to the Administrative Agent, with sufficient
copies for the Lenders, at the time it furnishes each set of financial
statements pursuant to paragraph (a)
41
or (b) above, a certificate substantially in the form of Exhibit H
executed by a Responsible Officer (i) certifying as to the matters set
forth therein and stating that no Default has occurred and is continuing
(or, if any Default has occurred and is continuing, describing the same in
reasonable detail), (ii) setting forth in reasonable detail the
computations necessary to determine whether the Company is in compliance
with Section 9.01 as of the end of the respective fiscal quarter or fiscal
year and (iii) certifying that the Company is in compliance with Section
8.08 or will be in compliance within the next 30 days and listing the
Subsidiaries and Special Entities, if any, that will be executing Guaranty
Agreements.
Section 8.02 Litigation. The Company shall promptly give to the
Administrative Agent, with sufficient copies for the Lenders, notice of
all legal or arbitral proceedings, and of all proceedings before any
Governmental Authority affecting the Company or any Subsidiary, except
proceedings which, if adversely determined, would not have a Material
Adverse Effect.
Section 8.03 Maintenance, Etc.
(a) The Company shall and shall cause each Subsidiary Guarantor and
Designated Subsidiary to: preserve and maintain the Company's corporate
existence and all of its material rights, privileges and franchises; keep
books of record and account in which full, true and correct entries will
be made of all dealings or transactions in relation to its business and
activities; comply with all Governmental Requirements if failure to comply
with such requirements will have a Material Adverse Effect; pay and
discharge all taxes, assessments and governmental charges or levies
imposed on it or on its income or profits or on any of its Property prior
to the date on which penalties attach thereto, except for any such tax,
assessment, charge or levy the payment of which is being contested in good
faith and by proper proceedings and against which adequate reserves are
being maintained; during the continuance of an Event of Default and upon
reasonable notice, permit representatives of the Administrative Agent,
during normal business hours, to examine its books and records, to inspect
its Properties, and to discuss its business and affairs with its financial
officers, all to the extent reasonably requested by the Administrative
Agent and to the extent requested by the President of the Administrative
Agent, copy and make extracts of its books and records; and keep, or cause
to be kept, insured by financially sound and reputable insurers all
Property of a character usually insured by Persons engaged in the same or
similar business similarly situated against loss or damage of the kinds
and in the amounts customarily insured against by such Persons and carry
such other insurance as is usually carried by such Persons including,
without limitation, pollution liability insurance to the extent reasonably
available.
(b) Contemporaneously with the delivery of the financial statements
required by Section 8.01(a) to be delivered for each year, the Company
will furnish or cause to be furnished to the Administrative Agent a
certificate of insurance coverage from the insurer in substantially the
form provided at the closing of this
42
Agreement and, if requested, will furnish the Administrative Agent copies
of the applicable policies.
Section 8.04 Environmental Matters.
(a) The Company will and will cause each Subsidiary to establish and
implement such procedures as may be reasonably necessary to continuously
determine and assure that any failure of the following does not have a
Material Adverse Effect: (i) all Property of the Company and its
Subsidiaries and the operations conducted thereon and other activities of
the Company and its Subsidiaries are in compliance with and do not violate
the requirements of any Environmental Laws, (ii) no oil, hazardous
substances or solid wastes are disposed of or otherwise released on or to
any Property owned by any such party except in compliance with
Environmental Laws, (iii) no hazardous substance will be released on or to
any such Property in a quantity equal to or exceeding that quantity which
requires reporting pursuant to Section 103 of CERCLA, and (iv) no oil, oil
and gas exploration and production wastes or hazardous substance is
released on or to any such Property so as to pose an imminent and
substantial endangerment to public health or welfare or the environment.
(b) The Company will promptly notify the Administrative Agent and the
Lenders in writing of any threatened action, investigation or inquiry by
any Governmental Authority of which the Company has knowledge in
connection with any Environmental Laws which may have a Material Adverse
Effect.
Section 8.05 Further Assurances. The Company will and will cause
each Subsidiary to cure promptly any defects in the creation and issuance
of the Notes and the execution and delivery of the other Loan Documents
and this Agreement. The Company at its expense will and will cause each
Subsidiary to promptly execute and deliver to the Administrative Agent
upon request all such other documents, agreements and instruments to
comply with or accomplish the covenants and agreements of the Company or
any Subsidiary, as the case may be, in the other Loan Documents and this
Agreement, or to further evidence and more fully describe the collateral
intended as security for the Notes, or to correct any omissions in the
other Loan Documents, or to perfect, protect or preserve any Liens created
pursuant to any of the other 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.
Section 8.06 ERISA Information and Compliance. The Company will
promptly furnish and will cause the Subsidiaries and any ERISA Affiliate
to promptly furnish to the Administrative Agent (i) immediately upon
becoming aware of the occurrence of any ERISA Event which could result in
a liability of the Company, any Subsidiary or any ERISA Affiliate having
a Material Adverse Effect (individually or in the aggregate with respect
to all ERISA Events), a written notice signed by the President or the
principal financial officer of the Company, the Subsidiary or the ERISA
Affiliate, as the case may be,
43
specifying the nature thereof, what action the Company, the Subsidiary or
the ERISA Affiliate is taking or proposes to take with respect thereto,
and, when known, any action taken or proposed by the Internal Revenue
Service, the Department of Labor or the PBGC with respect thereto, (ii)
promptly after request by the Administrative Agent, a true and correct
copy of each actuarial report for any Plan and each annual report for any
Multiemployer Plan, (iii) immediately upon receipt of a notice from a
Multiemployer Plan regarding the imposition of Withdrawal Liability having
a Material Adverse Effect, a true and complete copy of such notice, (iv)
immediately upon becoming aware that a Multiemployer Plan has been
terminated, that the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or that the PBGC has instituted
or intends to institute proceedings under section 4042 of ERISA to
terminate a Multiemployer Plan which occurrence would have a Material
Adverse Effect, a written notice signed by the President or the principal
financial officer of the Company, the Subsidiary or the ERISA Affiliate,
as the case may be, specifying the nature of such occurrence and any other
information relating thereto requested by the Administrative Agent, and
(v) immediately upon receipt thereof, copies of any notice of the PBGC's
intention to terminate or to have a trustee appointed to administer any
Benefit Plan which occurrence would have a Material Adverse Effect.
Section 8.07 Lease Payments. The Company will cause its obligations
to Enserch Exploration Holdings, Inc. to be subordinated to the
Indebtedness on terms substantially similar to the terms set forth on
Exhibit M or on terms and subject to documentation satisfactory to the
Administrative Agent.
Section 8.08 Subsidiary Guaranty Agreements. The Company will cause
each of its Subsidiaries and Special Entities to execute a Subsidiary
Guaranty Agreement, except for such Subsidiaries and Special Entities that
in the aggregate do not have assets at book value in excess of 15% of the
total consolidated assets at book value of the Company. The Company shall
have 30 days from the date of delivery of each Compliance Certificate to
comply with this covenant. At the time that a Subsidiary or Special
Entity executes and delivers a Subsidiary Guaranty Agreement to the
Administrative Agent it shall also deliver to the Administrative Agent the
following in form and substance acceptable to the Administrative Agent:
(a) A certificate of the Secretary or an Assistant Secretary of each
Subsidiary Guarantor setting forth (i) resolutions of its board of
directors or appropriate Persons with respect to the authorization of such
Subsidiary Guarantor to execute and deliver the Loan Documents to which it
is a party and to enter into the transactions contemplated in those
documents, (ii) the officers of such Subsidiary Guarantor (y) who are
authorized to sign the Loan Documents to which such Subsidiary Guarantor
is a party and (z) 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 this Agreement and the transactions contemplated
hereby, (iii) specimen signatures of the authorized officers, and (iv) the
articles or certificate of
44
incorporation and bylaws or appropriate document of governance of such
Subsidiary Guarantor, certified as being true and complete. The Agents
and the Lenders may conclusively rely on such certificate until they
receive notice in writing from the Company to the contrary.
(b) An opinion of counsel to the Subsidiary Guarantor, substantially
in the form of Exhibit N.
ARTICLE IX
NEGATIVE COVENANTS
The Company covenants and agrees that, so long as any of the Commitments
are in effect and until payment in full of Loans hereunder and all
interest thereon without the prior written consent of the Majority
Lenders:
Section 9.01 Debt to Capital Ratio. The Company will not permit its
ratio ("Debt to Capital Ratio") expressed as a percentage of (i) Debt of
the Company and its Consolidated Subsidiaries on a consolidated basis
("Consolidated Debt") to (ii) the sum of Consolidated Debt plus Net Worth
to exceed 60% at any time; provided that in no event will Consolidated
Debt ever exceed $750,000,000.
Section 9.02 Liens. Except as expressly permitted in this Section
9.02, the Company will not at any time, directly or indirectly, create,
assume or suffer to exist, and will not cause, suffer or permit any
Designated Subsidiary or Subsidiary Guarantor as long as it remains a
Designated Subsidiary or Subsidiary Guarantor, directly or indirectly, to
create, assume or suffer to exist, except in favor of the Company, any
Lien upon any of its Properties (now owned or hereafter acquired), without
making effective provision (and the Company covenants that in any such
case it will make or cause to be made effective provision) whereby the
Indebtedness and any other Debt of the Company or any Designated
Subsidiary or Subsidiary Guarantor then entitled thereto shall be secured
by such Lien equally and ratably with any and all other obligations and
indebtedness thereby secured, so long as any such other obligations or
indebtedness shall be so secured. Nothing in this Agreement shall be
construed to prevent the Company or any Designated Subsidiary or
Subsidiary Guarantor without so securing the amounts outstanding
hereunder, from creating, assuming or suffering to exist the following
Liens, to which the provisions of this paragraph shall not be applicable:
(a) Liens upon any Property presently owned or hereafter acquired,
created at the time of acquisition to secure a portion of the purchase
price thereof, or existing thereon at the date of acquisition, whether or
not assumed by the Company or one of its Designated Subsidiaries or
Subsidiary Guarantors, provided that every such Lien shall apply only to
the Property so acquired and fixed improvements thereon;
45
(b) any extension, renewal, or refunding of any Lien permitted by
Section 9.02(a), if limited to the same Property subject to, and securing
not more than the amount secured by, the Lien extended, renewed or
refunded;
(c) the pledge of current assets in the ordinary course of business,
to secure current liabilities;
(d) Liens upon (i) Property, to secure obligations to pay all or a
part of the purchase price of such Property only out of or measured by the
production, or the proceeds of such production, from such Property of oil
or gas or products or by-products thereof, or (ii) the production from
Property of oil or gas or products or by-products thereof, or the proceeds
of such production, to secure obligations to pay all or a part of the
expenses of exploration, drilling or development of such Property only out
of such production or the proceeds of such production;
(e) mechanics' or materialmen's liens, good faith deposits in
connection with tenders, leases of real estate, bids or contracts (other
than contracts for the payment of money), deposits to secure public or
statutory obligations, deposits to secure, or in lieu of, surety, stay or
appeal bonds, and deposits as security for the payment of taxes or
assessments or similar charges, Liens given in connection with bid or
completion bonds; provided that such obligations secured are not yet due
or are being contested in good faith by appropriate action and against
which an adequate reserve has been established;
(f) any Lien arising by reason of deposits with, or the giving of any
form of security to, any governmental agency or any body created or
approved by law or governmental regulation for any purposes at any time as
required by law or governmental regulation as a condition to the
transaction of any business or the exercise of any privilege or license,
or to enable the Company or a Subsidiary to maintain self-insurance or to
participate in any funds established to cover any insurance risks or in
connection with workmen's compensation, unemployment insurance, old age
pensions or other social security, or to share in the privileges or
benefits required for companies participating in such arrangements;
provided that such obligations secured are not yet due or are being
contested in good faith by appropriate action and against which an
adequate reserve has been established;
(g) the pledge or assignment of accounts receivable, including
customers' installment paper, to banks or others made in the ordinary
course of business (including to or by a Subsidiary which is principally
engaged in the business of financing the business of the Company and its
Subsidiaries);
(h) the Liens of taxes or assessments for the then current year or not
at the time due, or the Liens of taxes or assessments already due but the
validity of which is being contested in good faith by appropriate action
and against which an adequate reserve has been established;
46
(i) any judgment or Lien against the Company or a Designated
Subsidiary or Subsidiary Guarantor, so long as the finality of such
judgment is being contested in good faith by appropriate action and the
execution thereon is stayed;
(j) assessments or similar encumbrances, the existence of which does
not impair the value or the use of the Property subject thereto for the
purposes for which it was acquired;
(k) landlords' liens on fixtures and movable Property located on
premises leased by the Company or a Designated Subsidiary or Subsidiary
Guarantor in the ordinary course of business so long as the rent secured
thereby is not in default;
(l) Liens on the assets of any limited liability company organized
under a limited liability company act of any state in which a limited
liability company is treated as a partnership for federal income tax
purposes; provided that neither the Company nor any Designated Subsidiary
or Subsidiary Guarantor is liable for the Debt of such limited liability
company; and
(m) other Liens on any Properties of the Company or any Subsidiary
with an aggregate value not exceeding 1% of the book value of the total
assets of the Company on a consolidated basis.
Section 9.03 Investments, Loans and Advances. So long as any Loans
are outstanding, neither the Company nor any Subsidiary will make any
loans or advances to ENSERCH Corporation or any of its subsidiaries (but
excluding the Company and its Subsidiaries) after the occurrence and
during the continuance of an Event of Default or in excess of $50,000,000
in the aggregate outstanding at any one time for greater than a 90 day
period.
Section 9.04 Dividends, Distributions and Redemptions. The Company
will not declare or pay any dividend, purchase, redeem or otherwise
acquire for value any of its stock now or hereafter outstanding, return
any capital to its stockholders or make any distribution of its assets to
its stockholders after the occurrence and during the continuance of an
Event of Default.
Section 9.05 Nature of Business. The Company will not allow any
material change to be made in the character of its business as an
independent oil and gas exploration and production company.
Section 9.06 Mergers, Etc. Neither the Company nor any Subsidiary
will merge into or with or consolidate with any other Person, or sell,
lease or otherwise dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its Property or assets to any
other Person ("Disposition") unless (i) no Default exists or would result
from such merger or Disposition and (ii) for any merger the Company is the
survivor, or for any merger or Disposition, if the surviving Person or
acquiring Person is not the Company, such surviving Person or acquiring
Person assumes the Indebtedness and all other
47
obligations of the Company under the Loan Documents and is approved by the
Majority Lenders.
Section 9.07 Proceeds of Notes. The Company will not permit the
proceeds of the Notes to be used for any purpose other than those
permitted by Section 7.07. Neither the Company nor any Person acting on
behalf of the Company has taken or will take any action which might cause
any of the Loan Documents to violate Regulation G, U or X or any other
regulation of the Board of Governors of the Federal Reserve System or to
violate Section 7 of the Securities Exchange Act of 1934, as amended, or
any rule or regulation thereunder, in each case as now in effect or as the
same may hereafter be in effect.
Section 9.08 ERISA Compliance. The Company and the Subsidiaries will
not at any time:
(a) Engage in, or permit any ERISA Affiliate to engage in, any
transaction in connection with which the Company, a Subsidiary or any
ERISA Affiliate could be subjected to either a civil penalty assessed
pursuant to subsections (c), (i) or (l) of section 502 of ERISA or a tax
imposed by Chapter 43 of Subtitle D of the Code;
(b) Terminate, or permit any ERISA Affiliate to terminate, any Benefit
Plan in a manner, or take any other action with respect to any Benefit
Plan, which could result in any liability of the Company, a Subsidiary or
any ERISA Affiliate to the PBGC;
(c) Fail to make, or permit any ERISA Affiliate to fail to make, full
payment when due of all amounts which, under the provisions of any Plan,
agreement relating thereto or applicable law, the Company, a Subsidiary or
any ERISA Affiliate is required to pay as contributions thereto;
(d) Permit to exist, or allow any ERISA Affiliate to permit to exist,
any accumulated funding deficiency within the meaning of section 302 of
ERISA or section 412 of the Code, whether or not waived, with respect to
any Benefit Plan;
(e) Permit, or allow any ERISA Affiliate to permit, the actuarial
present value of the benefit liabilities under any Benefit Plan maintained
by the Company, a Subsidiary or any ERISA Affiliate which is regulated
under Title IV of ERISA to exceed the current value of the assets
(computed on a plan termination basis in accordance with Title IV of
ERISA) of such Benefit Plan allocable to such benefit liabilities. The
term "actuarial present value of the benefit liabilities" shall have the
meaning specified in section 4041 of ERISA;
(f) Incur, or permit any ERISA Affiliate to incur, a liability to or
on account of a Plan under sections 4062, 4063, or 4064 of ERISA;
48
(g) Amend, or permit any ERISA Affiliate to amend, a Plan resulting in
an increase in current liability such that the Company, a Subsidiary or
any ERISA Affiliate is required to provide security to such Plan under
section 401(a)(29) of the Code; or
(h) Incur or permit Withdrawal Liability and liability in connection
with a reorganization or termination of a Multiemployer Plan of the
Company, the Subsidiaries and the ERISA Affiliates;
provided, however, that the transactions, events and occurrences described
in this Section 9.08 shall be permitted so long as such transactions,
events and occurrences (individually and in the aggregate) will not result
in a Material Adverse Effect.
Section 9.09 Environmental Matters. Neither the Company nor any
Subsidiary will cause or permit any of its Property to be in violation of,
or do anything or permit anything to be done which will subject any such
Property to any remedial obligations under, any Environmental Laws,
assuming disclosure to the applicable Governmental Authority of all
relevant facts, conditions and circumstances, if any, pertaining to such
Property where such violations or remedial obligations would have a
Material Adverse Effect.
Section 9.10 Transactions with Affiliates. Neither the Company nor
any Designated Subsidiary nor any Subsidiary Guarantor will enter into
any material transaction, including, without limitation, any purchase,
sale, lease or exchange of Property including the purchase or sale of oil
and gas properties and hydrocarbons or the rendering of any service, with
any Affiliate unless such transactions are in the ordinary course of its
business and are upon fair and reasonable terms no less favorable to it
than it would obtain in a comparable arm's length transaction with a
Person not an Affiliate.
Section 9.11 Restrictive Dividend Agreements. Neither the Company
nor any Designated Subsidiary nor any Subsidiary Guarantor will create,
incur, assume or suffer to exist any financing agreement (other than this
Agreement and the other Loan Documents) which in any way restricts any
Designated Subsidiary or Subsidiary Guarantor from paying dividends to the
Company.
ARTICLE X
EVENTS OF DEFAULT; REMEDIES
Section 10.01 Events of Default. One or more of the following events
shall constitute an "Event of Default":
(a) (i) any Obligor shall default in the payment or prepayment of any
principal on any Loan when due or (ii) any Obligor shall default in the
payment of any interest on any Loan or any facility fees payable by it
hereunder and such default, other than a default of a payment or
prepayment of principal, shall continue
49
unremedied for a period of five (5) days or (iii) any Obligor shall
default in the payment of any other amount payable by it hereunder or
under any other Loan Document and such default shall continue unremedied
for a period of thirty (30) days after notice of such default by the
Administrative Agent to the Company; or
(b) the Company or any Subsidiary shall default in the payment when
due of any principal of or interest on any of its other Debt of
$25,000,000 or more, or any event specified in any note, agreement,
indenture or other document evidencing or relating to any Debt of
$25,000,000 or more shall occur if the effect of such event causes, or
after the giving of any notice or the lapse of time or both, if
applicable, permits the holder or holders of such Debt (or a trustee or
agent on behalf of such holder or holders) to cause, such Debt to become
due prior to its stated maturity; or
(c) any representation, warranty or certification made or deemed made
herein or in any other Loan Documents by the Company, any Designated
Subsidiary or any Subsidiary Guarantor, or any certificate furnished to
any Lender or the Administrative Agent pursuant to the provisions hereof
or any other Loan Documents, shall prove to have been false or misleading
as of the time made, deemed made or furnished in any material adverse
respect; or
(d) the Company shall default in the performance of any of its
obligations under Article IX; or
(e) the Company shall default in the performance of any of its
obligations under Article VIII or any other Loan Document or any other
Article of this Agreement other than under Article IX (other than the
payment of amounts due which shall be governed by Section 10.01(a)) and
such default shall continue unremedied for a period of thirty (30) days
after the earlier to occur of (i) notice thereof to the Company by the
Administrative Agent or any Lender (through the Administrative Agent), or
(ii) a Responsible Officer of the Company otherwise becoming aware of such
default; or
(f) the Company, any Designated Subsidiary or any Subsidiary Guarantor
shall admit in writing its inability to, or be generally unable to, pay
its debts as such debts become due; or
(g) the Company, any Designated Subsidiary or any Subsidiary Guarantor
shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or
of all or a substantial part of its Property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary
case under the Federal Bankruptcy Code (as now or hereafter in effect),
(iv) file a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (v) fail to controvert in a timely and appropriate
manner, or
50
acquiesce in writing to, any petition filed against it in an involuntary
case under the Federal Bankruptcy Code, or (vi) take any corporate or
partnership action for the purpose of effecting any of the foregoing; or
(h) a proceeding or case shall be commenced, without the application
or consent of the Company, any Designated Subsidiary or any Subsidiary
Guarantor, in any court of competent jurisdiction, seeking (i) its
liquidation, reorganization, dissolution or winding-up, or the composition
or readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of the Company, any Designated
Subsidiary or any Subsidiary Guarantor of all or any substantial part of
its Property, or (iii) similar relief in respect of the Company, any
Designated Subsidiary or any Subsidiary Guarantor under any law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of
the foregoing shall be entered and continue unstayed and in effect, for a
period of 90 days; or (iv) an order for relief against the Company, any
Designated Subsidiary or any Subsidiary Guarantor shall be entered in an
involuntary case under the Federal Bankruptcy Code; or
(i) a judgment or judgments for the payment of money in excess of
$25,000,000 in the aggregate shall be rendered by a court against the
Company or any Subsidiary Guarantor or Designated Subsidiaries and the
same shall not be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be procured, within
thirty (30) days from the date of entry thereof and the Company or such
Subsidiary shall not, within said period of 30 days, or such longer period
during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal;
or
(j) the Guaranty Agreements after delivery thereof shall for any
reason, except to the extent permitted by the terms thereof, cease to be
in full force and effect and valid, binding and enforceable in accordance
with their terms, except to the extent permitted by the terms of this
Agreement, or the Company or any Subsidiary Guarantor shall so state in
writing; or
(k) ENSERCH Corporation shall cease to own, directly or indirectly, at
least 50% of the outstanding voting stock of the Company.
Section 10.02 Remedies.
(a) In the case of an Event of Default other than one referred to in
clauses (f), (g), or (h) of Section 10.01, the Administrative Agent may
and, upon request of the Majority Lenders, shall, by notice to the
Company, cancel the Commitments and/or declare the principal amount then
outstanding of, and the accrued interest on, the Loans and all other
amounts payable by the Company hereunder and under the Notes to be
forthwith due and payable, whereupon such amounts shall be
51
immediately due and payable without presentment, demand, protest, notice
of intent to accelerate, notice of acceleration or other formalities of
any kind, all of which are hereby expressly waived by the Company.
(b) In the case of the occurrence of an Event of Default referred to
in clauses (f), (g), or (h) of Section 10.01, the Commitments shall be
automatically cancelled and the principal amount then outstanding of, and
the accrued interest on, the Loans and all other amounts payable by the
Company hereunder and under the Notes shall become automatically
immediately due and payable without presentment, demand, protest, notice
of intent to accelerate, notice of acceleration or other formalities of
any kind, all of which are hereby expressly waived by the Company.
(c) All proceeds received after maturity of the Notes, whether by
acceleration or otherwise shall be applied first to reimbursement of
expenses and indemnities provided for in this Agreement and the other Loan
Documents; second to accrued interest on the Notes; third to fees; fourth
pro rata to principal outstanding on the Notes and other Indebtedness; and
any excess shall be paid to the Company or as otherwise required by any
Governmental Requirement.
ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes Texas Commerce Bank National
Association, as the Administrative Agent, and Chemical Bank, as the
Auction Agent, each to act as its agent hereunder and under the other Loan
Documents with such powers as are specifically delegated to the
Administrative Agent and Auction Agent respectively by the terms of this
Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. The Syndication Agent, in such
capacity, shall have no duties or responsibilities and shall incur no
liabilities under the Loan Documents. Each Agent (which term as used in
this sentence and in Section 11.05 and the first sentence of Section 11.06
shall include reference to its Affiliates and its and its Affiliates'
officers, directors, employees, attorneys, accountants, experts and
agents): (i) shall have no duties or responsibilities except those
expressly set forth in this Agreement, and shall not by reason of this
Agreement be a trustee or fiduciary for any Lender; (ii) makes no
representation or warranty to any Lender and shall not be responsible to
the Lenders for any recitals, statements, representations or warranties
contained in this Agreement, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement, or for the value, validity, effectiveness, genuineness,
execution, effectiveness, legality, enforceability or sufficiency of this
Agreement, any Note or any other document referred to or provided for
herein or for any failure by the Company or any other Person (other than
such Agent) to perform any of its obligations hereunder or thereunder or
for the existence, value, perfection or priority of any collateral
security or the financial or other
52
condition of the Company, its Subsidiaries or any other obligor or
guarantor; (iii) except pursuant to Section 11.07 shall not be required to
initiate or conduct any litigation or collection proceedings hereunder;
and (iv) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other document or instrument referred
to or provided for herein or in connection herewith including its own
ordinary negligence, except for its own gross negligence or willful
misconduct. The Administrative Agent may employ agents, accountants,
attorneys and experts and shall not be responsible for the negligence or
misconduct of any such agents, accountants, attorneys or experts selected
by it in good faith or any action taken or omitted to be taken in good
faith by it in accordance with the advice of such agents, accountants,
attorneys or experts. Each Agent may deem and treat the payee of any Note
as the holder thereof for all purposes hereof unless and until a written
notice of the assignment or transfer thereof permitted hereunder shall
have been filed with the Administrative Agent.
Section 11.02 Reliance by Agent. Each Agent shall be entitled to
rely upon any certification, notice or other communication (including any
thereof by telephone, telex, telecopier, 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, independent accountants and other experts selected by such Agent.
Section 11.03 Defaults. No Agent shall be deemed to have knowledge
of the occurrence of a Default (other than the Administrative Agent's
notice of the non-payment of principal of or interest on Loans or of
fees). In the event that the Administrative Agent receives a notice of
the occurrence of a Default specifying such Default and stating that such
notice is a "Notice of Default", the Administrative Agent shall give
prompt notice thereof to the Lenders. In the event of a payment Default,
the Administrative Agent shall give each Lender prompt notice of each such
payment Default.
Section 11.04 Rights as a Lender. With respect to its Commitments
and the Loans made by it, each Agent (and any successor acting as an
Agent) 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 each Agent in its
individual capacity. Each Agent (and any successor acting as an Agent)
and its Affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Company (any and of its
Affiliates) as if it were not acting as an Agent, and each Agent and its
Affiliates may accept fees and other consideration from the Company for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
Section 11.05 INDEMNIFICATION. THE LENDERS AGREE TO INDEMNIFY EACH
AGENT RATABLY IN ACCORDANCE WITH ITS PERCENTAGE SHARES FOR THE INDEMNITY
MATTERS AS DESCRIBED IN SECTION 12.03 TO THE EXTENT NOT INDEMNIFIED OR
REIMBURSED
53
BY THE COMPANY UNDER SECTION 12.03, BUT WITHOUT LIMITING THE OBLIGATIONS
OF THE COMPANY UNDER SAID SECTION 12.03 AND FOR ANY AND ALL OTHER
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND AND NATURE WHATSOEVER
WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST SUCH AGENT IN ANY
WAY RELATING TO OR ARISING OUT OF: (I) THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS OR ANY OTHER DOCUMENTS CONTEMPLATED BY OR REFERRED TO HEREIN OR
THE TRANSACTIONS CONTEMPLATED HEREBY, BUT EXCLUDING, UNLESS A DEFAULT HAS
OCCURRED AND IS CONTINUING, NORMAL ADMINISTRATIVE COSTS AND EXPENSES
INCIDENT TO THE PERFORMANCE OF ITS AGENCY DUTIES HEREUNDER OR (II) THE
ENFORCEMENT OF ANY OF THE TERMS OF THIS AGREEMENT, OTHER LOAN DOCUMENTS OR
OF ANY SUCH OTHER DOCUMENTS; WHETHER OR NOT ANY OF THE FOREGOING SPECIFIED
IN THIS SECTION 11.05 ARISES FROM THE SOLE OR CONCURRENT NEGLIGENCE OF
SUCH AGENT, 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 SUCH AGENT.
Section 11.06 Non-Reliance on the Agents and other Lenders. Each
Lender acknowledges and agrees 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 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. The Agents shall not
be required to keep themselves informed as to the performance or
observance by the Company of this Agreement, the Notes, the other Loan
Documents or any other document referred to or provided for herein or to
inspect the properties or books of the Company. Except for notices,
reports and other documents and information expressly required to be
furnished to the Lenders by the Administrative Agent or Auction Agent
hereunder, 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 (or any of its Affiliates)
which may come into the possession of any Agent, or any of its Affiliates.
Section 11.07 Action by Agent. Except for action or other matters
expressly required of the Administrative Agent or Auction Agent hereunder,
the Administrative Agent or Auction Agent shall in all cases be fully
justified in failing or refusing to act hereunder unless it shall (i)
receive written instructions from the Majority Lenders (or if this
Agreement requires, all of the Lenders) specifying the action to be taken,
and (ii) be indemnified to its satisfaction by the Lenders against any and
all liability and expenses which may be incurred by it by reason of taking
or continuing to take any such action except for gross negligence or
wilful misconduct. The instructions of the Majority Lenders (or if this
Agreement requires, all of the Lenders) and any action taken or failure to
act pursuant thereto by the Administrative Agent or Auction Agent shall be
binding on all of the Lenders. If a Default has occurred and is
continuing, the Administrative Agent or Auction Agent shall take such
action with respect to such Default as shall be directed by the
54
Majority Lenders (or if this Agreement requires, all of the Lenders) in
the written instructions (with indemnities) described in this Section
11.07, provided that, unless and until the Administrative Agent or Auction
Agent shall have received such directions, the Administrative Agent or
Auction Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall
deem advisable in the best interests of the Lenders. In no event,
however, shall any Agent be required to take any action which exposes such
Agent to personal liability or which is contrary to this Agreement and the
other Loan Documents or applicable law.
Section 11.08 Resignation or Removal of the Agents. Subject to the
appointment and acceptance of a successor as provided below, the
Administrative Agent or Auction Agent may resign at any time by giving
notice thereof to the Lenders and the Company, and the Administrative
Agent or Auction 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
or Auction Agent as the case may be. If no successor Administrative Agent
or Auction Agent shall have been so appointed by the Majority Lenders and
shall have accepted such appointment within thirty (30) days after the
retiring Administrative Agent's or Auction Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring
Administrative Agent or Auction Agent, then the retiring Administrative
Agent or Auction Agent, as the case may be, may, on behalf of the Lenders,
appoint a respective successor Administrative Agent or Auction Agent.
Upon the acceptance of such appointment hereunder by a successor
Administrative Agent or Auction Agent, such successor Administrative Agent
or Auction Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent
or Auction Agent, as the case may be, and the retiring Administrative
Agent or Auction Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's or Auction Agent's
resignation or removal hereunder as Administrative Agent or Auction Agent,
the provisions of this Article XI and Section 12.03 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 the Administrative Agent or Auction
Agent.
ARTICLE XII
MISCELLANEOUS
Section 12.01 Waiver. 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 of the Loan
Documents shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege under any of the Loan
Documents preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
55
Section 12.02 Notices. All notices and other communications provided
for herein and in the other Loan Documents (including, without limitation,
any modifications of, or waivers or consents under, this Agreement or the
other Loan Documents) shall be given or made by telex, telecopy,
telegraph, cable, courier or U.S. Mail or in writing and telexed,
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 in the other Loan Documents or, as to any party,
at such other address as shall be designated by such party in a notice to
each other party. Except as otherwise provided in this Agreement or in
the other Loan Documents, all such communications shall be deemed to have
been duly given when transmitted by telex or telecopier, delivered to the
telegraph or cable office or personally delivered or, in the case of a
mailed notice, three (3) Business Days after the date deposited in the
mails, postage prepaid, in each case given or addressed as aforesaid. The
Company shall be the agent of each Designated Subsidiary for the receiving
and giving of any notices or other communications under the Loan
Documents.
Section 12.03 Payment of Expenses, Indemnities, etc. Each Obligor
agrees:
(a) whether or not the transactions hereby contemplated are
consummated, to pay all reasonable expenses of the Agents in the
administration (both before and after the execution hereof and including
advice of counsel as to the rights and duties of the Agents and the
Lenders with respect thereto) of, and in connection with the negotiation,
syndication, investigation, preparation, execution and delivery of,
recording or filing of, preservation of rights under, enforcement of, and
refinancing, renegotiation or restructuring of, the Loan Documents and any
amendment, waiver or consent relating thereto (including, without
limitation, travel, photocopy, mailing, courier, telephone and other
similar expenses of the Agents, the cost of environmental audits, surveys
and appraisals at reasonable intervals, the reasonable fees and
disbursements of counsel for the Agents and in the case of enforcement for
any of the Lenders); and promptly reimburse the Agents for the account of
the Agents and the Lenders for all amounts expended, advanced or incurred
by the Agents or the Lenders to satisfy any obligation of the Company
under this Agreement or any other Loan Document;
(b) TO INDEMNIFY EACH AGENT AND EACH LENDER AND EACH OF THEIR
AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES,
REPRESENTATIVES, AGENTS, ATTORNEYS, ACCOUNTANTS AND EXPERTS ("INDEMNIFIED
PARTIES") FROM, HOLD EACH OF THEM HARMLESS AGAINST AND PROMPTLY UPON
DEMAND PAY OR REIMBURSE EACH OF THEM FOR, THE INDEMNITY MATTERS WHICH MAY
BE INCURRED BY OR ASSERTED AGAINST OR INVOLVE ANY OF THEM (WHETHER OR NOT
ANY OF THEM IS DESIGNATED A PARTY THERETO) AS A RESULT OF, ARISING OUT OF
OR IN ANY WAY RELATED TO (I) ANY ACTUAL OR PROPOSED USE BY ANY OBLIGOR OF
THE PROCEEDS OF ANY OF THE LOANS, (II) THE EXECUTION, DELIVERY AND
PERFORMANCE OF THE LOAN DOCUMENTS, (III) THE OPERATIONS OF THE BUSINESS OF
THE COMPANY AND ITS SUBSIDIARIES, (IV) THE FAILURE OF THE COMPANY OR ANY
SUBSIDIARY TO COMPLY WITH THE TERMS OF ANY LOAN DOCUMENT, OR WITH ANY
GOVERNMENTAL
56
REQUIREMENT, (V) ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF
ANY WARRANTY OF THE COMPANY SET FORTH IN ANY OF THE LOAN DOCUMENTS, (VI)
ANY ASSERTION THAT THE LENDERS WERE NOT ENTITLED TO RECEIVE THE PROCEEDS
RECEIVED PURSUANT TO THE LOAN DOCUMENTS OR (VII) ANY OTHER ASPECT OF THE
LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL AND ALL OTHER EXPENSES INCURRED IN CONNECTION
WITH INVESTIGATING, DEFENDING OR PREPARING TO DEFEND ANY SUCH ACTION,
SUIT, PROCEEDING (INCLUDING ANY INVESTIGATIONS, LITIGATION OR INQUIRIES)
OR CLAIM AND INCLUDING ALL INDEMNITY MATTERS ARISING BY REASON OF THE
ORDINARY NEGLIGENCE OF ANY INDEMNIFIED PARTY, BUT EXCLUDING ALL INDEMNITY
MATTERS ARISING SOLELY BY REASON OF CLAIMS BETWEEN THE LENDERS OR ANY
LENDER AND ANY AGENT OR A LENDER'S SHAREHOLDERS AGAINST ANY AGENT OR
LENDER OR BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE
PART OF SUCH INDEMNIFIED PARTY; AND
(c) TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME EACH INDEMNIFIED
PARTY FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COST RECOVERY ACTIONS,
ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND LIABILITIES TO WHICH ANY
SUCH PERSON MAY BECOME SUBJECT (I) UNDER ANY ENVIRONMENTAL LAW APPLICABLE
TO THE COMPANY OR ANY SUBSIDIARY OR ANY OF THEIR PROPERTIES, INCLUDING
WITHOUT LIMITATION THE TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON
ANY OF THEIR PROPERTIES AND RESULTING FROM THE FACT THAT THE AGENTS OR
LENDERS ARE A PARTY TO ANY LOAN DOCUMENT, (II) AS A RESULT OF THE BREACH
OR NON- COMPLIANCE BY THE COMPANY OR ANY SUBSIDIARY WITH ANY ENVIRONMENTAL
LAW APPLICABLE TO THE COMPANY OR ANY SUBSIDIARY, (III) DUE TO PAST
OWNERSHIP BY THE COMPANY OR ANY SUBSIDIARY OF ANY OF THEIR PROPERTIES OR
PAST ACTIVITY ON ANY OF THEIR PROPERTIES WHICH, THOUGH LAWFUL AND FULLY
PERMISSIBLE AT THE TIME, COULD RESULT IN PRESENT LIABILITY, (IV) THE
PRESENCE, USE, RELEASE, STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS
SUBSTANCES ON OR AT ANY OF THE PROPERTIES OWNED OR OPERATED BY THE COMPANY
OR ANY SUBSIDIARY, OR (V) ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY
CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS, PROVIDED, HOWEVER, NO
INDEMNITY SHALL BE AFFORDED UNDER THIS SECTION 12.03(C) IN RESPECT OF ANY
PROPERTY FOR ANY OCCURRENCE ARISING FROM THE ACTS OR OMISSIONS OF ANY
AGENT OR ANY LENDER DURING THE PERIOD AFTER WHICH SUCH PERSON, ITS
SUCCESSORS OR ASSIGNS SHALL HAVE OBTAINED POSSESSION OF SUCH PROPERTY
(WHETHER BY FORECLOSURE OR DEED IN LIEU OF FORECLOSURE, AS
MORTGAGEE-IN-POSSESSION OR OTHERWISE).
(d) No Indemnified Party may settle any claim to be indemnified
without the consent of the indemnitor, such consent not to be unreasonably
withheld; provided, that the indemnitor may not reasonably withhold
consent to any settlement that an Indemnified Party proposes, if the
indemnitor does not have the financial ability to pay all its obligations
outstanding and asserted against the indemnitor at
57
that time, including the maximum potential claims against the Indemnified
Party to be indemnified pursuant to this Section 12.03.
(e) In the case of any indemnification hereunder, the Administrative
Agent or a Lender, as appropriate shall give notice to the Company of any
such claim or demand being made against such Indemnified Party and the
Company shall have the non-exclusive right to join in the defense against
any such claim or demand provided that if the Company provides a defense,
such Indemnified Party shall bear its own cost of defense unless there is
a conflict between the Company and such Indemnified Party.
(f) THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED PARTIES
NOTWITHSTANDING THE NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER,
WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION,
INCLUDING WITHOUT LIMITATION, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN
THE RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNIFIED
PARTIES OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE
OR MORE OF THE INDEMNIFIED PARTIES. TO THE EXTENT THAT AN INDEMNIFIED
PARTY IS FOUND TO HAVE COMMITTED AN ACT OF GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, THIS CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL CONTINUE
BUT SHALL ONLY EXTEND TO THE PORTION OF THE CLAIM THAT IS DEEMED TO HAVE
OCCURRED BY REASON OF EVENTS OTHER THAN THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE INDEMNIFIED PARTY.
(g) Each Obligor's obligation under this Section 12.03 shall survive
any termination of this Agreement and the payment of the Notes and shall
continue thereafter in full force and effect.
(h) The Obligors shall pay any amounts due under this Section 12.03
within thirty (30) days of the receipt by the Company of notice of the
amount due.
Section 12.04 Amendments, Etc. Any provision of this Agreement or
any other Loan Document may be amended, modified or waived with the
Company's and the Majority Lenders' prior written consent; provided that
(i) no amendment, modification or waiver which extends the maturity of the
Loans, or the interest or fee payment dates, increases the Aggregate
Commitments, forgives the principal amount of any Indebtedness outstanding
under this Agreement, reduces the interest rate applicable to the Loans or
the fees payable to the Lenders generally, affects this Section 12.04 or
Section 12.06(a) or modifies the definition of "Majority Lenders" or any
provision which by its terms requires the consent or approval of all of
the Lenders shall be effective without consent of all Lenders; (ii) no
amendment, modification or waiver which increases or extends the
Commitment of any Lender shall be effective without the consent of such
Lender; and (iii) no amendment, modification or waiver which modifies the
rights, duties or obligations of the Administrative Agent, Auction Agent
or the Syndication Agent shall be effective without the consent of such
Agent.
58
Section 12.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 12.06 Assignments and Participations.
(a) No Obligor may assign its rights or obligations hereunder or under
the Notes without the prior consent of all of the Lenders and the Agents.
(b) Any Lender may, upon the written consent of the Company (which
consent shall not be unreasonably withheld) assign to one or more
assignees all or a portion of its rights and obligations under this
Agreement and the other Loan Documents pursuant to an Assignment Agreement
substantially in the form of Exhibit K (an "Assignment") provided,
however, that (i) any such assignment shall be in the amount of at least
$10,000,000 or such lesser amount to which the Company has consented and
(ii) the assignor or assignee shall pay to the Administrative Agent a
processing and recordation fee of $2500 for each assignment. Any such
assignment will become effective upon the execution and delivery to the
Administrative Agent of the Assignment and the written consent of the
Company. Promptly after receipt of an executed Assignment, the
Administrative Agent shall send to the Company a copy of such executed
Assignment. Upon receipt of such executed Assignment, the Company, will,
at its own expense, execute and deliver new Notes to the assignor and/or
assignee, as appropriate, in accordance with their respective interests as
they appear. Upon the effectiveness of any assignment pursuant to this
Section 12.06(b), the assignee will become a "Lender," if not already a
"Lender," for all purposes of this Agreement and the other Loan Documents.
The assignor shall be relieved of its obligations hereunder to the extent
of such assignment (and if the assigning Lender no longer holds any rights
or obligations under this Agreement, such assigning Lender shall cease to
be a "Lender" hereunder except that its rights under Sections 4.06, 5.01,
5.05 and 12.03 shall not be affected). The Administrative Agent will
prepare on the last Business Day of each month during which an assignment
has become effective pursuant to this Section 12.06(b), a new Annex 1
giving effect to all such assignments effected during such month, and will
promptly provide the same to the Company and each of the Lenders.
(c) Each Lender may transfer, grant or assign participations in all or
any part of such Lender's interests, rights and obligations hereunder
pursuant to this Section 12.06(c) to any Person, provided that: (i) such
Lender shall remain a "Lender" for all purposes of this Agreement and the
transferee of such participation shall not constitute a "Lender"
hereunder; and (ii) no participant under any such participation shall have
rights to approve any amendment to or waiver of any of the Loan Documents
except to the extent such amendment or waiver would (x) extend the
Revolving Credit Termination Date, (y) reduce the interest rate (other
than as a result of waiving the applicability of any post-default
increases in interest rates) or fees applicable to any of the Commitments
or Loans in which such participant is
59
participating, or postpone the payment of any thereof, or (z) release all
or substantially all of the collateral (except as expressly provided in
the other Loan Documents) supporting any of the Commitments or Loans in
which such participant is participating. In the case of any such
participation, the participant shall not have any rights under this
Agreement or any of the other Loan Documents (the participant's rights
against the granting Lender in respect of such participation to be those
set forth in the agreement with such Lender creating such participation),
and all amounts payable by the Company hereunder shall be determined as if
such Lender had not sold such participation, provided that such
participant shall be entitled to receive additional amounts under Article
V on the same basis as if it were a Lender and be indemnified under
Section 12.03 as if it were a Lender. In addition, each agreement
creating any participation must include an agreement by the participant to
be bound by the provisions of Section 12.15.
(d) The Lenders may furnish any information concerning the Company in
the possession of the Lenders from time to time to assignees and
participants (including prospective assignees and participants); provided
such Persons agree in writing to be bound by the provisions of Section
12.15.
(e) Notwithstanding anything in this Section 12.06 to the contrary,
any Lender may assign and pledge its Note to any Federal Reserve Bank or
the United States Treasury as collateral security pursuant to Regulation
A of the Board of Governors of the Federal Reserve System and any
operating circular issued by such Federal Reserve System and/or such
Federal Reserve Bank. No such assignment and/or pledge shall release the
assigning and/or pledging Lender from its obligations hereunder.
(f) Notwithstanding any other provisions of this Section 12.06, no
transfer or assignment of the interests or obligations of any Lender or
any grant of participations therein shall be permitted if such transfer,
assignment or grant would require the Company to file a registration
statement with the SEC or to qualify the Loans under the "Blue Sky" laws
of any state.
Section 12.07 Invalidity. In the event that any one or more of the
provisions contained in any of the Loan Documents shall, for any reason,
be held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of the
Notes, this Agreement or any other Loan Document.
Section 12.08 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
and the same instrument and any of the parties hereto may execute this
Agreement by signing any such counterpart.
Section 12.09 References. The words "herein," "hereof," "hereunder"
and other words of similar import when used in this Agreement refer to
this Agreement as a whole, and not to any particular article, section or
subsection. Any reference herein to a
60
Section shall be deemed to refer to the applicable Section of this
Agreement unless otherwise stated herein. Any reference herein to an
exhibit or schedule shall be deemed to refer to the applicable exhibit or
schedule attached hereto unless otherwise stated herein.
Section 12.10 Survival. The obligations of the parties under Section
4.06, Article V, and Sections 11.05 and 12.03 shall survive the repayment
of the Loans and the termination of the Commitments. To the extent that
any payments on the Indebtedness 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 Indebtedness so satisfied shall be revived
and continue as if such payment or proceeds had not been received and the
Administrative Agent's and the Lenders' Liens, security interests, rights,
powers and remedies under this Agreement and each other Loan Document
shall continue in full force and effect. In such event, each Loan
Document shall be automatically reinstated and the Company shall take such
action as may be reasonably requested by the Administrative Agent and the
Lenders to effect such reinstatement.
Section 12.11 Captions. Captions and section headings appearing
herein and the table of contents hereto are included solely for
convenience of reference and are not intended to affect the interpretation
of any provision of this Agreement.
Section 12.12 NO ORAL AGREEMENTS. THE LOAN DOCUMENTS EMBODY THE
ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ALL
OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF. THE 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.
Section 12.13 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(A) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS EXCEPT TO THE EXTENT
THAT UNITED STATES FEDERAL LAW PERMITS ANY LENDER TO CHARGE INTEREST AT
THE RATE ALLOWED BY THE LAWS OF THE STATE WHERE SUCH LENDER IS LOCATED.
TEX. REV. CIV. STAT. ANN. ART. 5069, CH. 15 (WHICH REGULATES CERTAIN
REVOLVING CREDIT LOAN ACCOUNTS AND REVOLVING TRI-PARTY ACCOUNTS) SHALL NOT
APPLY TO THIS AGREEMENT OR THE NOTES.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE LOAN DOCUMENTS
MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR OF THE UNITED STATES
OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE COMPANY 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.
61
THE COMPANY 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 NON-EXCLUSIVE AND DOES
NOT PRECLUDE THE ADMINISTRATIVE AGENT OR ANY LENDER FROM OBTAINING
JURISDICTION OVER THE COMPANY IN ANY COURT OTHERWISE HAVING JURISDICTION.
(C) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT
OR ANY LENDER OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(D) EACH OF THE COMPANY AND EACH LENDER HEREBY (I) IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (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 SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION
TO, ACTUAL DAMAGES; (III) CERTIFIES THAT NO PARTY HERETO NOR ANY
REPRESENTATIVE OR AGENT OF 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 12.13.
Section 12.14 Interest. It is the intention of the parties hereto
that each Lender shall conform strictly to usury laws applicable to it.
Accordingly, if the transactions contemplated hereby would be usurious as
to any Lender under laws applicable to it (including the laws of the
United States of America and the State of Texas or any other jurisdiction
whose laws may be mandatorily applicable to such Lender notwithstanding
the other provisions of this Agreement), then, in that event,
notwithstanding anything to the contrary in any of the Loan Documents or
any agreement entered into in connection with or as security for the
Notes, it is agreed as follows: (i) the aggregate of all consideration
which constitutes interest under law applicable to any Lender that is
contracted for, taken, reserved, charged or received by such Lender under
any of the Loan Documents or agreements or otherwise in connection with
the Notes shall under no circumstances exceed the maximum amount allowed
by such applicable law, and any excess shall be cancelled automatically
and if theretofore paid shall be credited by such Lender on the principal
amount of the Indebtedness (or, to the extent that the principal amount of
the Indebtedness shall have been or would thereby be paid in full,
refunded by such Lender to the Company);
62
and (ii) in the event that the maturity of the Notes is accelerated by
reason of an election of the holder thereof resulting from any Event of
Default or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest under law
applicable to any Lender may never include more than the maximum amount
allowed by such applicable law, and excess interest, if any, provided for
in this Agreement or otherwise shall be cancelled automatically by such
Lender as of the date of such acceleration or prepayment and, if
theretofore paid, shall be credited by such Lender on the principal amount
of the Indebtedness (or, to the extent that the principal amount of the
Indebtedness shall have been or would thereby be paid in full, refunded by
such Lender to the Company). All sums paid or agreed to be paid to any
Lender for the use, forbearance or detention of sums due hereunder shall,
to the extent permitted by law applicable to such Lender, be amortized,
prorated, allocated and spread throughout the full term of the Loans
evidenced by the Notes until payment in full so that the rate or amount of
interest on account of any Loans hereunder does not exceed the maximum
amount allowed by such applicable law. If at any time and from time to
time (i) the amount of interest payable to any Lender on any date shall be
computed at the Highest Lawful Rate applicable to such Lender pursuant to
this Section 12.14 and (ii) in respect of any subsequent interest
computation period the amount of interest otherwise payable to such Lender
would be less than the amount of interest payable to such Lender computed
at the Highest Lawful Rate applicable to such Lender, then the amount of
interest payable to such Lender in respect of such subsequent interest
computation period shall continue to be computed at the Highest Lawful
Rate applicable to such Lender until the total amount of interest payable
to such Lender shall equal the total amount of interest which would have
been payable to such Lender if the total amount of interest had been
computed without giving effect to this Section 12.14. To the extent that
Article 5069-1.04 of the Texas Revised Civil Statutes is relevant for the
purpose of determining the Highest Lawful Rate, such Lender elects to
determine the applicable rate ceiling under such Article by the indicated
weekly rate ceiling from time to time in effect.
Section 12.15 Confidentiality. In the event that the Company
provides to the Agents or the Lenders written confidential information
belonging to the Company, if the Company shall denominate such information
in writing as "confidential", the Agents and the Lenders shall thereafter
maintain such information in confidence in accordance with the standards
of care and diligence that each utilizes in maintaining its own
confidential information. This obligation of confidence shall not apply
to such portions of the information which (i) are in the public domain,
(ii) hereafter become part of the public domain without the Agents or the
Lenders breaching their obligation of confidence to the Company, (iii) are
previously known by the Agents or the Lenders from some source other than
the Company, (iv) are hereafter developed by the Agents or the Lenders
without using the Company's information, (v) are hereafter obtained by or
available to the Agents or the Lenders from a third party who owes no
obligation of confidence to the Company with respect to such information
or through any other means other than through disclosure by the Company,
(vi) are disclosed with the Company's consent, (vii) must be disclosed
either pursuant to any Governmental Requirement or to Persons regulating
the activities of the Agents or the Lenders, or (viii) as may be required
by law or regulation or order of any
63
Governmental Authority in any judicial, arbitration or governmental
proceeding. Further, an Agent or a Lender may disclose any such
information to any other Lender, any Affiliate of such Agent or Lender,
any independent petroleum engineers or consultants, any independent
certified public accountants, any legal counsel employed by such Person in
connection with this Agreement or any other Loan Document, including
without limitation, the enforcement or exercise of all rights and remedies
thereunder, or any assignee or participant (including prospective
assignees and participants) in the Loans; provided, however, that such
Agent or Lender imposes on the Person to whom such information is
disclosed the same obligation to maintain the confidentiality of such
information as is imposed upon it hereunder. Notwithstanding anything to
the contrary provided herein, this obligation of confidence shall cease
three (3) years from the date the information was furnished, unless the
Company requests in writing at least thirty (30) days prior to the
expiration of such three year period, to maintain the confidentiality of
such information for an additional three year period. The Company waives
any and all other rights it may have to confidentiality as against the
Agents and the Lenders arising by contract, agreement, statute or law
except as expressly stated in this Section 12.15.
Section 12.16 Effectiveness. This Agreement shall not be effective
until executed by all parties hereto and delivered to and accepted by the
Administrative Agent, and the other conditions listed in the definition of
"Effective Date" have occurred.
Section 12.17 EXCULPATION PROVISIONS. EACH OF THE PARTIES HERETO
SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS AND AGREES THAT IT IS CHARGED WITH NOTICE AND
KNOWLEDGE OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS;
THAT IT HAS IN FACT READ THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS,
CONDITIONS AND EFFECTS OF THIS AGREEMENT; THAT IT HAS BEEN REPRESENTED BY
INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS
PRECEDING ITS EXECUTION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS;
AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND THAT IT RECOGNIZES THAT
CERTAIN OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS RESULT
IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE
TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH
LIABILITY. EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT
CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ON THE BASIS THAT THE PARTY
HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT SUCH PROVISION IS NOT
"CONSPICUOUS."
The parties hereto have caused this Agreement to be duly executed as
of the day and year first above written.
64
ENSERCH EXPLORATION, INC.
ATTEST:
/s/ By: /s/ A. E. Gallatin
------------------------------ --------------------------------
Assistant Corporate Secretary Name: A. E. Gallatin
Title: Vice President and Treasurer
LENDER AND TEXAS COMMERCE BANK NATIONAL ADMINISTRATIVE AGENT:
ASSOCIATION
By: /s/ Dale S. Hurd
------------------------------ Name: Dale S. Hurd
Title: Senior Vice President
Lending Office for Base Rate Loans:
2200 Ross Avenue
Dallas, TX 75201
Lending Office for Eurodollar Loans:
2200 Ross Avenue
Dallas, TX 75201
Address for Notices:
2200 Ross Avenue
Dallas, TX 75201
Telecopier No.: (214) 922-2389 Telephone No.: (214) 922-2583
Attention: Dale Hurd
SYNDICATION AGENT
AND LENDER: THE CHASE MANHATTAN BANK, N.A.
By: /s/ Bettylou J. Robert
--------------------------------- Name: Bettylou J.Robert
Title: Vice President
Lending Office for Base Rate Loans:
The Chase Manhattan Bank, N.A. 1 Chase Manhattan Plaza
New York, New York 10005
Lending Office for Eurodollar Loans:
The Chase Manhattan Bank, N.A. 1 Chase Manhattan Plaza
New York, New York 10005
Address for Notices:
The Chase Manhattan Bank, N.A. 2 Chase Manhattan Plaza, 5th Floor New
York, New York 10005
Telecopier No.: (212) 552-4455 Telephone No.: (212) 552-3017
Attention: Joselin Fernandes
[With copy to:]
Chase National Corporate Services, Inc. One Houston Center
1221 McKinney, Suite 3000
Houston, Texas 77010
Telecopier No.: (713) 751-9122 Telephone No.: (713) 751-5657
Attention: Scott Porter
LENDER: CITIBANK, N.A.
By: /s/ Mark J. Lyons
-------------------------------- Name: Mark. J. Lyons
Title: Vice President
Lending Office for Base Rate Loans:
Citibank, N.A.
399 Park Avenue
New York, NY 10043
Lending Office for Eurodollar Loans:
Same as above
Address for Notices:
One Court Square -- 7th Floor
Long Island City, NY 11120
Telecopier No.: (718) 248-4844 Telephone No.: (718) 248-5762
Attention: Leena Hiranandani
LENDER: THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ Satoru Otsubo
-------------------------------- Name: Satoru Otsubo
Title: Joint General Manager
Lending Office for Base Rate Loans:
The Long-Term Credit Bank of Japan, Ltd. 165 Broadway, 48th Floor
New York, NY 10006
Lending Office for Eurodollar Loans:
The Long-Term Credit Bank of Japan, Ltd. 165 Broadway, 48th Floor
New York, NY 10006
Addresses for Notices:
The Long-Term Credit Bank of Japan, Ltd. 165 Broadway, 48th Floor
New York, NY 10006
Telecopier No.: (212) 608-3452 Telephone No.: (212) 335-4801
Attention: Bob Pacifici
[With copy to:]
LENDER: BANKERS TRUST COMPANY
By: /s/ Mary Jo Jolly
-------------------------------- Name: Mary Jo Jolly
Title: Assistant Vice President
Lending Office for Base Rate Loans:
130 Liberty Street
New York, NY 10006
Lending Office for Eurodollar Loans:
130 Liberty Street
New York, NY 10006
Addresses for Notices:
130 Liberty Street
Loan Division, 14th Floor
New York, NY 10006
Telecopier No.: (212) 250-6029 Telephone No.: (212) 250-7561
Attention: Stephen Snizek
[With copy to:]
Roberta K. Bohn
Bankers Trust Company
909 Fannin, Suite 3000
Houston, Texas 77010
Telecopier No.: (713) 759-6708 Telephone No.: (713) 759-6731
LENDER: THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. ASHBY
-------------------------------- Name: F.C.H. ASHBY
Title: SENIOR MANAGER LOAN OPERATIONS
Lending Office for Base Rate Loans:
600 PEACHTREE STREET N.E.
SUITE 2700
ATLANTA, GA 30308
Lending Office for Eurodollar Loans:
600 PEACHTREE STREET N.E.
SUITE 2700
ATLANTA, GA 30308
Addresses for Notices:
600 PEACHTREE STREET N.E.
SUITE 2700
ATLANTA, GA 30308
Telecopier No.: 404-888-8998 Telephone No.: 404-877-1549 Attention:
JEFREY JONES
[With copy to:] (DOCUMENTS)
1100 LOUISIANA STREET
SUITE 3000
HOUSTON, TX 77002
ATTN: D. MATT HARRIS
LENDER: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ GARY C. GASKILL
-------------------------------- Name: GARY C. GASKILL
Title: AUTHORIZED SIGNATORY
Lending Office for Base Rate Loans:
TWO PACES WEST
2727 PACES FERRY ROAD, SUITE 1200 ATLANTA, GA 30339
Lending Office for Eurodollar Loans:
TWO PACES WEST
2727 PACES FERRY ROAD, SUITE 1200 ATLANTA, GA 30339
Addresses for Notices:
TWO PACES WEST
2727 PACES FERRY ROAD, SUITE 1200 ATLANTA, GA 30339
Telecopier No.: (404) 319-4950 Telephone No.: (404) 319-4835
Attention: MS. ADRIENNE BURCH
[With copy to:]
National Westminster Bank Plc
New York Branch By: /s/ Stephen R. Parker
-------------------------------- Name: Stephen R. Parker
Title: Vice President
National Westminster Bank Plc
Nassau Branch By: /s/ Stephen R. Parker
-------------------------------- Name: Stephen R. Parker
Title: Vice President
Lending Office for Base Rate Loans:
National Westminister Bank Plc New York Branch
Lending Office for Eurodollar Loans:
National Westminster Bank Plc
Nassau Branch
Addresses for Notices:
National Westminster Bank Plc
175 Water Street
New York, New York 10038
Telecopier No.: (212) 602-4118 Telephone No.: (212) 602-4180
Attention: Nadira Fauder
LENDER: The First National Bank of Chicago
By: /s/ Dixon P. Schultz
-------------------------------- Name: Dixon P. Schultz
Title: Vice President
Lending Office for Base Rate Loans:
The First National Bank of Chicago 1 First National Plaza, Suite 0634,
Floor Chicago, Illinois 60670
Lending Office for Eurodollar Loans:
The First National Bank of Chicago 1 First National Plaza, Suite 0634,
Floor Chicago, Illinois 60670
Addresses for Notices:
The First National Bank of Chicago 1 First National Plaza, Suite 0634,
Floor Chicago, Illinois 60670
Telecopier No.: (312) 732-4840 Telephone No.: (312) 732-8705
Attention: Lynn Pozsgay
[With copy to:]
LENDER: THE BANK OF NEW YORK
By: /s/ Raymond J. Palmer
-------------------------------- Name: Raymond J. Palmer
Title: Vice President
Lending Office for Base Rate Loans:
The Bank of New York
One Wall Street, 19th Fl.
New York, New York 10286
Lending Office for Eurodollar Loans:
The Bank of New York
One Wall Street, 19th Fl.
New York, New York 10286
Addresses for Notices:
The Bank of New York
One Wall Street, 19th Fl.
New York, New York 10286
Telecopier No.: (212) 635-7923 Telephone No.: (212) 635-7921
Attention: Nina Russo-Valdes
[With copy to:]
LENDER: NationsBank of Texas, N.A.
By: /s/ Denise Ashford Smith
-------------------------------- Name: Denise Ashford Smith
Title: Senior Vice President
Lending Office for Base Rate Loans:
901 Main Street, 64th Floor
Dallas, TX 75202
Attn: Denise Ashford Smith
Lending Office for Eurodollar Loans:
901 Main Street, 64th Floor
Dallas, TX 75202
Attn: Denise Ashford Smith
Addresses for Notices:
Corporate Credit Services
901 Main Street, 14th Floor
Dallas, TX 75202
Telecopier No.: 214/508-1215 Telephone No.: 214/508-1225 Attention:
Betty Canales
[With copy to:]
LENDER: THE BANK OF TOKYO, LTD.
DALLAS AGENCY
By: /s/ John M. McIntyre
-------------------------------- Name: John M. McIntyre
Title: Vice President
Lending Office for Base Rate Loans:
The Bank of Tokyo, Ltd.
2001 Ross Avenue, Suite 3150
Dallas, Texas 75201
Lending Office for Eurodollar Loans:
The Bank of Tokyo, Ltd.
2001 Ross Avenue, Suite 3150
Dallas, Texas 75201
Addresses for Notices:
The Bank of Tokyo, Ltd.
909 Fannin, 2 Houston Center, Ste. 1104 Dallas, Texas 77010
Telecopier No.: (713) 658-8341 Telephone No.: (713) 658-1021
Attention: Nadra H. Breir
LENDER: The Fuji Bank, Ltd.
By: /s/ Soichi Yoshida
-------------------------------- Name: Soichi Yoshida
Title: Vice President and Senior Manager
Lending Office for Base Rate Loans:
The Fuji Bank, Ltd.
Houston Agency
1221 McKinney St. Suite 4100
Houston, TX 77010
Lending Office for Eurodollar Loans:
The Fuji Bank, Ltd.
Houston Agency
1221 McKinney St. Suite 4100
Houston, TX 77010
Addresses for Notices:
The Fuji Bank, Ltd.
Houston Agency
1221 McKinney St. Suite 4100
Houston, TX 77010
Telecopier No.: (713) 759-0048 Telephone No.: (713) 650-7826
Attention: Teri McPherson
LENDER: Union Bank of Switzerland
Houston Agency
By: /s/ Evans Swann
-------------------------------- Name: Evans Swann
Title: Managing Director
By: /s/ Alfred Imholz
-------------------------------- Name: Alfred Imholz
Title: Managing Director
Lending Office for Base Rate Loans:
1100 Louisiana, Suite 4500
Houston, TX 77002
Lending Office for Eurodollar Loans:
1100 Louisiana, Suite 4500
Houston, TX 77002
Addresses for Notices:
1100 Louisiana, Suite 4500
Houston, TX 77002
Telecopier No.: (713) 655-6555 Telephone No.: (713) 655-6500
Attention: Alfred Imholz Managing Director
With copy to: James Broadus
Telecopier No.: (212) 821-3269 Telephone No.: (212) 821-3227
LENDER: Dresdner Bank AG New York
and Grand Cayman Branches
By: /s/ J. Curtin Beaudouin
-------------------------------- Name: J. Curtin Beaudouin
Title: Vice President
By: /s/ Ernest C. Fung
-------------------------------- Name: Ernest C. Fung
Title: Vice President
Lending Office for Base Rate Loans:
Dresdner Bank AG, Grand Cayman Branch 75 Wall Street
New York, New York 10005-2889
Lending Office for Eurodollar Loans:
Dresdner Bank AG, Grand Cayman Branch 75 Wall Street
New York, New York 10005-2889
Addresses for Notices:
Dresdner Bank AG, Grand Cayman Branch 75 Wall Street
New York, New York 10005-2889
Telecopier No.: (212) 898-0524 Telephone No.: (212) 574-0183
Attention: Craig Erickson
With copy to:
Credit Department
Dresdner Bank AG, New York
Attn: Ms. Yunie Shin-Thomas
75 Wall Street
New York, NY 10005-2889
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ Xavier Ratouis
-------------------------------- Name: Xavier Ratouis
Title: Authorized Signature
Lending Office for Base Rate Loans:
Credit Lyonnais Cayman Island Branch 1301 Avenue of the Americas
New York, New York 10019
Attention: Loan Servicing
Lending Office for Eurodollar Loans:
Credit Lyonnais Cayman Island Branch 1301 Avenue of the Americas
New York, New York 10019
Attention: Loan Servicing
Addresses for Notices:
c/o Credit Lyonnais Representative Office 1000 Louisiana, Suite 5360
Houston, TX 77002
Telecopier No.: (713) 751-0307 Telephone No.: (713) 751-0500
Attention: Mr. A. David Dodd
LENDER: The Industrial Bank of Japan Trust Company
By: /s/ Robert W. Ramage, Jr.
-------------------------------- Name: Robert W. Ramage, Jr.
Title: Senior Vice President
Lending Office for Base Rate Loans:
The Industrial Bank of Japan Trust Company 245 Park Avenue
New York, NY 10167
Lending Office for Eurodollar Loans:
The Industrial Bank of Japan Trust Company 245 Park Avenue
New York, NY 10167
Addresses for Notices:
The Industrial Bank of Japan Trust Company 245 Park Avenue
New York, NY 10167
Telecopier No.: (212) 949-0134 Telephone No.: (212) 309-6521
Attention: Credit Administration
[With copy to:]
LENDER: Royal Bank of Canada
By: /s/ Gil J. Benard
-------------------------------- Name: Gil J. Benard
Title: Senior Manager
Lending Office for Base Rate Loans:
Royal Bank of Canada
1 Financial Square, 24th Floor
New York, New York 10005-3531
Lending Office for Eurodollar Loans:
Royal Bank of Canada
1 Financial Square, 24th Floor
New York, New York 10005-3531
Addresses for Notices:
Royal Bank of Canada
600 Wilshire Blvd., Suite 800
Los Angeles, CA 90017
Telecopier No.: (213) 955-5350 Telephone No.: (213) 955-5321
Attention: Gil J. Benard
[With copy to:]
LENDER: Westdeutsche Landesbank Girozentrale
By: /s/ Richard R. Newman
-------------------------------- Name: Richard R. Newman
Title: Vice President
By: /s/ Sal Battinelli
-------------------------------- Name: Sal Battinelli
Title: Vice President
Lending Office for Base Rate Loans:
Westdeutsche Landesbank Girozentrale 1211 Avenue of the Americas
New York, New York 10036
Lending Office for Eurodollar Loans:
Westdeutsche Landesbank Girozentrale 1211 Avenue of the Americas
New York, New York 10036
Addresses for Notices:
Westdeutsche Landesbank Girozentrale 1211 Avenue of the Americas
New York, New York 10036
Telecopier No.: (212) 852-6307 Telephone No.: (212) 852-6120
Attention: Richard R. Newman
LENDER: Caisse Nationale de Credit Agricole
By: /s/ David Bouhl
-------------------------------- Name: David Bouhl
Title: First Vice President and Head of Corporate Banking -- Chicago
Lending Office for Base Rate Loans:
Caisse Nationale de Credit Agricole 55 East Monroe Street
Chicago, Illinois 60603-5702
Lending Office for Eurodollar Loans:
Caisse Nationale de Credit Agricole 55 East Monroe Street
Chicago, Illinois 60603-5702
Addresses for Notices:
Caisse Nationale de Credit Agricole 55 East Monroe Street
Chicago, Illinois 60603-5702
Telecopier No.: 312/372-3724 Telephone No.: 312/917-7560 Attention:
Stacey Mannion
[With copy to:] Brian D. Knezeak Telephone: 312/917-7546